“Intent” is the exercise of free will to use a particular means to arrive at a particular result. Although in criminal law, we tend to speak of the prohibited act or actus reus as being a separate element of a crime and therefore separate from the fault element or criminal intention or mens rea for a crime, the two are actually inextricably connected. The criminal intention must be viewed in the context of the prohibited act as stated in the Latin maxim: Actus non facit reum, nisi mens sit rea, which means: “There is no guilty act, without a guilty mind.” Thus the actus reus must be some conduct, which puts the guilty mind in motion. Similarly, the mens rea is the legally blameworthy mental or cognitive relationship to the actus reus or prohibited act. One cannot be present without the other for a crime.
Motive, on the other hand, precedes and induces the exercise of free will - it may provide the reason we do what we do – but it is not criminal intent or mens rea. Therefore, it does not matter why someone acted in the way they did, what matters is that they intended to do it for whatever reason.
Let’s take Robin Hood. We may believe that taking from the rich to give to the poor is laudable. Even the judge, when hearing Robin’s robbery charge, may feel Robin’s reasons are compelling. But Robin still committed a criminal offence. He intended to steal with violence, which are the essential elements of the crime of robbery. Robin had the criminal intention at the time he committed the prohibited acts. Robin is guilty.
Now, let’s look at the Audrey Tobias case. Leaving aside any Charter arguments, which by the way were dismissed by the trial judge, Ontario Court of Justice Judge Khawly, and essentially dismissed by the Supreme Court of Canada, albeit not for the same Charter breach, in the refusal of the leave application for Sandra Finlay. Leaving aside the Charter, Judge Khawly dismissed the charge under the federal Statistics Act because the Crown could not prove beyond a reasonable doubt mens rea.
Really? Even Tobias’s counsel, Peter Rosenthal, was surprised to hear that. Audrey Tobias maintained vocally and publically that she refused to fill out the personal information on the census form to protest the use of processing software from a U.S. military contractor. To give the judgment the benefit of the doubt, it may be that through the passage of time Ms. Tobias constructed a reason for refusing and that at the time of the commission of the prohibited act (the refusal or failure to fill out the form) she did not have the required intent. On the other hand, let’s give Audrey Tobias the benefit of the doubt, as the event did not occur that long ago – 2.5 years – and she is an intelligent and sincere person. To paint Ms. Tobias as a frail mixed-up senior is not providing an accurate picture.
There is of course the other problem – the legal one – as the intention required to commit the offence under the Statistics Act is not commensurate with the intention required for a criminal offence. The Statistics Act is a regulatory statute; its primary purpose is to regulate the gathering, analysis, and distribution of statistical information on behalf of the federal government. It is not a criminal law statute. The offences and punishments contained therein are for the purpose of enforcement of the regulations.
As the then Chief Justice Dickson pointed out in R v. Sault Ste Marie, the seminal case on the intention required for regulatory offences, regulatory offences are presumed to require an objective standard of mens rea, called strict liability, which is a form of negligence. Subjective mens rea, the presumed criminal law standard of liability, may be used for a regulatory offence but only if there are clear words used in the section to signify this.
Section 31 of the Statistics Act reads as follows:
Every person who, without lawful excuse,
(a) refuses or neglects to answer, or wilfully answers falsely, any question requisite for obtaining any information sought in respect of the objects of this Act or pertinent thereto that has been asked of him by any person employed or deemed to be employed under this Act, or
(b) refuses or neglects to furnish any information or to fill in to the best of his knowledge and belief any schedule or form that the person has been required to fill in, and to return the same when and as required of him pursuant to this Act, or knowingly gives false or misleading information or practises any other deception thereunder
is, for every refusal or neglect, or false answer or deception, guilty of an offence and liable on summary conviction to a fine not exceeding five hundred dollars or to imprisonment for a term not exceeding three months or to both.
Tobias was charged with refusing or neglecting to answer – she was not charged with wilfully answering falsely or knowingly giving false information. Audrey Tobias did not answer at all. “Wilfully” and “knowingly” traditionally are words, which suggests a subjective mens rea standard. However, a neglect or refusal to answer, which is similar in wording to Criminal Code offences involving a failure in a duty such as under s.215 (failure to provide necessities), suggests an objective standard.
In regulatory speak an objective standard of liability is akin to strict liability or negligence. If an offence requires strict liability, there is no necessity for the prosecution to prove the mens rea as the doing of the prohibited act gives rise to an inference that the required mental element is present. It is then open to the defence to show they acted with all due diligence and with all reasonable care. Clearly, on the strict liability standard Audrey Tobias is guilty of the offence.
What does this mean for Audrey Tobias? Although Judge Khawly was well meaning in acquitting her, believing her motives, her character, and her age required it, he erred in law by doing so. Certainly, it is open to the Crown to appeal and most likely the appeal would be successful. However, the Crown should take Judge Khawly’s decision to heart as this case may be one in which the exercise of discretion is warranted.