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WDW225 October 14, 2010 Actus Reus Part Two Lecture
4
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)
-pressing and substantial objective AND
-rational connection, AND
-minimal impairment, AND
-overall proportionality
-the rational connection between the objective and the criminal conduct is often well justified and effective
-is the harm caused to whatever rights infringed well justified and not overbroad
-big vs. minimal infringement on charter right; benefit vs. harm
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?
Step 2: if yes, does it do so in a way that is inconsistent with the principles of fundamental justice
(overbreadth, 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 saved under s.1; therefore no s.1 or Oakes analysis
Every criminal offence has:
Actus Reus + Mens Rea
(physical element + mental element), (criminal act +criminal intent)
ACTUS REUS
Always defined in the Criminal Code
-could be more than one element to the act reus
-read the Code sections
-will involve an act or omission
-might specify a particular consequence (might specify causation)
-might specify a particular circumstance (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.
But there is more
(2) An offence may be committed under section (1) whether or not
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 a terrorist group includes
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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e) making oneself readily available
ACTUS REUS under s.83.18 requires:
a)An act of participation (direct or indirect)
b)An act designed to enhance
ACTUS REUS under s.83.18 does not require
a)Proof the activity actually enhanced group (causation not required)
b)Proof that any terrorist act was or would be carried out
ACTUS REUS AND CONSENT
Many criminal offences require Crown to prove an absence of consent as part of the actus reus
s.265(1) a person commits an assault when
a) without the consent of another person, he applies force intentionally to that other person, directly or
indirectly
(2) this section applies to all forms of assault, including sexual assault, sexual assault with a weapon, or
causing bodily harm and aggravated sexual assault
R. v. Cuierrier
-Fraud will vitiate consent (including failure to disclose HIV positive status)
-consent can be vitiated on broader public policy grounds as well
LIMITS OF CONSENT
What are the limits of our ability to consent?
s.241(a) everyone who aids a person to commit suicide whether suicide ensues or not, is guilty of an
indictable offence
THEREFORE- cannot consent to be killed
What about injury short of death? Where is the boundary?
R. v. Jobidon (SCC, 1991)
-consensual fist fight
-Jobidon thought they were agreeing to a fair fight
-punched Haggart a number of times
-Haggart was knocked down by the first punch
-Jobidon thought he was just stunned
-continued to punch, Haggart died from head injuries
Jobidon was charged with manslaughter
s.222(5) a person commits culpable homicide when he causes the death of a human being
a) by means of an unlawful act
HERE: Jobidon caused the death of Haggart
ISSUE: was it by means of an unlawful act (assault)? Was the fight an assault?
MAJORITY (Gonthier J.)
-no common law offences (s.9)
-but common law can be used to interpret the offence provisions
-common law can shape the contour of codified offences
-if taken at face value, definition of assault would criminalize trivial conduct and lead to absurd results
-policy considerations can inform boundaries
Policy Considerations
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Document Summary

Step 2: can the law be justified (saved) in a free and democratic society under s. 1 (r. v. oakes) The rational connection between the objective and the criminal conduct is often well justified and effective. Is the harm caused to whatever rights infringed well justified and not overbroad. Big vs. minimal infringement on charter right; benefit vs. harm. Step 2: if yes, does it do so in a way that is inconsistent with the principles of fundamental justice (overbreadth, vagueness, minimum requirement for mens rea etc. ) Laws that violate s. 7 cannot be saved under s. 1; therefore no s. 1 or oakes analysis. Actus reus + mens rea (physical element + mental element), (criminal act +criminal intent) Could be more than one element to the act reus. Might specify a particular consequence (might specify causation) Might specify a particular circumstance (absence of consent) Example: participating in the activities of a terrorist group.

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