THE SUPREME COURT OF CANADA AND THE DOCTRINES OF MENS REA

Abstract

Paul Weiler examines the decision-making operations of the Supreme Court of Canada from 1949-1969 by analysing the reasons and votes in a sequence of related cases. The author offers a critical review of the doctrinal pattern that has emerged in Canadian criminal law surrounding mens rea. He concludes that the Supreme Court’s preoccupation with deciding the concrete, individual case results in a myopic failure to elaborate its substantive role. The Court’s lack of concern for policy is understandable, but not justifiable in our positivist legal tradition where its role in the formulation and clarification of legal rules is a basic requirement.