actus reus + mens rea = CRIME

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1 THE CRIMINAL EQUATION: actus reus + mens rea = CRIME Proof of Offences A person charged with a criminal offence is presumed innocent until that person pleads guilty or is proven guilty in court. The Crown Prosecutor must prove that the accused person is guilty. That person does not have to show that he or she is innocent. How much proof is required? At any criminal trial the Crown Prosecutor must prove beyond a reasonable doubt that the accused person committed a criminal offence. The judge, or the members of the jury if there is one, cannot find the person guilty if they have a reasonable doubt about the accused person's guilt. They have a reasonable doubt if, after considering all the evidence, they are unsure whether the accused person committed the offence. To convict, the judge or the jury must believe that the only sensible explanation, considering all the evidence, is that the accused person committed the crime. What kind of proof is required? To be found guilty of a crime, a person must have done something that is against the law while having what is called a "guilty state of mind". The prosecution tries to prove that the person intended criminal behaviour or that the person had a state of mind that was criminal. The person's state of mind is not a question of motive. It is merely a question whether he or she intended the act. At any criminal trial the prosecution must prove these two things: (1) the criminal behaviour and (2) the accused person's state of mind. The criminal behaviour The criminal behaviour must fit precisely within the definition of criminal behaviour set out in the law. Often the criminal behaviour is an act, something the accused person did. Sometimes the criminal behaviour is not doing something that the law requires in certain circumstances. This is called "an omission". For example, it is an offence to fail to provide food for your dependent children. Failing to assist a police officer who needs and asks for help is also an offence. Actus Reus Latin for the guilty act This simply means the physical act of committing a crime The criminal law sets out exactly what amounts to a crime, both the person's behaviour and the circumstances under which it must take place. For example, section 175(1)(a) of the Criminal Code creates the offence of causing a disturbance: 175.(1) Everyone who (a) not being in a dwelling-house, causes a disturbance in or near a public place, (I) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language, (ii) by being drunk, or (iii) by impeding or molesting other persons... is guilty of an offence punishable on summary conviction. A person can cause a disturbance in one of three ways: by fighting or by some other behaviour listed in (I), by being drunk, or by bothering people. The Crown Prosecutor must show that (1) the accused person acted in one of those ways; (2) the accused person was not in a dwelling-house; (3) that the disturbance was caused in or near a public place; and (4) the accused person's activity caused a disturbance. If the Crown Prosecutor cannot prove any one of the above, there is no offence.

2 The criminal behaviour must be voluntary If a person fell into a coma and did not provide food for his or her children, he or she could not be found guilty of failure to provide necessaries of life. Movements that are beyond a person's control are not voluntary. For example, a person who does a criminal act while sleepwalking may not be guilty because the harmful actions were not done voluntarily. The accused person's state of mind The Crown Prosecutor must prove that the accused person intended to do the act. Here we look at the person's state of mind when he or she committed the act or omission that is the subject of the offence. Mens Rea Latin for the guilty mind In the Criminal Code you will find the words, "with knowledge", "with intent" and "knowing" all of which are often used to mean Mens Rea Different criminal offences require different states of mind. Most offences require one of intention, recklessness or negligence. By way of comparison, most provincial offences do not require proof of a "guilty mind". These are called "absolute liability" offences. An example is speeding. In a speeding offence, what the driver was thinking or whether he or she intended to drive over the speed limit is not relevant. For other provincial offences, called "strict liability" offences, the accused person may be acquitted if he or she showed diligent efforts to avoid breaking the law. Since most criminal offences require intention, recklessness or negligence, we will discuss these states of mind more fully. Intention is when the accused person meant to do what he or she did. For example, let's look at shoplifting. Shoplifting is theft. A person who knowingly takes something from a store without paying for it commits theft. A preoccupied shopper who forgets to pay for something is not guilty of shoplifting. We will sometimes be responsible for the unintended results of our actions. Recklessness is when a person realizes there is a certain risk involved, but commits the act anyway, regardless of the risk. For example, the charge of murder can result from either intention or recklessness. One part of the definition of murder says a person is guilty of murder if he or she intends to cause another person's death. Another part says a person is guilty of murder if he or she injures someone, knowing that the injuries are likely to cause death and is reckless whether the victim dies or not. Negligence is failing to act the way a responsible person acts or would act in the same circumstances. A person who is negligent does not look ahead to the consequences as we expect everyone to do. Where the definition of a crime includes negligence, a person can be guilty of criminal behaviour without actually thinking about the result. Criminal negligence is not the same as negligence in a civil case. Usually criminal negligence involves behaviour that is extremely careless. A common example of criminal negligence occurs in driving cases. A person can be found guilty of criminal negligence if another person is injured or killed in a car accident as a result of the accused person's criminally negligent driving. For example, a driver may be found criminally negligent if his actions are far below the standard of a cautious and careful driver and if these actions caused the accident. The driver may be guilty even if he did not realize his behaviour could cause an accident. How does the Crown Prosecutor prove what the accused person was thinking at the time of the crime? It can be difficult. Only the accused person knows what he or she was thinking. The Crown

3 Prosecutor must rely on proof that a criminal act occurred and proof of statements or actions that show what the person was thinking. For example, in a murder case, proof that the accused person threatened to "get" the person who was killed may be accepted as evidence. Classification of Criminal Code Offences The Criminal Code classifies a criminal offence as one of three types of offences. These are: summary conviction offences, indictable offences and dual or hybrid offences. Summary conviction offences Summary means in a quick and simple manner. Summary conviction procedure means the person can get to court relatively quickly. A judge hears summary conviction cases in Provincial Court. There is no choice of court nor is there a right to a jury trial. Generally, the maximum punishment is a fine of up to $5,000, a jail term of up to six months, or both. The offence of sexual assault carries a maximum jail sentence of 18 months. Summary conviction offences are usually less serious offences. Some examples of summary conviction offences are creating a disturbance, joyriding and committing an indecent act in public. Summary conviction offences are often narrowly defined offences. For example, carrying a weapon while attending or on the way to a public meeting is a summary conviction offence. Another example is failure to keep watch while towing a person on water skis. Some summary conviction offences are rare, for example, fraudulently practising witchcraft. The trial procedure for summary conviction offences also differs in some ways from the procedure for indictable offences. A person charged with a summary conviction offence does not have to appear in court personally. A lawyer or an agent may appear in court on that person's behalf, unless the judge asks the person charged to appear in person. An agent may be a friend or relative or a person hired to appear in court. There is a six-month limitation period for summary conviction offences. A person cannot be charged more than six months after the facts occurred. Very few offences in the Criminal Code are only summary conviction offences, though there are many dual or hybrid offences that end up being prosecuted as summary conviction offences. Dual offences are discussed below. Indictable offences Indictable offences are more serious crimes than summary conviction offences. There is more than one procedure for indictable offences. The procedure that applies depends on the seriousness of the offence. Some indictable offences must be tried by a judge in Provincial Court. No jury trial is available for these offences. A number of very serious indictable offences, such as murder, must be tried by a judge and jury unless both the Attorney General and the accused person agree to a trial without a jury. For all other indictable offences, the Criminal Code gives the accused person a choice, called an election. A person charged with an indictable offence must show up personally in court. He or she may represent himself or herself or may be represented by a lawyer. There is no limitation period for indictable offences. This means that the police can charge a person years after the offence occurred. Dual or Hybrid offences Dual or hybrid offences can be prosecuted as summary conviction offences or as indictable offences. The Crown Prosecutor makes this choice. The court the accused person appears in and the range of penalties depend on whether the Crown Prosecutor prosecutes the offence as a summary conviction or an indictable offence. Usually the Crown Prosecutor prosecutes less serious dual offences as summary conviction offences. The Crown Prosecutor may choose to prosecute a dual offence as an indictable offence if the accused person has a criminal record or where there are circumstances making the crime more serious.

4 The Criminal Code includes many dual offences: assault, theft under $5,000 and impaired driving are common dual offences. The police charge the accused person with an offence, like theft or impaired driving. The dual offence is treated as an indictable offence until the Crown Prosecutor gets the case. Then the Crown Prosecutor makes the choice to proceed by summary conviction or indictable procedure. Defences to a Charge Every person, even someone arrested in very suspicious circumstances, is entitled to present a defence at trial. A defence may be defined broadly as any denial or answer to the charge against the accused person. This definition includes defences that cancel part of the prosecution's case, such as the first defence listed below, "no criminal state of mind". Occasionally the defence lawyer thinks the Crown Prosecutor's case is so weak that the defence lawyer chooses not to present any evidence. The defence lawyer can still argue that the Crown Prosecutor has not proven the facts or the required criminal state of mind, even when the defence calls no evidence. To convict, the Crown Prosecutor must prove the facts and the required state of mind in every case. In a more narrow sense, a defence is a legally recognized excuse or justification for criminal conduct. To raise such a defence, the accused person must be able to point to evidence that supports the defence. For example, in an assault case, the Crown Prosecutor may have proved that the accused person hit someone and that the accused person intended to hit that person. Unless he or she raises a defence, the accused person will be convicted. The defence may present evidence that the accused person was defending himself or herself. The defence of "self-defence" may then justify what would otherwise have been criminal conduct. A defence lawyer may use one or more of the following defences at a trial. The lawyer presents evidence such as witnesses, physical evidence or the testimony of the accused to prove a defence. No criminal state of mind Where the accused person did not have a guilty mind when committing the crime, he or she may be found not guilty. For example, suppose that a person accidentally backed their car over a neighbour's lawn ornament. As a result, the ornament was destroyed. The driver may be liable in civil court for causing damage to the ornament. However, because it was an accident, there likely was no guilty mind, so the driver should not be convicted of a criminal offence. However, suppose that the driver drove over the lawn ornament on purpose, thinking that it was too ugly to exist. In that case, he or she may be guilty of the crime of mischief. The crime of mischief includes wilfully destroying another person's property. Behaviour not voluntary The accused person must have acted consciously. The criminal behaviour - what the person did - must be voluntary. A person who does something while sleepwalking, for example, may not be acting consciously. Similarly, a person's actions, brought on by an epileptic seizure or by a blow to the head, are not truly voluntary. Crimes committed in an unconscious state are rare, but if the actions were not voluntary the accused person will be acquitted. This is called the defence of "automatism" because the person moves about automatically, without consciously controlling his or her actions. Alibi An alibi is when an accused person claims that he or she was not present at the time of the offence. Independent evidence supporting this claim strengthens an alibi defence.

5 Self-defence A person who is attacked may use force to resist the attack. The person may use only the amount of force necessary to defend against the attack. This is called "reasonable force". A person charged with assault, murder or manslaughter may use this defence. Defence of property Defence of property is similar to self-defence. A person may use reasonable force to prevent someone from entering his or her home or property. The person defending his or her property may not use excessive force. This defence cannot justify shooting, stabbing or setting traps that would injure a trespasser. Duress A person who commits an offence because he or she was threatened may claim the defence of duress. The threat must be of immediate death or serious injury. It must have forced the person to commit the offence. Duress is not a defence to violent crimes such as sexual assault, aggravated assault or murder. An innocent bystander, forced at gunpoint to drive the getaway car after a bank robbery, might use this defence. Provocation Provocation is something that causes another person to lose their self-control. It can be an act or an insult. Provocation can reduce a charge of murder to manslaughter. This is the only time a person may use provocation as a defence. An accused person who acts on provocation before "cooling off" may be acquitted of murder and convicted of manslaughter. If too much time passes between the provocation and the offence, the defence of provocation may not be available. Even so, evidence of provocation can lessen the punishment the accused person receives for the offence if the person is convicted. Mistake of fact A person whose behaviour would otherwise be criminal may have a defence if he or she made a mistake about the facts. Someone who leaves a bicycle in a bike stand, returns and rides off on another bicycle the same colour and make could use this defence. The rider was mistaken about which bike belonged to him or her, not about whether it was illegal to take someone else's bike. The person must be mistaken about the facts, not the law. The mistaken belief must be an honest one. Mistake of fact, where it occurs, cancels any "criminal state of mind". It is related to the first type of defence discussed earlier. Mistake of law Ignorance of the law is no excuse. Not knowing that something is a criminal offence does not mean it is all right to commit the offence. But when an accused person can show that a government official misled him or her about the law, an exception called "officially induced error" applies. This is an example where mistake of law can provide a defence. Mental disorders An accused person who suffered from a mental disorder at the time he or she committed the offence may not be criminally responsible. The person must not have understood the nature and quality of what he or she did or that it was wrong. This defence was formerly called the defence of insanity. The judge may order an assessment of the accused person's mental condition. The assessment may be done to see whether the accused person is unfit to stand trial, to see whether the accused person was suffering from a mental disorder at the time of the offence, or for several other reasons. A psychiatrist or other medical practitioner assesses the person and reports back to the judge, the defence lawyer and the Crown Prosecutor.

6 If an accused person is found not criminally responsible, the judge has a choice. He or she may make an order concerning the person or may choose instead to refer the case to a review board. If the judge makes an order, there are three choices available: an absolute discharge, a conditional discharge or a term in a psychiatric hospital. The judge may grant an absolute discharge if the mentally ill person is not a threat to the public. Where the judge orders that the person be kept in a psychiatric hospital, the judge's order lasts for a maximum of 90 days. After that, the review board reviews the person's case. If the judge does not make an order and refers the case to the review board, the board holds a hearing and decides. The board has the same choices of absolute discharge, conditional discharge or a term in a psychiatric hospital. Necessity A person who does an illegal act to prevent a more serious result may raise the defence of necessity. There are several conditions. The accused must show that the act was done to avoid a greater evil; that there was no alternative; and that the illegal act was not more than necessary to avoid the evil. Intoxication Ordinarily intoxication by alcohol or drugs is no excuse. For example, in criminal law, a person who gets drunk and does a criminal act is usually still responsible for his or her actions when drunk. Intoxication may be a defence for a narrow range of offences, such as murder or theft. These offences require the accused person to form a specific intent. A specific intent means the accused thinks about and intends a particular result, such as the intent to kill in murder cases. A person may be so intoxicated that she was unable to form this intent to kill. In this example, the accused person may not be convicted of murder but could be convicted of manslaughter. Long term drunkenness or abuse of drugs may cause a person's health to deteriorate so that a mental disorder results. In that case, the accused person may not be criminally responsible for his or her actions and could use a defence of mental disorder. Special pleas A person who has been tried for an offence cannot be tried again for a similar offence arising out of the same facts. That person may plead a special plea that he or she has already been acquitted, convicted or discharged. The Canadian Charter of Rights and Freedoms also gives this right. Entrapment and Abuse of Process The police may carry out undercover activities to detect crime. In doing so, legally they may present a person with the opportunity to commit a crime, but they may not harass, bribe or otherwise induce the person to break the law. Police conduct that induces criminal behaviour is called entrapment. The accused person must prove entrapment. Entrapment is an abuse of process. It is so unfair and shocking to our sense of justice that it would be an abuse to force the accused person to stand trial in these circumstances. After accepting that there was an abuse of process, the judge "stays" or stops the trial. stay >noun 1 a suspension or postponement of judicial proceedings: a stay of execution. -ORIGIN Latin stare 'to stand'.

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