JUST 1020 Lecture Notes - Lecture 2: Actus Reus, Assault Occasioning Actual Bodily Harm, Mens Rea
Mens Rea and Actus Reus
Mens rea refers to the mental elements of an offence, while actus reus refers to all the other elements
of the offence.
-
The basic elements of all criminal offences can be efficiently identified and analyzed by using these
two terms.
-
Three Components
The Actus Reus of an offence can generally be separated into three distinct components:
-
Conduct
1.
Circumstances
2.
Consequences
However-there are some expectations to this general model.
→
3.
Assault Cause Bodily Harm
Conduct: is represented by the application of the force to the person of the victim.
-
Circumstances: such force was applied without the consent of the victim.
-
Consequence: which must be proved is that the victim sustained actual bodily harm.
-
Basic Elements of Actus Reus
In sexual assault case 271 CC.
-
Semchuk (2012)
-
School teacher, grade three-out of breath.
-
Defence-providing medical assistance.
-
C of Appeal BC.
-
Actus Reus
-
Touching
1.
Sexual nature
2.
Absence of consent
3.
Objective Test
A reasonable observer would conclude that the act of the accused violated the sexual integrity of the
victim.
-
Exceptions to rule of Conduct, Circumstances, Consequences
Is there any offences where consequences are not required elements of the Actus Reus?
-
The Crown does not need to prove the accused's conduct caused any consequences.
-
Failure to Act
The general principle of criminal law is that an accused person may not be convicted on the basis of a
mere omission unless he or she is under a prior (legal) duty to act.
-
Video: RTE news. Man dies on NY st. No one stops.
•
Http://www.youtube.com/watch?v=YZpBgZ4WgjE
Should there be a duty to act imposed?
The law Reform Commission of Canada has recommended that the CC of Canada impose a general duty
on a citizens to render aid in an emergency.
-
Quebec Charter of Human Rights and Freedoms-Section 2.
-
Every human being whose life is in peril has the right to assistance. Every person must come to the aid
of anyone whose life in peril, whether personally or calling for aid, by giving him the necessary and
immediate physical assistance, unless it involves danger to himself…
-
Duties Imposed
Specific legal duties are imposed by the CC. by a way of illiustration, section 215 imposes a duty on
parents to provide the necessities of life to their children.
-
If a failure to perform a legal duty causes death or bodily harm.
-
Causing death by criminal negligence [s.220] or causing bodily harm by criminal negligence [s.221]
-
Boyfriend/girlfriend, raid, swallow coke, says he will take to hospital, doesn’t, dies.
-
Necessaries to Life to Dependent Persons 215 CC
215 (1) Legal duty who are responsible for the welfare of others.
-
215 (2)
-
Everyone who commits an offence who, being under a legal duty within the meaning of subsection (1),
fails without lawful excuse, the proof of which lies on him, to perform that duty…
-
Infringed section 11(d) Curtis (1998)
-
Crown-must prove beyond a reasonable doubt that the accused did not have a "lawful excuse."
-
Abandoning Child 218
R vs. H (A.D) (2013)
-
Gave birth in Walmart bathroom
-
Thought baby dead
-
Left to return later-baby alive
-
Charged under 218
-
Supreme Court-mens rea-subjective
-
When failing to act constitutes a criminal offence
There are some situations whre the failure to act by someone may lead to someone becoming a party
to an offence committed by someone else
-
Part b & c of sec 21 (1) provide that someone becomes a party to an offence if he or she 'does or omits
to do anything for the purpose of aiding any person to commit it' or 'abets any person in committing it'.
-
Nixon (1990)
Accused was officer in charge of a lock up.
-
Charged with aggravated assault, convicted despite the fact that he did not actually commit the
assault.
-
Under the BC Police Act and CC, the accused had a duty to protect the victim who was a prisoner in his
cells at the time.
-
Where there is a duty to act and the accused does not act it is left to the court to infer that reason why
the accused did not act was to aid in the commission of the offence.
-
Must Actus Reus & Mens Rea Coincide?
This principle has been given a very flexible interpretation by the courts.
-
It has been held by the actus reus of an offence may "continue" over an extended period.
-
In order to obtain a conviction, the Crown must prove that the requisite mens rea was present at some
point during this extended period.
-
Newell (2007)
Stole meat from grocery store.
-
Swung knife at security during scuffle in parking lot.
-
Charged with robbery.
-
Convicted of theft.
-
Court stated that the mens rea and actus reus did not coincide-must be contemporaneous.
-
Voluntariness
The concept of voluntariness embedded in the concept of the actus reus.
-
It is noted that, if the accused's conduct is involuntary, he or she cannot be held criminally responsible
because the consequences of such conduct did not flow from the exercise of "free will."
-
There is an increasing degree of acceptance by Canadian courts of the view that the actus reus of a
criminal offence includes the elements of voluntariness.
-
Chapter 3 -Causation
This chapter introduces the fundamental principles of causation embedded in the criminal law, with
particular reference to homicide offences.
-
Factual Causation
•
Factual causation "is concerned with an inquiry about the victim came to his or her death, in a medical,
mechanical, or physical sense."
An issue that can be decided by asking whether the prohibited consequences would not have
happened "but for" the conduct of the accused.
→
Was the accused conduct part of the chain of causation?
→
-
Legal Causation
•
Meanwhile, "legal causation, which is also referred to as imputable causation, is concerned with the
concerned with the question of whether the accused person should be held responsible in law for the
death that occurred."
An issue that revolves around the fairness of holding an accused person criminally responsible.
Should the accused be held responsible.
→
In most cases, the issue of legal causation is determined by asking whether the prohibited
consequences were foreseeable.
→
-
Foreseeability
Should the person be considered sufficiently blameworthy.
-
Def'n of Death
A critical issue concerns the definition fo death for the purposes of criminal law, particularly in the
light of medical advances that render it possible to sustain certain bodily functions on an indefinite
basis.
-
The law reform commission of Canada's (1981) definition of death-as "an irreversible cessation of all…
brain functions" is discussed and the implications of this definition for withdrawal of life-support
mechanism are analyzed.
-
Homicide
Homicide is the causing the death of a human being (sec. 222 CC)
•
A person commits homicide when, directly or indirectly, by any means, he causes the death of a human
being.
-
Not all homicides are crimes.
-
Homicides that are not culpable (blameworthy) are either justifiable or excusable.
Homicide
-
-
Homicide may also be excusable…
•
Where it is accidental
-
Ex. a person is doing a lawful act and unintentionally and without negligence kills another person, the
death is considered accidental and no criminal liability will be attached.
→
However,
Where a person is doing an unlawful act and accidentally causes a death,
The homicide will be culpable.
→
-
What are the Penalties for Murder?
235(1) Everyone who commits first degree murder or second degree murder shall be sentenced to
imprisonment for life.
-
First Degree Murder
Murder is first degree when any of the following conditions are satisfied:
-
It is "planned and deliberate".
•
The victim is a member of a special group of individuals that includes among others, police officers and
jail guards.
•
The victim is killed during the commission of hijacking an aircraft, sexual assault, kidnapping, forcible
confinement or hostage taking.
•
When is murder First Degree?
The murder has been contracted.
-
The victim is killed as a result of the use of explosives (sec.81) and the accused was acting on behalf of
a criminal organization.
-
The victim is killed as a result of Criminal Harassment (section 264) and the accused caused the victim
to fear for his/her life of the life of another person (Section 231).
-
Crown must first prove murder beyond a reasonable doubt. Then prove that it was both planned and
deliberate.
-
Meaning of Planned & Deliberate
"Planned"
A calculated scheme that is carefulluy thought out.
→
•
Abbott conviction (Fergus); knew lunch schedule-he left on his lunch after going to lunchroom: ask co-
workers re: silencer; made one and left it at the scene; shot wife at home and returned to work; dump
shotgun in garbage at work.
-
"Deliberate"
Means 'considered'; not impulsive; not in heat of passion.
→
•
The jury (mandatory) must consider the accused's actions, statements and mental capacity to plan and
deliberate.
-
Conditions-Not a Defence to Murder
The victim would have lived had she received proper medical attention (S.224).
-
The victim died not from the injuries inflicted by the accused but by improper medical treatment
(S.225).
-
The victim died from natural causes that were accelerated by the injuries inflicted by the accused
(S.226).
-
The victim consented to being killed (S.14).
-
Conditions-May be a defence to Murder
It may be a defence to charge of murder that:
The accused was 'suddenly provoked' (S. 232).
→
-
Sudden Provocation
•
Means “a wrongful act or insult that is of such a nature as to be sufficient to deprive an
ordinary person of the power of self-control but only “if the accused acted upon it on
the sudden and before there was time for his passion to cool.” -
Section
232.(2) C.C.
-
Provocation as a Defence
Provocation reduce
-
s 1st degree murder to manslaughter;
-
Objective test to determine if the provocation amounts to a defence;
-
Must be significant provocation; more than a mere insult;
-
Break-up of a relationship does not amount to provocation.
-
Second Degree Murder
•
Occurs when death follows an unlawful assault where no planning or deliberation. Ex. accused finds
spouse in bed with a lover;
-
Death is intended; but not planned.
-
NOTE: this act would not be considered provocation because the victim did nothing (in law) to provoke.
-
Although penalty is life, parole can be set at 10 years.
-
•
The difference between murder and manslaughter…
Manslaughter
General intent crime that is usually charged when the accused has recklessly caused a death.
→
•
Murder
Requires specific intent (Ex. to cause a person's death).
→
•
Manslaughter
Culpable homicide that is not murder or infanticide is manslaughter.234.
The effect of this section is that once a homicide is found to be culpable, the next step is determining
whether it is murder or infanticide; if the culpable homicide is neither, then the offence is
manslaughter.
-
Manslaughter most often arises...
Where the death is caused by means of an unlawful act or by criminal negligence.
-
R. v. Mack –Drug use involving 3 males –one finds a gun in the house –fired three shots during the evening –
killed one and injured the other.
-
Point firearm –unlawful act
-
Crim. Neg. in the way he handled the gun.
-
Manslaughter –cont.
Where bodily injury intended and caused and death ensues, manslaughter made out;
•
No minimum term of jail for this offence-Unless?
•
Meaning of “human being”
Sec. 223. (1)
A child becomes a human being within the meaning of this Act when it has completely proceeded, in a
living state, from the body of its mother whether or not/
It has breathed
→
It has an independent circulation, or
→
The navel string is severed.
→
-
•
Thus, According to criminal law,
An unborn child is not a human being.
-
Sec. 223 goes on to state:
(2) A person commits homicide when he causes injury to a child before or during its birth as a result of
which the child dies after becoming a human being.
-
-
In other words,
Under sec. 223(2) it is a homicide if the injury is caused to a foetus that dies after being born. If the foetus
dies before being born, then the death is not homicide.
•
(R. v. Prince, Accused attacked a pregnant woman –child was born premature and died 19 minutes after
birth because of injuries suffered by the mother.
•
Responsible?
•
Criminal Negligence
Crim Neg 219 CC
•
in relation to positive acts and omissions
-
R vs L (2006) car surfing
-
Ont Court of Appeal
-
“the higher standard has been described as a marked and substantial departure from the standard of care of
a reasonable person.
-
Crim Neg
Criminal negligence does not require proof of intention or deliberation, indifference being sufficient.
-
Recklessness
Defined: “People are reckless, with respect to a consequence of their actions, when they foresee it as
certain. In other words, knowingly taking an unjustified risk”
-
Transferred Intent
Gordon (2009)
•
“The common law doctrine of transferred intent takes the mens rea of an offence in relation to an intended
victim and transfers it to the actus reus of the same offence committed upon another person
-
Droste (1984) meant to kill his wife in car fire but killed his two children. Guilty of first degree murder.
•
Fointaine (2002) attempt to commit suicide and accidently killed another person. Guilty of first degree
murder or no?
•
Infanticide
Sec .233 –A female person commits infanticide when by a willful act or omission she causes the death of her
newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving
birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her
mind is then disturbed…
•
Definition of “newly-born child”
A person under the age of one year.
-
Court ruling (R.V. Marchello)
-
The accused must be a woman
-
She must have caused the death of a child]
-
The child must have been “newly born”
-
The child must have been the child of the accused.
-
Elements…continued
The death must have been caused by a wilful act or omission of the accused
-
At the time of the wilful act or omission, the accused must not have fully recovered from the effect of giving
birth to the child.
-
By reason of giving birth to the child, the accused’s balance of mind must have been disturbed.
-
Refuse Treatment
A competent patient has an absolute right to refuse medical treatment, however, even if this decision results
in the patient's demise
-
Cause of Death
There can be more than one cause of death and more than one accused person who may be found guilty of
the murder or manslaughter of the same victim
-
Smithers (1977)
The Smithers case (1977) illustrates the so-called "thin-skull" rule or the principle that "one takes one's victim
as one finds them."
-
An extraordinary physical defect may constitute one of the effective causes of death, but the accused will
still be convicted if the wound inflicted by him or her made a significant contribution to the victim's ultimate
demise.
-
Smithers Test -Factual Causation
The so-called Smithers test of causation states that the accused person's conduct must contribute "outside
the de minimis range" to the victim's death
-
In other words, the accused’s conduct must have had more than a minimal impact
-
Nette (2001) -Factual Causation
In the Nette case, the Supreme Court of Canada reaffirmed the validity of the “Smithers test” for all forms of
homicide
-
However, the court also ruled that the test should be re-worded so that it will be more intelligible to juries.
The new wording is that the accused’s conduct must constitute a “significant contributing cause" to the
death of the victim
-
Harbottle (1993)
In Harbottle (1993), the Supreme Court of Canada ruled that a more restrictive test of causation must be
used for charges of first-degree murder arising under section 231(5) of the Code.
-
Murder & Rape
-
“Substantial and Integral cause” Harbottle Test
In these cases, it must be proved that the accused’s conduct was a "substantial and integral cause" of the
death
-
If an intervening act breaks the chain of causation between the accused person's assault on the victim and
the latter's ultimate death, then the accused person will not be convicted of an offence involving culpable
homicide
-
“Substantial and Integral cause"
However, the accused may be found guilty of murder or manslaughter where the intervening act would not
have occurred but for the original assault
-
Summarize
Smither’s Test the accused’s conduct must constitute a “contributing cause outside the de minimum range.
-
This is a test of factual causation applied to all criminal charges involving homicide but has been superseded
by Nette test
-
Nette Test
The accused conduct must constitute “a significant contributing cause.
-
This test is of factual causation and replaces Smither’s.
-
Harbottle
The accused’s conduct must constitute a “substantial and integral cause”
-
This test of legal causation applies to first degree murder. It is applied after the Nette test and is essentially
a sentencing provision.
-
Criminal Responsibility
An accused person will be excused from criminal responsibility only in the very unusual situation where the
impact of the improper medical treatment is so overwhelming that the court may legitimately conclude that
the original wound inflicted by the accused should be considered no more than ''part of the history”
-
Medical Treatment
When improper medical treatment, provided it is administered in good faith, will generally not sever the
chain of causation
-
Attention is drawn to section 224 of the Code, which provides that the accused does not have an automatic
defence to a murder or manslaughter charge just because death "might have been prevented by resorting to
proper means
-
Psychological
The combined effect of Sections 222(5)(d) and 228 of the Code is to provide, as a general rule, that an
accused person may not be convicted of murder or manslaughter if the death of the victim is caused solely by
an influence on the victim's mind
-
Exceptions
There are two important exceptions; namely, where the accused willfully frightens a child or a sick person
-
Actus Reus & Causation
Friday,)January)19,)2018
8:12)AM
Mens Rea and Actus Reus
Mens rea refers to the mental elements of an offence, while actus reus refers to all the other elements
of the offence.
-
The basic elements of all criminal offences can be efficiently identified and analyzed by using these
two terms.
-
Three Components
The Actus Reus of an offence can generally be separated into three distinct components:
-
Conduct 1.
Circumstances 2.
Consequences
However-there are some expectations to this general model.
→
3.
Assault Cause Bodily Harm
Conduct: is represented by the application of the force to the person of the victim.
-
Circumstances: such force was applied without the consent of the victim.
-
Consequence: which must be proved is that the victim sustained actual bodily harm.
-
Basic Elements of Actus Reus
In sexual assault case 271 CC.
-
Semchuk (2012)
-
School teacher, grade three-out of breath.
-
Defence-providing medical assistance.
-
C of Appeal BC.
-
Actus Reus
-
Touching 1.
Sexual nature 2.
Absence of consent3.
Objective Test
A reasonable observer would conclude that the act of the accused violated the sexual integrity of the
victim.
-
Exceptions to rule of Conduct, Circumstances, Consequences
Is there any offences where consequences are not required elements of the Actus Reus?
-
The Crown does not need to prove the accused's conduct caused any consequences.
-
Failure to Act
The general principle of criminal law is that an accused person may not be convicted on the basis of a
mere omission unless he or she is under a prior (legal) duty to act.
-
Video: RTE news. Man dies on NY st. No one stops.
•
Http://www.youtube.com/watch?v=YZpBgZ4WgjE
Should there be a duty to act imposed?
The law Reform Commission of Canada has recommended that the CC of Canada impose a general duty
on a citizens to render aid in an emergency.
-
Quebec Charter of Human Rights and Freedoms-Section 2.
-
Every human being whose life is in peril has the right to assistance. Every person must come to the aid
of anyone whose life in peril, whether personally or calling for aid, by giving him the necessary and
immediate physical assistance, unless it involves danger to himself…
-
Duties Imposed
Specific legal duties are imposed by the CC. by a way of illiustration, section 215 imposes a duty on
parents to provide the necessities of life to their children.
-
If a failure to perform a legal duty causes death or bodily harm.
-
Causing death by criminal negligence [s.220] or causing bodily harm by criminal negligence [s.221]
-
Boyfriend/girlfriend, raid, swallow coke, says he will take to hospital, doesn’t, dies.
-
Necessaries to Life to Dependent Persons 215 CC
215 (1) Legal duty who are responsible for the welfare of others.
-
215 (2)
-
Everyone who commits an offence who, being under a legal duty within the meaning of subsection (1),
fails without lawful excuse, the proof of which lies on him, to perform that duty…
-
Infringed section 11(d) Curtis (1998)
-
Crown-must prove beyond a reasonable doubt that the accused did not have a "lawful excuse."
-
Abandoning Child 218
R vs. H (A.D) (2013)
-
Gave birth in Walmart bathroom
-
Thought baby dead
-
Left to return later-baby alive
-
Charged under 218
-
Supreme Court-mens rea-subjective
-
When failing to act constitutes a criminal offence
There are some situations whre the failure to act by someone may lead to someone becoming a party
to an offence committed by someone else
-
Part b & c of sec 21 (1) provide that someone becomes a party to an offence if he or she 'does or omits
to do anything for the purpose of aiding any person to commit it' or 'abets any person in committing it'.
-
Nixon (1990)
Accused was officer in charge of a lock up.
-
Charged with aggravated assault, convicted despite the fact that he did not actually commit the
assault.
-
Under the BC Police Act and CC, the accused had a duty to protect the victim who was a prisoner in his
cells at the time.
-
Where there is a duty to act and the accused does not act it is left to the court to infer that reason why
the accused did not act was to aid in the commission of the offence.
-
Must Actus Reus & Mens Rea Coincide?
This principle has been given a very flexible interpretation by the courts.
-
It has been held by the actus reus of an offence may "continue" over an extended period.
-
In order to obtain a conviction, the Crown must prove that the requisite mens rea was present at some
point during this extended period.
-
Newell (2007)
Stole meat from grocery store.
-
Swung knife at security during scuffle in parking lot.
-
Charged with robbery.
-
Convicted of theft.
-
Court stated that the mens rea and actus reus did not coincide-must be contemporaneous.
-
Voluntariness
The concept of voluntariness embedded in the concept of the actus reus.
-
It is noted that, if the accused's conduct is involuntary, he or she cannot be held criminally responsible
because the consequences of such conduct did not flow from the exercise of "free will."
-
There is an increasing degree of acceptance by Canadian courts of the view that the actus reus of a
criminal offence includes the elements of voluntariness.
-
Chapter 3 -Causation
This chapter introduces the fundamental principles of causation embedded in the criminal law, with
particular reference to homicide offences.
-
Factual Causation
•
Factual causation "is concerned with an inquiry about the victim came to his or her death, in a medical,
mechanical, or physical sense."
An issue that can be decided by asking whether the prohibited consequences would not have
happened "but for" the conduct of the accused.
→
Was the accused conduct part of the chain of causation?
→
-
Legal Causation
•
Meanwhile, "legal causation, which is also referred to as imputable causation, is concerned with the
concerned with the question of whether the accused person should be held responsible in law for the
death that occurred."
An issue that revolves around the fairness of holding an accused person criminally responsible.
Should the accused be held responsible.
→
In most cases, the issue of legal causation is determined by asking whether the prohibited
consequences were foreseeable.
→
-
Foreseeability
Should the person be considered sufficiently blameworthy.
-
Def'n of Death
A critical issue concerns the definition fo death for the purposes of criminal law, particularly in the
light of medical advances that render it possible to sustain certain bodily functions on an indefinite
basis.
-
The law reform commission of Canada's (1981) definition of death-as "an irreversible cessation of all…
brain functions" is discussed and the implications of this definition for withdrawal of life-support
mechanism are analyzed.
-
Homicide
Homicide is the causing the death of a human being (sec. 222 CC)
•
A person commits homicide when, directly or indirectly, by any means, he causes the death of a human
being.
-
Not all homicides are crimes.
-
Homicides that are not culpable (blameworthy) are either justifiable or excusable.
Homicide
-
-
Homicide may also be excusable…
•
Where it is accidental
-
Ex. a person is doing a lawful act and unintentionally and without negligence kills another person, the
death is considered accidental and no criminal liability will be attached.
→
However,
Where a person is doing an unlawful act and accidentally causes a death,
The homicide will be culpable.
→
-
What are the Penalties for Murder?
235(1) Everyone who commits first degree murder or second degree murder shall be sentenced to
imprisonment for life.
-
First Degree Murder
Murder is first degree when any of the following conditions are satisfied:
-
It is "planned and deliberate".
•
The victim is a member of a special group of individuals that includes among others, police officers and
jail guards.
•
The victim is killed during the commission of hijacking an aircraft, sexual assault, kidnapping, forcible
confinement or hostage taking.
•
When is murder First Degree?
The murder has been contracted.
-
The victim is killed as a result of the use of explosives (sec.81) and the accused was acting on behalf of
a criminal organization.
-
The victim is killed as a result of Criminal Harassment (section 264) and the accused caused the victim
to fear for his/her life of the life of another person (Section 231).
-
Crown must first prove murder beyond a reasonable doubt. Then prove that it was both planned and
deliberate.
-
Meaning of Planned & Deliberate
"Planned"
A calculated scheme that is carefulluy thought out.
→
•
Abbott conviction (Fergus); knew lunch schedule-he left on his lunch after going to lunchroom: ask co-
workers re: silencer; made one and left it at the scene; shot wife at home and returned to work; dump
shotgun in garbage at work.
-
"Deliberate"
Means 'considered'; not impulsive; not in heat of passion.
→
•
The jury (mandatory) must consider the accused's actions, statements and mental capacity to plan and
deliberate.
-
Conditions-Not a Defence to Murder
The victim would have lived had she received proper medical attention (S.224).
-
The victim died not from the injuries inflicted by the accused but by improper medical treatment
(S.225).
-
The victim died from natural causes that were accelerated by the injuries inflicted by the accused
(S.226).
-
The victim consented to being killed (S.14).
-
Conditions-May be a defence to Murder
It may be a defence to charge of murder that:
The accused was 'suddenly provoked' (S. 232).
→
-
Sudden Provocation
•
Means “a wrongful act or insult that is of such a nature as to be sufficient to deprive an
ordinary person of the power of self-control but only “if the accused acted upon it on
the sudden and before there was time for his passion to cool.” -
Section
232.(2) C.C.
-
Provocation as a Defence
Provocation reduce
-
s 1st degree murder to manslaughter;
-
Objective test to determine if the provocation amounts to a defence;
-
Must be significant provocation; more than a mere insult;
-
Break-up of a relationship does not amount to provocation.
-
Second Degree Murder
•
Occurs when death follows an unlawful assault where no planning or deliberation. Ex. accused finds
spouse in bed with a lover;
-
Death is intended; but not planned.
-
NOTE: this act would not be considered provocation because the victim did nothing (in law) to provoke.
-
Although penalty is life, parole can be set at 10 years.
-
•
The difference between murder and manslaughter…
Manslaughter
General intent crime that is usually charged when the accused has recklessly caused a death.
→
•
Murder
Requires specific intent (Ex. to cause a person's death).
→
•
Manslaughter
Culpable homicide that is not murder or infanticide is manslaughter.234.
The effect of this section is that once a homicide is found to be culpable, the next step is determining
whether it is murder or infanticide; if the culpable homicide is neither, then the offence is
manslaughter.
-
Manslaughter most often arises...
Where the death is caused by means of an unlawful act or by criminal negligence.
-
R. v. Mack –Drug use involving 3 males –one finds a gun in the house –fired three shots during the evening –
killed one and injured the other.
-
Point firearm –unlawful act
-
Crim. Neg. in the way he handled the gun.
-
Manslaughter –cont.
Where bodily injury intended and caused and death ensues, manslaughter made out;
•
No minimum term of jail for this offence-Unless?
•
Meaning of “human being”
Sec. 223. (1)
A child becomes a human being within the meaning of this Act when it has completely proceeded, in a
living state, from the body of its mother whether or not/
It has breathed
→
It has an independent circulation, or
→
The navel string is severed.
→
-
•
Thus, According to criminal law,
An unborn child is not a human being.
-
Sec. 223 goes on to state:
(2) A person commits homicide when he causes injury to a child before or during its birth as a result of
which the child dies after becoming a human being.
-
-
In other words,
Under sec. 223(2) it is a homicide if the injury is caused to a foetus that dies after being born. If the foetus
dies before being born, then the death is not homicide.
•
(R. v. Prince, Accused attacked a pregnant woman –child was born premature and died 19 minutes after
birth because of injuries suffered by the mother.
•
Responsible?
•
Criminal Negligence
Crim Neg 219 CC
•
in relation to positive acts and omissions
-
R vs L (2006) car surfing
-
Ont Court of Appeal
-
“the higher standard has been described as a marked and substantial departure from the standard of care of
a reasonable person.
-
Crim Neg
Criminal negligence does not require proof of intention or deliberation, indifference being sufficient.
-
Recklessness
Defined: “People are reckless, with respect to a consequence of their actions, when they foresee it as
certain. In other words, knowingly taking an unjustified risk”
-
Transferred Intent
Gordon (2009)
•
“The common law doctrine of transferred intent takes the mens rea of an offence in relation to an intended
victim and transfers it to the actus reus of the same offence committed upon another person
-
Droste (1984) meant to kill his wife in car fire but killed his two children. Guilty of first degree murder.
•
Fointaine (2002) attempt to commit suicide and accidently killed another person. Guilty of first degree
murder or no?
•
Infanticide
Sec .233 –A female person commits infanticide when by a willful act or omission she causes the death of her
newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving
birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her
mind is then disturbed…
•
Definition of “newly-born child”
A person under the age of one year.
-
Court ruling (R.V. Marchello)
-
The accused must be a woman
-
She must have caused the death of a child]
-
The child must have been “newly born”
-
The child must have been the child of the accused.
-
Elements…continued
The death must have been caused by a wilful act or omission of the accused
-
At the time of the wilful act or omission, the accused must not have fully recovered from the effect of giving
birth to the child.
-
By reason of giving birth to the child, the accused’s balance of mind must have been disturbed.
-
Refuse Treatment
A competent patient has an absolute right to refuse medical treatment, however, even if this decision results
in the patient's demise
-
Cause of Death
There can be more than one cause of death and more than one accused person who may be found guilty of
the murder or manslaughter of the same victim
-
Smithers (1977)
The Smithers case (1977) illustrates the so-called "thin-skull" rule or the principle that "one takes one's victim
as one finds them."
-
An extraordinary physical defect may constitute one of the effective causes of death, but the accused will
still be convicted if the wound inflicted by him or her made a significant contribution to the victim's ultimate
demise.
-
Smithers Test -Factual Causation
The so-called Smithers test of causation states that the accused person's conduct must contribute "outside
the de minimis range" to the victim's death
-
In other words, the accused’s conduct must have had more than a minimal impact
-
Nette (2001) -Factual Causation
In the Nette case, the Supreme Court of Canada reaffirmed the validity of the “Smithers test” for all forms of
homicide
-
However, the court also ruled that the test should be re-worded so that it will be more intelligible to juries.
The new wording is that the accused’s conduct must constitute a “significant contributing cause" to the
death of the victim
-
Harbottle (1993)
In Harbottle (1993), the Supreme Court of Canada ruled that a more restrictive test of causation must be
used for charges of first-degree murder arising under section 231(5) of the Code.
-
Murder & Rape
-
“Substantial and Integral cause” Harbottle Test
In these cases, it must be proved that the accused’s conduct was a "substantial and integral cause" of the
death
-
If an intervening act breaks the chain of causation between the accused person's assault on the victim and
the latter's ultimate death, then the accused person will not be convicted of an offence involving culpable
homicide
-
“Substantial and Integral cause"
However, the accused may be found guilty of murder or manslaughter where the intervening act would not
have occurred but for the original assault
-
Summarize
Smither’s Test the accused’s conduct must constitute a “contributing cause outside the de minimum range.
-
This is a test of factual causation applied to all criminal charges involving homicide but has been superseded
by Nette test
-
Nette Test
The accused conduct must constitute “a significant contributing cause.
-
This test is of factual causation and replaces Smither’s.
-
Harbottle
The accused’s conduct must constitute a “substantial and integral cause”
-
This test of legal causation applies to first degree murder. It is applied after the Nette test and is essentially
a sentencing provision.
-
Criminal Responsibility
An accused person will be excused from criminal responsibility only in the very unusual situation where the
impact of the improper medical treatment is so overwhelming that the court may legitimately conclude that
the original wound inflicted by the accused should be considered no more than ''part of the history”
-
Medical Treatment
When improper medical treatment, provided it is administered in good faith, will generally not sever the
chain of causation
-
Attention is drawn to section 224 of the Code, which provides that the accused does not have an automatic
defence to a murder or manslaughter charge just because death "might have been prevented by resorting to
proper means
-
Psychological
The combined effect of Sections 222(5)(d) and 228 of the Code is to provide, as a general rule, that an
accused person may not be convicted of murder or manslaughter if the death of the victim is caused solely by
an influence on the victim's mind
-
Exceptions
There are two important exceptions; namely, where the accused willfully frightens a child or a sick person
-
Actus Reus & Causation
Friday,)January)19,)2018 8:12)AM
Mens Rea and Actus Reus
Mens rea refers to the mental elements of an offence, while actus reus refers to all the other elements
of the offence.
-
The basic elements of all criminal offences can be efficiently identified and analyzed by using these
two terms.
-
Three Components
The Actus Reus of an offence can generally be separated into three distinct components:
-
Conduct 1.
Circumstances 2.
Consequences
However-there are some expectations to this general model.
→
3.
Assault Cause Bodily Harm
Conduct: is represented by the application of the force to the person of the victim.
-
Circumstances: such force was applied without the consent of the victim.
-
Consequence: which must be proved is that the victim sustained actual bodily harm.
-
Basic Elements of Actus Reus
In sexual assault case 271 CC.
-
Semchuk (2012)
-
School teacher, grade three-out of breath.
-
Defence-providing medical assistance.
-
C of Appeal BC.
-
Actus Reus
-
Touching 1.
Sexual nature 2.
Absence of consent3.
Objective Test
A reasonable observer would conclude that the act of the accused violated the sexual integrity of the
victim.
-
Exceptions to rule of Conduct, Circumstances, Consequences
Is there any offences where consequences are not required elements of the Actus Reus?
-
The Crown does not need to prove the accused's conduct caused any consequences.
-
Failure to Act
The general principle of criminal law is that an accused person may not be convicted on the basis of a
mere omission unless he or she is under a prior (legal) duty to act.
-
Video: RTE news. Man dies on NY st. No one stops.
•
Http://www.youtube.com/watch?v=YZpBgZ4WgjE
Should there be a duty to act imposed?
The law Reform Commission of Canada has recommended that the CC of Canada impose a general duty
on a citizens to render aid in an emergency.
-
Quebec Charter of Human Rights and Freedoms-Section 2.
-
Every human being whose life is in peril has the right to assistance. Every person must come to the aid
of anyone whose life in peril, whether personally or calling for aid, by giving him the necessary and
immediate physical assistance, unless it involves danger to himself…
-
Duties Imposed
Specific legal duties are imposed by the CC. by a way of illiustration, section 215 imposes a duty on
parents to provide the necessities of life to their children.
-
If a failure to perform a legal duty causes death or bodily harm.
-
Causing death by criminal negligence [s.220] or causing bodily harm by criminal negligence [s.221]
-
Boyfriend/girlfriend, raid, swallow coke, says he will take to hospital, doesn’t, dies.
-
Necessaries to Life to Dependent Persons 215 CC
215 (1) Legal duty who are responsible for the welfare of others.
-
215 (2)
-
Everyone who commits an offence who, being under a legal duty within the meaning of subsection (1),
fails without lawful excuse, the proof of which lies on him, to perform that duty…
-
Infringed section 11(d) Curtis (1998)
-
Crown-must prove beyond a reasonable doubt that the accused did not have a "lawful excuse."
-
Abandoning Child 218
R vs. H (A.D) (2013)
-
Gave birth in Walmart bathroom
-
Thought baby dead
-
Left to return later-baby alive
-
Charged under 218
-
Supreme Court-mens rea-subjective
-
When failing to act constitutes a criminal offence
There are some situations whre the failure to act by someone may lead to someone becoming a party
to an offence committed by someone else
-
Part b & c of sec 21 (1) provide that someone becomes a party to an offence if he or she 'does or omits
to do anything for the purpose of aiding any person to commit it' or 'abets any person in committing it'.
-
Nixon (1990)
Accused was officer in charge of a lock up.
-
Charged with aggravated assault, convicted despite the fact that he did not actually commit the
assault.
-
Under the BC Police Act and CC, the accused had a duty to protect the victim who was a prisoner in his
cells at the time.
-
Where there is a duty to act and the accused does not act it is left to the court to infer that reason why
the accused did not act was to aid in the commission of the offence.
-
Must Actus Reus & Mens Rea Coincide?
This principle has been given a very flexible interpretation by the courts.
-
It has been held by the actus reus of an offence may "continue" over an extended period.
-
In order to obtain a conviction, the Crown must prove that the requisite mens rea was present at some
point during this extended period.
-
Newell (2007)
Stole meat from grocery store.
-
Swung knife at security during scuffle in parking lot.
-
Charged with robbery.
-
Convicted of theft.
-
Court stated that the mens rea and actus reus did not coincide-must be contemporaneous.
-
Voluntariness
The concept of voluntariness embedded in the concept of the actus reus.
-
It is noted that, if the accused's conduct is involuntary, he or she cannot be held criminally responsible
because the consequences of such conduct did not flow from the exercise of "free will."
-
There is an increasing degree of acceptance by Canadian courts of the view that the actus reus of a
criminal offence includes the elements of voluntariness.
-
Chapter 3 -Causation
This chapter introduces the fundamental principles of causation embedded in the criminal law, with
particular reference to homicide offences.
-
Factual Causation
•
Factual causation "is concerned with an inquiry about the victim came to his or her death, in a medical,
mechanical, or physical sense."
An issue that can be decided by asking whether the prohibited consequences would not have
happened "but for" the conduct of the accused.
→
Was the accused conduct part of the chain of causation?
→
-
Legal Causation
•
Meanwhile, "legal causation, which is also referred to as imputable causation, is concerned with the
concerned with the question of whether the accused person should be held responsible in law for the
death that occurred."
An issue that revolves around the fairness of holding an accused person criminally responsible.
Should the accused be held responsible.
→
In most cases, the issue of legal causation is determined by asking whether the prohibited
consequences were foreseeable.
→
-
Foreseeability
Should the person be considered sufficiently blameworthy.
-
Def'n of Death
A critical issue concerns the definition fo death for the purposes of criminal law, particularly in the
light of medical advances that render it possible to sustain certain bodily functions on an indefinite
basis.
-
The law reform commission of Canada's (1981) definition of death-as "an irreversible cessation of all…
brain functions" is discussed and the implications of this definition for withdrawal of life-support
mechanism are analyzed.
-
Homicide
Homicide is the causing the death of a human being (sec. 222 CC)
•
A person commits homicide when, directly or indirectly, by any means, he causes the death of a human
being.
-
Not all homicides are crimes.
-
Homicides that are not culpable (blameworthy) are either justifiable or excusable.
Homicide
-
-
Homicide may also be excusable…
•
Where it is accidental
-
Ex. a person is doing a lawful act and unintentionally and without negligence kills another person, the
death is considered accidental and no criminal liability will be attached.
→
However,
Where a person is doing an unlawful act and accidentally causes a death,
The homicide will be culpable.
→
-
What are the Penalties for Murder?
235(1) Everyone who commits first degree murder or second degree murder shall be sentenced to
imprisonment for life.
-
First Degree Murder
Murder is first degree when any of the following conditions are satisfied:
-
It is "planned and deliberate".
•
The victim is a member of a special group of individuals that includes among others, police officers and
jail guards.
•
The victim is killed during the commission of hijacking an aircraft, sexual assault, kidnapping, forcible
confinement or hostage taking.
•
When is murder First Degree?
The murder has been contracted.
-
The victim is killed as a result of the use of explosives (sec.81) and the accused was acting on behalf of
a criminal organization.
-
The victim is killed as a result of Criminal Harassment (section 264) and the accused caused the victim
to fear for his/her life of the life of another person (Section 231).
-
Crown must first prove murder beyond a reasonable doubt. Then prove that it was both planned and
deliberate.
-
Meaning of Planned & Deliberate
"Planned"
A calculated scheme that is carefulluy thought out.
→
•
Abbott conviction (Fergus); knew lunch schedule-he left on his lunch after going to lunchroom: ask co-
workers re: silencer; made one and left it at the scene; shot wife at home and returned to work; dump
shotgun in garbage at work.
-
"Deliberate"
Means 'considered'; not impulsive; not in heat of passion.
→
•
The jury (mandatory) must consider the accused's actions, statements and mental capacity to plan and
deliberate.
-
Conditions-Not a Defence to Murder
The victim would have lived had she received proper medical attention (S.224).
-
The victim died not from the injuries inflicted by the accused but by improper medical treatment
(S.225).
-
The victim died from natural causes that were accelerated by the injuries inflicted by the accused
(S.226).
-
The victim consented to being killed (S.14).
-
Conditions-May be a defence to Murder
It may be a defence to charge of murder that:
The accused was 'suddenly provoked' (S. 232).
→
-
Sudden Provocation
•
Means “a wrongful act or insult that is of such a nature as to be sufficient to deprive an
ordinary person of the power of self-control but only “if the accused acted upon it on
the sudden and before there was time for his passion to cool.” -
Section
232.(2) C.C.
-
Provocation as a Defence
Provocation reduce
-
s 1st degree murder to manslaughter;
-
Objective test to determine if the provocation amounts to a defence;
-
Must be significant provocation; more than a mere insult;
-
Break-up of a relationship does not amount to provocation.
-
Second Degree Murder
•
Occurs when death follows an unlawful assault where no planning or deliberation. Ex. accused finds
spouse in bed with a lover;
-
Death is intended; but not planned.
-
NOTE: this act would not be considered provocation because the victim did nothing (in law) to provoke.
-
Although penalty is life, parole can be set at 10 years.
-
•
The difference between murder and manslaughter…
Manslaughter
General intent crime that is usually charged when the accused has recklessly caused a death.
→
•
Murder
Requires specific intent (Ex. to cause a person's death).
→
•
Manslaughter
Culpable homicide that is not murder or infanticide is manslaughter.234.
The effect of this section is that once a homicide is found to be culpable, the next step is determining
whether it is murder or infanticide; if the culpable homicide is neither, then the offence is
manslaughter.
-
Manslaughter most often arises...
Where the death is caused by means of an unlawful act or by criminal negligence.
-
R. v. Mack –Drug use involving 3 males –one finds a gun in the house –fired three shots during the evening –
killed one and injured the other.
-
Point firearm –unlawful act
-
Crim. Neg. in the way he handled the gun.
-
Manslaughter –cont.
Where bodily injury intended and caused and death ensues, manslaughter made out;
•
No minimum term of jail for this offence-Unless?
•
Meaning of “human being”
Sec. 223. (1)
A child becomes a human being within the meaning of this Act when it has completely proceeded, in a
living state, from the body of its mother whether or not/
It has breathed
→
It has an independent circulation, or
→
The navel string is severed.
→
-
•
Thus, According to criminal law,
An unborn child is not a human being.
-
Sec. 223 goes on to state:
(2) A person commits homicide when he causes injury to a child before or during its birth as a result of
which the child dies after becoming a human being.
-
-
In other words,
Under sec. 223(2) it is a homicide if the injury is caused to a foetus that dies after being born. If the foetus
dies before being born, then the death is not homicide.
•
(R. v. Prince, Accused attacked a pregnant woman –child was born premature and died 19 minutes after
birth because of injuries suffered by the mother.
•
Responsible?
•
Criminal Negligence
Crim Neg 219 CC
•
in relation to positive acts and omissions
-
R vs L (2006) car surfing
-
Ont Court of Appeal
-
“the higher standard has been described as a marked and substantial departure from the standard of care of
a reasonable person.
-
Crim Neg
Criminal negligence does not require proof of intention or deliberation, indifference being sufficient.
-
Recklessness
Defined: “People are reckless, with respect to a consequence of their actions, when they foresee it as
certain. In other words, knowingly taking an unjustified risk”
-
Transferred Intent
Gordon (2009)
•
“The common law doctrine of transferred intent takes the mens rea of an offence in relation to an intended
victim and transfers it to the actus reus of the same offence committed upon another person
-
Droste (1984) meant to kill his wife in car fire but killed his two children. Guilty of first degree murder.
•
Fointaine (2002) attempt to commit suicide and accidently killed another person. Guilty of first degree
murder or no?
•
Infanticide
Sec .233 –A female person commits infanticide when by a willful act or omission she causes the death of her
newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving
birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her
mind is then disturbed…
•
Definition of “newly-born child”
A person under the age of one year.
-
Court ruling (R.V. Marchello)
-
The accused must be a woman
-
She must have caused the death of a child]
-
The child must have been “newly born”
-
The child must have been the child of the accused.
-
Elements…continued
The death must have been caused by a wilful act or omission of the accused
-
At the time of the wilful act or omission, the accused must not have fully recovered from the effect of giving
birth to the child.
-
By reason of giving birth to the child, the accused’s balance of mind must have been disturbed.
-
Refuse Treatment
A competent patient has an absolute right to refuse medical treatment, however, even if this decision results
in the patient's demise
-
Cause of Death
There can be more than one cause of death and more than one accused person who may be found guilty of
the murder or manslaughter of the same victim
-
Smithers (1977)
The Smithers case (1977) illustrates the so-called "thin-skull" rule or the principle that "one takes one's victim
as one finds them."
-
An extraordinary physical defect may constitute one of the effective causes of death, but the accused will
still be convicted if the wound inflicted by him or her made a significant contribution to the victim's ultimate
demise.
-
Smithers Test -Factual Causation
The so-called Smithers test of causation states that the accused person's conduct must contribute "outside
the de minimis range" to the victim's death
-
In other words, the accused’s conduct must have had more than a minimal impact
-
Nette (2001) -Factual Causation
In the Nette case, the Supreme Court of Canada reaffirmed the validity of the “Smithers test” for all forms of
homicide
-
However, the court also ruled that the test should be re-worded so that it will be more intelligible to juries.
The new wording is that the accused’s conduct must constitute a “significant contributing cause" to the
death of the victim
-
Harbottle (1993)
In Harbottle (1993), the Supreme Court of Canada ruled that a more restrictive test of causation must be
used for charges of first-degree murder arising under section 231(5) of the Code.
-
Murder & Rape
-
“Substantial and Integral cause” Harbottle Test
In these cases, it must be proved that the accused’s conduct was a "substantial and integral cause" of the
death
-
If an intervening act breaks the chain of causation between the accused person's assault on the victim and
the latter's ultimate death, then the accused person will not be convicted of an offence involving culpable
homicide
-
“Substantial and Integral cause"
However, the accused may be found guilty of murder or manslaughter where the intervening act would not
have occurred but for the original assault
-
Summarize
Smither’s Test the accused’s conduct must constitute a “contributing cause outside the de minimum range.
-
This is a test of factual causation applied to all criminal charges involving homicide but has been superseded
by Nette test
-
Nette Test
The accused conduct must constitute “a significant contributing cause.
-
This test is of factual causation and replaces Smither’s.
-
Harbottle
The accused’s conduct must constitute a “substantial and integral cause”
-
This test of legal causation applies to first degree murder. It is applied after the Nette test and is essentially
a sentencing provision.
-
Criminal Responsibility
An accused person will be excused from criminal responsibility only in the very unusual situation where the
impact of the improper medical treatment is so overwhelming that the court may legitimately conclude that
the original wound inflicted by the accused should be considered no more than ''part of the history”
-
Medical Treatment
When improper medical treatment, provided it is administered in good faith, will generally not sever the
chain of causation
-
Attention is drawn to section 224 of the Code, which provides that the accused does not have an automatic
defence to a murder or manslaughter charge just because death "might have been prevented by resorting to
proper means
-
Psychological
The combined effect of Sections 222(5)(d) and 228 of the Code is to provide, as a general rule, that an
accused person may not be convicted of murder or manslaughter if the death of the victim is caused solely by
an influence on the victim's mind
-
Exceptions
There are two important exceptions; namely, where the accused willfully frightens a child or a sick person
-
Actus Reus & Causation
Friday,)January)19,)2018 8:12)AM
Document Summary
Mens rea refers to the mental elements of an offence, while actus reus refers to all the of the offence. The basic elements of all criminal offences can be efficiently identified and analyzed by two terms. The actus reus of an offence can generally be separated into three distinct components: However- there are some expectations to this general model. Conduct: is represented by the application of the force to the person of the victim. Circumstances: such force was applied without the consent of the victim. Consequence: which must be proved is that the victim sustained actual bodily harm. A reasonable observer would conclude that the act of the accused violated the sexual in victim. The crown does not need to prove the accused"s conduct caused any consequences. The general principle of criminal law is that an accused person may not be convicted on mere omission unless he or she is under a prior (legal) duty to act.
