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CRIM 230 (59)
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Actus Reus.docx

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Department
Criminology
Course
CRIM 230
Professor
Peter Smith
Semester
Winter

Description
Actus Reus: - An accused person may not be convicted of an offense unless the prosecution can prove, beyond a reasonable doubt, that: o The accused “caused” the crime through his conduct (actus reus) o The conduct was accompanied by the required state of mind (mens rea) - Accused person very rarely has to prove anything - Standard of proof is “beyond a reasonable doubt” Actus Reus – Beyond a Reasonable Doubt: - Lifchus (1997) – SCC – series of cases including Rhee - “reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice; a reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence; while more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty; such a standard of proof is impossibly high” - Distinguish from a balance of probabilities (BOP) or air of reality (AOR) - Air of reality shows it’s possible that its true - Balance of probability used in civil court, shows that there is a possibility that it may apply, and that it is more likely than not that it did Actus Reus: - The text indicates that actus reus often breaks down into conduct, circumstances and consequences - Read the CCC provision carefully and completely - Two main sources of criminal law o Legislation, mainly CCC o Judicial interpretations of the legislation - Statutes, such as the CCC state the law in plain English, while the decisions help clarify the plain English further Actus Reus – Assault Causing Bodily Harm: - 265.(1) a person commits an assault when: o A) without the consent of another person, he applies force intentionally to that other person, directly or indirectly o 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 - 265.(2) this section applies to all forms of assault, including sexual assault - 267 everyone who, in committing an assault: o A) carries, uses of threatens to use a weapon or an imitation thereof, or o B) causes “bodily harm” to the complainant, is guilty of a *hybrid offense+ - S.2 “bodily harm” means any hurt or injury to a person that interferes with the health or comfort of the person that is more than merely transient of trifling in nature Actus Reus – What Constitutes Bodily Harm: - What do we mean by “more than merely transient or trifling”? - As the CCC goes no further, we must look to the decisions - In Robinson (2001), the OCA decided that rubbing a beard against skin until the skin was “rubbed off” could constitute “bodily harm” - In Taylor (1991), the NSCA decided that throwing beer over somebody, while probably assault, did not amount to assault causing “bodily harm” - In Moquin (2010), the MCA said that an injury that does not amount to “functional impairment” can still constitute bodily harm - In McCraw (1991), the SCC suggested (possibly) that “bodily harm” could include “psychological harm”: o “there can be no doubt that psychological harm may often be more pervasive and permanent in its effect than any physical harm” - What is enough for “bodily harm”? Actus Reus – Sexual Assault: - 271.(1) everyone who commits a sexual assault is guilty of a [hybrid offence] - The word “sexual” is not defined anywhere – must use cases to define it - In Chase (1987), guy grabs girl around shoulders and breasts - NBCA says must be “genital contact” for “sexual assault” - SCC determined that question of whether an assault was “sexual” would be determined by an objective test - What is objective versus subjective? - Key question to ask in objective test – would a reasonable observer, in light of all the circumstances, conclude that the contact was of a sexual nature? - In V (K.B.), a father was accused of sexual assault for violating grabbing his 3 year olds genitals; the grabbing was accepted as “disciplinary” - SCC stated that, where the actus reus portion of the offense of sexual assault is concerned, and the true intent of the contact was not relevant in making this determination - In Bernier (1998), the SCC made a similar finding where sexual touching was done in a “joking and non-aggressive manner” Actus Reus – Sexual Assault – Consent: - How do we determine if consent has occurred? - 265(3) no consent is obtained where the complainant submits or does not resist by reason of: o The application of force to the complainant or to a person other than the complainant o Threats or fear of the application of force to the complainant or to a person other than the complainant o Fraud o The exercise of authority - Determination of “sexual” is objective, but consent (as far as actus reus is concerned) is purely subjective - Ewanchuk (1999) – job interview in a van – was there implied consent? - At ACA, McClung said “she did not show in a Bonnet” and Ewanchuk’s actions were “more hormonal than criminal” - SCC stressed that any analysis of consent was to be purely subjective (that if the victim says they didn’t consent, and you believe them, then that is where it ends); if victim did not consent, subjectively, then there is no consent - At the actus reus stage, even an honest mistaken belief in consent is not relevant (however, this might be important in determining if the proper mens rea was present – later) Actus Reus – Assault – Consent: - How about consent in non-sexual assault cases – fist fights? - Jobidon (fist fight in and out of the bar) - SCC states that one cannot consent to anything beyond non-trivial bodily harm in the context of a fistfight - Thus, even subjective consent has its limits; generally, one cannot consent to “bodily harm” - What about sports? - Implied-consent is objective, depending very much on the sport itself, and what is deemed a “normal” risk of injury reasonably expected in the context of that sport - “the limitation demanded by s.265 vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fistfight or brawl… will not affect the validity or effectiveness of freely given consent to rough sporting activities carried out according to the rules of the game, medical or surgical treatment, or dangerous exhibitions by qualified stuntmen” Assault Review: - Assault causing bodily harm (s.265 and 267) - Step 1. Intentional application of force (can be physical touch or attempt/threat if victim reasonably believes present ability to effect purpose) - Step 2. Either weapon involved or “bodily harm” (defined by s.2 and the cases, Taylor, Robinson – psychological harm might qualify, McCraw) - Step 3. Was there consent (subjective test, with limits – Jobidon) - Sexual assault: o Step 1. Intentional touching o Step 2. Touching is “sexual” (objective test, motive irrelevant, Chase, V(KB), Bernier) o Step 3. Was there consent (subjective test/Ewanchuck) Actus Reus – Care and Control: - 253. (1) everyone commits an offence who operates a motor vehicle…or has the care or control of a motor vehicle, whether it is in motion or not, o While the person’s ability to operate the vehicle…is impaired by alcohol or a drug o …the concentration in the person’s blood exceeds eighty milligrams… - Can be in operation of, or in “care and control”, and can be “impaired” or > 0.08 - What is the meaning of impaired? - Stellate (1993), SCC said simple impairment, from slight to severe, of the ability to drive, will suffice - A “marked” degree of impairment is not required - “before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate a motor vehicle was impaired by alcohol or a drug…if the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out” Actus Reus – What Constitutes Care and Control: - Ford (1982) – party, entered the car several times to keep ti warm, had arranged for someone else to drive, found in drivers seat with car running - SCC –
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