Chapter 8 – Crime and Criminal Law Unit 3 – Criminal Law

1. Chapter 8 – Crime and Criminal LawUnit 3 – Criminal Law Elements of an Offence, Intention & Involvement in a Crime

2. Learning Goal for Today • By the end of the lesson(s), students will be able to analyze fact situations and identify the actusreus and mensrea

3. Expectations • By the end of this lesson, students will: …explain the legal definition of mensrea, actusreus, and strict and absolute liability

4. Agenda • Actus Reus • Mens Rea • Intention • Incomplete Crimes • Involvement in a Crime • Mens Rea/Actus Reus Activity

5. *The Elements of a Crime

6. *The Elements of a Crime • If a person does not intend to commit the illegal act, then they may not be guilty of a crime. For example, although it is an assault to hit someone, if the hit is not intended, it is not an assault.

7. The Elements of a Crime • E.g. Wanda is in the schoolyard and is swarmed by bees. Trying to prevent getting stung by the bees, Wanda swats them in a state of panic. While she is flailing at the bees, her arm hits Jimmy violently in the face. Wanda’s action breaks Jimmy’s nose.

8. Actus Reus • “Guilty Act” • The voluntary action, omission, or state of being that is forbidden by the Code

9. *Actus Reus Examples • s.222(1) Homicide – causes the death of another human being (ACTION OR OMISSION OR STATE OF BEING?) • s.90(1) Concealed weapon – carries a weapon… device… ammo… concealed (ACTION OR OMISSION OR STATE OF BEING?) • s.215(1) Necessities of life – fails to provide the necessaries of life (OMISSION OR OMISSION OR STATE OF BEING?) • s. 351 Possession of break-in instruments - … has in his possession any instrument suitable for… (ACTION, OMISSION OR STATE OF BEING?)

10. Mens Rea • Guilty mind • A deliberate intention to commit a wrongful act, with reckless disregard for the consequences

11. *Incapable of Mens Rea The law considers some to be incapable of forming the intent necessary to commit a wrongful action: • Those suffering from a mental disorder • Minors (under 12) • Those under the influence of drugs or alcohol to such an extent that they don’t understand the nature of their actions

12. *Mens Rea – Category of Intent • 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 • Reckless means knew or should have foreseen the results of a wrongful act • Two types • General • Specific

13. *Mens Rea – General Intent • General intent means a person commits a wrongful act for its owns sake, with no ulterior motive or purpose • Ex. s.251(1)(a) - assault - … applies force intentionally • Ex. Alice walks up to Michael and punches him in the face. Michael’s nose is broken by Alice’s punch.

14. *Mens Rea – Specific Intent • Specific intent – the desire to commit one wrongful act for the sake of accomplishing another • Ex. s.343(c) – everyone commits robbery who assaults any person with the intent to steal from him • (Ex. After punching Michael in the face, Michelle steals his wallet – need not only intent to assault but also intent to steal from him)

15. *Subjective Intent - Knowing • In some cases, the Crown can show mens rea, by proving that the accused had knowledge of certain facts • Ex. s.368(1)(a) - … knowing that a document is forged, uses, deal, or acts… • Only have to establish that accused knew that the document was forged, not that they had any general or specific intent • Ex. s.251 – knowingly… sends an aircraft… that is not fit…

16. *Objective Intent - Negligence • A person is criminally negligent if they do or omit to do anything that shows wanton or reckless disregard for the lives or safety of others • Ex. Joe leaves a loaded .22 pistol on the night table beside his bed. One day his young daughter accidentally shoots her friend. Joe’s mensrea is the “wanton or reckless disregard” he showed by leaving the pistol out

17. Negligence • E.g. Samantha runs a daycare centre. She lets the children run all over the centre. • Several times children have fallen down the stairs. It never occurs to Samantha to buy a proper gate to keep the children away from the stairs. • One day, little Lee falls down the stairs and is very seriously injured.

18. *Objective Intent - Recklessness • Recklessness – consciously taking an unjustifiable risk that a reasonable person would not take • Ex. Dangerous operation of a motor vehicle would take place if you needed glasses to drive, forgot them, drove anyway and caused an accident

19. *Subjective Mens Rea – Willful Blindness • A deliberate closing of the mind to the possible consequences of one’s actions • Ex. Possession of Stolen Property – if you possess property that you acquired in a too good to be true scenario

20. Wilful Blindness • E.g. Amanda and Keisha are walking down the street when they come across some DVD stalls with new releases. • Keisha notices the DVDs are a lot of cheaper than in the store. She wonders if they might be illegal copies. She decides that she’d rather not know either way. • She buys two DVDs for $8.

21. *Incomplete Crimes • Criminal Act must be completed for a crime to exist? • There are exceptions to this rule: Criminal Attempt & Conspiracy. • Attempt= Even if a person is unsuccessful in the commission of a crime, he/she can still be charged with criminal attempt. • Ex:Terrorist caught with with bomb before use.

22. Incomplete Crimes • Conspiracy = agreement between 2 or more people to perform anillegal act. Even if crime not committed, can still be charged. • Ex: Bob and Sam plan to murder Sally. Hire an undercover police officer. Can’t be charge with murder, BUT can be charged with conspiracy for planning to kill.

23. *Involvement in a Crime • Perpetrator – the person who actually commits the crime • Parties to an offence – those people who are indirectly involved in committing a crime

24. *Aiding • A criminal offence that involves helping a perpetrator commit a crime • Don’t actually have to be present when the crime is committed • Ex. Lisa works at a pharmacy and gives a pharmacy key to her boyfriend

25. *Abetting • The crime of encouraging the perpetrator to commit an offence without providing physical assistance • Ex. If Lisa had encouraged her boyfriend to rob the pharmacy, she could also be charged with abetting

26. *Counselling • A crime that involves advising, recommending, or persuading another person to commit a criminal offence • Seems very similar to abetting • Ex. If Lisa had provided advice to her boyfriend about the best way to steal from the pharmacy

27. *Accessory After the Fact • Someone who knowingly receives, comforts, or assists a perpetrator in escaping from the police • Ex. Lisa’s boyfriend breaks in, steals and escapes. Lisa (knowing he committed the crime) gives him a place to hide out from the police

28. *Party to Common Intention • The shared responsibility among criminals for any additional offences that are committed in the course of the crime they originally intended to commit • Ex. if 6 people rob a bank and one of the robbers shoots and kills a teller, all 6 can be charged with murder

29. Cartoon

30. Mens Rea/Actus Reus Activity • While browsing in a CD store, Rasheed ran into a friend from his old school. They decided to get a coffee. As they left the store, Rasheed forgot that he had a CD he was considering buying under his arm.

31. Mens Rea/Actus Reus Activity • The actusreus for theft is established because Rasheed left the store with the unpaid CD. However, there is no mensrea because Rasheed did not intend to steal the CD.

32. Mens Rea/Actus Reus Activity • In line for a concert, a friend asked Chanice to hold her bag while she went to the bathroom. A drug dog stopped in front of Chanice. The police searched the friend’s bag and found a marijuana joint. Chanice was charged with possession of a narcotic.

33. Mens Rea/Actus Reus Activity • Again the actusreus of possession of a narcotic is established but the mensrea may not be. If Chanice knew the backpack contained drugs, she would have the required “state of mind”. However, if she did not know there were drugs in the backpack, there is no mensrea.

34. Mens Rea/Actus Reus Activity • Sophie baby-sits the neighbour’s kids everyday after school, sometimes driving them to soccer in the family car. After dropping them off one day, she decides to watch their practice. Sophie leaves the dog in the car for a few hours even though it’s 35 degrees outside. Before the end of the game, someone walks by, notices the distressed dog, and calls the police.

35. Mens Rea/Actus Reus Activity • This is an “omission” instead of a “commission” offence. To establish actusreus, Sophie must be found to have either abandoned the dog in distress, wilfully neglected it thereby causing pain or suffering, or failed to provide it suitable care [see s. 446(b) or (c)]. Leaving a dog locked in a car for several hours in hot weather is enough evidence to establish actusreus for these offences. Intending to leave the dog in the car is enough to satisfy the mensrea requirement for the offence.

36. Mens Rea/Actus Reus Activity • Mao was charged with assault after he lost his temper in a restaurant. He felt the bill was unfair. He slammed his fist down on the table and a glass flew off, hitting a customer at the next table and cutting his cheek just below the eye.

37. Mens Rea/Actus Reus Activity • In order to be guilty of assault, Mao would have had to intentionally apply force to the customer. Because he did not intentionally do so, he does not possess the required mensrea.

38. Mens Rea/Actus Reus Activity • Brandon was on his way into the beer store when a woman asked him if he would mind buying her a six-pack of beer while she stayed outside with her dog. He said sure and accepted her money. Once in line he thought that she looked a little young, but bought her the beer anyway.

39. Mens Rea/Actus Reus Activity • Under ss. 30(1) and 30(2) of the Ontario Liquor Licence Act, it is an offence to knowingly sell or supply liquor to a person under 19 years of age or to a person who appears to be under 19 years of age. In this example, the actusreus of selling liquor to a minor is established. Regarding mensrea, Brandon either knew the woman appeared to be under 19 or was wilfully blind to that effect.

40. Mens Rea/Actus Reus Activity • It’s Hockey Night in Canada and the Leafs are playing the Senators. Darcy Tucker of the Leafs is looking to get back at Chris Neil of the Senators for a dirty body check in their last game. After a brief verbal exchange, the two players drop their gloves and start punching each other. When the referee notices Neil’s nose bleeding, he stops the fight. Neil is not seriously hurt but he sits out the rest of the period.

41. Mens Rea/Actus Reus Activity • In this case, Darcy Tucker would have the required mensrea because he intended to punch Chris Neil. Despite the existence of mensrea, there are circumstances where there is no actusreus in a consensual fight. Where a consensual physical fight results in no harm or minor harm or where the consensual fight is part of socially valued activity such as sports, the act is not illegal. However, there is no consent where a fight that is at first consensual ends in serious harm. In a sports context, if the fighting goes beyond what is normally accepted behaviour, the act can become an illegal one. Should people be able to consent to fighting that results in serious harm? What are potential problems with this approach?

42. Mens Rea/Actus Reus Activity • Carmen comes to work one Tuesday feeling really sick. She’s recovering from a particularly bad flu and, after a few hours at work, she decides she needs to go home because she’s really tired. Carmen gets into her car and starts driving but she’s having a hard time focussing on the road because she’s so tired. A police officer driving behind her notices she is weaving across driving lanes. Just before he stops her Carmen falls asleep at the wheel and drives into a ditch. Luckily, no one is seriously hurt.

43. Mens Rea/Actus Reus Activity • A person is guilty of dangerous operation of a motor vehicle under s. 249 where she or he operates a motor vehicle in a way that is dangerous to the public having regard to all the circumstances including road conditions and traffic. In this case, Carmen’s driving satisfies the actusreus requirement because she is weaving across lanes, falls asleep and drives into a ditch. There is also evidence to establish mensrea because, even if she did not intend to drive dangerously, a reasonable person in Carmen’s shoes would have known that driving while that tired posed a risk to the lives and safety of others. Negligence satisfies the mental element for the offence of dangerous driving and does not require proof of intention. What are some arguments for why it shouldn’t matter whether or not Carmen intended to drive dangerously? What about if Carmen had been drinking before she got in the car?