CRI225H1 Study Guide - Final Guide: Actus Reus, Fundamental Justice, Absolute Liability
14 Dec 2016
School
Course
Professor
Uses of Criminal Law:
-regulate morality
-define the limits of acceptable behaviour
-justify imprisonment
-protect society from harm
Levels of court in Ontario:
Supreme court of Canada
Court of appeal for Ontario
Superior court of justice
Ontario court of justice
Criminal law is valid if it is aimed @ some
public evil in respect of:
-public peace
-order -health
-security -morality
Charter s.2 (substantive rights)
(a) conscience and religion
(b) thought, belief, opinion, expression
(c) peaceful assembly
(d) association
Law will violate s.7 only if it:
(a) infringes one of the 3 rights (life,
liberty, security)
(b) is inconsistent with the principles of
fundamental justice
Laws are only unconstitutional if:
(a) they infringe a right/freedom in the
charter (2 part test under s. 7)
(b) the infringement cannot be justified in a
free + democratic society under s. 1
Justifying charter breaches
(OAKES TEST)
(1) pressing and substantial objective
(2) rational connection
(3) minimum impairment
(4) proportionality between effects and
objective
Principles of fundamental justice
(1) criminal law cannot be overbroad
(2) notice must be given of criminal
offences
(3) criminal law must not be vague
(4) criminal law cannot be arbitrary
Actus Reus
(1) act of commission or omission
(2) voluntary
(3) causes any defined consequences (laid
out in the code)
(4) committed in certain circumstances
(defined in the code)
*** act must be voluntary
-conscious act
-operating mind
-capable of making a decision
If AR involves causation, there are 2
elements to prove
(1) factual causation
(2) legal causation (has it been broken?)
Mens Rea
Subjective- the accused intended/knew
Objective- accused should have known
(reasonable person ought to know)
Intention
(a) conscious purpose to bring about
consequences
(b) forsees the consequence is certain or
substantially certain
3 types of offences
(1) absolute liability (AR, no MR)
(2) strict liability (AR, due diligence
defence)
(3) full MR offence (ex. All criminal code
offences)
4 STEP PROCESS FOR MURDER
(1) is it homicide? (s. 222)
(2) is the homicide culpable? (s. 222)
(3) is it murder? (s. 229)
(4) is it 1st degree murder? (s. 231)
MR can relate to:
a) the prohibited act
b) the prescribed consequence
c) the prescribed circumstance
Mistake of fact can be a defence if:
(1) awareness of a prohibited circumstance
(ex. Lack of consent) is an element of the
offence
(2) the accused honestly but mistakenly
believes the circumstances do not exist
Party Liability
PRINCIPAL- actually commits it
-has AR and corresponding MR
-must be @ scene of crime
PARTY- does or omits to do anything to
aid
-equally responsible
-intent to assist
abets instigate, promote, procure
SUBJECTIVE
-intent/purpose
-knowledge (wilfully blind)
-recklessness
OBJECTIVE
-objective foresight
-negligence
Aiding and abetting
AR- doing/omitting to do anything that
assists/encourages the principal
MR- intent to assist the principal and
knowledge of principals intent
PARTY LIABILITY
(1) Principals+ parties are equally liable
(2) can be a party by aiding/
abetting or forming an intention in
common
(3) aiding is helping or assisting
(4) abetting is encouraging or instigating
(5) s.21(2) requires intention to commit a
different offence than the one ultimately
committed
(6) AR and MR for being a party are
distinct from the AR and MR of the
principal offence
(7) the principal + party can be convicted
of different offences
(8) mere presence is not enough
(9) no guilt by association- must consider
evidence in relation to party & principal
separately
(10) MR requires knowledge of the
principal’s intention & intent to
help/encourage
Common intention
AR- form intention in common and take
steps to carry out common intention
MR- intent to assist other person in
carrying out common intention and know
(ought to know) other offence is likely
consequence of carrying out common
intention
Conspiracy
AR- formation of an agreement to commit
an offence
MR- intent to agree and intent that the plan
will be carried out
Incomplete offences
-counselling
-attempt
-conspiracy
*equally liable as if offence was actually
committed
Excuse
-acknowledge the wrongfulness of the
action
-should not be punished given the
circumstances
-human weakness when faced with an
emergency
-conduct pardoned, not praised
-results in acquittal
ex. Duress, necessity, provocation
Justification
-sometimes its better to commit an offence
than obey the law
-conduct was not wrongful despite it
being a crime
-results in acquittal
ex. Self-defence, police who shoots a
hostage-taker, good Samaritan
2 theories of defences
(1) Utilitarian principle: breaking the law
will avoid greater harm than obeying it
(2) humanitarian principle: compliance
with the law would impose an intolerable
burden on the accused
Elements of defence
-explicit/implicit threat of present/future
death/bodily harm
-reasonable belief threat will be carried out
-no safe avenue of escape
-threat & harm close in time
-proportionality between threat and
offence
Provocation (murder cases only)
-reduces murder to manslaughter
-heat of passion caused by sudden
provocation
-deprive an ordinary person of the power
of self control
Provocation Test:
(1) ONJECTIVE: wrongful act/insult that
would cause the ordinary person to lose
self control
(2) SUBJECTIVE: the accused was actually
deprived of his/her own self control
*the burden is on the crown to prove
voluntariness
-presumed you were conscious
-if defence has evidence that you were
unconscious, the burden shifts to the
crown to prove that you were
Non-insane Automatism
-external cause
-no ongoing danger/risk of reoccurrence
-actus reus not voluntary
-result= not guilty
Insane Automatism
-disease of the mind R.v. stone
-results= not criminally responsible on
account of mental illness
(s. 16)= potential for ongoing supervision
S.16 creates 2 ways to be found NCR:
(1) incapable of appreciating the nature+
quality of the act because of mental
disorder OR
(2) incapable of knowing that the act was
wrong due to mental disorder
2 step approach to determine insane/non
insane Automatism
(1) did the accused act involuntarily?
→ burden on the accused (evidence from
bystanders, medical history, evidence of
motive…
(2) is it insane or non insane
→ presumption that its insane
HOLISTIC TEST: does society require
ongoing protection?
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Law will violate s. 7 only if it: (a) infringes one of the 3 rights (life, liberty, security) (b) is inconsistent with the principles of fundamental justice. Laws are only unconstitutional if: (a) they infringe a right/freedom in the charter (2 part test under s. 7) (b) the infringement cannot be justified in a free + democratic society under s. 1. 3 types of offences (1) absolute liability (ar, no mr) (2) strict liability (ar, due diligence defence) (3) full mr offence (ex. Intent to assist principal"s intention & intent to help/encourage. Deprive an ordinary person of the power of self control. Actus reus (1) act of commission or omission (2) voluntary (3) causes any defined consequences (laid out in the code) (4) committed in certain circumstances (defined in the code) Intention (a) conscious purpose to bring about consequences (b) forsees the consequence is certain or substantially certain.
