WDW101Y1 Lecture Notes - Sleepwalking, Beverley Mclachlin, Actus Reus

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23 Oct 2012
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WDW225 Lecture 4 10/11/2012
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Recap
Every Criminal Offences has:
ACTUS REUS + MENS REA
(Physical element) + (mental element)
Criminal act + criminal intent
- Facts that the crown has to prove to secure the conviction
- The intention which you do the act
Actus Reus
Always defined in the Criminal Code
- could be more than one element to the actus reus
- read the Code sections very carefully
- will involve an act or omission
- “omission” requires a legal duty to act first
- might specify a particular consequence (might specify causation; i.e. “cause death”
or “cause bodily harm”)
- might specify a particular circumstances (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.
- Doing anything that constitutes participating in or contributing to a terrorist group,
directly or indirectly
But there is more....
(2) An offence may be committed under subsection (1) whether or not (excluded)
(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
(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
(e) making oneself available to facilitate or commit a terrorism offence
ACTUS REUS under s. 83.18 requires:
(a) an act of participation (direct or indirect)
ACTUS REUS under s. 83.18 does not require:
(a) proof the activity actually enhanced group (causation not required)
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(b) proof that any terrorist act was or would be carried out
Actus Reus and Consent (Left off last week)
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 (essential element)
(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
If you obtain consent, there is no actus reus of assault UNLESS…. consent is obtained
through
(a) the application of force to the complainant or to a person other than the
complainant;
(b) threats or fear of the application of force to the complainant or to a person
other than the complainant;
(c) fraud; or
(d) the exercise of authority.
[applies to all assaults and sexual assaults -- s. 265(3)]
R. v. Cuerrier (1998, SCC)
Facts: HIV+, did not disclose to sexual partner; told his partner he tested negative 9 months
earlier; complainant testified that if she had known he was HIV+, she would never have had
unprotected sex with him; ordered by public health nurse to inform partners he was HIV+;
charged with aggravated assault
268 (1). Every one commits an aggravated assault who wounds, maims, disfigures
or endangers the life of the complainant.
BUT it must first be an assault (application of force without consent)
Old test: “false and fraudulent representations as to the nature and quality of the act” (lie or
deceive someone about the nature of the act that you are going to comment)
Old decisions:
R. v. Clarence (1888): husband failed to disclose he had gonorrhea not fraud as to nature
and quality of act
R. v. Bolduc (1967, SCC): voyeur friend posing as an intern no fraud
R. v. Maurantonio (1968,Ont. C.A.): accused posed as doctor fraud as to nature of act
(consented to medical exam)
Test under s. 265(3)(c): “fraud” vitiates consent
No longer limited to nature and quality of the act.
BUT what about non-disclosure?
Two elements of fraud:
1. Dishonesty
Objective test
Misrepresentations or non-disclosure
2. Risk of Deprivation
Need show actual harm or loss?
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