CRM 200 Lecture Notes - Lecture 7: Actus Reus, Regulatory Offence, Associated British Picture Corporation
3 May 2018
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Lecture 7 - Defending the Charge
Overview
• Nature of defence depends on nature of charge and proceedings –
• Criminal charge
o prosecution required to prove prohibited act (actus reus) and mental element
(mens rea) beyond reasonable doubt
• Defendant need only raise reasonable doubt
• Benefit of doubt resolved in accused’s favour
• Defendant presumed innocent, no obligation on defence to lead evidence to raise
reasonable doubt
• Defence for regulatory offences depends on classification of regulatory offence:
o Mens rea:
▪ much like criminal offence,
▪ crown required to prove both prohibited act and mental element;
▪ defendant may raise reasonable doubt to be found not guilty
o Strict liability:
▪ upon proof by crown of prohibited act,
▪ onus shifts to defendant to establish (on civil standard of proof on balance
of probabilities or preponderance of doubt),
▪ that he/she exercised all reasonable care or due diligence, or alternatively
reasonably believed in mistaken set of facts which if true rendered act or
omission innocent
o Absolute liability:
▪ upon proof of prohibited act by prosecution,
▪ defendant has no defence of lack of fault, but may put forward other
defences to raise reasonable doubt
Mens Rea
• Full mens rea offence under Criminal Code requires that the
accused have an intent to perform the acts that constitute the actus
reus of the offence
Ignorance of law
not excuse for
breaking law:
• Criminal Code,
o s.19; Provincial Offences Act of Ontario,
o s.81: “Ignorance of the law by a person who commits an
offence is not an excuse for committing that offence”
• Since ignorance of the law is no excuse for breaking the law,
o due diligence consists in taking steps to fulfil a duty
imposed by law, and not in ascertaining existence of
statutory prohibition or its interpretation
Mistake of fact
• Mistake of fact which negates mental element which is part of
definition, express or implied, of offence negatives the offence
• If requisite mental element required by definition of the offence is
lacking, offence is not proved,
• whether absence of requisite mental element was due to
reasonable mistake of fact, or honest although unreasonable
mistake of fact
find more resources at oneclass.com
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• However, where doing of act prima facie imports the offence (eg.,
strict liability offences), defence of mistake of fact must be
reasonable
• Accused found in possession of undersized lobsters his son,
member of the crew, hid lobsters on boat;
• Held, possible that accused did not know his son had hidden the
lobsters, finding of not guilty:
• R v LeBlanc, NBQB (1998)
• Defendant chose to operate residential apartment building,
obligated to make himself informed as to condition of premises;
Held, lack of knowledge is not defence to violations of Public
Health Act unless it is found within ambit of due diligence: R v
• Doz, ABPC (2000)
Actus Reus
• The difference in scope and meaning of s.11(d) Charter of Rights and
Freedoms in regulatory context does not imply that presumption of
innocence is meaningless for a regulated accused
• Crown must still prove actus reus of regulatory offences
beyond a reasonable doubt
• Criminal Code,
• s.8(3); Provincial Offences Act of Ontario,
• s.80, preserve common law defences,
• eg., necessity, duress, double jeopardy
• If accused did not commit the prohibited act,
• it follows he/she is guilty of no offence
• There is often overlap between a defence that act was not committed,
and justification or excuse that the commission of the act was
impossible to avoid or was done without negligence
• Although element of mens rea may be established in a particular case,
the actus committed may comprise no crime at all
• Actus reus of offence charged determines to some extent what kind of
evidence will suffice for due diligence defence
• Although standard of proof for mens rea in regulatory offence
prosecutions differs from usual criminal case, standard of proof for
actus reus does not: Crown must prove actus of offence beyond a
reasonable doubt
• Even in strict liability offences, Crown must establish that the
defendant committed the actus reus of the offence
• Prosecution has burden of proving every element of offence alleged
against defendant – no requirement on defendant to “assist”
prosecution in case against him/her
• Absence of evidence in Crown’s case on any of the elements of the
offence entitles the defendant to succeed on judge directing motion for
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Ignorance of law not excuse for breaking law: Actus reus obligated to make himself informed as to condition of premises; Held, lack of knowledge is not defence to violations of public. Health act unless it is found within ambit of due diligence: r v: doz, abpc (2000, the difference in scope and meaning of s. 11(d) charter of rights and. If someone was found guilty on theft and possession of stolen property. You can"t commit 1 crime without the other, so you can"t be guilty of both theft and possession. Case study 1:actus proven: bank of montreal (bm) charged under bankruptcy act with unlawfully removing property, truck, from possession of bankrupt, gb, by selling property to jf, without written permission of trustee. Case study 2:actus proven: d charged with failing to pay wages to r and m, contrary to minimum employment.
