Elements of a Crime. Actus Reus: The guilty act the voluntary action, omission, or state of being that is forbidden by the criminal code.

Transcription

1 Elements of a Crime To convict a person of a criminal offence in Canada, the Crown must usually prove that two elements existed at the time the offence was committed: the act itself, and the intention to commit the act. In law, these two elements are identified by the Latin terms actus reus and mens rea. Actus Reus: The guilty act the voluntary action, omission, or state of being that is forbidden by the criminal code. Examples of voluntary actions that are forbidden by the criminal code: Examples of when omitting or failing to do something is against the criminal code: Examples of states of being that are forbidden by the criminal code: Describe a situation in which the element of actus reus is uncertain or not there despite the act being committed. Explain why.

2 Mens Rea: a deliberate intention to commit a wrongful act, with reckless disregard for the consequences. This term implies moral guilt, but the Crown can establish mens rea by showing that the accused had the inten to commit an offence or knowledge that what he or she did was against the law. In the following excerpt from the Criminal Code, indicate which word or words establish the mens rea for the offence in question: 342(1) Every person who (d) uses a credit card, knowing that it has been revoked or cancelled, is guilty of (e) an indictable offence Intent: A state of mind in which someone desires to carry out a wrongful action, knows what the results will be, and is reckless regarding the consequences. In Canadian criminal law there are two kinds of intent General intent and specific intent. General Intent: The desire to commit a wrongful act, with no ulterior motive or purpose. For example, if Guy strikes Curtis because he is angry with him and wants to vent his anger physically, then he has a general intent to commit assault. Example of General Intent: Specific Intent: The desire to commit one wrongful act for the sake of accomplishing another. For example, if Guy strikes Curtis with the intention of taking something valuable from him, then he has committed an assault for the sake of accomplishing a theft. Example of Specific Intent: What is the major difference between general and specific intent? Which would be easier to prove? Why?

3 Under current Canadian law, children under 12 are not considered capable of forming mens rea; therefore, they are not held responsible for the crimes they commit. Why do you think this is the case? Should they be held criminally responsible? Why or why not? Note that intent is not the same as motive. Motive is the reason a person commits a crime, while intent refers to that person s state of mind and willingness to break the law. Examples of possible motives for a crime (murder): In some cases, the Crown can establish mens rea by showing that the accused had knowledge of certain facts. Knowledge: an awareness of certain facts that can be used to establish mens rea. Example where knowledge might help to establish mens rea: In some cases, the Crown can establish mens rea by proving that the accused showed negligence. Criminal Negligence: The accused failed, under certain circumstances, to take precautions that any reasonable person would take to avoid causing harm to another person. This shows wanton or reckless disregard for the lives and safety of others, sometimes causing serious injury or death.

4 Example of Criminal Negligence: The Crown can also establish mens rea by proving that the accused demonstrated recklessness. Recklessness: consciously taking an unjustifiable risk that a reasonable person would not take. Examples of Recklessness: Finally, mens rea can be the result of wilful blindness. Wilful Blindness: a deliberate closing of one s mind to the possible consequences of one s actions. You are considered wilfully blind when you are aware of the need to make an inquiry but fail to do so because you do not wish to know the truth. For example, suppose a fellow student offers to sell you a TV for a really good price. Oddly enough, the name of your school board is spray painted on the side of the TV. You know you should ask why the student is selling a television set that obviously belongs to the school board, but the price is too good to pass up, so you buy the TV. In this case you could be charged with possession of stolen goods. You have the necessary mens rea because you have been wilfully blind to the fact that the television has likely been stolen. Example of wilful blindness: Explain why, in Canadian law, wilful blindness is equated with having the knowledge necessary to demonstrate mens rea. List the ways that the Crown can establish mens rea.

5 One night, in a municipal parking lot in downtown Halifax, someone throws a rock and breaks a window in one of the parked cars. The vandal flees, and when the police officer arrives, she finds that Maria is the only person on the street. She questions her, but Maria is evasive. The officer asks her to open her knapsack. When Maria refuses, she threatens to arrest her for public mischief. Maria opens her knapsack, and the officer finds two small crow bars known as jimmies tools used by burglars to open locked windows and doors. Even though Maria has done nothing wrong, can she be charged with committing a crime? Explain using the concepts of actus reus and mens rea. Case Studies: 1. R. v. MacGillivray on page 144 question 1 2. Father Jailed in Death of Son Left Unsupervised on page 146 questions R. v. Hébert on page 148 questions 1-3