1. Elements of an Offence

2. TYPES OF CRIME SUMMARY CONVICTION: No more than 6 months in jail
INDICTABLE OFFENCES: Life sentences and large fines
HYBRID OFFENCES: as determined by the ‘crown’
DO SO BECAUSE OF:
1) HARM CAUSED
2) MORAL VALUES
3) SOME CRIMES AGAINST PEOPLE VS PROPERTY

3. ACTUS REUS + MENS REA = A CRIME
For an offence to be considered a crime, two elements must exist: ACTUS REUS (the physical element, or guilty action) and MENS REA (the mental element, or guilty mind).
This impacts how the aw perceives the crime committed
ACTUS REUS + MENS REA = A CRIME

4. https://www. youtube. com/watch

5. Omission: failing to do something,
Latin for the guilty action or deed (physica act)
Voluntary Action: the action must be voluntary (willful, conscious acts) to be considered criminal.
You cannot be held responsible for something you cannot control. For example, if you are in a car accident because you have a heart attack, you cannot be charged with dangerous or careless driving.
Omission: failing to do something,
i.e. leaving the scene of an accident, or failing to provide the necessities of life, are both considered to be crimes.
State of Being: being in the possession of something illegal or being somewhere illegal,
such as a betting house or a bawdy house, gang meeting, etc….

6. But I didn’t do anything!
Omission
Exactly!

7. Because of a relationship Such as Parent and Child Gibbins and Proctor
Under a contract,
especially if it is a contract
of employment.
As in Pittwood 1902,
the railway operative
“had a duty to act
arising out of contract”.
Duty
Voluntarily undertaken
e.g.. Care of an elderly
relative.
Stone and Dobinson
As a result
of a dangerous
situation created
by the
Defendant.
Miller 1983
Because of a public office,
e.g.. police officer
Dytham 1979

8. Case Law
Pittwood (1902) a railway crossing keeper omitted to shut the gates, so that a person crossing the line was struck and killed by a train.
The keeper was guilty of manslaughter.
A more modern example would be of a lifeguard at a beach who leaves his post unattended. His failure to do his duty could make him guilty of an offence if a swimmer were injured

9. In 1992, the Supreme Court of Canada upheld the acquittal of Kenneth Parks. He drove approximately 20km, stabbed his mother-in-law to death and seriously injured his father-in-law. Charged with the murder and attempted murder of his in-laws, his defence argued successfully that he was in a state of automatism. He was sleepwalking at the time and therefore acted involuntarily. Cases such as these where mental illness, alcohol consumption, the use of drugs, or even sleepwalking, illustrate the difficulties that can exist in proving actus reus.

10. Latin for “a guilty mind”; (mental act)
includes: KNOWLEDGE, INTENT, RECKLESSNESS, and WILFUL BLINDNESS –
the act was intentional and the accused knew it was wrong, was negligent, reckless, or wilfully blind.
Can be established by showing that the accused had the intent to commit the offence or knowledge that what he/she did was wrong.

11. The awareness of certain facts that can be used to establish the necessary mens rea for a conviction.
ignorance is not allowed as an excuse for committing an offence.
For example, if you use a stolen credit card, the Crown only has to prove that you used the credit card.

12. MENS REA: GENERAL INTENT
There are 2 kinds of intent; the type of intent varies depending on how the crime is defined in the Criminal Code:
1. General Intent – The desire to commit a wrongful act, with no ulterior motive or purpose (the accused to meant to commit the crime).
For example, if Josh strikes Scott because he is angry with him, he has the general intent to commit the assault. To establish mens rea, the Crown just needs to prove that Josh struck Scott.
General intent is easier to prove, i.e. manslaughter (unintentional homicide) is easier to prove than murder (intentional, planned and deliberate homicide).

13. MENS REA: SPECIFIC INTENT
Specific Intent – The desire to commit one wrongful act for the sake of accomplishing another.
For example, if Josh strikes Scott with the intent of stealing his wallet, he has the specific intent to commit a robbery. To prove mens rea for robbery, the Crown would have to prove that he not only assaulted him, but he did so with the specific intent of stealing from him.
Some defences are more likely to succeed against specific intent offences, i.e. intoxication.
If you are extremely intoxicated and you break into a store and knock out the security guard, you could be charged with break and entering with the intent to commit robbery. You could plead not guilty due to intoxication, and the judge might rule in your favour, citing that you were too impaired to be able to form the necessary intent to actually commit the robbery.

14. MOTIVE INTENT IS NOT THE SAME AS MOTIVE!
MOTIVE is the reason for committing an offence, but does NOT establish the guilt of the accused and is NOT the same as intent.
INTENT refers to the state of mind with which an act is done or not done (the willingness to break the law).
For example: The Latimer case
Motive – to end his daughter’s suffering;
Intent – to commit murder.

15. The DOCTRINE OF TRANSFERRED INTENT:
when an illegal, unintended act results from an intent to commit a crime is also an offence.
For example, in the recent decision of the Jane Creba case, the accused was convicted of second-degree murder though there was doubt that he actually fired the weapon that killed her. The premise behind this decision was the idea of the doctrine of transferred intent – if you intend to shoot one person, but miss and shoot and kill another, you are still guilty of committing an offence.

16. There is a lot of ambiguity and confusion about mens rea, a central issue being whether the intent meets the SUBJECTIVE or OBJECTIVE standard. This is important to determine whether or not the conduct was deliberate.
SUBJECTIVE STANDARD
“Did the accused know the circumstances of his/her actions?”
Concerns the accused’s state of mind at the time of the offence
OBJECTIVE STANDARD
“the accused ought to have known the circumstances of his/her actions.”
Involves determining what a reasonable person would have understood, perceived, or foreseen in the circumstances, and little to do with the accused’s actual state of mind.
Forms the basis of civil liability for negligence (carelessness)‏

17. Subjective vs. Objective Intent – Example: Tutton v. Tutton
Son a diabetic in need of insulin;
Parents believed he would be healed by faith and stopped giving him his medication.
The parents were warned that this could kill him; they agreed not to take him off the medication again but did, and their son died.
They were charged with criminal negligence causing death.
Defence claimed that the parents were acting in the best interests of their child and therefore not negligent.
The Crown argued that any reasonable parent would have been able to foresee that without his required medication, the child would die, and since they failed to provide medical treatment for their child they were guilty of negligence.
DECISION:
The SCC came back with a split 3 -3 decision, 3 providing the objective argument (that they should have known the consequences of their actions and were therefore guilty of manslaughter); 3 provided the subjective argument (that there is more of a need to determine what they actually did know/understand, which was their belief he would be healed by God and not responsible for his death, and should therefore be acquitted) which demonstrates the complexity behind this issue.

18. acting carelessly without regard for the consequences of your actions.
RECKLESSNESS
acting carelessly without regard for the consequences of your actions.
You may not intend to harm someone, but if you understand the risks and proceed to act anyway, mens rea would exist.
WILFUL BLINDNESS
results when a person is aware of the need for some inquiry but declines to make the inquiry because he/she does not wish to know the truth.

19. For the most part, crimes must have both elements (actus reus and mens rea) present to secure a conviction. There are some crimes, however, that do not. For these crimes, the Crown only needs to prove the actus reus.
These offences are classified as either a) ABSOLUTE LIABILITY or b) STRICT LIABILITY offences

20. No opportunity for the accused to exonerate themselves;
Fault is not an issue;
Guilt follows the mere doing of the prohibited act (DOESN’T HAVE TO HAVE OCCURRED…JUST ATTEMPTED)
No opportunity for the accused to exonerate themselves;
Since there is little opportunity for a successful defence, prison terms are considered to be unconstitutional (see Re: B.C. Motor Vehicle Act, 1985).
Example,
If you are caught driving without a driver’s licence, you are automatically guilty whether or not you are aware that you are prohibited from driving.

21. The Crown does not have to prove mens rea because the doing of the prohibited action is enough to prove guilt, but the accused has the opportunity to prove that they took the reasonable care to avoid committing the offence, using the defence of DUE DILIGENCE.
Example,
offences that deal with the environment

22. Process and Objectives of Sentencing

23. SENTENCING
Sentencing involves considering a penalty for one convicted of a crime
Sentencing occurs typically immediately following a verdict being imposed
Once a sentence is given, either side can appeal the sentence in a higher court

24. CRIME AND PUNISHMENT
There are different types of sentences issued for a crime, as they are based on 1. precedent, 2. sending a message to society, and 3. what crime was committed;
Suspended sentence: no punishment is given until the person re-offends; if no other crime is committed, the original record is wiped out;
Probation – specified period of time when the offender has to report to a parole officer; there are also restrictions on the movement and activities of offenders;

25. CRIME AND PUNISHMENT
There are different types of sentences issued for a crime, as they are based on 1. precedent, 2. sending a message to society, and 3. what crime was committed;
Suspended sentence: no punishment is given until the person re-offends; if no other crime is committed, the original record is wiped out;
Probation – specified period of time when the offender has to report to a parole officer; there are also restrictions on the movement and activities of offenders;

26. PRE-SENTENCE REPORT
For offenders of major offences, a judge orders a probation officer to create a report
Pre-sentence report outlines the situation of the offender in terms of:
Past behaviour/crimes of offender
Likeliness to reoffend if released to society
Interviews with offender and people familiar with offender considered when creating report
Judge uses this report as a basis for sentencing

27. SENTENCING PROCEDURE
During sentencing, both Crown and defence have a chance to call forth evidence (via witnesses, etc.) that speaks to offender’s background
Crown may also highlight offender’s criminal record
Convicted offender may give a statement
Victim and others impacted may also give victim impact statement, explaining how offence has affected their lives adversely

28. The Penal System
If the accused is convicted of a crime, the court can assign a range of sentences:
Complete discharge
Pay a fine
Restitution to the victim
Community service hours
Probation (court conditions on behaviour)
Jail time

29. SENTENCING OBJECTIVES
Overall purpose in sentencing is for the protection of society
Objectives for sentencing in criminal law are:
Deterrence
Retribution
Rehabilitation
Segregation/protection
Hope is that offender will not lapse into recidivism

30. SENTENCING OBJECTIVES: DETERRENCE
Attempts to:
Make potential criminals think twice about committing a crime
Deter offenders from reoffending
Death penalty is often cited as a potential deterrent
When a gov’t increases the penalty for a particular crime, it usually is meant to create a stronger deterrent

31. SENTENCING OBJECTIVES: RETRIBUTION
Attempts to:
Create a sense of equal punishment for the level of damage done by the crime; an “eye for an eye”
This objective has been used as a basis for much of the punishments enacted throughout legal history

32. SENTENCING OBJECTIVES: REHABILITATION
Also known as “resocialization”
Attempts to:
Improve offender’s mental well-being through psychiatric help
Improve offender’s chances to adopt a law-abiding person’s lifestyle through job-skill training
Much of Canadian legal purpose today works towards this measure

33. SENTENCING OBJECTIVES: SEGREGATION/PROTECTION
To remove offenders from society in order to:
Remove opportunities for offender to reoffend or commit other crimes
Some see prison sentences as serving a rehabilitative purpose, as offenders will have the time to reflect upon their wrongful actions

34. The Penal System -Restorative
Restorative justice is an alternative to jail time for first time offenders and offenders of less serious crimes
The focus is on repairing damage instead of punishment
Ex. An elderly woman hit by a speeding driver created a plan that included doing chores for her, carrying out her volunteer work, helping her get around as she recovered from injuries

35. The Penal System-IMPRISONMENT
Some aspects of punishment require the offender to become removed from society and their freedoms severely restricted.
Imprisonment (2 years less a day) – usually held in a provincial jail, with minimum or medium security;
Imprisonment (more than 2 years) – held in a federal penitentiary; only after ¾ of a sentence has been served can the offender apply for parole;

36. LAST CHANCES…
Under Canadian law, there is a section that provides for those imprisoned for life due toi serious offences:
Faint Hope Clause is Section 745 of the Criminal Code:
convicted murderers can apply for early parole:
Someone serving a life sentence may have an opportunity to apply for parole before 25 years of their sentence;
Highly unlikely that judges allow prisoners to use this clause, but it is possible;
Does not guarantee parole, only allows the application;
12 angry men: