Intention

• < Criminal Law
• < Proof of Elements

General Principles

An unlawful cannot attract criminal liability without a sufficient level of awareness of the wrongfulness of the act. In legal terms the accused must have sufficient mens rea to be guilty of a crime. This manifests itself by either an intent on the part of the accused to choose to act in the unlawfulness or a knowledge of the circumstances under which they act to be held responsible for the offence.

However, it must be kept in mind that the latin maxim cogitationis poenam nemo patitur ("no one suffers punishment for mere intent") sets the principle that we not seek to punish people for their thoughts. So the awareness by itself cannot sustain a conviction without an action.

Level of Intent Not Defined

It is not uncommon that Parliament does not define the necessary mens rea for an offence. However, in all cases Parliament "d[oes] not intend to punish the unblameworthy". Where the text is silent the presumption is that courts must "read in the words most appropriate to require mens rea". For subjective intent this will generally mean "knowledge, recklessness, or wilful blindness".

Intention

"Intent" refers to the mental state of the individual consisting of the desire or purpose to achieve a particular consequence, or where the consequences the person sees as certain, "substantially", or "practically" certain.

There is a presumption that Parliament drafts an offence expecting to require a subjective fault element.

"Purpose"

The use of phrase such as "for the purpose of" found in the Code will sometimes refer to the "desire" or "ultimate objective or goal" of the prohibited act.

"Purpose"/"Intent" vs "Motive"

The "purpose" of an action is not necessarily the same as "motive". The "purpose" means the "object to be obtained, thing intended". The "motive" is the "what induces a person to act".

Intent and motive are conceptually distinct. In its efforts to secure peace and order, society has little interest in the accused's motive behind the intended act.

Specific and General Intent

A crime is only committed where the prohibited act or omission is committed while the accused is in possession of a requisite intent.

Criminal law recognizes a distinction between offences that require specific and general intent as an essential element of proof. The difference concerns whether the intent applies "to the acts considered in relation to their purposes" (specific intent) or applies "to acts considered apart from their purpose" (general intent). General intent requires only intent as it "relates solely to the performance of the act in question", while specific intent involves "the performance of the actus reus, coupled with an intent or purpose going beyond the mere performance of the questioned act."

General Intent

When considering general intent offences, the consideration is on the "intention as applied to acts considered apart from their purposes". It considers only the intent to the "commission of an act". Phrased differently, it is the intention that is "applied to acts done to achieve an immediate end". At this level, "intention" is distinguished from acts that are accidental or by honest mistake.

General intent actions include those that are purely physical acts produced by "momentary passion".

General intent, at it's lowest, only requires "a conscious doing of the prohibited act".

Specific Intent

Specific intent is sometimes referred to as "ulterior intent". "Ulterior intent" is described as the "state of mind contemplating consequences beyond those defined in the actus reus".

Specific intent actions are said to be a "product of preconception" and are "deliberate steps ... towards an illegal goal".

Proof of specific intent requires a "state of mind contemplating consequences beyond those defined in the actus reus". There is said to be a "focus on an objective further to the immediate one at hand".

Distinction Between General and Specific

In can be difficult to identify when an offence requires specific or general intent. Considerations can include the connection actus reus and mens rea; social policy; and severity of penalty.

Some judges have been critical, observing that there is some acceptance that the distinction may not always be "logically defensible" and may produce "illogical results".

Presumption of General Intent

Absent words to the contrary in the Code, the presumption is that the offence is one of general intent, whereby the accused must have intended the act or omission.

Most crimes where no mental element is mentioned in the definition of the offence will require proof of intent to or recklessness in bringing out the resulting offence.

When Specific Intent Applies

Offences with the wording of "wilfully" suggests that the mens rea is extended to a "specific intent".

It has been pointed out that the distinction between general and specific intent is "not particularly helpful in describing the actual mental elements required for a crime”. The can however convey "the complexity of thought and reasoning" and the "social policy underlying the offence.”

Language Suggesting Specific Intent

The presence of the word "wilfully" in an provision for an Criminal Code offence "generally signals a subjective mens rea requirement, but the appropriate meaning of the term ‘wilfully’ will depend on the context in which it is found." In context of a probation order, "wilful" denotes "a legislative concern for a relatively high level of mens rea" that requires a intent to breach and have a purpose in doing so.

Traditionally, words and phrases such as "with intent to", "for a fraudulent purpose", "corruptly", "wilfully" and "knowingly" are signs of a legislative intent to impose a specific intent standard.

Policy Considerations

Where specific intent could "unreasonably hamper" the enforcement of the process, public interest would lead to a general intent standard.

Inferences

Intent is often proven by way of inference, including by use of circumstantial evidence, character evidence (e.g. motive or animosity), post-offence conduct, statements made by the accused, or similar fact evidence.

Inferences are factual findings based on common sense.

There is the long-standing inference that a person intends the natural consequences of one’s actions applies to many situations. However, this principle is merely an inference and does not go as far as being a legal presumption.

The inference will be made in most any circumstances except where there may be evidence to the contrary. Doubt may be raised as to the specific intent of the person where they suffer from mental illness or where intoxicated.

Generally speaking, the inference requires the assumption that the accused has the capacity to form intent.

Where circumstantial evidence is used to prove intent, there are three classes of circumstantial evidence:

1. prospectant (acts or omissions prior to offence);
2. concomitant (acts or omissions at the time of offence); and/or
3. retrospectant (after the fact acts or omissions).

Intending the Consequences of an Act

It has long been established that "a person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intends that consequence." This is an inference, not a presumption. Its purpose is to determine intent in fact, and not to affix an intent based on reasonableness.

Thus, the purpose of the accused's action does not have to be to achieve the consequences in order to "intend" those consequences. The accused may very well not desire the consequences but still "intend" them where "he foresees that the consequence is certain or substantially certain to result from his conduct"

An "ulterior motive" does not need to be directly related to the consequences.

Transferred Intent

The common law doctrine of transferred intent will impose a necessary mens rea for a conviction for an act with unintended consequences. Where "harm follows that is of the legal kind as that intended" the accused will have been deemed to have intended the act.

Section 229(b) of the Criminal Code adopts transferred intent as a form of liability for murder.

Murder

229 Culpable homicide is murder...

(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or

...
R.S., 1985, c. C-46, s. 229; 2019, c. 25, s. 77.

– CCC

---

The doctrine of tranferred intent does not apply for attempted murder.

Recklessness

• see Recklessness

Intoxication

The inference of intending consequences of one's act must be considered after assessing "all of the evidence, including the evidence of intoxication".

Intoxication is only relevant insofar as it affects "the accused's capacity to form the requisite intent" to commit the offence.

Where evidence shows that the accused acted involuntary due to intoxication, negating intent on a general intent offence, proof of voluntary intoxication may in certain cases substitute for proof of voluntariness. This "Leary rule" of substitution is typically available to offences of any general intent offence. This was not considered applicable to assault based offence including sexual assault. As a result s. 33.1 was enacted removing the intoxication defence from certain offences.

Knowledge

• Knowledge and Wilful Blindness

Examples of Intent

Intent to Kill

In absence of any explanation, the only intent from firing a gun at a person is an intention to kill.

See Also

• Criminal Negligence
• Abandonment (Defence)
• Accident and Mistake