LAWS 2302 Wednesday January 17th 2017
CLASS 2 - Wednesday January 11th 2017
Acquittal - Not proven you’re guilty but not proven to be innocent.
- The presumption of innocence is based on the Crown.
Presumption of Innocence - Everyone is presumed innocence until proven guilty. Assumed
you’re not guilty until the crown can show otherwise.
Burden of proof - On the crown. The accused need not speak.
The crown must prove beyond a reasonable doubt that a person is guilty
Crime - Any act or omission of an act that is prohibited and punishable by federal statute.
Law Reform Commission of Canada - 4 conditions must exist for an act or omission to be
considered a crime
- The act should be considered wrong by the society
- The act should cause harm
- The act must be serious
- The remedy must be handled by the criminal justice system.
*The things that are crimes in Canada, are things the criminal code says are crime.
Natural Law - crime is something that is divinely ordained. Crimes are things that are bad
Criminal Law - The body of laws that prohibit and punish acts that injure individual people,
property and the entire community.
All criminal laws have to be passed by the parliament.
The criminal law changed over time and place:
- Prostitution has become controversial. Legal in some European coin tries and legality has
recently changed in Canada
- Adultery used to be a criminal offence in Canada.
- Possession of marijuana less serious today (legalization its being considered)
- Technological advances change the criminal code i.e; new laws for airplane hijacking, credit
card fraud, internet hacking, cyberbullying, identity theft.
- Canada’s ﬁrst Prime Minister, John A. MacDonald, strongly advocated having one set of
criminal laws for the whole country.
- In July 1892, Canadian Parliament passed a statute called the Criminal Code of Canada
which combined a description of crimes and criminal law procedure into a single statue
- The code has been amended every year since 1892 (no systematic change)
*There are approximately 850 sections in the criminal code. It is difﬁcult to include all the crimes
in the code, federal laws now contain criminal offences that are not in the code or in enough
detail in the code. These include: LAWS 2302 Wednesday January 17th 2017
- Controlled Drug and Substances Act
- Customs Act (transport of goods and people through Canadian border)
- Youth Criminal Justice Act
- Competition Act (bans monopoly, collision and price ﬁxing - corporate crime)
- Food and Drug Act (limitations on what kinds of food and drugs to be sold - to whom and by
Income Tax Act
*It’s not an assault to spank your child.
****Criminal Law is intended to reﬂect what society feels is the appropriate way to behave also
meant to guide.
Authority for administering the criminal justice system is shared between the FEDERAL and
- The federal government sets the doctrinal criminal law and the courts that provide us with the
doctrinal criminal law
- Provincial governments set up the court.
The territorial and provincial governments enact quasi-criminal law
Quasi-Criminal Law - Less serious offences and the punishment is paying a ﬁne. (A court’s
right to punish for actions or omissions as if they were criminal)
Types of offences
- Indictable - Serious offence. Can spent more than 2 years in prison (Federal penitentiary).
Difference processes in court. More serious crime.
- Hybrid - The crown has the ability to elect by it’s discretion. Choose to go by indictment or
summary conviction. Example - Assault.
- Summary - Minor offences. Example - Theft under $500 (shoplifting offence)
- Physical Component
- The act or omission (failure to act) that has been identiﬁed by Parliament as sufﬁciently
harmful to warrant state intervention.
It is usually very easy to determine the Actus Reus of a crime by reading the CCC
Elements of a Crime - Actus Reus + Mens Rea = CRIME
- Actus Reus (guilty act) - Voluntary action, omission or state of being that is prohibited by law.
- Mens Rea (guilty mind) - Demonstrates hat the act was intentional, knowing, negligent,
reckless or willfully blind.
****An Actus Reus without a Mens Rea is an accident
****The crown has to prove Actus Reus and Mens Rea for a crime
Actus reus + mens rea = crime/ guilty
- Actus reus - mens rea = tort? Accident? LAWS 2302 Wednesday January 17th 2017
- Mens rea - actus reus = imagination? plan? (there are some offences that criminalize attempt/
conspiracies to commit crimes).
Actus Reus of homicide = Causing the death of a human being
The actus reus of an offence is not always so easy to determine - Section 90 (1) - “Every person
who commits an offence who carries a weapon…concealed, unless the person is authorized
under the Firearms Act to do so.”
- Is there any trouble with determining the Actus Reus of this crime?
(Look in the ﬁrearms act)
- What deﬁnes a weapon?
- Is having something in the trunk of your car a concealment?
- This is where it is necessary for the judges to interpret the law and apply
- Actus Reus must be committed voluntarily - it must be the conscious choice of an operating
- People are not held criminally responsible for actions they cannot control.
To determine/ ascertain actus reus
- Determine through criminal code and common law
- Read charging section of Code and ask whether common law elements such as
voluntariness and causation must be proven i.e., may not be raised by the facts.
Exceptions to Actus Reus.
- Being forced by another person
- Reﬂex reaction (i.e.: epileptic seizure)
Two most challenging issues for criminal law: omissions as acts reus and principles of
Two types of incomplete crimes
- The intention to commit a crime, even when the crime is not completed
- The crown only needs to prove obvious steps toward committing a crime
- Example: terrorist bombing construction of a bomb, having a bomb in your possession.
- An agreement between 2 or more people to carry out an illegal act, even if that act
does not actually occur
-Example: 2 people who plan to murder, hire a hit man who turns out to be an
undercover police ofﬁcer.
- Can the offending conduct properly be characterized as an act or omission?
- Can the offence be committed by way of omission, either explicitly
- If an omissions offence, what is source of duty?
- Was duty breached? LAWS 2302 Wednesday January 17th 2017
- Criminally responsible for one’s conscious/willed actions
- Like “sanity”, “voluntariness” legally presumed: A bears burden of proving involuntariness on
a balance of probabilities as per Stone
- Sources of involuntariness include physical blow, psychological blow, sleepwalking
****If you kill due to sleepwalking, you must prove that you were sleepwalking. LAWS 2302 Wednesday January 17th 2017
CLASS 3 - Wednesday January 25th 2017
Mens rea - The guilty mind
“Actus non facet rum nice mens sit rea” - The act will not make a person guilty unless the mind
is guilty also
- Latin for “guilty mind”
- Mental component
- Moral guilt
- A person must be found to have had the necessary “state of mind” or mens rea for the
offence before they can be found guilty.
It is irrelevant whether or not the person knew the act was illegal. Ignorance of the law is not
an excuse. If you don't know it’s illegal to alarm the queen. People are expected to know what
the law is.
- S, 319 (2) - It is an offence to wilfully promote hatred.
There is a difference between intention and motivation. Motive can be an evidence for intention.
Intention is the initial plan. What happens in the moment.
- What a reasonable person would have understood, perceived or foreseen in a circumstance.
- The accused state of mind at the time of the commission (court/crown must ﬁnd or prove
what the accused was thinking at the time of the offence)
- Only actual intention are relevant.
- Wilfulness or actual intention must be there
- Requisite Intention - The Mens Rea that the crown is required to establish in order to convict
an accused of an offence (the person intended to commit the crime).
Three types of subjective intent
- Direct Intent - A person commits a forbidden act intentionally knowing that it’s wrong and
they can be punished for it.
- Recklessness - The person might not intend the consequences of their actions. If they
understand the risk of the consequences, they will be deemed to have intent (a reasonable
person ought to know). Example - You a wear glasses and decide to drive without your
glasses and you cause a major accident, you have the necessary intent to commit a crime
because you behaved recklessly - Dangerous operation of a motor vehicle.
- Wilful Blindness - Accused has suspicion of the consequences of action and fails to ask
because they do not want to know the answer, they will be deemed to have an intent (to
suspect and not question). Example - Buying a DVD that you know is an illegal copy but you
fail to ask and know. Driving with a friend and noises are coming from the trunk and you fail to
believe what you hear and believes your friend’s story.
Categories of Mens Rea
Mens Rea Offences LAWS 2302 Wednesday January 17th 2017
- The crown must prove Actus Reus and the direct intent beyond a reasonable doubt to
convict. This category is for serious crimes that have a sentence of 10 years or more.
Strict Liability Offences
- The crown must prove Actus Reus and subjective intent beyond a reasonable doubt to
- The accused has an opportunity to prove DUE DILIGENCE (the accused did
everything possible to prevent the crime from occurring).
Absolute Liability Offences
- The crown must prove Actus Reus beyond a reasonable doubt - no mens rea is
- Actus Reus = Mens Rea
- This category is for summary offences
- Theoretically, mens rea is a necessary element to be present in order to be convicted of a
However - many expectations are made to this general rule:
- For some criminal/quasi-criminal laws, no mens rea needs to be proven
- e.g absolute liability offences
What is the Mens Rea different varieties of homicide?
- Mens rea differs for ﬁrst, second degree and manslaughter
- The Mens rea for ﬁrst degree murder is intentional. The intentions has to be there for it to be
deemed as ﬁrst degree murder. It has to be deliberate and purposely to cause death.
- Hiring someone to kill someone or you are hired by someone to kill someone is also ﬁrst
- Murder is ﬁrst degree murder when ofﬁcers of the law are killed during their duty even though
it is not planned and deliberate.
- Protective roles gets police ofﬁcers killed (because they are the enforcers of the law).
- If someone dies during the course of kidnapping, sexual assault, it is also deemed as ﬁrst
All murder thats not ﬁrst degree murder is second degree murder
Second degree murder - Not planned and deliberate. It is intentional
Manslaughter - Killing of a human being but not with the direct intent to kill but rather the direct
intent to harm or cause the consequences of your actions but not directly to kill. Culpable
homicide that is nor murder is manslaughter.
You cannot make a defence to a crime if you had the intentions of committing something far
worse than what initially occurred.
*******There is no legal guilt without moral guilt - always a possibility of conﬂict between law and
*******There is no single state of mind called “mens rea” - different crimes have different states
of mind. LAWS 2302 Wednesday January 17th 2017
*******Mens rea has no speciﬁc meaning. The deﬁnition of most crimes contains not only an
outward and visible element but a mental element which varies according to the different nature
of different crimes. Expression itself is given meaning by the deﬁnition of a particular crime. LAWS 2302 Wednesday January 17th 2017
CLASS 4 - Wednesday February 1st 2017
Regulatory Liability - Mali prohibita - Offences that are there for expedient purposes. Not
engage moral blame worthiness as criminal provisions
Objective intent - what a reasonable person should have perceived or foreseen in a
circumstance. Know what a reasonable person should know about the effects of a crime.
Regulatory Prohibitions - Environmental Crime. Example; Lead in water - Causes Seizures
and brain damage.
Subjective Intent - Accused state of mind at the time of the commission.
Requisite Intention - The Mens Rea that the Crown is required to establish in order to convict
an accused of an offence.
Categories of mens rea offences
- Mens Rea Offences
The crown must prove Actus Reus and the direct intent beyond a reasonable doubt
to convict. This category is for serious crimes that have a sentence of 10 years or
- Strict Liability Offences
The crown must prove Actus Reus and subjective intent beyond a reasonable doubt
to convict. (The subjective intent does not have to be proven in order to be
The accused has an opportunity to prove DUE DILIGENCE (the accused did
everything possible to prevent the crime from occurring).
Subjective vs. Objective test? - The inquiry about did the accused intended to commit the crime
or not. What would reasonably happen.
Burden of proof?- On the accused to show that they acted in the manner that was duly diligent.
they have the opportunity to defend themselves on that basis.
- Absolute liability - No defence of strict liability. No mens rea defence. Cannot be
offences where prison time is possible.
- Strict liability - Offences that are objective intent but the person can rebut by showing
- Negligence -
- Recklessness/wilful blindness -
- Knowledge/intention - Higher mental state of mens rea
- Speciﬁc states of mind
To ﬁnd out if a crime is a true crime you have to see if its a subjective or objective test.
Mens Rea is a necessary element that has to be present to be convicted of a crime.
For some criminal/ quasi-criminal laws, no mens rea needs to be proven at all. e.g absolute
Historical Approach LAWS 2302 Wednesday January 17th 2017
Historically, there was no strict liability offence.
Rex v. Ping Yuen (1921)
- Alcohol was prohibited
- Was selling soft drinks in Saskatchewan
- Was selling De- alcolized beer
Police founds beer and ﬁnds that they contain more that 1.13% of alcohol
- Charged with violation of temperance. Regulatory
- No subjective mens rea
- Defence says that he wouldn't have known that the drink had more alcohol percent without
opening the drink.
- Was not a true crime. Should not be convicted but was because he committed the crime.
- Actus Reus was enough to convict the accused.
Types of Mens rea in Regulatory Offences
Absolute Liability - Crown has to prove Actus Reus only to get a conviction
Strict Liability - Crown has to prove Actus Reus but the defence can prove Due Diligence
True Crimes- Crown has to prove Actus Reus and Mens Rea
Charter S.7 identiﬁes mens rea using:
- Code and statutory interpretation
- CL - Case Laws with common meanings
- Charter s..7
- Actual practice
Regulatory offence = Province
- Largest ca