Elements of an Offence

1. Elements of an Offence

2. For an offence to be considered a crime, two elements must exist: ACTUS REUS (the physical element, or guilty action) and MENS REA (the mental element, or guilty mind). ACTUS REUS + MENS REA = A CRIME

4. Latin for the guilty action or deed; • Voluntary Action: the action must be voluntary (willful, conscious acts) to be considered criminal. You cannot be held responsible for something you cannot control. For example, if you are in a car accident because you have a heart attack, you cannot be charged with dangerous or careless driving. • Omission: failing to do something, i.e. leaving the scene of an accident, or failing to provide the necessities of life, are both considered to be crimes. • State of Being: being in the possession of something illegal or being somewhere illegal, such as a betting house or a bawdy house.

5. In 1992, the Supreme Court of Canada upheld the acquittal of Kenneth Parks. He drove approximately 20km, stabbed his mother-in-law to death and seriously injured his father-in-law. Charged with the murder and attempted murder of his in-laws, his defence argued successfully that he was in a state of automatism. He was sleepwalking at the time and therefore acted involuntarily. Cases such as these where mental illness, alcohol consumption, the use of drugs, or even sleepwalking, illustrate the difficulties that can exist in proving actus reus.

6. Latin for “a guilty mind”; • includes: KNOWLEDGE, INTENT, RECKLESSNESS, and WILFUL BLINDNESS - the act was intentional and the accused knew it was wrong, was negligent, reckless, or wilfully blind. • Can be established by showing that the accused had the intent to commit the offence or knowledge that what he/she did was wrong.

7. There are 2 kinds of intent; the type of intent varies depending on how the crime is defined in the Criminal Code: • 1. General Intent – The desire to commit a wrongful act, with no ulterior motive or purpose (the accused to meant to commit the crime). For example, if Josh strikes Scott because he is angry with him, he has the general intent to commit the assault. To establish mens rea, the Crown just needs to prove that Josh struck Scott. • 2. Specific Intent – The desire to commit one wrongful act for the sake of accomplishing another. For example, if Josh strikes Scott with the intent of stealing his wallet, he has the specific intent to commit a robbery. To prove mens rea for robbery, the Crown would have to prove that he not only assaulted him, but he did so with the specific intent of stealing from him.

8. General intent is easier to prove, i.e. manslaughter (unintentional homicide) is easier to prove than murder (intentional, planned and deliberate homicide). • Some defences are more likely to succeed against specific intent offences, i.e. intoxication. • If you are extremely intoxicated and you break into a store and knock out the security guard, you could be charged with break and entering with the intent to commit robbery. You could plead not guilty due to intoxication, and the judge might rule in your favour, citing that you were too impaired to be able to form the necessary intent to actually commit the robbery.

9. INTENT IS NOT THE SAME AS MOTIVE! • MOTIVE is the reason for committing an offence, but does NOT establish the guilt of the accused and is NOT the same as intent. • INTENT refers to the state of mind with which an act is done or not done (the willingness to break the law). • For example: The Latimer case • Motive – to end his daughter’s suffering; • Intent – to commit murder.

10. The DOCTRINE OF TRANSFERRED INTENT: when an illegal, unintended act results from an intent to commit a crime is also an offence. • For example, in the recent decision of the Jane Creba case, the accused was convicted of second-degree murder though there was doubt that he actually fired the weapon that killed her. The premise behind this decision was the idea of the doctrine of transferred intent – if you intend to shoot one person, but miss and shoot and kill another, you are still guilty of committing an offence.

11. The awareness of certain facts that can be used to establish the necessary mens rea for a conviction. • ignorance is not allowed as an excuse for committing an offence. For example, if you use a stolen credit card, the Crown only has to prove that you used the credit card.

12. RECKLESSNESS • acting carelessly without regard for the consequences of your actions. You may not intend to harm someone, but if you understand the risks and proceed to act anyway, mens rea would exist. WILFUL BLINDNESS • results when a person is aware of the need for some inquiry but declines to make the inquiry because he/she does not wish to know the truth.

13. There is a lot of ambiguity and confusion about mens rea, a central issue being whether the intent meets the SUBJECTIVE or OBJECTIVE standard. This is important to determine whether or not the conduct was deliberate. • SUBJECTIVE STANDARD • “Did the accused know the circumstances of his/her actions?” • Concerns the accused’s state of mind at the time of the offence • OBJECTIVE STANDARD • “the accused ought to have known the circumstances of his/her actions.” • Involves determining what a reasonable person would have understood, perceived, or foreseen in the circumstances, and little to do with the accused’s actual state of mind. • Forms the basis of civil liability for negligence (carelessness)‏

14. Subjective vs. Objective Intent – Example: Tutton v. Tutton • Son a diabetic in need of insulin; • Parents believed he would be healed by faith and stopped giving him his medication. • The parents were warned that this could kill him; they agreed not to take him off the medication again but did, and their son died. • They were charged with criminal negligence causing death. • Defence claimed that the parents were acting in the best interests of their child and therefore not negligent. • The Crown argued that any reasonable parent would have been able to foresee that without his required medication, the child would die, and since they failed to provide medical treatment for their child they were guilty of negligence. • The SCC came back with a split 3 -3 decision, 3 providing the objective argument (that they should have known the consequences of their actions and were therefore guilty of manslaughter); 3 provided the subjective argument (that there is more of a need to determine what they actually did know/understand, which was their belief he would be healed by God and not responsible for his death, and should therefore be acquitted) which demonstrates the complexity behind this issue.

15. For the most part, crimes must have both elements (actus reus and mens rea) present to secure a conviction. There are some crimes, however, that do not. For these crimes, the Crown only needs to prove the actus reus. • These offences are classified as either a) ABSOLUTE LIABILITY or b) STRICT LIABILITY offences

16. Fault is not an issue; • Guilt follows the mere doing of the prohibited act; • No opportunity for the accused to exonerate themselves; • Since there is little opportunity for a successful defence, prison terms are considered to be unconstitutional (see Re: B.C. Motor Vehicle Act, 1985). • Example, • If you are caught driving without a driver’s licence, you are automatically guilty whether or not you are aware that you are prohibited from driving.

17. The Crown does not have to prove mens rea because the doing of the prohibited action is enough to prove guilt, but the accused has the opportunity to prove that they took the reasonable care to avoid committing the offence, using the defence of DUE DILIGENCE. • Example, • offences that deal with the environment