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Chapter 4

CRM 101 Chapter Notes - Chapter 4: Mens Rea


Department
Criminology
Course Code
CRM 101
Professor
Jennifer Fraser
Chapter
4

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Law 534 lecture notes March 18, 2014
Chp4 - Due Diligence
Concepts
Strict liability offence- actus reas- prosecutors - defense of due diligence
Look Due dill 14 factor- List { 4-32}
COA
Technological limit > during the court process- tech may have advanced during that course ex. Machine didn’t exist
during that time , wouldn’t hold the defendant to that , the charge period is the relevant test
20 years ago, not held liable for losing information (backing up information 1 terabyte drive to them it
seemed like CIA tech)
Cross referee to economic
Skill level expected of the defendant 4-55- floating standard- > if your smart = high level , you should have known
better because your education + experience > can work against you
Imperial Oil -{4-56}. we relied on sophisticated supplier expert > Problem = did imperial oil not possess the
skill and knowledge required to assess the risk , court t rejected, you have to be at the average level of
knowledge
Problems with skilled defendant=Multiple defendants, they all blame each other, everyone gets sued, this
raises the cost of litigation
Complex- what could complexity problems bring- as a n excuse oh its really complicated and future studies required
Analysis Paralysis – inclusive, so more studies required – Too Much study not enough action.
Conflict of the law- sue a US Parent Company for legal issues for Canadian subsidiaries ,in Canada, home field
advantage (4-60)- Pierce the corporate veil- Sue a company with large pockets, a promise is only as good as the
person that gives it!
Tort is a reactive law- address what happened after the fact
Preventative system- what system did you have in place to address the issues that will come up > what did you have
in place to stop a leak , and constantly monitored > Ie email [4-60.2]part of the solution but not of the solutions>
compliance monitoring
Economic consideration - {4-62]-problem with consideration of eco factors on depending on financial viability
Can you sue the government for not spending enough money on something- no, the govt has to make a decision
about the allocation of resources; expects on budgets therefore not court decisions
Braches of Govt- Legislative, judiciary, executive- they make the law, carry out the law and make sure the laws are
enforced
Economic factors and Govt {4-62.1]-total denial of funding .courts not suppose to interfere about liability
Actions of Govt Officials – read on own [4-62.7]
External factors to risk management, precautions taken to avoid an event [4-62.12] -How often things happen
relevant to measure to be taken
Gender Basis - Reasonable Person [4-66] – still based on a mans standard (not as rationale a women, men are more
riskier and impulsive) MAYO MORAN >AUTHOR> UFT..PERSON.. I THINK >She proposed new test of culpable
indifference to replace to reasonable person test > as well as tackles the conflict within the feminist debate about
reasonable person
Cost consequences of Due Diligence- [4-68]- for the defendant are suppose to prove DD, this is expensive (expect
knowledge, scientist, doctors for cross examination )
Civil Law – Plaintiff v.s Defendant- Defendant win- Plaintiff will cover their expenses and half and
sometimes all the Defendant cost > Rule/ process in place to deter frivolous litigation
Regulatory Process – the govt doesn’t reimburse you; you due diligence should be done; always follow the
compliance because the trials and charger are expensive
Piggy back Plaintiff- [4-71]-piggy back on verdict look at the fisheries act
Prima Facie-[4-71] -“at first glance” “correct until proven otherwise” “on the face of ”
How to you hold the corp criminally liable– you attribute to them because of various liability (charge for employees
harmful acts) labor law > Primary Liability = because the corp itself did the act , Directing minds> Bill C-45 =
In the states > Respondeat Superior = Vicarious Liability (just fancy )
Cases
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