Duhaime's Law Dictionary


Malum in se Definition:

Latin: something wrong in itself.

Related Terms: Malum prohibitum

Also mal en se; plural is malum in se.

Acts that are inherently wrong (or even "evil"), in and of themselves; intrinsiocally wrong.

Traditional examples of crimes malum in se are murder, theft, rape and, as suggested by the Supreme Court of Canada in R. v. Finta, war crimes.

Consider these words of Justice MacFarland of the Ontario Court of Appeal in R. v. Rattray:

"An assault, such as (a) grievous one ... is an act malum in se. The mere possession of a firearm is an act which may be perfectly legal or subject to varying degrees of regulation. It is not wrong by its very nature (and is malum prohibitum)."

In R. v. Adkins, Justice Hutcheon of the British Columbia Court of Appeal wisely reflected:

"In the early days, the courts distinguished for this purpose between an act that was malum in se and one that was malum prohibitum. Not much has been heard of this qualification in later English law, because it is generally agreed that the distinction between mala in se and mala prohibita is of doubtful philosophic validity.....Sometimes the cases say that the act must be malum in se and not merely malum prohibitum. This test no longer seems useful, as not all persons agree on what acts are intrinsically wrong."

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