WDW225 Lecture 9

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Woodsworth College Courses
Jim Davies

WDW225 Lecture 9 11/22/2012 Recap- Party Liability 21. (1) Every one is a party to an offence who (a) Actually commits it; (b) Does or omits to do anything for the purpose of aiding any person to commit it; or (c) Abets any person in committing it. (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. “Actually commits it” – the principal - Person who commits the actus reus with the mens rea “For the purpose of aiding” - Equally responsible in law as the principal - Must do or omit to do something (actus reus) - Must have the intent to assist or help (mens rea) - Must know what the principal is intending to do (mens rea) - Can prove knowledge through wilful blindness “Abets any person” - Equally responsible in law as the principal - Must do or omit to do something (actus reus) - Must have the intent to encourage, instigate or promote (mens rea) - Must know what the principle if intending to do (mens rea) - Abetting before the committed act is guilty as well “Common intention” 1.Intention in common to commit one offence 2.Steps taken to carry the common unlawful purpose 3.Intent to assist each other 4.Commission of a different offence in carrying out the unlawful purpose 5.Accused knew [or ought to know] the other offence was a probable consequence of carrying out the common unlawful purpose 6.Accused can abandon the “common intention” – must be unequivocal, must be communicated, must happen prior to the commission of the offence 7.No need for the party to aid or abet the principal in the commission of the “other offence” 8.Captures those who know or ought to know (except for murder) that another offence is likely (only if the other offence is an objective mens rea) Example: Sunil and Morgan are aggrieved students. They are mad because Governing Council voted to increase tuition by 100% without any student input. They decide to kidnap the University President and hold heart knife point until he agrees to revoke the decision and hold consultation sessions. 20 hours into the kidnapping, Morgan slits the President’s throat because their demands had not been met. o What would the Crown have to establish to secure a conviction again Sunil as a party to murder?  Sunil and Morgan are the principle of the hostage  21(2) liability of the murder of the other offence  Morgan is the principal to the murder  If Sunil knew that the murder was probable consequence of the hostage taking he then can be found guilty as the party  Murder is an objective mens rea offence o What if Morgan stabbed her but did not kill her?  If the president did not die, the crown would have to prove the subjective mens rea, because it was an hostage taking (assault) Mental Illness and Criminal Law: Flash Back Non-Insane Automastism Insane Automatism - External cause - “Disease of the mind” – not purely a medical decision - Transient disturbance of - legal, policy and medical elements (exemption from consciousness liability; protection of the public) - No ongoing dangerousness; - Presumption that automatism is caused by a disease of risk of recurrence the mind (R. v. Stone) - actus reus not voluntary - Results = “not criminally responsible on account of a - results = not guilty mental illness” (s. 16) = potential for ongoing supervision - General view that we should not punish someone who commits an offence (even serious violent offences) as a result of a mental illness - Raises difficult question – how to excuse them from criminal liability? o Not fair to punish o Need to protect the public from danger o Does the mental illness have to go so far as to negate mens rea? Arises in 2 discrete ways 1. Fitness to stand trial s. 672.22 – an accused person is presumed to be fit to stand trial unless the court is satisfied on the balance of probabilities that the accused is unfit to stand trial What is their mental state of mind at the present moment in time (moment of analysis) (There’s a presumption that everyone accused of an offence is fit to stand trial) 2. Determining criminal responsibility s. 16(1) No person is criminally responsible for an act committee or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. What is their mental state of mind at the time they committed the offense Fitness to stand trial - Define in CC - “Unfit to stand trial” means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, on account of mental disorder to: (a) Understand the nature or object of the proceedings, (b) Understand the possible consequences of the proceedings, or (c) Communicate with counsel. Rationale for rule: - The accused must have sufficient mental fitness to participate in the proceedings in a meaningful way in order to ensure o The determination of guilt is as accurate as possible o The accused can participate in the proceedings or assist counsel; and o To protect the dignity of the trial process is maintained. - To be found fit an accused must satisfy a “limited cognitive capacity test” (low threshold) - Understand the offence, know what they are guilty of, and who the key players are, and at the end of the day they may be guilty on the offence - Meaningful presence and meaningful participation at the trial are the touchstones of the inquiry into fitness. What happens if someone is “unfit”? - Can happen at any time in the process o Anyone can raise the issue o Individual can be ordered to undergo an assessment by a forensic psychiatrist - Can be ordered to undergo treatment if o Treatment is likely to render the person fit within 60 days o Likely to remain unfit if untreated - If permanently unfit, can be ordered detained indefinitely; Crown must demonstrate every 2 years there is a legal/evidentiary basis to have a trial (prima facie case) Not Criminally Responsible - Special verdict in law o Not convicted; not acq
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