WDW101Y1 Lecture Notes - Lecture 8: Actus Reus, Mens Rea, Abet

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21 Nov 2012
School
Course
Professor
WDW225 Lecture 8 11/15/2012
Partly Liability
Mens Rea Recap
General Rule: Symmetry between the actus reus and mens rea
MENS REA element to match the
(a) the prohibited act
(b) the prescribed consequence; and/or
(c) the prescribed circumstance
Mens rea and the Charter
Section 7 of the Charter:
- Requires that all criminal offences have some mens rea requirement
- Objective mens rea (objective foresight of risk) is generally sufficient under s. 7 of
the Charter
- Some offences (murder, theft and terrorism) require subjective mens rea
(subjective foresight of the prohibited consequence) because of the stigma attached
and/or the potential penalty.
Degrees of mens rea
What about mistakes?
R. v. Pappajohn (1980, S.C.C.)
- Pappajohn took the position she consented or he was mistaken as to her consent
RULING:
- Mens rea of sexual assault requires knowledge of absence of consent or recklessness
as to absence of consent
- Mistaken perception of the facts regarding consent may negate mens rea
- Honest but mistaken belief in consent is a defence
- Mistake need not be reasonable
- Mistaken belief has to be honesty held
Subjective
Objective
1. Intent/Purpose
accused acted with intent to bring
about result
2. Knowledge
3. Wilful Blindness = Knowledge
4. Recklessness
accused fails to make necessary
inquiries
accused acts having actually
adverted to the risk
1. Objective foresight
would a reasonable person
foresee the consequences
2. Negligence
conduct reveals a marked and
significant departure from the standard
of a reasonably prudent person
(considering the accused’s perception of
the facts)
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What about mistakes?
Criminal Code was amended in 1992:
273.2 It is not a defence that the accused believed that the complainant consented, where
(a) The accused’s belief arose from the accuseds
(i) Self-induced intoxication, or
(ii) Recklessness or wilful blindness; or
(b) The accused did not take reasonable steps, in the circumstances known to the
accused at the time, to ascertain that the complainant was consenting.
The accused has to taken all reasonable steps to ascertain consent
R. v, Ewanchuk
FACTS: repeated sexual advances on a 17 year old girl in a trailer at the end of a “job
interview”; massaged her inner thigh; lay on top of her; exposed his penis; complainant
sometimes said “no” and sometimes said nothing
Charged with sexual assault; acquitted at trial and acquittal upheld on appeal
Gems from the Court of Appeal:
- The complainant did not present herself to Ewanchuk or enter his trailer in a
bonnet and crinolines”
- Ewanchuk's conduct was "less criminal than hormonal“
- “In a less litigious age going too far in the boyfriend's car was better dealt with on
site -- a well-chosen expletive, a slap in the face or, if necessary, a well-directed
knee. What this accused tried to initiate hardly qualifies him for the lasting stigma of
a conviction for sexual assault....”
RULING SCC:
- For mens rea, issue is whether the consent (or absence of consent) was
communicated to the accused
- To establish defence accused must show that he honestly believed that the
complainant had communicated consent through words/actions
- Accused must take reasonable steps to obtain consent/on-going consent
- Lapse of time/silence/equivocal conduct not enough
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 crime and to assist each other therein and any one of them, in carrying out the
common purpose, commits another 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.
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