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Lecture

WDW101Y1 Lecture Notes - Assault Causing Bodily Harm, Actus Reus, Mens Rea


Department
Woodsworth College Courses
Course Code
WDW101Y1
Professor
David Davies

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Thursday October 14th 2010
Lecture 4: Voluntariness
More on Actus Reus
Recap: Charter
All Charter rights other than s. 7 -
STEP 1: does the law infringe the Charter right?
STEP 2: can the law be justified (“saved) in a free and democratic society under s. 1
(R. v. Oakes test)?
pressing and substantial objective; AND
rational connection; AND
minimal impairment; AND
overall proportionality
Section 7 (exception to general rule)
STEP 1: does the law infringe the right to life, the right to liberty or the right to security of
the person?
2: if yes, does it do so in a way that is inconsistent with the principles of fundamental justice
(over breadth, vagueness, minimum requirement for mens rea etc.)
“NO” – law does not violate s. 7
YES” – law does violate s. 7
Laws that violate s. 7 cannot be “savedunder s. 1; - say ok we know theres an infringement but is
it justified?
THEREFORE, no s. 1/Oakes analysis has to have a pressing and substantial objective and a
rational connection between the purpose of the legislation and the means that they chose
Balance the infringement against the benefit*-
if were talking about section 7 BREECH the analysis is slightly different, here the
1st step = DOES THE LAW INFRINGE THE RIGHT TO LIFE LIBERTY OR SECURITY?
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In criminal law the answer to that 1st question only will always be YES. But that does NOT mean
that every criminal law violates the section the section of the charter, so ifs yes, you ask yourself the
2nd Question
IF I DOES INFRINGE DOES IT DO IT IN A WAY THAT IS INCONSISTENT WITH THE
PRINCIPLES OF THE PRINCIPLES OF FUNDAMENTAL JUSTICE? If so then it DOES violate
section 7 – if it is NOT inconsistent, then it does not violate section 7 - & what the SCC has said is: if
a law violates section 7 it CANNOT be saved under section 1 BECAUSE section 7 has its OWN
internal balancing so in order to decide that theres a violation of section 7 youve already
established the fundamental principles of our legal system and its not possible to say that your
liberty interests are denied in a way that are not fair.
Can the law be consistent with section 7 but INCONSISTENT with another charter right? –
example: illegal to posses materials that are obscene -
ok so argument:
1 - the law is contrary to section 7 because it goes against my liberty + I think its vague
2 – it also violates section 2(b) of the charter because it violates my freedom of expression
its perfectly possible, to say it infringed section 7 because there IS a risk of imprisonment but its
NOT vagueso there is NO breech of fundamental principlesonce you say it coesnt violate a
charter right thats the end of the story
2(b) – yes it does infringe your freedom of expression, but NOW LETS LOOK AT SECTION 1 (and
the answer is yes)
Note: Principles of fundamental justice have nothing to do with section 1 – only section 7
*recap* EVERY CRIMINAL OFFENCE HAS:
ACTUS REUS + MENS REA
The important thing to know is that there can be more than one element to be actus reus and more
than one element for a mens rea
(Physical element) + (mental element) (they have to overlap)
Criminal act + criminal intent
ACTUS REUS
Always defined in the Criminal Code in order to determine what it is you need to read the section
of the code that defines the offenceit will ALWAYS involve an ACT or and OMISSION
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could be more than one element to the actus reus
read the Code sections
will involve an act or omission
might specify a particular consequence (might specify causation)assault, also assault
causing bodily harmthe actus reus is the adsault AND the corresponding bodily harm
that is caused (again, look at the code)
might specify a particular circumstances (absence of consent)assault the absence of
consent
EXAMPLE: participating in the activities of a terrorist group
83.18 (1) Every one who knowingly participates in or contributes to, directly or indirectly, any
activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to
facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to
imprisonment for a term not exceeding ten years.That creates the offence of participating in a
terrorist groupthe highlighted terms are important because they TELL YOU what the actus reus
is! When you think “what do i have to show to prove?”
1st directly or indirectly DO something that contributes to itit’s not an omission, not “do or omit
its an act! In connection with the terrorist
But there is more....there is 2 other sections that defines the offence
(2) An offence may be committed under subsection (1) whether or not (certain consequences occur)
(a) A terrorist group actually facilitates or carries out a terrorist activity;
(b) The participation of the accused actually enhances the ability of the group
(c) The accused knows the specific nature of any terrorist activity
(3) Participating in or contributing to an activity of a terrorist group includes (if the Crown can come up
with some other way tht the person contributed to it, they wouldnt be excluded, they are liable too)
(a) Providing, receiving or recruiting a person to receive training;
(b) Providing or offering to provide a skill or an expertise
(c) Recruiting a person in order to facilitate or commit a terrorism offence,
(d) Entering or remaining in any country; and
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