Lecture notes, course 2302 - Lecture 3 Mens Rea - PDF

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Download Lecture notes, course 2302 - Lecture 3 Mens Rea - PDF

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Criminal Law - Lecture 3 - The Fault Requirement (Mens Rea) September 23rd, 2014 Mens Rea - General Principles: -motive is not the same as mens rea Motive = reason for committing harm Mens Rea = mental state of person committing harm -motive becomes relevant in mitigating factors - relevant to the penalties of the charge (ex: difference between a woman stealing because she needs to feed her family vs. a woman stealing because she wants to) -motive is not considered a component of the mens rea of an offence -but see "terrorist activity" in def'n in s. 83.01 (doing something for a particular purpose) -Certain code provisions refer to acts committed for a "particular purpose" (ex: s. 21 (1)(b)) -R. v. Hibbert Categories of Offences: Criminal Offences -Subjective Mens Rea Offences: crown must prove actus reus -Criminal Negligence Offences: crown must prove actus reus -Offences based on Predicate Offences: crown must prove actus reus Regulatory Offences -Strict Liability Offences: actus reus only -Absolute Liability Offences: actus reus only Subjective and Objective Intent: -Subjective Test: what was actually in the mind of the accused in the moment the offence is committed? -did this accused actually intend, know, or foresee the consequence/circumstance would follow from the actions? -not a question of "could", "ought" or "should" have known/foreseen -nothing to do with accused's system of values -Objective Test: was there a marked departure from the standard of care of a reasonable person? -should the accused have foreseen the consequences? -similar to negligence Types of Crimes Post-Creighton: -Following R. v. Creighton, all criminal code offences fall into 1 of 3 categories Subjective Mens Rea (most offences fit in this category): what the accused actually intended to do Objective Fault (rare) (drunk driving) Predicate offence (offences based on something else?) 1. Subjective Mens Rea: -Charter s. 7 provides some guarantees that criminal offences require subjective fault -Beaver Rule: all crimes have subjective fault element unless Parliament expressly says otherwise (R. v.

Beaver case) -SCC introduced "knowledge" element into offence of possession of narcotics (applies to other possession offences as well ex: stolen property, weapons, etc.) -Martineau Rule: principles of fundamental justice require a subjective fault element for certain crimes, regardless of what Parliament says -applies to murder, attempted murder, accessory to murder, war crimes and crimes against humanity Crimes Requiring Subjective Awareness: Common law presumption -subjective mens rea is presumed to be required for criminal offences unless: -subjective mens rea is explicitly required, where the definition of the crime contains mens rea terms (ex: "intentionally", "wilfully") Categories of Subjective Mens Rea: 1. intention 2. knowledge 3. recklessness 4. wilful blindness -these terms are defined by case law, not in the criminal code -general rule: where courts look for subjective mens rea, any of the four will do -but in certain offences, actual intent is required -R. v Buzzanga and Duroucher - "wilfully promotes hatred" (charged with wilfully promoting hatred) 2 individuals charged against a group that they're part of - strange; issue is the definition of wilfully Subjective Intent - Example: R. v. King -impaired operation of motor vehicle (after visiting dentist's office) -not an absolute liability offence - some mens rea required -rebuttable presumption: man intends natural consequences of his own conduct -conclusion: presumption rebutted where impairment produced by using drug on doctor's order and effect unknown to patient Knowledge: -Knowledge of particular fact may be required -Crown has to prove the accused had the knowledge (or enough evidence to assume) -ex: R. v. Beaver (successful) -knowledge of what the contents of a package are is part of the offence (therefore he was not found guilty of having possession of the drug) -ex: R. v. Ladue (unsuccessful) -intoxication used as defence - he was convicted - appealed; trial judge quote "I will tell you I will not listen to such an argument" - Ladue tries to say he had no knowledge the person was dead; but, this argument cannot be made because he would be raping her if she wasn't dead - appeal dismissed

-certain offences require knowledge, others do not Intent: General v. Specific: -Intention: accused "intentionally", wilfully or means to cause a certain wrongful consequence -2 types of subjective mens rea offences: -General Intent Offence: act done to achieve an immediate end (ex: assault) -Specific Intent Offence: act done with specific ulterior motive and intention of achieving an illegal end (ex: assault w. intent to steal aka robbery) EXAMPLE QUESTION: "give me some examples from each category" Transferred Intent: -R. v. Droste (wanted to kill wife, accidentally kills children) -1st degree murder conviction may be supported where "planning and deliberation" not directed at the actual victim -although he had planned to kill his wife he is still guilty of first degree murder of his children -murder is a specific intent offence - he planned the murder of his wife, but accidentally killed his children, however s.229 outlines that he would still be guilty Recklessness or Wilfully Blind: -ex: harassment (grey area of recklessness) reckless as to how the person interprets your actions -Recklessness: involves knowledge of a danger or risk and persistence in a course of conduct despite the known risk (basically risky behaviour) -R. v. Sansregret -Wilful Blindness: arises where person has become aware of the need for some inquiry declines to do because he does not wish to know (I don't want to know - ex: consent - didn't ask, therefore wilfully blind) (ex: accessory to murder - person shows up to your house in bloody clothes and says they need a place to stay - you didn't ask - wilfully blind) -R. v. Sansregret 2. Crimes of Objective Fault: Examples

Criminal Negligence - s. 219 Criminal Negligence Example: -R. v. Tutton and Tutton -convicted of manslaughter - they believed God had cured their son; so they stopped giving their son insulin Issues? did the jury have the info they needed to know what the mens rea for the criminal negligence was?

if the parents honestly believed they were fulfilling their duties as a parent should they be found guilty? 3 Judges say yes, 3 judges say no 3 Judges: subjective test 3 Judges: objective test Marked Departure Test: -R. v. Hundal (dump truck driver) -"marked departure" is standard of proof for criminal negligence? * marked departure from reasonable person standard*

3. Crimes based on Predicate Offences: R. v. Creighton -he convicted manslaughter by trafficking cocaine into the victims arm Fault for Regulatory Offences: -At common law, there were 2 traditional categories of offences: 1. Crown must prove full subjective mens rea 2. Absolute liability (or strict liability) -R. v. Ping Yuen -he didn't have mens rea, but that doesn't matter - regulatory offences only focus on actus reus - he could not have known that the bottles were over the legal limit, but since he committed the act, he was guilty due diligence - taking reasonable steps R. v. Wholesale Travel Group Inc. -travel agency advertising packages - offering packages for a deal, but actually charging full price -offence under the competition act - can't make misleading statements -regulatory offence - not criminal -even if you accidentally released information and then tried to claim they wouldn't honour that information the only way they could claim due diligence is by showing they tried to correct the misinformation asap...