WDW225-November 15.docx

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Woodsworth College Courses
Breese Davies

Lecture 9, 2012-11-15 Party liability Generally speaking there should be symmetry between the Actus Reas and Mens rea. There are some examples that it is not there, but generally speaking it is there. Actus Reas is the act the consequence or the circumstance there will generally speaking be a corresponding to mens rea. S.7 of the charter tells you in respect of mens rea is that there is a requirement that all crimes have a mens rea element to it. You cannot have absolute liability which is an absolute liability coupled with penal consequences. So there has to be a requirement for mens rea. Objective mens rea is generally sufficient to satisfy s.7 of the charter, but for certain offenses and we know that it is not a fixed list but certainly murder, theft and the terrorist provision of the criminal code has a sufficient degree of stigma and or a sufficient degree of serious of penalty that they require a subjective mens rea, in order to satisfy s. 7 of the charter. Generally speaking objective mens rea is a myth unless you fit in this category of specific offenses for subjective mens reas is required. Subjective mens rea, the types of mens rea that we talked about the types of elements that engage the subjective foresight of our intent or purpose what did the accused intend to do what consequence they intend to bring about by their action, we talked about knowledge, what does an accused person actually know, so it says if someone does something knowingly requires subjective mens rea because you have to have known some thing. Ought to have known is an objective measure. Willful blindness is just a way for the crown to prove knowledge; it is a different way to prove knowledge. Recklessness. On the other side of the equation objective mens rea objective foresight of some consequence, objective foreseeability what ought to have known is in the realm of objective mens rea. Criminal negligence causing death also criminal negligence standing alone. Mistake: we talked about Pappijohn which is a mistake of facts, what happens when you are mistaken something when there is a knowledge component to the mens rea. Pappijohn took the position that she was consenting or he mistakenly believed that she was consenting so the argument is depending on circumstance you can make both argument some times either she actually was consenting or based on what she said or did I was led to believe that she was consenting even in fact if she was not. This what the mistake in facts mean in terms of sexual assault, and what the court said that when the Mens rea have a knowledge requirement like sexual assault does knowledge of the absents of consent. Then your mistake about that can be a basis to say you do not have the mens rea. Mistake in perception of a fact regarding consent can negate mens rea. what the court said In Pappajohn is the mistake has to cause you to honestly believe that the person was consenting so it is not that you did not know whether they are consenting or not it is not enough to say well I was not quite sure. The mistake in believe has to be honestly held. You had honestly believe that the person was consenting despite the fact in reality she was not. And in Pappijohn the court said the mistake Itself does not need to be reasonable, so we do not look at the reasonableness of the person who make the mistake, so long that it is honestly held believe by them that was enough. The CC was amended post Pappiohn in 1992 to enact s.273.2 of the CC to deal with certain circumstances a around issue of consent in sexual assault cases. So what they said is that it is not a defence that the accused believed that the complainant was consenting so this idea of mistake in believes in consent is not available in certain circumstances. So it is important to understand the elements of s272.2 because it limits the Pappijohn decision. Pappijohn said if it is an honestly held believe that is enough to negate mens rea, but 273.2 comes a long and says wait wait wait in certain circumstances we are not going to let you make that argument. And the circumstances are that if the accused believe arose from self induced intoxication So you get yourself hammered and you cannot figure out whether someone was consenting or not and you say well I was really drunk and I swear I thought that she or he was consenting, that is not available that is not an available argument. So, self induced intoxication will take away the ability of an accused person to argue honest mistake in believe in consent. Whether you are reckless or wilfully blind or if you could not take reasonable steps in the circumstances known at the time to ascertain that complainant was consenting. So we now have injected into this idea of mistake in believe in consent the notion of reasonableness. So Pappijohn said it does not have to be reasonable as long as it is honestly held that is not the law any more because under s.273.2 in order to put forward a honest mistake belief in consent defense. The accused has to show that he took all reasonable steps to ascertain consent. And so if the accuse can say I took all the steps to ascertain consent and as a result of those steps I honestly believe that she was consenting, that is a defense. But it is not a defense to say well I never asked I never did any thing I just assumed that se was consenting. Those are reasonable steps to ascertain consent. So s.273.2 has effectively overruled the decision in Pappijohn the mistake cannot be reasonable (parliament has overruled). Sidenote: The notion of intoxication acts against an accused person in two different ways: it deprives a complainant from the capacity to consent, but it also deprives an accused person of a potential defense so on both counts it acts against the accuse against their interest. Ewanchuk was the case offering a job to a 17 year old and he invited her to his trailer from time to time for a job interview and there was some sexual touching, from time to time she would say no so there was pushing and touching and other time she just did not say nothing at all and eventually he end up getting charged with sexual assault and his argument was it was consensual or I believed that she was consenting. He was acquitted at trial and it was upheld in the court of appeal, the decision of the Court of appeal just caused a complete turf war in legal community. Because the language in the decision was outrages from the court of appeal. The court of appeal judge who wrote this in explaining why it was that there was a mistake in believe in consent said that “the complainant did not present herself to Ewanchuk or enter his trailer in a bonnet and crinolines” and his conduct was less criminal than hormonal. This was not in 1950 it is about 10 years ago and then the judge say if we were less litigious this would have been dealt by a slap in well directed knee. This is what the Alberta court of appeal said about the case. Thankfully the SCC saw it important to intervene and they reversed it and ordered a new trial. So what the SCC said that is for mens rea the issue is whether the consent or the absence of consent was communicated to the accused person. Obviously that is the issue in terms of mens rea. In terms of knowledge what was communicated to the accused person. So was consent communicated or was the absence of consent communicated and to establish the defence of honest belief in mistake of consent. The accused has to demonstrate that he honestly believe that the complainant was consenting, base on what she communicated to him through or action or her words which means in order to establish an honest but mistake in belief in consent. The accused person or defence counsel has to be able to point to the complainant actions or words and eexplain why those positively communicated consent. What did she do did she say something did she act in particular way did she respond to something in a particular way that ppositively communicated that she was consenting. The other thing is as it says in s.273.2 the accused must take reasonable steps to ascertain whether the person is consenting. So, it is not enough to keep trying keeping trying and hope that they will stop objecting you have to take positive steps to ascertain consent on an ongoing bases. This is interesting because it ties up to JA issue of whether you can or cannot consent to a sexual activity at the time when you are unconscious. The other important thing that Euncheck tells us about sexual assault and honest but mistake in believe in consent the laps of time the fact that she says no now but does not say no in 5 minute from now is not relevant it is not enough to establish an honest but mistake in believe consent. Silence is not enough you can not say well she did not say no therefore she must have been consenting that is not a sort of thing that you can claim to as a conduct on the part of the complainant to say that there was consent and eequivocal conduct, that is interesting equivocal conduct means it is unclear it could be interpreted one way of the other which means that in order for you to argue that there is honest but mistake in belief in consent you must actually be able to point to a positive conduct not silence or absence of the conduct that is clear that there is a communication of consent. Side note Laps of time the transaction occurred over a period of time number of examples where conduct can happen over time so if you think of being in a bar or going to a night club the fact that you go up to someone now and say would you like to have sex with me and you got a clear response of the absence of the consent time passes and they say nothing, That gap in time and silence is not a positive communication of consent, llikewise if you have a circumstance in what someone have consent in sexual activity today and then 2 days later you want to composition them again, the fact that they consented at one point in time the gap in time doe does not help you so initial consent or gap in time does not help you have to ascertain consent or take reasonable steps to consent on an ongoing basis to the particular activity that you are engaged in at the time. PARTY LIABILITY is the foundation of criminal law. It is the s.21 of the CC (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. so there is in s.21.1 there are 3 different ways that you can be guilty you can actually commit the offense if you aid someone in committing the offense or you are going to abet someone in the commission of the offense any one of these make you just as liable as the same as you committed the offense yourself so there are different levels of liability, sentencing maybe different the requirement to prove guilt maybe different but liability is the same. s.21.2 is different form of liability “Where two or more persons form an intention in common to carry out an crime and to assist each other therein and any one of them, in carrying out the common purpose, commits another offence, each of them who knew or ought to have known that the commission of the other offence would be a probable consequence of carrying out the common purpose is a party to that offence. “actually commits it” The person who commits the actus reas the person who has fullest requirement of mens rea we call that person the principal. The principal must be present or sort of constructively present because some offences take place over period of time, when the offence is committed there can be more than one principle in an offense so long as each of you contribute to the offense, depending on circumstance. So long as you each commit or contribute to the commission of the offence, so the example is the Pickton which caused a huge peperoir in which what would happen if somebody else so Pickton is a serial killer in British Colombia and one of the issues that rose in his case case was What would happen if somebody else have helped Pickton during the commission of the offenses or someone else was also there and did something in term of committing the offense and there can be more than one principal. Example, person A and B go out to rob a bank if the both walking to bank with guns and both are willing to steal money they are both principal. So if both committing the act with corresponding mens rea. “does or omits to do anything for the purpose of aiding”, this is pretty straight forward that if you help someone you could be guilty by it is a little bit more complicated than that. So first thing to know about someone who aid someone in commission of an offense they are equally guilty, you cannot say I am not guilty I did not do it. We hold people criminally liable if they helped someone else to commit a criminal offense so you are equally liable. You do not have to be present when the crime is committed, for example person A and person B want to rob the bank tonight and person A is going to drive person B there and the person A is going to sit in the car and A is going to wait in the car drive me away A is watching out for the police and trying to keep B posted and if the police come person A can drive person B away. A is not in the bank when B is robbing the bank. So the person who aid someone in the committing of the offense does not have to be present when the actus reas is committed. Meres presence is not enough, you are perfectly entitled to stand by and watch someone commit an offense, it does not make you guilty. So being there and doing nothing is not enough. You have to do something or omit to do something, and you have to do it with the intent to assist. So it is not something that you do something and it has the effect of assisting. So for example A could intend to rob a bank tonight but A does not have money to purchase gas and go rob the bank so ask B if A could borrow money for gas and B asks why and A says I need to put gas in the car. Now A could not get to the bank to rob it because A did not have the money for the gas of the car. B give the money knowing nothing about what A is going to do, what B has done had the effect of aiding A in the commission of the offense but it was not B intend, B was probably was nice. So you have to do it with the intension of what ever it is you do because it is not the act of the offense what ever you do you have to do it with the intention of helping someone commit the offense and by helping we just mean make it easier for an offender to do or make it possible so it is nothing magic about. Whatever you do you have to do with the intention of the doing the work If she thinks I am completely joking she does not have the intend to rob the bank You do not have to know the details. “abets any person” basically means if you abet some you are just as liable as you committed itself. So what does abetting means it means instigate, promote or procure an offence, so you standby this is the whole kind of gang mentality if you stand and aid someone on in a fight or to commit an offense that is what abetting is all about, encouraging someone to be there. Again Mere present there is not just enough something more is required and actual act of encouragement is required with the intent to encourage. So what ever you say or do has to be done with the intention of encouraging of controlling the accused person to commit the offense. Again you have to do with the knowledge of what the criminal has to do and again you do not need to know the details of it you just need to know the offense that they commit and you have to encourage them to do it. Cheering on the sideline it just makes you liable, if you are doing with the knowledge of what they are going to do or what they are doing, and with the intent to encourage them. Because it is the intent, mens rea, that we really focus on in terms of criminal liability. If you are intending to encourage them to commit criminal act that is what should be dealt with. If you have or own a condo building you are not aiding or abiding them, because you did not know you are not liable but if you did know you are liable. “Common intention” (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. What does al this mean? First of all under s.21 sub 2 there must be proved that two or more people formed “an intention in common”. That means that there has to be joint mens rea between two or more people who commit a particular offense. Think bank robbery person A and B form an intention at common to commit a bank robbery that is the first part of the test under s.21 sub 2 the crown has to prove a common intention. Steps have to be have to be taken to carry out the common intension, A and B actually start the path to carrying out a bank robbery. And A and B have to intend to assist each other in carrying out bank robbery. And again A and B do not have to be principal they just have a common plan that together they are going to rob a bank and each of their roles has to be defined and where each going to help each other. A or B can go to the bank or whatever. The other important element of s.21 sub 2 is that another offense fet committedd by one or other of them. Another meaning something other than want we initially plan on so we plan on bank robbery and A loses the mind and kill the person at the bank. That is anther offense that is not part of the common intention, if A and B agreed that they are going to kill somebody this section does not apply. It only applies when one or other commits an offense that they did not agree to. Another offence gets committed in carrying unlawful purpose. And the last element is the mens rea. Ought to have known he last element of the test under S.21 sub 2 is that A knew or ought to have known that the other offense was probable consequence of carrying out the common intention. The crown would have to prove that a homicide was a probable consequence of carrying out A/B common intention of robing the bank. How does the crown prove this is well it depend on whether or not both were armed whether or not they both have histories of violence whether A and B committed other offenses whether or not they talked about, you know we just take anybody out if we have to, there is going to be what ever the evidence is will determine whether or not something with probable consequence or not. Now ought to have known it is objective when can you use objective mense rea? Not manslaughter but for murder because you need subjective. If the other offense committed by given the example of A/B then A can only be guilty under s.21 sub 2 if A knew because no matter how you are going to hold someone liable for murder it has to be on the basis of subjective mens rea so a party can be held liabe to a murder as part of common intention to commit some other offense if they knew that murder was a probable consequence of carrying it out. If the second offense is any thing else any thing for which there is appointed to subjective mens rea then ought to have known will be insufficient. It depends it will depend whether he knew that a murder was a likely consequence of carrying out the offence, so did he know whether they had a gun did he know whether they had a history, but if he did not know that murder was a likely consequence., He may be guilty of something else, a party of the offense can be found guilty of something else than the principal based on different mens rea but no if they do not know. That evidence can also be used. You and I decide that we are going to traffic heroin I get the heroin you are going to be my driver it is all great we are going to deliver heroin you and I think we have a common intention to traffic heroin so we are going to drive somewhere we are going to give somebody heroin they are going to give us money and we are going to not need. Instead what happens we drive there we give them the heroin and they say sorry I do not have money and I pull out the gun and shoot them in the face, and I just committed a culpable homicide that is a separate that is a different offense than what you and I had formed a common intention to carry out. So you are for sure guilty of trafficking heroin because we planned it and carry it out the question then is how do you become guilty of what I do in carrying out our common intention so if it is a murder then you would have to know that it was the likely consequence of carrying an offence in shooting someone if instead I was shooting in the face I punched him in the face then you will only have ought to have known that the assault was a probable consequence of carrying out common intention because assault only requires objective mens rea. More to this if you think okay I formed common intent
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