LES EXIGENCES CONSTITUTIONNELLES EN MATIERE DE FAUTE PENALE: UN BILAN CRITIQUE

Abstract

The Supreme Court of Canada's early decisions on the constitutional requirement of fault seemed to announce a review of the foundations of criminal liability in Canada as well as a strenghtening of the fault element. Many observers, therefore, thought that the vast majority of offences would be interpreted as necessitating subjective mens rea. It is however clear that, except for exceptional offences, negligence meets the constitutional standard. More than this disappointing result, the analytical tools developed by the Court are questionable. Reduced to a mechanical verification of the possibility of imprisonment, the test of the severity of the penalty is now mainly used as a device to downplay the severity of the offence when compared to murder. The vague benchmark provided by the stigma associated with the offence, which is ultimately used as the basis of the constitutional analysis of fault, is in no way conclusive and offers no worthwhile theorethical tool. The recent decisions of the Supreme Court exhibit also an irrritating tendency to confuse the constitutional "essential minimum" and the traditional common law rules in respect of fault, thereby reducing these concepts to their lowest common denominator. In some decisions, for example, constitutionally sufficient negligence offences have been discovered in defiance of the elementary rules of Sault Ste-Marie. To the author, it seems dangerous to erode the heritage of the common law in relation to the fault element without a serious discussion of the principles and policies of the criminal law.