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Canada (161,798)
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CRIM 230 (44)

Crim 230 Ch 4.pdf

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CRIM 230
Simon Verdun- Jones

Chapter 4The Mental Element in the Criminal Law Subjective Liabilitythe actus reus in essence contains its own mental elementmens rea refers to all mental elements other than voluntariness that Crown must prove to obtain convictionvaries from crime to crimemens rea important to criminal law bc they operate to ensure only those who are morally blameworthy are convicted of true crimes accused may be acquitted for lacking mens rea to commit or also lack necessary mens rea for offence heshe did not understandintendone who cannot foresee consequences of action cannot be convicted of murdersimilarly section 16 of CC provides individuals who are mentally disordered cannot be held responsible bc heshe does not understand consequence of action therefore lacking mens reasection 13 of CC states children under 12 cannot be responsible for crimeSubjective and Objective Mens Reatwo types of mens rea subjective and objectiveSubjective mens reabased on idea that accused cannot be convicted unless they 1 deliberately intended to bring about the consequences prohibited by law 2 subjectively realized conduct might produce such prohibited consequences and proceeded w this conduct regardless of actual knowledge of this riskCrown to prove they deliberately chose to do something wrongObjective mens readoes not require proof accused deliberately intended to act or that they subjectively knew risk of consequence would produce such resultCourts apply a modified objective test which is based on what a reasonable person wouldve donemental fault lies in failure to direct mind to a risk which the reasonable person wouldve appreciatedwhether person actually knew of the risk or not is irrelevantthose convicted of subjective mens rea generally treated as being more culpable most serious punishment reserved for themthere is a presumption that Parliament intends to require proof of subjective mens rea when its legislation creates criminal offences Parliament has to indicate its intention very clearly before a court will interpret such legislation as imposing objective mens rea Particular Forms of Subjective Mens Reabasic forms of subjective mens rea are intention knowledge recklessness and wilful blindnessThe Concepts of Intention and Knowledgemany criminal offences in CC explicitly require proof of mens rea in form of intended consequence or actual knowledge of particular circumstancessome instances intention to bring about certain consequences or engaged in conduct w knowledge may not be expressly stated in CC but courts hold that such a requirement is implied by languages used by parliamentex Lecompte 2000 charged for unlawful assembly for section 63this section does not explicitly state accused must have knowledge that likelihood that the assembly which he is member will disturb peaceCC employs other terms to indicate requirement of intentCourt has rule terms such as wilfully and means to are synonymous w requirement of intentfinal point on mens req requirement of knowledgeit is impossible to know something that is falseknowledge implies truthSpecial Mental Elements That Must Be Proved in Addition to Intention and Knowledgesome terms in CC have special technical meaningsthat means Crown is required to prove a particular mental state in addition to intention or knowledgeexamples such as fraudulently in relation to theft under sect322 fraudulent in relation to frauds under sec 380 planned and deliberate in relation to distinction bw first and second degree murder under sect 231The Meaning of Fraudulently in Section 322 of Code Thefttheres requirement that accused person act fraudulently in context of a charge of theft under s322fraudulentlysec 3221 provides to obtain conviction for heft Crown must prove accused took anothers property fraudulentlyaccused took property intentionally and w knowledge it belongs to someone else
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