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NCA Criminal Law Rules Only August 2012

NCA Criminal Law Rules Only August 2012

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07/31/2013

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CRIMINAL RULES
Oakes
when law breaches Charter – p. 2 of Crim outline, p. 2 of short Con outlinesI.Actus Reus & Mens Rea Overview:
a.
Actus Reus: The act that must be performed, or omission that is proscribed, the circumstances or conditions inwhich the act must occur, and any consequence that must be caused by the act.
 b.
Mens Rea: The mental elements normally describe the actual or “subjective” state of mind of the accused -such as intent, or planning and premeditation, or recklessness, or knowledge, or willful blindness.II.ACTUS REUS & Offenses
a.
Manual Possession Offense
i.
RULE:
Personal possession = accused person exercises (1)
physical control
over a prohibitedobjectii.With full
knowledge of its character
, andiii.Where there is some evidence to show the accused person took custody of the object willinglywith
intent
(
mental element)
to deal with it in some prohibited manner. b.
Joint Possession/Constructive Joint Possession Offense
i.
RULE: Joint Possession s.
4(3)(b) must be:1. Knowledge of prohibited item (proved by direct/circumstantial evidence)2.Consent, and3.Measure of control on the part of the person deemed to be in possession.
c.Consent – Principle: Absence of consent by victim is important AR condition that must be present for offenseto occur:
i.
Assault Fist Fight:
Absence of consent is not an element of the AR in cases where adultsintentionally apply force causing serious hurt or non-trivial bodily harm to each other. Consentis vitiated (legal validity is destroyed) in fist fight situations.ii.
Sexual Assault: C
omplainant to provide actual active consent throughout every phase of thesexual activity. Whether the complainant was subjectively consenting in her 
mind 
.iii.
Fraud nullifying Consent: All that is required is a fraud and a casual connection between that fraud andthe submission or failure to resistd.Causation – Consequence that must occur before offense is complete:
i.
Criminal Negligence Causing Death Offense: 2 part test – Factual + Legal Causation:
1.
Factual Causation: Was the conduct of the accused a significant contributing cause of the prohibited consequence? BUT FOR 
2.
Legal Causation: Determining who among those who have factually contributed to an eventshould be held legally responsible for that event.ii.Homicide Offense:
1.
Whether ∆’s actions are a
significant cause
of the ∏’s death. The ∆ must be the cause of death
beyond de minimus
iii.
1
st
Degree Murder Offense:
1.
Whether ∆’s actions are a
substantial cause
of death – which is higher degree of legalcausation.
iv.
Intervening Causes: An intervening, independent act by 3
rd
party that is a
more direct
cause of avictim's death than the prior act of ∆ may sever the legal causal connection between that victim's deathand the prior act of ∆.
v.
Contributory Negligence/Improper Medical Treatment: Don’t negate causation/crim responsibility.e.Ommissions – Offense committed by failing to act. Test:i.Offence must contemplate guilt for omissions,
ii.
∆ must be placed under a legal duty to act either by the provision charging him or by someincorporated provision, and
1.
If no pre-existing relationship, to find a legal duty to act, an Undertaking must be established:
1
 
a.Clearly made b.With binding intent/commitmentiii.Omission in question must be a failure to fulfill that legal duty.III.SUBJECTIVE MENS REAa.Intenti.Assault Offense:
1.Intention to apply force, directly or indirectly,2.To another person.ii.
“Willfully” & Obstructing Justice:
1.
Willfully” - Act is done for the purpose of obstructing the course of justice.a.Purposely bringing about the consequence b.w/ Knowledge that consequence will resultiii.
Homicide Offense (incl Murder)1.∆ knows act done for a unlawful object;2.Did anything;
3.
That he knew was likely to cause the death of a human being – subjective foresight of death;4.Caused the death of a human being - substantially contributed.
IV.
SUBJECTIVE MENS REA W/ OBJECTIVE FEATURESa.Recklessness – Principle:
i.
∆ acts in spite of actually & personally foreseeing the risk that if they do act,ii.Prohibited consequence will be brought about.
 b.
Willful Blindness – Principle: Subjective - ∆ personally sees the risk of a fact, but then willfully avoidsconfirmation so as to be able to deny knowledge. Suspicious
was
aroused – not should have been aroused.i.Receiving Stolen Property Offense:
1.
knew
that the property was stolen
2.
Use willful blindness only where it can almost be said that the ∆ actually knew
3.
Willful blindness will suffice because it is the equivalent of actual knowledge.c.Purpose – Principle:
i.
Intent and Knowledge
.
1.
INTENT: ∆ intended to do prohibited act.
2.
KNOWLEDGE: Aider must know that the principal intends to commit the crime. Can usewillful blindness to impute knowledge.d.Fraud Offense:ii.RULE AR:1.Proof of a prohibited act (deceit, falsehood) and,
2.
Proof of deprivation caused by the prohibited act (actual loss or victim's pecuniary interests atrisk)iii.RULE MR:1.Intentionally committed the prohibited acts (deceit, falsehood, or other dishonest act)
2.
Knowing or desiring the consequences proscribed by the offence (deprivation)
3.
Guilty whether he actually intended the deprivation or was reckless as to whether it wouldoccur.e.Sexual Assault Offense:
iv.
Intention to touch, and
v.
Knowing of, or being reckless of or wilfully blind to , a lack of consent, andvi.Sexual nature of the contact
1.
Whether the assault is “sexual” is an objective one, viewed in light of all circumstances issexual assault visible to reasonable person.
2
 
2.
The intent or purpose of the person may also be a factor in considering whether the conduct issexual.
3.
If the motive of is sexual gratification, will be factor in determining whether the conduct issexual.
V.
OBJECTIVE MENS REA & True Crimes – standard usually “penal negligence”a.Manslaughter Offense
i.
Conduct causing the death of another person;ii.Foreseeability of harm, andiii.Fault short of intention to kill.
1.
Fault may consist either: in committing another unlawful act which causes the death, or incriminal negligence. b.Unlawful Act Manslaughter Offense:
i.
Unlawful act must be objectively dangerous
 
(likely to subject person to danger of harm/injury);
ii.
Intent to commit this underlying act
iii.
Objective foreseeability of the risk of bodily harm that is non-trivial
1.
∆ must possess capacity to appreciate the risk flowing from his conduct.
c.
Criminal Negligence Manslaughter Offense:
1.
Unlawful act that exhibits a marked departure from the standards of a reasonable person in allof the circumstances, AND
2.
Objective foreseeability of the risk of non-trivial bodily harm
a.
Capacity to appreciate the risk flowing from his conduct.d.Dangerous Operation of Car Causing Death Offence
i.
∆ driving dangerously, in light of all the circumstances, and;
ii.
Whether the manner of driving, viewed on an objective basis, constitutes a marked departure from thenorm of a reasonable person in
circumstances
of the ∆.
e.
Unlawfully Causing Bodily Harm
 
Offense
i.
Underlying unlawful offence that is objectively dangerous (likely to subject another person to harm);
ii.
Intent to commit the underlying offence
iii.
Caused bodily harm to another person as a result of committing that underlying offence
1.
Harm caused must have sufficient causal connection to the underlying offence committed
iv.
While having objective foresight of bodily harm
 
VI.
REGULATORY OFFENSES – Presumed to be “Strict Liability”a.Strict Liability:i.Don’t need to prove MR; the doing of the prohibited act prima facie imports the offence.
ii.
Public Welfare Offenses/Provincial Law = traffic infraction, liquor laws, sale of impure foodiii.Offense Language = “Cause” “Permit
iv.
Defense of Due Diligence MUST be available:1.Reasonably believed in a mistaken set of facts, O2.Took all reasonable steps to avoid the particular event. b.Absolute Liability:
i.
Denies ∆ the opportunity to put forward a defense of due diligence. Whether the offence falls into thiscategory:ii.The overall regulatory pattern adopted by the Legislatureiii.the subject matter of the legislation & the importance of the penalty
iv.
and the precision of the language used1.If jail time, offense s. 7 of Charter, so presume Strict Liability
VII.
INCOHATE OFFENSES – No Doubling up
a.
Aiding & Abetting -Generally:i.Can be convicted for aiding (physically supporting) or abetting (encouraging) the accused to committhe offence. Can be convicted for not only the offences they intended to aid or abet, but also another offence, provided that it is a foreseeable outcome of the offence they did intend to aid or abet
3

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