WDW225 Lecture 8

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Department
Woodsworth College Courses
Course
WDW101Y1
Professor
Jim Davies
Semester
Fall

Description
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 Subjective Objective 1. Intent/Purpose 1. Objective foresight accused acted with intent to bring would a reasonable person about result foresee the consequences 2. Knowledge 2. Negligence 3. Wilful Blindness = Knowledge conduct reveals a marked and 4. Recklessness significant departure from the standard accused fails to make necessary of a reasonably prudent person inquiries (considering the accused’s perception of accused acts having actually the facts) adverted to the risk 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 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. “Actually commits it” - Also known as “the principal” - Person who commits the actus reus - Person with the corresponding mens rea - Must be present (or constructively present) when the offence is committed - Can be more than one principal – each must contribute to the commission of the office but need not commit each essential element (R. v. Pickton) “Does or omits to do anything for the purpose of aiding” - Equally responsible in law as the principal - Need not be present when the crime is committed - Mere presence is generally not sufficient (can stand and watch and not to guilty) - Must do something or omit to do something - Must have the intent of assisting or helping (not necessary the effect) - Must know what the principal is intending to do (knowledge) “Abets any person” - Equally responsible in law as the principal - Abets means to instigate, promote or procure an offence - Mere presence is not generally sufficient - Must have the intent to encourage - Must know what the principle if intending to do (knowledge) “Common intention” - Formation of 2 or more for an intention in common (joint mens rea to commit a future offence) - Steps taken to carry the common unlawful purpose - Intent to assist each other in carrying out the unlawful purpose - Commission of a different offence in carrying out the unlawful purpose (unlawful purpose must be different than the offence charged) - Accused knew [or ought to know] the other offence was a probable consequence of carrying out the common unlawful purpose o To hold someone liable of murder there must be subjective mens rea o Ought to know can be used for other offences - Accused can abandon the “common intention” – must be unequivocal, must be communicated, must happen prior to the commission of the offence o Works only for unplanned intentions o No one has the legal obligation to stop and report crime, it becomes a moral concern - No need for the party to aid or abet the princip
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