Chapter Eight: Actus Reus
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Actus Reus: generally answered by “who, what, when, and where;” can be an act or an omission
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Acts: most offences prohibit certain acts; others criminalize acts that produce a certain consequence (e.x. manslaughter)
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Omissions:
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Three different approaches to omissions:
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Do not punish omissions at all;
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Identify some consequences for which a failure to act produces liability; and
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Attach criminal responsibility only for omission where the accused was under a legal duty to act.
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Two main types of omissions:
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Require a person to perform some specified act (rare); and
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Prohibits certain forms of negligent activities.
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If the law does not recognize a legal duty to act, a person is not liable for omitting to act.
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R v Dunlop: a person is not guilty merely because he is present at the scene of a crime and does nothing to prevent it; if there is no evidence of encouragement by him, a man’s presence at the scene of the crime will not suffice to render him liable as aider and abettor.
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Quebec Charter of Human Rights and Freedoms: Every person must come to the aid of anyone whose life is in peril either personally or by calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person or he had another valid reason.
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Voluntariness: a culpable act must be a voluntary act; this should be distinguished from the issue of moral involuntariness (e.x. as seen in circumstances of duress)
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R v Wolfe: the accused was acquitted on appeal for assault causing bodily harm because he had been hit by the complainant and in a reflex action, hit him back, causing injury – not voluntary.
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R v Mathisen: acquitted of second degree murder for killing his wife after finding out that she had poisoned him; she was killed via traumatic asphyxia; killed by husband who had his knee on her chest; he didn’t realize that his knee was on her chest – didn’t mean to kill her; defense must have an “air of reality;” he wanted to know the antidote to the poison – killing her wasn’t in his interest.
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Causation: distinguishing between an act and its consequences may be difficult and 3 issues arise:
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How significant must an action be to constitute a cause?
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What is the legal effect of unreasonable actions of the victim?
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What is the legal effect of acts of third parties, which may cause a victim injury?
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Threshold test: Two main stages:
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Can the act be said to be the “cause in fact” of the consequence? “But for” test – was it a necessary condition for the occurrence of the consequence?
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Can the perpetrator be held legally responsible for causing the consequence? It must be a contributing cause outside the de minimus range.
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R v Nette: legal causation is concerned with the question of whether the accused person should be held responsible in law for the consequence that occurred; this reflects fundamental principles of criminal justice such as the principle that the morally innocent should not be punished; the law of causation is both judicially developed but is also expressed in provisions of the Code; statutory provisions pre-empt any speculation as to whether the act of the accused would be seen as too remote to have caused the result alleged or whether the triggering of a chain of events was then interrupted by an intervening cause which served to distance and exonerate the accused from any responsibility.
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R v Winning: allowed an appeal where the accused was charged with obtaining credit under false pretences because Eaton’s did not use the two false statements she submitted when deciding whether or not to issue her credit; therefore, the credit was not obtained on these false statements.
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Smithers v The Queen: appellant convicted for manslaughter for kicking a peer in the stomach who later died from aspiration of the lungs due to vomiting and a malfunctioning epiglottis;
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Must distinguish between a causation as a question of fact and causation as a question of law;
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Factual determination is whether A caused B; can only come from evidence of witnesses and has nothing to do with intention, foresight or risk; here the Crown had the burden of proving beyond a reasonable doubt that the kick caused the death; the kick was at least a contributing cause of death, outside the de minimis range;
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R v Blaue: raised the issue of whether the deceased choice to not accept a blood transfusion for religious reasons broke the chain of causation; “the question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act.”
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“Where a person causes to a human being a bodily injury that is of itself of a dangerous nature and from which death results, he causes the death of that human being notwithstanding that the immediate cause of death is proper or improper treatment applied in good faith.”
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R v Smith: examined the issue of third party responsibility for treatment between the time of a stab wound and the time of the man’s death; “If, at the time of death, the original wound is still an operating cause and substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating (lack of treatment).”
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R v Maybin: accused punched the victim who was subsequently punched by a bouncer and later pronounced dead; were the actions of the bouncer so significant as to absolve the accused of responsibility;
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Factual Causation: is an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense and with the contribution of the accused to that result. Trier of facts asks “but for” the actions of the accused, would the death have occurred?
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Legal Causation: a narrowing concept which funnels a wider range of factual causes into those which are sufficiently connected to a harm to warrant legal responsibility; concerned with the questions of whether the accused person should be held responsible in law.
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The fact that the bouncer’s act may have been a novus actus interveniens or an intervening act is part of the analysis of whether legal causation has been established.
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An intervening act that is reasonably foreseeable will usually not break the chain of causation so as to relieve the accused of legal responsibility.
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In Smithers the court pronounced the test for causation for manslaughter as “contributing cause of death outside the de minimus range.”
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The Code identifies some circumstances in which the chain of causation will NOT be broken: a person causes the death of a human being notwithstanding that death might have been prevented by resorting to proper means or that the immediate cause of death is proper or improper treatment applied in good faith.
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The assault of the bouncer was not independent of the appellants’ unlawful acts and that the appellant’s actions remained a significant contributing cause of death.
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R v Forknall: If several persons combined to commit a crime and each person committed a different part of the crime, every such person was a principal in the first degree; it is a well established principle that where a trier of fact is satisfied that multiple accused acted in concert there is no requirement that the trier of fact decide which accused actually struck the fatal blow.
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R v Kubassek: the accused shoved a pastor and he tripped backwards but was unhurt; counsel argued that she should be acquitted under the de minimus principle;
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De minimus non curat lex: the law does not concern itself with triffles
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SCC has touched upon, but not decided, if the de minimus principle is applicable as a defense in criminal law
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Given the circumstances, the push or shove that she intentionally applied to the Reverand cannot appropriately be characterized as an “irregularity of very slight consequence… a mere trifle, which, if continued in practice, would weight little or nothing on the public interest.” Appeal allowed, conviction entered. Given absolute discharge.
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