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NCA Criminal Law August 2012

NCA Criminal Law August 2012

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THE ELEMENTS OF A CRIMINAL or REGULATORY OFFENCE – Ch. 4
• The physical elements or 
actus reus
of the offence:
The act that must be performed, or omission that is proscribed, the circumstances or conditions in which the actmust occur, and any consequence that must be caused by the act; and• The mental or 
mens rea
elements of the offence.
In Canadian law, 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.
It is becoming increasingly common, however, to produce offences that have an objective
mens rea,
such asnegligence. Objective
mens rea
is determined not according to the state of mind of the accused (the subject), butaccording to what a reasonable person in the position of the accused would have known or foreseen.
As a general proposition of interpretation, a true crime will be interpreted as requiring subjective
mens rea
unless itis clear that Parliament wished to impose objective liability.I.The Actus Reusa.General:
i.
The act must be of the ∆. Canadian law doesn’t recognize vicarious liability (except in corporateliability).ii.The act must also be the kind of act described in the relevant provision.
iii.
The act must be committed under the circumstances or conditions specified in the offence.
1.
EG: ∆ cannot be convicted of the offence of break and enter with intent to commit acriminal offence pursuant to s. 348 (1) (a) unless he “breaks” and “enters” something thatqualifies as a “place” according to the
Criminal Code
, with the relevant
mens rea
.
iv.
Act must be voluntary – willed act of the ∆.
 b.
Act of Possession: The actus reus of possession crimes have an important mental element to the actus reus.The actus reus/mens rea divide is not clear with Possession.
i.
 R v. York :
Manual Possession.
 
∆ trying to dispose of stolen vans
1.
RULE:
Personal possession = accused person exercises (1)
physical control
over a prohibited object (2) with full
knowledge of its character
, and where there is someevidence to show the accused person took custody of the object willingly (3) with
intent
(
mental element)
to deal with it in some prohibited manner.ii.
 R v. Marshall & R v. Terrence:
Constructive Joint Possession. Passenger in car with marijuana present.
1.
RULE:
"The 'knowledge and consent' which is an integral element of joint possessionin s. 5(2) must be related to and read with the definition of 'possession' in the previous s. 5 (1) (
b
). It follows that '
knowledge and consent'
cannot exist withoutthe co-existence of some measure of 
control over the subject-matter
. AlthoughMarshall certainly had knowledge of the presence of the marihuana he had nocontrol, right to control, nor did he consent to its presence.iii.
 R v. Pham
:Possession of items in residence. Whether ∆ had knowledge & control over drugs foundin bathroom while she was not present.
1.
RULE: Joint Possession =
In order to constitute joint possession pursuant to section4(3)(b) of the Code there must be
knowledge, consent, and a measure of control
onthe part of the person deemed to be in possession.2.HELD: The finding of knowledge in a criminal trial need NOT be supported bydirect evidence – it may be found by the introduction of circumstantial evidence.Even further, an inference of knowledge can be made if, as is the case, narcotics arefound in plain view, and the accused is occupying the premises.1
 
c.
Consent as Element of Actus Reus: Question of absence of consent by the victim is an important
actus reus
condition that must be present for offences to occur .
i.
 R v. Jobidon
:Fist fight allegedly consented to by both parties. Can you consent while unconscious?Must lack of consent be proved as an element of the crime?
1.
RULE:
Majority rejects the argument that since the deceased consented to the fight,no assault occurred. He argues the absence of consent is not an element of the AR incases where adults intentionally apply force causing serious hurt or non-trivial bodilyharm to each other in the course of a fist fight or brawl. - S.265(3) does not deal withconsent in a comprehensive way, and the common law maintains authority on theissue of consent, since consent functions as a defense. Thus, policy reasons lead tothe conclusion that consent is vitiated (legal validity is destroyed) in fist fightsituations.ii.
 R v. J.A.:
Whether consent for the purposes of sexual assault required victim to be consciousthroughout the sexual activity.1.RULE: The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expressesher consent in advance.2.The only question for the
actus reus
is whether the complainant was subjectivelyconsenting in her mind. The complainant is not required to
express
her lack of consent or her revocation of consent for the
actus reus
to be established.iii.
 R v. Cuerrier :
Fraud nullifying consent. Non-disclosure of HIV status to partners.
1.
ISSUE: (1) Would the actions of the accused be seen as dishonest by the reasonable person? (2) Did the dishonesty result in significant risk of serious bodily harm?
2.
RULE:
It is not necessary, when considering whether consent is vitiated under s 265(3)(i.e. consent vitiated by fraud), to consider whether the fraud relates to the “nature andquality of the act”; all that is required is a fraud and a casual connection between that fraudand the submission or failure to resist
What is fraud? It involves:(i) DISHONESTY (determined objectively, ask whether there is deliberate deceit or non-disclosureof the HIV disease; note that the dishonest actions must relate to the obtaining of the consent); and(ii) DEPRIVATION (namely significant risk of serious bodily harm)
The greater the risk of deprivation, the higher the duty of disclosure – and since the failure todisclose HIV-positive status can lead to a devastating illness with fatal consequences, there exists a positive duty to disclose
d.
Causation: Where the relevant offence prescribes a “consequence” that must occur before the offence iscomplete. If causation is not proved, ∆ cannot be convicted of an offence that requires his act to produce a prohibited consequence. 
i.
 R v. Menezes:
Criminal negligence charge based on death occurring from car racing.
1.
2 part Causation Test:
Factual Causation
(how the victim came to death - medical,mechanical, physical sense, and the ∆’s contribution +
Legal Causation
(whether theresult can be fairly imputable to the ∆.)
a.
Factual Causation: The test is this:
Was the conduct of the accused a significantcontributing cause of the prohibited consequence
?” (even if ∆ not the
 sole
causeof death)i.Established by the BUT FOR TEST
ii.
If the act of the accused is too
remote
to have caused the result alleged,causation is not established.
 b.
Legal Causation: Determining who among those who have factually contributed toan event should be held legally responsible for that event – a moral reaction, avalue-judgment.
2
 
i.Causation expresses an element of fault. That, together with the requisitemental element, is in law sufficient to base criminal responsibility.
ii.
Contributory negligence does not negate causation/criminal responsibility(
 Menezes )
iii.
Improper medical treatment does not usually break the chain of causation:s 225 Code
ii.
 R v. Nette
:Thin Skull Rule – Robbing 95 year old.
1.
Think Skull Rule: ∆ must take the victim as you find them. Harshness of rule is mitigated by asking if the accused had the requisite mens rea for the offence charged, which consistsof "objective foreseeability of the risk of bodily harm which is neither trivial nor transitory,in the context of a dangerous act"
2.
RULE:
Smithers 
Causation test for Homicide still applicable: Whether ∆’s actions are a
significant cause
of the ∏’s death. The ∆ must be the cause of death
beyond de minimus
.
a.
For 1
st
Degree, use 
 Hardbottle 
causation test: Whether ∆’s actions are a
substantial cause
of death – which is higher degree of legal causation. Greater moral blameworthiness.
iii.
 R v. Williams:
Where Crown cannot prove that the prohibited consequence occurred, the accusedcannot be convicted.1.Aggravated assault is an offence based on proof of certain consequences. Crown mustestablish all of the elements of an assault, plus the aggravating circumstance (in this case,“endangers the life of the complainant”). Crown unable to prove the endangerment of life,and therefore unable to prove every element of the actus reus.
iv.
 Intervening Cause
 
1.
From 
 R v. JSR:
An intervening, independent act by a third party that is a
more direct
causeof a victim's death than the prior act of an accused may sever the legal causal connection between that victim's death and the prior act of the accused even though the prior actremains a factual or "but for" cause of the victim's death.
a.
Acts by a third party who is not acting independently but is acting in furtherance of a joint activity undertaken by the accused and that third party will not sever thelegal causal connection.
e.
Omissions: Some offences can be committed by a showing that ∆ failed to act, or omitted to act. To beguilty by omission:
i.
TEST:
1.
Offence must contemplate guilt for omissions,
2.
∆ must be placed under a legal duty to act either by the provision charging him or by someincorporated provision, and
3.
Omission in question must be a failure to fulfill that legal duty.
ii.
 R v. Moore:
Ran red light on bike. Didn’t give PO his ID.
1.
RULE:
Omission to act in a particular way will give rise to criminal liability
only
where a duty to act arises at common law or is imposed by statute.iii.
 R v. Peterson:
This case centers on sec. 215(1) (c) of the CC, which imposes a duty on adultchildren to take care of their parents of whom they are in charge of. ∆ didn’t provide“necessities of life” to father. The pre-existing relationship of father/son created the legalduty.1.RULE:
- s 215(2): Subsection 215(2) imposes liability on an
objective basis.
The offenceis made out by conduct showing a marked departure from the conduct of a
reasonably
 
 prudent person
having the charge of another in circumstances where it is objectivelyforeseeable that failure to provide necessaries of life would risk danger to life or permanentendangerment of the health of the person under the charge of the other, without lawfulexcuse.
3

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