WDW225-November 22.docx

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Woodsworth College Courses
Breese Davies

s.21 (1) of the code which deals with how it is everybody can be found guilty of an offense. the person who commits it we call it the principal so that is what we call for most of the term. doing or omitting to do any thing for the purpose of aiding the principal or abiding the principal. s.21 (2) where two or more people form an intention in common to carry out an unlawful purpose so you form an intention to carry one offense you take steps to assist or you agree to assist each other in committing that offense one or other two to agreement commits a different offense and so if you knew or ought to know that the commission of that offense will or culpable consequence to original to that offense then you can be party to that additional offense as party. 1.The person who actually commits it is the principal the person who actually has the actus reas and mens rea of the actual offense. 2.For the purpose of aiding equally responsible equally guilty of an offense. If you help someone commit a robbery you commit a robbery if you help someone trafficking cocaine you get convicted of trafficking the cocaine although you are someone that did not commit. You are just as guilty as you commit the offense. what is the actus reas so the actus reas is doing or omitting to do any thing, you can do any thing and it can constitute aiding the principal, as long as it is accompanied by the right mens rea. Mens rea is having the intentto assist so you want to intentionally assist the principal and you have knowledge of what the principal intend to do. so the one element of actus reas is doing or omitting to do any thing and 2 elements of mens rea for being a party or aider so 1. the intent to assist and 2. knowledge, knowledge can be proved by the way of willful blindness in any crime knowledge is an element of mens rea you can prove it by willful blindness. 3.s.21 (c) is abiding and aiding go hand in hand, they are actually different you can abed someone without actually aiding commission. Again if you abed someone in commission of acts you are as guilty as the person who commits the act. if you encourage someone or control someone to stub someone you are just as guilty as you are holding the knife self. And these are policy decision. So we have decided to make it crime abiding and aiding. The important thing about the party is that the actus reas and mens reas for the party are different as for the principal. Lastly on the party liability forming is the idea of common intention and this is obviously much more complicated are, but if you pointed around the steps. There are really 5 steps to it, 1.two or more people have to come to an agreement to commit a particular offense. Forming intention in common 2 people agree to commit a particular offense a robbery an assault a murder trafficking whatever two people agree to commit an offense. 2.they take steps to carry out that unlawful purpose so they take steps actually commit the offense they agreed (joint enterprise) 3.they actually assist one and other in committing the agreed offense, when one or other of the perpetrators people who formed intention in common commits a different offense, so this is two of us going to-traffics drugs we go and meet the customer who is buying cocaine from us I think it is going to be great here is the drug here is the money it is going to be great. And the person with who I am going to traffic with commits a different offense assault a murder, hijacking whatever they go off an follow their own and they commit a different offense in the context of our original plan the question becomes then I might be guilty as a party to the other offense they committed and I can be and I will be if i knew in circumstances where the other offense requires subjective mens rea as murder or ought to have known that the other offense or the assault or murder or the whatever the other offense is were the probable consequence of the initial plan. so was it a probable consequence of that my co perpetrator was going to commit an assault taking hostage or whatever it may be that happen was that a probable consequence and again these are all going tot be very fact specific depending on the plan and whether we go armed did we plan to not be armed did I know that the most ridiculous tempering what is my state of knowledge about the circumstances that will determine whether or not I knew or ought to know that was the probable consequences. So again I do not have to do any thing to help them to commit the offense I do not necessarily have to know what they are about to do it but I just have to know that it is a probable consequence. there is no requirement that I want them to do it in fact they can do it and I CAN TURN AND SAY WHAT A HELL ARE YOU DOING I still can be guilty if I knew that it was a probable consequence of throwing out the plan that they might do this. Abandoning common intention The whole thing is we form a plan in committing an offense for example we talked about drug trafficking and the question is, is there a way to get out of it can we back out of it before things go wrong. And the answer is yes you can back out of a common intention, you can not back out after you aided someone or after you abided someone you are already guilty because you committed the actus reas and mens rea you can back out of a common intention you can abandon common intention so person A and B decided to drug traffic and in middle of the way persON A thinks this is not a good idea and he says to person B I am out of this, I am not committing this drug transaction with you let me out of the car but it is clear it is unequivocal A have communicated to B that he is abandoning the common intention and he does it before they completed the offense, it has to be before it happens that does not make A FREE BECAUSE A can be charged with conspiracy or aiding because by forming the intention might have encouraged B, but what A can not be found guilty of if he abandon the common intention is any thing of that he may do is during the whole transaction itself so A abandon common intention and B says you know what he does it any way and kill the person with who he deal drug, A have abandon common intention A cannot be held liable for the other offense that B committed in carrying out the common intention that A and B formed otherwise if A standing beside B in killing during the drug transact A would be into s.21 (2) so abandoning common intention only reliefs your liability of any thing else you may decide to do after you have abandon common intention. Ought to have known in s.21 (2) is only applicable if the other offense is an objective mens rea offense if the other offense is murder then in order to be found guilty as a party under s.21 (2) the crown has to prove that you actually knew or were willfully blind that murder was a probable consequence or carrying out whatever your common intention was. Example, Sunil and Morgan got really upset because government counsel have decided without any consultation that they are going to increase the tuition 100% next year and they make the announcement and these two students really get pissed off and they say why should we not engage in some sort of protest we should hostage the president of the University and we should hold him at knife until they agree that they are going to change their mind. so they go and they carry out the common intention and they actually kidnap the president of the university and they hold him at knife point things do not go so well the negotiations don't go so well and they kind of ignore them at some point they do that 20 hour in to and Morgan decide to sleep the president in to it to make a big statement to show that they are really serious and the president dies and Sunil says what on earth are you doing. there is no doubt that Morgan is the principal so they are both principal in respect to the hostage taking, they form an intention in common to kidnap and take hostage and they are both principal in respect to that offense so s.21 (2) deals with your liability for murder that happen in fulfilling the hostage taking event so there is no doubt that Morgan is the principal to murder so Morgan committed the actus reas and there will be a determination of what intention Morgan has whether it is going to be a first or second degree murder but Morgan is going to be kept liable as a principal to murder. Sunil can be found only guilty in respect of the killing under s.21 (2) if he knew that it was probably going to happen. so if he knew going in to it that means as they were walking to the office of the president as things were happening did he know that the murder was a probable consequence of hostage taking. Depending on the circumstances whether they talk about or not or what kind of knife they have if the crown can prove that the murder was probable consequence he can be found guilty as a party to the murder even though he did not do it even though he probably did not want it to happen even though going to whole the scenario he thought this is going to be routine hostage taking he can still be found guilty of the murder if the crown can prove request degree of knowledge what if Morgan just stabbed the president to get media attention did not want to kill him did not want to harm him severe he just want to get media attention the crown has to prove the same thing or some thing different the crown has to prove that the reasonable person could have foresee the consequence because of objective mens rea because assault is objective mens rea offense not a subjective mens rea offense so the crown would have to only prove that Sunil ought to have known that a reasonable person would they have known that this is the probable consequence of carrying out the common intention and the common intention is the initial plan would a reasonable person have know that carrying out an hostage taking that an assault isthe probable consequence and again this is an easier argument to make because certain circumstance that they were both armed and that they thought that they are going to use any way, a reasonable person would have foreseen the consequence than making the argument that he actually knew. What we do with and how we treat individual in the system that suffers from mental illness. we are talking about people who commit offenses as a result of mental illness. Automatism, actus reas requirement that every act must be voluntary, to some circumstances that we find that someones act is involuntarily we call that automatism we talked about non insane automatism as sort of load the head circumstances where there were external cause this is the test it is caused by some external forcer it is transient in nature with no ongoing risk and as a result there is the finding that the actus reas was involuntary so you are acquitted or found not guilty and we also look at cases where the cause of someone acting in an automatic, or automatics state automatism was actually was disease of the mind, Parks, Ludecke, when it is a product of disease of the mind, the result is not found mentally responsible as mental disorder. they are not acquitted it is a special verdict and they are put in a special program. and the disease of the mind is and legal and social and medical all together wrapped. What happens to someone who acts in a particular way as a result of mental illness? There is a general view in society that we should not punish people or fine them or hold them criminally accountable who commit offenses even very serious offenses if they do it because of a mental illness of as a result of mental illness. We do not want to held people who commit a crime as a mental illness criminally liable, WE DO NOT WANT TO PUNISH THEM. But what do we do with these people how do we treat them and what should we do with people like that, should they just be acquitted because we say we do not hold them criminally responsible or should there be some other system how do we deal with the potential danger associated with people like that, no all mentally people are dangerous, which is a stereo type in public and dominated criminal justice for a while but there is a certain element of mentally disorder people who commit criminal offenses who do in fact pose danger to the public so should we just release them unconditionally or should be there other system. What do we do in circumstances like that do we only care if the mental illness negates the mes rea do we only care if it negates actus reas or are we going to relief them of criminal liability even if they have the actus reas and mens rea but for reasons of mental illness they are committing these offenses. Mental illness comes up in 2 discrete legal ways during a criminal trial and the 1st way it can come up is in the concept of fitness to stand trial are you fit enough in mental health way are you capable enough to stand your trial and this is under s.672.2 of the criminal coder there is a presumption that every body who is accused of offense is fit to stand trial, it is up to the accused or the crown to call evidence to show that someone is unfit to stand trial. Are you confident to even have a trial. the 2nd way it comes up is in deciding whether or not someone is criminally responsible. the focus of the fitness analysis is what is the person's current state of mental health at the time that they are in court at the moment that they are having their trial or whatever other process, are they confident do they understand what is going on are they capable of giving instruction to their lawyer at the present moment and time, that is the moment of analysis their current health. not criminally responsible is a backward looking of analysis because it looks at mental health of the individual at the time that they committed the offense, the question is at the time when they committed the offense were they suffering from the mental disorder such that they were incapable of appreciating the nature and quality of the act or of know that it was wrong. Fitness to stand trial, The concept of unfit to stand trial is actually defined in S. 2 of the criminal code you are unfit to stand trial if you are unable on account of mental disorder to conduct a defense at any stage of the proceeding 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 proceeding (B) understand the possible consequences of the proceedings, or (C) communicate with counsel. So if an accused person is because of the illness incapable of conducting their own defense or instructing counsel to conduct their defense or they do not understand the nature of proceeding or they do not understand the consequences then they are set to be unfit to stand trial. If someone is set to be unfit to stand trial the proceedings are put on pause, at whatever stage you are at. The reason is because we think that the fairness of the process the accuracy of the result and the integrity of the whole process depends on the accused person being able to make decision about how their trial should proceed and what they want to do whether they want tor represent themselves or want their lawyer to do it. Unless the accused person has the sufficient mental capacity to do those things we do not want the process to proceed at all. The courts has set the bar very low for the prove of standing someone fit all you have to show is a limited cognitive capacity test so all you have to be able to show is that the accused person understand that they have been charged with an offense they understand that the purpose of proceeding is to determine whether they are guilty or innocent, they know who the various players in the system are and they know that at the end of the day they can be found guilty and sentenced. That is really all they have to understand, they do not have to necessarily be able or willing or capable to act in their own interest, fitness is not about your ability to make good decision or your capacity to make good decisions it is only about your ability that understand at minimum or communicate instruction as counter productive maybe what you have to do with your lawyer. so assuming that a person is able to participate in the process then they will be found to be fit and the process goes along if they are not able to participate in the process we basically make a determination where we have said is that is in effect proceeding where they are not present. One of the touchstones of our criminal justice system is that the accused person has to be present for every single step in the process you cannot have a trial without the accused person presence. IF AN accused person does not have the cognitive ability to engage it is like they are not present and we do not run criminal trial in the absence of the accused. What happens when someone is unfit? If the accused is unfit a whole new process starts now someone can be unfit at any different stage of the proceedings because fitness is about current mental state that today you are in court are you capable of appreciating what is going on and communicating with your lawyer, mental illness and severity of it can fluctuate over time which is variety of understand but someone can be well at one point in the proceeding for a variety of reasons whether they are under medication or under stress or whatever so they can become unwell at different point of the proceeding either beginning or in middle or at the end, whenever it happens the issue has to be addressed interestingly and this is different than in terms of not criminally responsible, any body or any one in the process can raise the issue of fitness, they are suffering from mental illness and they are incapable of controlling the process. At any point of the process when any body sees symptoms or behavior red flags that make them think that the accused person is unfit they can raise the issue and the issue has to be determined. Once the issue is on the table the court has the ability to order the accused person to undergo psychiatric assessment. So we do not ask judges to be psychiatrist we do not ask judges to determine on their own to determine whether or not someone has limited cognitive capacity or enough cognitive capacity or understand the issue or not there is a requirement in the code that the judge order the accused to undergo psychiatric assessment, then there is a determination whether someone is fit or not. If the person is unfit so there is a decision made and the judge says yes I accept this person is unfit. once the determination is made that someone is unfit the judge has a couple of option they can just put the proceeding on hold for a period of time or hold through the normal course of thing that the accused become fit through something either voluntarily taking medication or they start treatment or they do something that resolve in fit. Alternatively, this is very unusual process in criminal law because generally speaking we do not force medical treatment on any body we talk about issues of consent we talked about s.7 of the charter and about security of the person and so and generally speaking the right to speak to charter is your right to control your health. but if you are found unfit judges can order an accused person to undergo treatment so the judge can order the accused person into a secure psychiatric hospital and it can order the doctors in that hospital to provide whatever treatment they think is appropriate. Now there is two condition that has to be met before a judge can do that they can not do it in all circumstances but if they are satisfied that when the treatment is imposed will in fact render the person fit within 60 days, so is there something that the doctors can do be it some sort of medication some sort of therapy whatever that change the person from unfit to fit within 60 days and that the accused person is likely to remain unfit without the treatment, this may resolve it if it resolve it you resume the proceeding from where you are fitness can be a transient thing it can come and go so if a person is fit it can proceed the process from where it was left off some times there has to be a new trial start but again you start where you stop as best as you can. There is an interesting provision in the criminal code because we do not like the indefinite detention inconsistence with our right to liberty, there is a provision in the coder that deal with people who are permanently unfit like there is nothing that we can do for them there is no treatment that we can provide for them that will render them fit and there are people in the system like that and there is an interesting requirement for people like that that for some one who is permanently unfit as a result of mental illness, permanently incapable of instructing the counsel and understanding the proceedings ever two years the crown is required to prove to a judge that if they had a trial they could prove the case against the accused person so they still have witnesses they still have the evidence they still have a case that they could prove if the accused was fit. And this is a sort of safe guard for the accused person that we are not going hold you in hospital indefinitely if you are unfit if we found that case never any more. PRIMA VICA CASE THERE IS SOME EVIDENCE assuming that someone is fit and fitness is the here and now your mental health now are you sufficient capable of to participate in process mental illness is also significant in assessing whether or not we are going to hold someone responsible at all are we going to find you guilty of an offense at all. Not criminally responsible is set out in the s.16 of the code., S.16 says no person is criminally responsible for an act or omission made while suffering from a mental disorder that render that person incapable of appreciating the nature and quality of the act or of knowing it was wrong.there is two part to this you have to be suffering from a mental disorder and it has to be at a tie that renders you incapable of appreciating nature of the offense that you committed. This result in a special verdict in law it is not a conviction and not an acquittal so at the end of the day there is no conviction and no acquittal there is a verdict of not criminally responsible as a result of mental disorder that is as registered on the charge that is what is registered on the system as verdict it triggers a special status you become a not criminally responsible accused person and it triggers a whole separate mechanism for your ongoing supervision no there is a couple of important thing: 1.every one is presumed not to suffer from the sort of mental illness that will exempt you from criminal liability according to s.16. So we all come to court every single person come to the court as the same person they are presumed to be same or they are presumed to not suffer from mental illness. 2.the burden is on the person raising the issue to establish that the accused person has a mental disorder and the metal disorder is of the sort that render them incapable of appreciating the quality and nature of the act and know that it is wrong so the burden ison the accused who wants the special verdict to satisfy the court. And that is set right in the criminal code. s.16 derives a lot of complicated issues in law 1.What does the language mean, what does it mean have mental disorder that renders you incapable of appreciating the nature and quality of the act and knowing that is wrong what does that really mean and how do we apply this in certain cases. 2.Who can raise the issue of s.16 is it just the accused that can ask to be relieved due to criminal liability or can the crown also suggest that the accuse person is not responsible who get to raise it and when. 3.What do we do with someone what kind of mechanism is in place if we do find someone is not criminally responsible what do we at that point in time we got the person with different status what should we do or what do we do about them. What is the test for determining someone not criminally responsible by the account of mental disorder? Abbey, Case where the accused person imported cocaine from cocaine, the evidence was that Abbey was suffering from maniac disorder which is a sort of heighten stimulation Abbey believed that he was protected by outside sources that even if he got caught he will not be punished with because he was protected by external forces. THE ISSE was is he criminally responsible for importing cocaine into Canada or is he suffering form a mental illness that render him incapable of knowing the quality and nature of the act and knowing that it was wrong, so there is no doubt that Abey really knew that this was wrong Abbey really talks about what it means to appreciate the nature and quality of the act and they also talk about to know something wrong. Abbey is very clear that there are two different ways for to find some one not criminally responsible. 1.First was is to show that you are incapable of appreciating the nature and quality of the act, if you have a mental illness that renders you incapable of appreciating the nature of the acts that you committed you are not criminally responsible. 2.Alternatively you may appreciate the nature and quality of the act but you may not know that they are wrong so the mental illness that you suffer from is sufficient to render you incapable of know what you do is wrong that also renders you not criminally responsible. Those are two different analyses that focuses on different cognitive functioning and Abey says that you have to look at them separately appreciating the nature and quality of the act the question in Abey was do I have to understand the physical nature of what I am doing and the physical consequences of what I am doing or do I also have to understand the penal consequence of it because in Abe
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