criminal law

• Actus Reus (AR)


  Acts, Omissions, Causation
• Mens Rea (MR)


  Intent, Negligence, Recklessness
• Elements of crime


  • Actus Reus (AR): External elements of the offence, Guilty conduct
  • Mens Rea (MR): Internal elements of the offence, Fault or mental element
  • Both AR and MR must be proved beyond all reasonable doubt to obtain a conviction
  • AR and MR must coincide
• Actus Reus (AR)


  1. All crimes have an AR component

  2. AR is defined by the definition of the offence

  3. AR refers to the particular type of conduct prohibited, and relevant circumstances

  4. Conduct will usually consist of an act but may also consist of an omission

  5. AR must be voluntarily or willed
• Voluntary action


  • The result of a willing mind at liberty to make a definite choice or decision (R. v. King [1962] S.C.R. 746)
• Example of involuntary action


  • D suffers a heart attack which renders him incapable of continuing to exercise control over the vehicle
• Types of Actus Reus

  1. Conduct (the conduct itself constitutes the AR)

  2. Result (the result of the act or omission)

  3. State of affairs (being rather than doing)

  4. Omission (failure to act when there is a legal duty)
• The prosecution must always prove that the AR occurred. D cannot be punished for guilty thoughts alone.
• Causation


  1. Factual causation (but for test, thin skull principle)

  2. Legal causation (intervening acts, reasonably foreseeable, independent)
• Mens Rea (MR)


  The mental element necessary for a particular crime
• Examples of Mens Rea


  • Intent (intention, indirect intent)
  • Knowledge (knowledge, willful blindness)
  • Recklessness
  • Negligence
• Intention


  Consciously or deliberately intended to bring about the prohibited consequence
• Indirect Intention or Oblique Intention

  Foresight of a virtual certainty, a spin-off or side-effect of D's main purpose
• Knowledge and Willful Blindness


  Knowledge of the probability that the prohibited consequences or circumstances exist, deliberate decision not to know by closing eyes to the prohibited circumstances or consequences
• Transferred Malice


  Intention to harm one individual inadvertently causes a second person to be hurt instead, perpetrator is still held responsible
• Recklessness


  Aware that there is danger that conduct could bring about the prohibited result, nevertheless persists despite the risk
• Negligence


  Conduct amounted to a marked departure from the standard of care that a reasonable person would observe
• Not only must the prosecution establish that every element of the AR of the alleged crime and the relevant mens rea were present, they must establish that they occurred at the same time.
• Substantive Criminal Offences


  Crimes against person, Crimes against property, Sexual Crimes
• Specific intent


  Applies "to the acts considered in relation to their purposes"
• General intent


  Applies "to acts considered apart from their purpose"
• Murder


  The offence for murder is section 229. It provides:

  1. where the person who causes the death of a human being
  2. means to cause his death or

  ii) means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not;

  1. where a person, meaning to cause death to a human being or

  meaning to cause him bodily harm that he knows is likely to

  cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being,

  notwithstanding that he desires to effect his object without causing death or bodily harm to any human being; or

  1. where a person, for an unlawful object, does anything that he

  knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
• Actus Reus of Murder


  • Killing and causation - The method of the killing is unimportant. It can be carried out with a weapon, a vehicle, poison or the defendant's bare hands. The prosecution must prove that the defendant caused the death of the victim. The prosecution must prove that the defendant was both the factual cause (but for test) and the legal cause (no third part intervention) of the victim's death
• Actus Reus of Murder - Of a Human Being

  • Excludes animals of being victims of murder. Where does life begin? Section 223 (1) - A human being is defined as a child who has completely proceeded from its mother in a living state whether or not the child has breathed, has an independent circulation, or has had its navel string severed. What is the definition of death? A person is considered dead where there is either the irreversible cessation of cardiorespiratory function or the irreversible cessation of all brain function. McKitty v. Hayani, 2019 ONCA 805
• Mens Rea of Murder


  • Intent - Murder requires one of three categories of requisite intent set out in s.229: the culprit causes death and "means to cause death"; the culprit causes death and "means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not". Intentionally or knowingly causing death to one person is transferred to the killing of the victim, even though the accused "does not mean to cause death or bodily harm" to the victim and does so "by accident or mistake." causes death while pursuing an "unlawful object" that "he knows or ought to know is likely to cause death". Section 229(a)(i) requires that the person who causes the death of a human being means to cause death. "This clearly requires that the accused have actual subjective foresight of the likelihood of causing death coupled with the intention to cause that death."
• First Degree Murder


  Planned and deliberate murder
• Second Degree Murder


  All murder that is not first degree murder
• Manslaughter


  Any "culpable homicide" that does not meet the definition of murder is said to be manslaughter. Culpable homicide is defined to include when a person causes the death of another human being by:

  (a) by means of an unlawful act;

  (b) by criminal negligence;

  (c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or

  (d) by wilfully frightening that human being, in the case of a child or sick person
• Unlawful Act Manslaughter


  Section 222(5)(a) provides that a person commits culpable homicide when he or she causes the death of a human being by means of an unlawful act. Actus Reus: The commission of an unlawful act, which can be either a criminal offence or a regulatory/provincial offence. The underlying unlawful act must be "objectively dangerous, that is likely to injure another person. The accused committed an unlawful act and that the unlawful act caused death. Mens Rea: The crown must prove the requisite mens rea of the underlying unlawful act. An "objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act. There is no need to establish a foreseeability of death.
• Criminal Negligence Manslaughter


  Section 222(5)(b) provides that culpable homicide is manslaughter when a person causes death by criminal negligence. Criminal negligence is defined in section 219 of the Code as doing anything or omitting to do anything that is his duty that "shows wanton or reckless disregard for the lives or safety of other persons." Actus Reus: The culprit did something or omitted to do something that it was their legal duty to do. The alleged act caused the death of another person. Mens rea: The conduct showed "wanton or reckless disregard for the lives or safety of others. The conduct showed a "marked and substantial departure" form the standard of reasonable care.
• Manslaughter Under Sections 222(5)(c) and (d)

  Sections 222(5)(c) and (d) are sections that refer to manslaughter by causing a person's death by threats or fear of violence or by deception or by wilfully frightening a child or sick person. These offences are at most articulation of broad causation rules that would apply to the two primary manslaughter offences articulated above.
• Murder reduced to manslaughter


  Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. What is provocation: Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.
• Theft


  Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent:

  (a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

  (b) to pledge it or deposit it as security;

  (c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or

  (d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

  Actus reus: The taking or conversion of anything. Anything must be a type of property that can be converted in a manner that deprives the victim.

  Mens Rea: The prohibited conduct was done "fraudulently and without colour of right". The culprit does the prohibited conduct with the intent listed in (a)-(d).
• Robbery


  Every one commits robbery who:

  (a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;

  (b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;

  (c) assaults any person with intent to steal from him; or

  (d) steals from any person while armed with an offensive weapon or imitation thereof.
• Assault


  A person commits an assault when:

  (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

  (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

  (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

  Assault by force under s. 265(1)(a):

  Actus Reus: The complainant did not consent, the culprit applied force on the victim.

  Mens Rea: the culprit intended to apply force and it was not by reflex or carelessly.

  Assault by threat under s. 265(1)(b):

  Actus Reus: The complainant did not consent, the culprit attempted or threatened by act or gesture to apply force to the victim, the culprit had the ability to give effect to his purpose OR the victim reasonably believed he had the ability to give effect to his purpose, no intentional physical contact was made.

  Mens Rea: The culprit meant the threat to be taken seriously.
• Assault with a weapon or causing bodily harm


  Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault:

  (a) carries, uses or threatens to use a weapon or an imitation thereof,

  (b) causes bodily harm to the complainant, or

  (c) chokes, suffocates or strangles the complainant.
• Aggravated assault


  Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. For greater certainty, in this section, "wounds" or "maims" includes to excise, infibulate or mutilate, in whole or in part, the labia majora, labia minora or clitoris of a person, except where a surgical procedure is performed, by a person duly qualified by provincial law to practise medicine, for the benefit of the physical health of the person or for the purpose of that person having normal reproductive functions or normal sexual appearance or function; or the person is at least eighteen years of age and there is no resulting bodily harm.
• Sexual Assault


  A person commits an assault when:

  (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

  (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

  (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

  This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

  Actus Reus: The application of force, without consent, in circumstances that are objectively sexual.

  Mens Rea: Sexual assault requires an intentional application of force.
• Consent


  The voluntary agreement of the complainant to engage in the sexual activity in question. No consent is obtained if the agreement is expressed by the words or conduct of a person other than the complainant; the complainant is unconscious; the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1); the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
• The Court in R v Ewanchuk held that the touching and sexual nature were determined on an objective basis, but that the third factor of absence of consent "is subjective and determined by reference to the complainant's internal state of mind towards the touching at the time that it occurred." Rejected the defence of implied consent to sexual assault.