Why is mens rea constitutionally required for actus reus?
-Social stigma is the same for murder as attempted murder
-No successful actus reus, so mens rea is all you have
Is it reasonable to believe in God?
Is it reasonable to believe in divine intervention?
Case: R vs. Tutton
-Child very sick with diabetes, admitted to hospital with serious sickness
-Parents were taught how to take care of the child, about the disease. Parents were
very religious. Doctors told the parents that there was no known cure, and he would
always need insulin.
-Mother stopped giving the son injections one day because they thought divine
intervention would save him, and he became very sick. Parents rushed him to the
hospital and his life was saved him just in time… mother had a dream a year later and
stopped giving him insulin. He died. Charged with manslaughter and death by
Negligence- knew (subjective) or “ought to have known” (objective)
-On trial, the parents were convicted. Later the judge ordered a new trial because jury
wasn’t given proper instruction.
-Ontario Court of Appeal said it was a crime of omission, therefore criminal
negligence requires a subjective standard of mens rea.
-Defendants had an honest but mistaken view of the son’s disease, and belief in divine
-In order for crown to succeed, needed to prove they knew about the risk. A wilful
-Beliefs do not have to be reasonably held.
Dissenting opinion: if they honestly believe that religion would save their child they
should be acquitted, or if they really felt that treatment was no longer needed.
However, the [first] defence is not a defence in criminal law (and the second one
doesn’t apply). It must be from negligence or an objective standard. Positive intent
not needed. Intent is reasonableness.
-How to resolve this case: Is a belief in divine intervention reasonable in these
-This was a very divided court. 5 for subjective test, 4 for objective. New trial was
-Didn’t do the thing directly but a set of circumstances allows you to be convicted as
if you did the thing directly.
-Accused is 17 years old, after swimming he and his friend went to look at cars. The
17-year-old sexually assaulted the boy, who said he would tell his mother. The 17-
year-old killed the boy out of fear. -Convicted of murder in the 1 degree because it was simultaneous with sexual
assault, even if 1 degree murder was not his intention. “While committing” sexual
-He murdered the child after committing sexual assault, not “while”. Must be
interpreted “to the letter”, or strict construction/interpretation. If ambiguous, must be
resolved in such a way that it benefits the accused.
-Quebec Court of Appeal agreed with this argument, and substituted 2 degree nd
murder for 1 . st
-Crown appeal said they wanted 1 degree murder conviction. Words should not be
read literally, must be read in context of the whole statute. “While committing”
should require only a close temporal relationship.
-The reason he took the boy swimming in the first place was with the intent to commit
sexual assault, so the whole event should be considered one continuous act.
-All criminal crimes have one thing in common: illegal domination of one person by
another, exploitation of position of power.
-Dissent: one continuous sequence of events, convicted of 1 degree murder.