Module 4 : Criminal Law

Question 1

Elements of offences…

Answer 1

• every crime can be broken down into its constituent parts (the elements of the offence)
• elements can be grouped into 2 categories…
• 1) actus reus = a wrongful deel (action you cannot do)
• 2) mens rea = a blameworthy mental state (state of mind while u do the thing ur not supposed to do)
• these are both required to establish criminal liability

Question 2

actus reus

Up to 3 parts…

Answer 2

1. voluntariness
2. conduct (or ‘commission’)
3. causation (not always required)

Question 3

Actus Reus

1) Voluntariness

Answer 3

• refers to fact that criminal liability is only attached to physically voluntary acts
• an act that results when a personal consciously controls their movement
• not the result of involuntary acts, e.g. epileptic seizures, swarms of bees, etc.

Question 4

Actus Reus

2) conduct (or ‘commission’)

Answer 4

• to be guity of a specific crime, you must commit the act(s) stipulated in the statutory provision creating the offence (thousands of them)
• sometimes the acts are spelled out with precision… sometimes they are a little less precise… and sometimes, precision is almsot entirely absent

Question 5

Actus Reus

3) causation (not always required)

Answer 5

• to be guilty of some crimes you must not just commit the act but also cause specified consequences (e.g. assault CAUSING bodily crime)
• two questions to ‘when does someone acc cause a consequence?’…
• 1) factual causation = but-for test: has the Crown proved that the consequence would not have followed but for the act of the accused
• 2) legal causation = asks whether the accused’s act was a significant contributing cause (outside the deminimis range)… not a scientific question but process of fixing moral blame (sometimes answered by stature)… you take your victim as you find him

Question 6

Mens Rea

Mens rea

Answer 6

• culpable state of mind… state of mind is morally blameworthy when connected with a particular act/serious of acts (actus reus)
• mens rea does not encompass a single concept but rather one or more of… Intent, Knowledge, recklessnes, wilful blindness, criminal negligence
• Underlying all these types of mens rea is the idea that there should be no criminal responsibility without personal fault
• function of mens rea “is to prevent the conviction of the morally innocent”
• Intent, knowledge, recklessness & wilful blindness are subjective (way more common)
• criminal neglidance is objective (what should have been in the offenders mind)
• Each offence includes its own particular fault requirements (often parliament does not specify the type of fault required so its read in)

Question 7

Mens Rea

Intent

Answer 7

• some crimes require that the prohbited act must be commited intentionally/wilfully
• acts deliberatly and not accidentally
• intent is different than motive… motive is why a person acted & criminal law does not require proof of motive but motive can assist in proving intent

Question 8

Mens Rea

Knowledge

Answer 8

• sometimes the fault element is based on what the accused knew rather than what she intended
• e.g. possession offences
• knowledge = awareness

Question 9

Mens Rea

Recklessness

Answer 9

• Recklessness “is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk”
• requires subjective advertence to the prohibited risk
• proof that the accused acc thought of and was aware of the prohibited risk & proceeded anyways
• different than negligence which only requires a reasonable person would have recognized the risk

Question 10

Mens Rea

Willful blindness

Answer 10

• not rly found in provisions but read in by the courts
• the culpability in willful blindness is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquity
• idea that a situation presents itself, it raises your suspicions that something is true but you decide not to inquire, not to find our if indeed something is true because you’d rather not know, remain ignorance
• not based on what a person should have known (unreasonable ingnorance)

Question 11

Mens Rea

Criminal negligance

Answer 11

• liable not cuz of what accused intended, knew, or foresaw but becasue of what she should have known or forseen
• acting super duper negligent
• not concerned with what was actually in the accused’s mind, but with what should have been there, had the accused proceeded reasonably
• Objective mens rea requires more than simple negligence
• Assessed without considering the accused’s personal characteristics, unless he was incapable of appreciating the risk involved

Question 12

Attempts

under section 24 of the criminal code, you can be guilty of a crime if…

Answer 12

• you intend to commit a crime but d not complete it
• as long as you proceed for enough to constitute an attempt to commit it

Question 13

Attempts

The law distinguishes between an attempt and mere preparation

Answer 13

• 24(2) = The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law
• law has provided a series of clues to help the courts make a judgement on this
• you gotta get relatively close do commiting the crime

Question 14

Accessories

a person can be criminally liable if they…

Answer 14

• Actually commits the proscribed act (actus reus)… this person is generally labeled the principal
• does something that somehow enables another person to commit the proscribed act… aider
• does something that encourages another person to commit the proscribed act… abettor

Question 15

Accessories

Aiding… A person aids the commission of an offence if they…

Answer 15

• render some assistance to principle
• has to be before/durng commision of the crime
• for the purpose of assisting the principle (mens rea), and
• knowing of, or being wilfully blind to, the principle’s intention (don’t need to know all the details)

Question 16

Accessories

Abetting… a person abets an offence if they…

Answer 16

• encourages the principal
• before or during the commission of the crime
• for the purpose of encouraging the principle (mens rea), and
• knowing of, or being willfully blind to, the principles intention (in general)

Question 17

Accessories

Omissions

Answer 17

• simply being present when a crime is being committed & dont nothing to stop it des not render you liable as a party to the crime
• but when a person is not simply present when a crime is being committed, his inaction may lead to the inference that he intentionally aided/abetted

Question 18

Accesories

Common intention

Answer 18

• In the absence of aiding or abetting, a person can be guilty of crime B committed by another person during the joint commission of crime A
• (2 people rob a bank and one kills someone you are both liable)
• The accused must have formed a common intention with another to carry our an unlawful purpose
• The crime must have been a probable consequence of carrying out the unlawful purpose (killing probable consequence of robbery)

Question 19

Accessories

Counselling

Answer 19

• a person can be guilty of the crime of counseling if she encourages another person to commit an offence that the other person does not commit
• as long as she… intentionally did the acts that constitute counselling (mens rea) & did those acts either wit the specific intent that the offence be committed or knowledge of the risk that it was likely to be committed as a result of the council

Question 20

Mistake

Mistake

Answer 20

• liability of an offence may be avoided if the accused makes a relevent mistake, but (usually) only if the mistake is of a fact, not of law

Question 21

Mistake

Mistake of fact…

Answer 21

• the assertion by the accused that he mistakenly believed in a set of facts that, if true, would have rendered his actions legal
• Such a mistake would negate mens rea
• Generally, the mistake need only be honest, not reasonable (controversial for sexual assault cases)

Question 22

Mistake

Mistake of law…

Answer 22

• Ignorance of the law by a person who commits an offence is not an excuse for committing that offence
• It is not a defence for an accused to plead that she did not know that her act was illegal
• canbe a harsh rule

Question 23

Drunkeness

nature of the defence…

Answer 23

• intoxication itself is not a defence to crime
• intoxication is only a defence to the extent that contributes to lack of mens rea
• Meaning that, because of intoxication, the accused did not, for example, foresee a certain consequence or appreciate a relevant circumstance

Question 24

Drunkenness

Controversial and limited

Answer 24

• a controversial defense, as it seems to excuse someone for engaging in blameworthy behavior
• so it is really limited… it usually only applies to specific intent crimes (e.g. murder & robbery) and not general intent times (assault & sexual assault)

Question 25

# Drunkenness Specific vs general intent

Answer 25

- distinction rests on idea that specific intent crimes require a more sophisticated thought process - also rests on policy considerations... enables court to keep defence within tolerable limits cuz more specific intent crimes contain within them a lesser included offence that is a crim eo fgenerla intent

Question 26

# Defences Defences

Answer 26

- Mistake and drunkenness are defences only in the sense that they negate mens rea - Other defences apply even when mens rea exists - Those defences include... necessity, duress, provocation 7 self-defence

Question 27

# Defences Necessity...

Answer 27

- the plea by the accused that the criminal act was necessary in order to avoid a serious harm (to the accused or someone else) - rests on a realistic assesment of human weakness, recognizing we cannot hold people to strict obedience of laws in emergency situations where normal human instincts overwhelmingly impel disobedience - excuses but does not justify crime - defence will only success where... there is situation that is urgent, there is no reasonable legal alternative & there is proportionality between the harm inflicted & the harm avoided

Question 28

# Defences Duress

Answer 28

- particular application of the doctrine of necessity - person is intentionally threatened with harm UNLESS she commits a criminal offence - for the offence to sucees... must be threat of present/future death/bodily harm, must reasonably believe threat will be carried out, no safe escape, threat of harm must be in the relatively near future, must be proportionality between the harm threatened and the harm inflicted & accused cannot be a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association

Question 29

# Defences Provocation

Answer 29

- partial defence & only to the charge of murder (provoked) - reduces liability for murder to liability for manslaughter - it is justified as a concession to human infirmity - controvercial cuz has been seen to legitimize violence by men against women saying its provoked - to succeed there must have been... criminal conduct of offence punishable by 5+ years, would have deprived ordinary person of the power of self-control & in fact deprived the accused of his power of self-control & caused him to kill suddenly & before there was time for his passion to cool

Question 30

# Defences self defence

Answer 30

- justification based defence - rests on notion that we all have the right to protect ourselves from unlawful force applied by others - as long as we act (somewhat) responsibly - a person is not guilty of an offence if... they beliebe that force/threat is being used against them, the act constitutes the offence is committed for the purpose of defending/protecting themselves & the act committed is reasonable in the circumstances - self-defence is not only available to those who really needed to act in self-defence but also to those who, as a matter of objective fact, really did not need to defend themselves but who reasonably thought they needed to