The two appellants were trying to get the attention of French Canadians living in their area to take charge in a political debate regarding a French language school in their area, and to encourage them to fight for it. They circulated a pamphlet that was supposedly written by anti-French bigots to stir people to action, although they had written it themselves. They were charged under the now s.319(2) with inciting hatred against an identifiable group and convicted at trial.
- What inferences can be drawn from the appellants' behavior?
- Were the fault elements of the offence present in this case – did the defendants intend to promote hatred of the French Canadians?
Appeal allowed, new trial ordered.
Martin, writing for the court, discusses how you deal with the concept of the reasonable person in criminal law. In general, you do not want to impose the thoughts of a reasonable person on a defendant, as you need to prove that they were subjectively intending to commit the crime. Instead, you want to find an objective process whereby you can determine someone's subjective state of mind. In criminal law you want to determine what the defendant was thinking. In charges such as manslaughter the standard of a reasonable man is acceptable, because you can essentially be convicted for being negligent. However, in most crimes you must determine what the accused was thinking at the time of the offence. You can infer the mind state from actions, but this inference can be rebutted from evidence given by the defence.
In this case it is clear that while the defendants might reasonably have been able to see the consequences of their acts (i.e., making French people feel discriminated against), it is clear that this was not their intent. They clearly had the intention of rallying support for the school in mind at the time of the offence, and therefore they cannot have had the necessary mens rea to be convicted for this offence.
He also states that although a defendant's evidence of their state of mind at the time of the offence is accepted, it is not always conclusive as sometimes you simply cannot believe it, or there is stronger evidence to the contrary.
Proceeding to the element analysis, Martin determines that all of the external elements of the offence were present in this case. They actually did something – distributing flyers – to promote the hatred. Their communication went outside of a private group – the general public, and it was determined that the flyers objectively promoted hatred.
Next, he looks at the fault elements. The section of the Code says that one must "willfully" promote hatred in order to be convicted. Does this mean willfully communicating the statements? No, it means willfully promoting the hatred. What does "willfully" mean? To answer this he looks at many sources, and determines that it generally means intending to cause an outcome, or recklessly causing the outcome. Recklessly denotes a state of mind where the party foresees that his actions may cause the prohibited result, but proceeds anyway. However, the defence argues that the term "recklessly" is included in some sections of the Code, but not this one, so it cannot be used. Thus, all that can apply is proving that the defendants intended to cause the outcome.
He then attempts to define "intention". Some say that it must include direct intention, or "desire", while others say that only indirect intention, or foreseeing that the outcome is certain, but not necessarily desiring the outcome. The court accepts that both are legitimate definitions of intention. The difference between indirect intention and recklessness is that you must be certain that the outcome will result in indirect intention, but in recklessness you only need to realize that the result may occur.
On balance, Martin finds that the trial judge misunderstood "willfully" and focused on the intentional nature of the defendant's conduct in distributing the pamphlets, but not in desiring the outcome. In the result, a new trial is ordered.
- Courts will endeavour to infer the state of mind of an accused using objective methods.
- An accused's evidence of their state of mind at the time of the offence is accepted, but it is not always conclusive as sometimes it is not believable, or there is stronger evidence to the contrary.
- Mens rea is required to prove all criminal offences unless the section expressly states that it is not required.
- In general, mens rea is satisfied as long as the outcome was intended or achieved through recklessness, however, including the term "willfully" implies that recklessness will not suffice to prove the necessary mens rea, unless recklessness is also mentioned in the provision.