LA CONSTITUTIONNALISATION DE LA MENS REA ET L'ÉMERGENCE D'UNE NOUVELLE THÉORIE DE LA RESPONSABILITÉ PÉNALE
AbstractAfter a brief review of the case law the author- concludes that the notion of mens rea constitutionalised by the courts should be understood to mean that a finding of guilt requires a minimum standard of personal fault. This notion of mens rea has a normative aspect that should be distinguished from mens rea understood as a subjective state of mind that must accompany the commission of the material elements of an offence. The latter meaning of mens rea has not been given constitutional status and, moreover, has declined in Canadian law. This is explained by the emergence of a new concept of guilt in the jurisprudence of the Supreme Court, a concept based on harm caused rather than the moral turpitude of the offender. Finally the author suggests several lines of thought that should be explored in order to bring greater coherence to the theory of criminal responsibility that is beginning to take shape in Canadian law.
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