ELEMENTS OF A CRIMEELEMENTS OF A CRIME

CLN4U – Mr. AndrezCLN4U – Mr. Andrez

SCENARIOSCENARIO

•You are driving along and you are You are driving along and you are stopped by a police officer who stopped by a police officer who notices that you were texting at the notices that you were texting at the last red light. The police officer last red light. The police officer informs you that you have broken informs you that you have broken the new law banning cell phones in the new law banning cell phones in Ontario. Are you entitled to use the Ontario. Are you entitled to use the fact that you did not know the law fact that you did not know the law as a defense?as a defense?

THE ANSWER - NO!THE ANSWER - NO!

• S. 19 of the Criminal Code states that ignorance of the S. 19 of the Criminal Code states that ignorance of the law is no excuse for the commission of a crimelaw is no excuse for the commission of a crime

• Is this a reasonable assumption?Is this a reasonable assumption?

ACTUS REUSACTUS REUS• Refers to “guilty act”Refers to “guilty act”

• The physical act involved in commission of offenseThe physical act involved in commission of offense

• The actus reus of a criminal offense is found in its The actus reus of a criminal offense is found in its criminal code definitioncriminal code definition

• Eg. s. 265 of the Criminal Code defines assault:Eg. s. 265 of the Criminal Code defines assault:(1)(1) A person commits assault whenA person commits assault when

(a)(a) Without the consent of another person, he applies force intentionally to that person, Without the consent of another person, he applies force intentionally to that person, either directly or indirectlyeither directly or indirectly

• For actus reus, a person must actually hit another For actus reus, a person must actually hit another person person

ACTUS REUSACTUS REUS

• To prove actus reus, the Crown would have to To prove actus reus, the Crown would have to demonstrate thatdemonstrate that

1.1. there was no consentthere was no consent

2.2. force was appliedforce was applied

EXCEPTION: AUTOMATISM AND ACTUS REUSEXCEPTION: AUTOMATISM AND ACTUS REUS

• Actus Reus of a criminal act must be voluntaryActus Reus of a criminal act must be voluntary• If someone shoots someone while sleep walking, he If someone shoots someone while sleep walking, he

may not be criminally liablemay not be criminally liable• E.g. Kenneth Parks case 1992- The Supreme Court E.g. Kenneth Parks case 1992- The Supreme Court

upheld the acquittal of Parks whose defense was that upheld the acquittal of Parks whose defense was that he was sleepwalking when he stabbed his mother in he was sleepwalking when he stabbed his mother in law to deathlaw to death

• His defense was that he acted involuntarily His defense was that he acted involuntarily (automatism)(automatism)

MENS REAMENS REA

• Refers to having a “guilty mind.”Refers to having a “guilty mind.”• Phrase infers moral guilt and the accused knowing they Phrase infers moral guilt and the accused knowing they

did something wrongdid something wrong• To meet the legal definition of a crime, the Crown must To meet the legal definition of a crime, the Crown must

prove an act was done with criminal intent OR knowledge prove an act was done with criminal intent OR knowledge that what he/she did was against the lawthat what he/she did was against the law

1). INTENT1). INTENT

• Intent, in the legal sense, means to carry out an act with Intent, in the legal sense, means to carry out an act with intent, with knowledge, or by being reckless or wilfully intent, with knowledge, or by being reckless or wilfully blind to the consequences of an act.blind to the consequences of an act.

• E.g. If John threw a knife up in the air, which E.g. If John threw a knife up in the air, which accidently killed Luke, would Johnny likely be guilty of accidently killed Luke, would Johnny likely be guilty of manslaugher?manslaugher?

• Yes, because you cannot be “wilfully blind” to the Yes, because you cannot be “wilfully blind” to the consequences of your actionsconsequences of your actions

GENERAL INTENT VERSUS SPECIFIC INTENTGENERAL INTENT VERSUS SPECIFIC INTENT

• General intentGeneral intent• Means to commit a wrongful act for its own Means to commit a wrongful act for its own

sake, with no other purpose or motivesake, with no other purpose or motive• Dave punches Luke because he is angry. Dave has Dave punches Luke because he is angry. Dave has

general intent to commit assault.general intent to commit assault.• For mens rea to be proven, all that needs to be done is to For mens rea to be proven, all that needs to be done is to

show that Dave punched Lukeshow that Dave punched Luke

GENERAL INTENT VERSUS SPECIFIC INTENTGENERAL INTENT VERSUS SPECIFIC INTENT

• Specific intentSpecific intent• Involves intent in addition to the general intent to Involves intent in addition to the general intent to

commit the crimecommit the crime• It is committing one wrongful act to accomplish anotherIt is committing one wrongful act to accomplish another

• E.g Burglary is the breaking and entering of a dwelling-house E.g Burglary is the breaking and entering of a dwelling-house with intent to commit an indictable offense. The break and enter with intent to commit an indictable offense. The break and enter requires general intent, the intent to commit an indictable offense requires general intent, the intent to commit an indictable offense requires specific intentrequires specific intent

• In order to prove burglary, the Crown not only has to show that a In order to prove burglary, the Crown not only has to show that a person broke into a house, but also had the specific intent of person broke into a house, but also had the specific intent of stealing.stealing.

INTENT VS MOTIVEINTENT VS MOTIVE

• While intent refers to the state of mind with which an act is done While intent refers to the state of mind with which an act is done or not doneor not done

• Motive is what prompts a person to commit an act or not actMotive is what prompts a person to commit an act or not act

• If a person kills her mother to receive an inheritance, the If a person kills her mother to receive an inheritance, the inheritance is motive. This does not establish state of mind to inheritance is motive. This does not establish state of mind to commit murdercommit murder

• Crown must prove intent by showing killing was planned and Crown must prove intent by showing killing was planned and deliberatedeliberate

2). KNOWLEDGE2). KNOWLEDGE

• In order to have the requisite mens rea to commit a crime, a In order to have the requisite mens rea to commit a crime, a person must have some knowledge of the actus reus of the person must have some knowledge of the actus reus of the crimecrime• Eg. S 268 1 (a) of the Criminal Code states that “Everyone who, Eg. S 268 1 (a) of the Criminal Code states that “Everyone who,

knowing that a document is forged, uses, deals, or acts upon it” is knowing that a document is forged, uses, deals, or acts upon it” is guilty of circulating a forged documentguilty of circulating a forged document

• To establish guilt, the Crown only has to prove that the To establish guilt, the Crown only has to prove that the person knew the document was forged.... Nothing about person knew the document was forged.... Nothing about intent.intent.

3). RECKLESSNESS & NEGLIGENCE3). RECKLESSNESS & NEGLIGENCE• Crown can also establish mens rea by proving accused acted reckless or Crown can also establish mens rea by proving accused acted reckless or

negligent.negligent.

• RecklessnessRecklessness• Usually involves taking an unjustifiable risk that a reasonable person Usually involves taking an unjustifiable risk that a reasonable person

would not takewould not take

• Eg. recklessly shooting a pellet gun into a crowd. The accused may not Eg. recklessly shooting a pellet gun into a crowd. The accused may not have tried to hurt someone, but they should have been able to foresee have tried to hurt someone, but they should have been able to foresee harmharm

• Negligence • doing something or omitting to do something with “wanton

disregard for the lives or safety of other persons”Example: throwing a beer bottle out of a moving vehicle and injuring

someone

4). WILLFUL BLINDNESS

• Suspects a criminal outcome Suspects a criminal outcome but does not ask the but does not ask the questions to confirmquestions to confirm

turning a blind eye to the turning a blind eye to the consequences of your actionconsequences of your action Example:Example: buying stolen property buying stolen property

that you should know has been that you should know has been stolenstolen

• Eg. transporting something illegal Eg. transporting something illegal such as drugs in a trunksuch as drugs in a trunk

TYPES OF CRIMINAL OFFENCES

CRIMINAL CODE

• Contains 28 parts and includes a range of offenses

• Canada is different from the United States• US- felonies and misdemeanour offenses

• Canada- Indictable, summary and hybrid offenses

SUMMARY OFFENCE

• Minor offences for which an accused can be arrested or summoned to court without delay. Maximum penalty is $2000 and/or 6 months imprisonment.

• Summary offences are tried in Provincial Court without a jury (i.e. judge alone)

• E.g. Public Nudity, Cruelty to animals, trespassing at night

INDICTABLE OFFENCES• Serious crimes that incur

more severe penalties.

• Penalties for indictable offences are set out for each offence in the Criminal code of Canada.

• Maximum penalty is life, with no possibility for parole for 25 years.

• E.g. Perjury, arson, murder

INDICTABLE OFFENCES• The accused is permitted to

choose the trial procedure for some types of indictable offences although for some indictable offences, the Criminal Code states the required trial procedure, but usually the choice is up to the accused.

There are three types of trial procedures:

1. trial by a provincial court judge,

2. trial by superior court judge without a jury, and

3. trial by superior court judge with a jury.

The most serious of indictable offences, such as murder or treason, are tried before a judge and jury.

HYBRID OFFENCES• Known also as dual procedure offences

• Offences where the Crown has the right to choose whether to prosecute the offence as a summary or indictable offence depending on the severity and circumstances of the offence

• E.g. assault, theft under $5000, criminal harassment

QUASI-CRIMINAL OFFENCES • Technically, laws passed by the provinces, territories, or

municipalities are not considered part of criminal law. • they resemble criminal law but do not deal with actual

crimes. • i.e. traffic offences that fall under the Highway Traffic Act of

each province and bylaws passed by municipalities. • Breaking these laws usually results in a fine. • a court appearance is not usually necessary, unless you

enter a plea of not guilty.

STRICT VS. ABSOLUTE LIABILITY OFFENCES

STRICT LIABILITYSTRICT LIABILITY

• For some crimes or offences (less serious), the Crown only For some crimes or offences (less serious), the Crown only needs prove the actus reus of the offense (just the guilty act)needs prove the actus reus of the offense (just the guilty act)• Strict liability offenses, the accused will be convicted Strict liability offenses, the accused will be convicted unlessunless

it is demonstrated that they acted with due diligence (acted it is demonstrated that they acted with due diligence (acted as any reasonable person would under the circumstances)as any reasonable person would under the circumstances)

• The word knowingly is not in the crime definitionThe word knowingly is not in the crime definition

• Only defense would be due diligence– that they took Only defense would be due diligence– that they took precautions to avoid dumping pollutantsprecautions to avoid dumping pollutants

• Monitoring devices were faultyMonitoring devices were faulty

• Special training for staff working on keeping river clean Special training for staff working on keeping river clean

ABSOLUTE LIABILITYABSOLUTE LIABILITY

• These These offensesoffenses allow for no defense, fault is not an allow for no defense, fault is not an issue, and the accused will be convicted based on the issue, and the accused will be convicted based on the actus reus of the offenseactus reus of the offense

• i.e. driving with a suspended license, speedingi.e. driving with a suspended license, speeding

CRIME: COMPANY X DISCHARGES POLLUTANTS INTO A RIVER

Mens Rea Offence

Absolute Liability Offence

Strict Liability Offence

Crown must prove Actus Reus and Mens ReaDid Company X discharge pollutants intentionally and recklessly

Company X will be found guilty if the Crown establishes the Actus Reus of discharging pollutants

Crown must prove Actus ReusCompany X can avoid liability if it can demonstrate that it made reasonable efforts to avoid discharging pollutants

Understanding Understanding Incomplete CrimesIncomplete Crimes

Incomplete CrimesIncomplete CrimesIncomplete crimes are generally considered to be crimes Incomplete crimes are generally considered to be crimes where the actus reus element has not been completed.where the actus reus element has not been completed.

Incomplete crimes generally include:Incomplete crimes generally include:

• conspiracyconspiracy• aidingaiding• abettingabetting• accessory After the factaccessory After the fact• Party to common Intention Party to common Intention • CounsellingCounselling

Note: Attempted crimes are NOT considered incomplete crimes! The mere fact that an attempt fails does not mean the crime lacks actus reus.

24.24. (1) Every one who, having an intent to commit an offence, (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to whether or not it was possible under the circumstances to commit the offence.commit the offence.

Sidebar Sidebar Criminal Attempts Criminal Attempts

24. (2) The question whether an act or omission by a person 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 who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of constitute an attempt to commit the offence, is a question of lawlaw..

Question: How far does one have to go to be charged with an “attempted” offence?

Preparation is not enough to constitute an attempt.

Conspiracy:Conspiracy: An agreement between two or more persons An agreement between two or more persons to commit a criminal act. Those forming the conspiracy to commit a criminal act. Those forming the conspiracy are called conspirators. are called conspirators.

Conspiracy

Party to Common Intention

Shared responsibility among criminals for any additional offences that are committed in the course of the crime they originally intended to commit.

Abet:Abet: The act of encouraging or inciting another to do a The act of encouraging or inciting another to do a certain thing, such as a crime. The act itself may not be certain thing, such as a crime. The act itself may not be criminal (criminal (ie. shouting at someoneie. shouting at someone), but the mental intent (), but the mental intent (ie. ie. encouraging someone to commit a crimeencouraging someone to commit a crime) is criminal. ) is criminal.

Aid:Aid: Help commit a crime. To assist by way of an action Help commit a crime. To assist by way of an action that, in of itself, is not a crime. (ie. Looking out for police.) that, in of itself, is not a crime. (ie. Looking out for police.) Standing on a corner looking at cars coming down the road Standing on a corner looking at cars coming down the road is not a criminal act, but the mental intent in this is not a criminal act, but the mental intent in this circumstance constitutes a criminal offence.circumstance constitutes a criminal offence.

Aid / Abet

Accessory After the fact:Accessory After the fact:

23.23. (1) An accessory after the fact to an offence is one who, knowing (1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.assists that person for the purpose of enabling that person to escape.

(2) [Repealed, 2000, c. 12, s. 92](2) [Repealed, 2000, c. 12, s. 92]

This used to state: This used to state:

No married person whose spouse has been a party to an offence is an No married person whose spouse has been a party to an offence is an accessory after the fact to that offence by receiving, comforting or accessory after the fact to that offence by receiving, comforting or assisting the spouse for the purpose of enabling that person to escape. assisting the spouse for the purpose of enabling that person to escape.

COUNSELLING

• A crime that involves advising, recommending or persuading another person to commit a criminal offence.