THE ELEMENTS OF A CRIMINAL or REGULATORY OFFENCE – Ch. 4
• The physical elements or
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
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
such asnegligence. Objective
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
unless itis clear that Parliament wished to impose objective liability.I.The Actus Reusa.General:
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.
The act must be committed under the circumstances or conditions specified in the offence.
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
, with the relevant
Act must be voluntary – willed act of the ∆.
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.
R v. York :
∆ trying to dispose of stolen vans
Personal possession = accused person exercises (1)
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
to deal with it in some prohibited manner.ii.
R v. Marshall & R v. Terrence:
Constructive Joint Possession. Passenger in car with marijuana present.
"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) (
). 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.
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