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Basic elements of all crime.docx

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University of Victoria
SOCI 306
Don Fetherston

THE TWO BASIC ELEMENTS OF ALL CRIMES In general, an accused person may not be convicted of a criminal offence unless the prosecution can prove beyond a reasonable doubt that: a) A particular event or state of affairs was caused by the accused’s conduct. THIS IS CALLED THE ___________actus reas- all other elements___________ , and b) This conduct was accompanied by a certain required state of mind THIS IS CALLED THE ___________Mens rea ____________________ AR + MR = CRIME ACTUS REUS - VOLUNTRAY ACT - (ALL ELEMENTS THAT MUST BE PROVED EXCEPT FOR MENS REA) Existence of this element justifies societal intervention – it is what we are concerned about – not merely bad thoughts or that someone might be dangerous – they must do the prohibited act. E.g. Don Juan with bigamous intent marries someone else – but wife killed 10 minutes prior to marriage ceremony. Is there a crime? _______No crime – no actus reas_____________ ELEMENTS OF THE ACTUS REUS CAN BE CHARACTERIZED AS EITHER (Note: only some crimes have all 3) 1. CONDUCT (a voluntary act or omission constituting the major feature of the crime) (Sometimes a “state of being” E.G. being in possession, being drunk in public) 2. CIRCUMSTANCES (the circumstances, if any, in which the conduct takes place) 3. CONSEQUENCES (the consequences, if any, caused by the voluntary act or omission) ------------------------------------------------------------------------------------------------ Analysis of assault sections of the Criminal Code 265. (1) A person commits an assault when % (a) without the consent of another person (circumstance), he applies force(conduct) intentionally to that other person, directly or indirectly (conduct - Indirect = throwing coffee in face, spraying AIDS infected blood, etc); 1 (b) he attempts or threatens, by an act or a gesture, to apply force (conduct) to another person, if he has, or causes that other person to believe on reasonable grounds (circumstance – would the average person believe he was going to be assaulted) that he has, present ability to effect his purpose; or 1 (c) while openly wearing or carrying a weapon or an imitation (circumstance) thereof, he accosts or impedes another person or begs (conduct). Analysis of section 267 267. Every one who, in committing an assault, % (a) carries, uses or threatens to use a weapon or an imitation (circumstance) thereof, or % (b) causes bodily harm (consequence) to the complainant, is guilty an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months. 1. What type of actus reus is required by s. 267(a)? _____Conduct____________ 2. What type of actus reus is required by s. 267(b)? __Consequence_________ 3. Definitions: Check, the section, the part and section 2 of the Criminal Code s. 2 as “bodily harm” means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature 4. Give examples of injuries that are and are not “bodily harm”. scratch, bleeding nose, bruise bodily harm- knocked out tooth, cut that needs stitches SEXUAL ASSAULT 5. S. 271 creates a type of assault called “sexual assault”, but nowhere in the Code is sexual defined. The SCC in Canada v. Chase (1987) described the test as an objective one “Viewed in the light of all the circumstances is the sexual or carnal context of the assault visible to a reasonable observer”. Is this a subjective or objective test? Who is the reasonable observer? Objective Reasonable observer - the average person and when it is the judge deciding they are the reasonable observer. Check out section 263(3)( c &d) to determine ineffective consent. Done by force or threat, fraud or exercise of authority In The SCC in V (KB) 1993) a man who violently pinched his 3 year old’s genitals causing bruising and pain to deter him from grabbing other people crotches was convicted. Does this case seem logical? To a reasonable observer there seems to be a sexual context – thus he was 2 convicted. ----------------------------------------------------------------- SOME OFFENCES DO NOT REQUIRE ALL 3 TYPES OF ACTUS REUS 1. S. 131(1) Perjury – “Everyone commits perjury who, with intent to mislead, makes before a person authorized by law to permit it to be made before him a false statement under oath (conduct) or solemn affirmation, by affidavit, solemn declaration or orally, knowing that statement to be false …. Mens rea = intent to deceive; knowing that the statement is false Circumstance = before a person authorized by law (under oath) What type of actus reus isn’t required? No consequence R.v. Evans (1995) (Man. Ct. Appeal) It is not necessary that the false statement actually mislead the court. 2. However, most crimes do include required consequences S. 362(1)(b) Obtaining Credit by False Pretenses Winning (1973) (Man. Ct. Appeal) Accused included at least 2 false statements on credit application to Eatons, but Eatons did its own credit check. Is Winning guilty? No, because she obtained the credit based on the credit check and not on the application where she put false information. 3. Offences where “conduct” not required a) s. 351(1) Possession of housebreaking instruments S. 351(1) – Everyone who, without lawful excuse, the proof of which lies on him, has in his possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe under circumstances that give rise to a reasonable inference that the instrument has been or is or was intended to be used for such purpose, is guilty…. Does Crown have to prove that accused had a target in mind? K(S) 1995 (BCCA) – Here backpack with vice grips, gloves, screwdriver, and ignition punch. The accused has to prove that they are innocent – unconstitutional because usually it is innocent until proved guilty, but all rights are subject to limits. b) Impaired “care and control” of a motor vehicle (s. 253) R.v. Ford (1982) - Intention to drive is not an essential element - “if accused does some act of series of acts involving the use of the car, its fittings or equipment, whereby the vehicle may be unintentionally set in motion …” s. 258
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