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CRM 200 (6)
Chapter 5

Criminal Law- Chapter 5.docx
Criminal Law- Chapter 5.docx

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School
Ryerson University
Department
Criminology
Course
CRM 200
Professor
Graham Hudson
Semester
Fall

Description
Chapter 5: The Fault Element, Or Mens Rea  Mens rea means in the case of murder, malice aforethought, in case of theft, an intention to steal in the case of rape, an intention to have focible connection with a woman without her consent  Parliament has not clearly defined fault elements such as “purposely”, “knowingly”, “recklacely”, or “negligently”  Mens rea= the fault element  There are two, broad types of mens res: subjective and objective.  Subjective describes what was actually in an accused’s mind, and always describes some level of actual knowledge about the nature and consequences of actions.  Objective describes what an accused ought to have known, and always describes what a reasonable person would have known. A) Conceptual Considerations (p.164)  In order to explain fault element of any criminal offence accuratelt, it is necessary to specify: 1. The circumstances and consequences to which fault element is directed, including its relation to actus reus of the offense 2. The precise fault element required  Mens rea of murder requires at least a subjective knowledge that the victim would die 1) The Relation of the Fault Element to the Prohibited Act (pg.164)  Mens rea is concerned with the consequences of the prohibited actus reus— thus in crimes of homicide we speak of the consequences of the voluntary act—intention to cause death, or reckless and willfull blind persistence in conduct which one knows is likely to cause death  Objective foresight of the risk of bodily harm was a sufficient fault element for the crime of unlawful act manslaughter, even though actus reus of the crime was causing death as opposed to bodily harm 2) Subjective and Objective Fault Elements (p.166) Subjective Fault:  Requires the crown to establish that the accused subjectively had the required guilty knowledge in relation to the specified circumstances or consequences Objective Fault:  Requires only that a reasonable person in the accused’s position would have had the required guilty knowledge or would have acted differently  Judge or jury who must determine what was in accused’s mind must rely on inferences from the evidence presented in the case  Since people are usually able to forsee the consequences of their acts, if a person does an act likely to produce certain consequences it is, in general, reasonable to assume that accused also foresaw the probably consequences  Subjective mens rea operates as a doctrine that prevents the conviction of an acused who, for whatever reason, does not have knowledge and foresight that a reasonable person would have  The function o subjective mens rea is to prevent the conviction of the morally innocent—those who do not understand or intend consequences of their acts 3) Common Law Presumptions of Mens Rea  Surpreme Court has been reluctant to constitutionalize subjective mens rea for all but the most serious crimes, but it has long relied on common law presumptions in favour of subjective mens rea in relation to all aspects of actus reus  When offense is criminal, crown must establish a mental element, namely that the accused who committed the prohibited act di dno intentionally or recklessly, with knowledge of the facts constituting the offense, or with willful blindness towards them  Criminal offense require some form of Subjective mens rea—intent, knowledge, recklessness, or willful blindness—in relation to all aspects of the actus reus unless Parliament indicates otherwise 4) Constitutional Requirements of Mens Rea (p.171) (a) Requirements of Subjective Fault in Relation to the Prohibited Act for Special Stigma Crimes: Murder, Attempted Murder, and War Crimes R v. Vaillancourt (p.172)  Principles of fundamental justice require proof of a subjective mens rea with repsoect to the prohibited act, in order to avoid punishing the “morally innocent”  Subjective foresight of prohibited consequence is required for murder, attempted murder, and war crimes  A conviction for murder caries with it the most severe stigma and punishment of any crime in our society  Attempted murder only has max penalty of life imprisonment and not mandatory penalty as does murder  With murder and attempted murder, the accused has the intent or “killer instinct” and required mens rea is knowledge of the probability that death will be caused (b) Principles of Fundamental Justice as Outline in Creighton (p.174)  According to the Supreme Court, three factors are relevant to the question of what kind of mens rea is required for what offences:  1) Stigma of offence  2) Whether punishment is proportionate to moral blameworthiness of offender  3) Principle that harm caused intentionally should be punished more severely than unintentional harm (5) Fault Elements in Relations to Defense of Mistake of Fact and Intoxication (p.179)  availability of both defenses depends on fault element of the specific offense being absent  both defenses operate to raise a reasonable doubt as to whether the accused had the requisite fault element rather than existence of some other factor (i.e. self-defense which may excuse commission of crime)  evidence that accused was intoxicated may raise a reasonable doubt whether the accused has required mental element for specific intent offences such as murder or robbery  derivative nature of mistake of fact defense is revealed by caring the availability of the defense for crimes with various and no fault elements (not relevant in absolute liability offenses) (B) The Degrees of Subjective Mens Rea (p.180) (1) Intent, Purpose, or Wilfulness  highest level of subjective mens rea is that which requires the accuse to act with the intent or purpose to achieve the prohibited result, or to willfully pursue such a result  this high level of mens rea is used relatively infrequently R v. Hibbert
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