Actus Reus Assault Mens Rea
Conduct
|
Application of force
|
Intention
|
Circumstances
|
Without consent
|
Knowledge
|
Consequences
|
Bodily harm
|
|
How do we know what mental elements are attached to an offense? Read CC carefully, research case law and make arguments.
Recklessness (Subjective)
A person foresees that their conduct may cause the prohibited result but, nevertheless, takes a deliberate and unjustifiable risk of bringing it about.
Intention
A person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intends that consequence.
Willfulness (Subjective)
The word “willfully” does not have a fixed meaning, but in the context of s.281.2(2) it means with the intention of promoting hatred and does not include recklessness.
R v BEAVER [1957] SCC
FACTS
|
Charged with possession of a narcotic and attempt to sell. A claimed he had no knowledge that narcotics were narcotics - thought it was milk sugar and was attempting to defraud someone rather than traffic narcotics. At trial, the judge treated the offense as one of absolute liability, which therefore has no mental element. A appealed.
|
RULING
|
Ruling for A – possession of a narcotic has a requisite mental element. The Court held that Beaver did not know the character of the substance, and he was acquitted of possession. However, he did represent the substance as a narcotic and therefore was convicted on the charge of selling a narcotic.
|
RATIO
|
Beaver rule: Unless the statute states otherwise, there is a mens rea requirement.
|
R v BUZZANGA & DUROCHER [1980] Ont. CA
FACTS
|
Proposed construction of a French high school in Essex County. In order to encourage sympathy for the French, defendants released an anti-French flyer. Charged with willfully (i.e. with intent) promoting hatred under s. 319.
|
RULING
|
New trial ordered – court holds that the mental element must attach to the consequences, and willfulness required either knowledge of the likely consequences or intention, not just recklessness. The trial judge erred in equating "intent to create controversy, furor, uproar" with "intent to promote hatred". There must be a new trial to decide what intention existed, since courts of appeal cannot decide matters of fact. Intent can be inferred from objective circumstances.
|
RATIO
| -
An accused's evidence of their state of mind at the time of the offence is accepted, but it is not always conclusive as sometimes it is not believable, or there is stronger evidence to the contrary.
-
Generally, mens rea can be satisfied by intention or recklessness. Including the term "willfully" implies that recklessness is insufficient on its own, unless recklessness is also mentioned in the provision.
|
R v THEROUX [1993] SCC
FACTS
|
A is a real estate developer who accepts deposits from prospective buyers. Lies about having deposit insurance. Project fails, money is lost, A argues that he had an honest belief that deposit insurance was not necessary and so did not fulfill the subject mens rea of fraud.
|
RULING
|
Ruling for Crown. The A knew his actions carried a risk and risk can be conceptualized a form of deprivation.
|
RATIO
|
Mens rea is comprised of subjective knowledge of at least one element of the actus reus.
|
MAJORITY
There is a distinction between earnest hope that everything will turn out alright and lack of knowledge of risks.
CONCURRENCE
No such distinction.
Willful Blindness
Deliberate ignorance or failure to inquire.
When knowledge isn't present, what is enough to replace it? Willful blindness is sufficient.
A subjective test which requires that the Crown to prove beyond a reasonable doubt that the accused suspected something was true but chose not to investigate.
Negligence =/= Willful blindness
OBJECTIVE SUBJECTIVE
Motive
The goals underlying the specific intent. You don't need to have a motive so long as you have intention. Motive is evidence, which may or may not be relevant to the case.
Transferred Intent
If one intends to kill one person, but accidentally kills another, intent can be transferred.
Two types: mistake as to identity of victim, mistake as to execution of intent.
R v BLONDIN [1971] SCC
FACTS
|
A flying into Canada from Japan w/diving tank, is stopped by customs. 23 pounds of hash is found in a secret compartment of the tank. Police asked A if he was aware what was in the tank (NO), if he knew what hash is (NO), if he knew that the tank contained something illegal (YES).
|
RULING
|
Ruling for Crown. Which does the Crown have to prove to make out the mens rea?
Knowledge of hash
Knowledge of narcotic = √ subjective knowledge of actus reus
Knowledge of illegal items
Did Blondin possess (2)? No, but Crown can prove willful blindness of (2).
|
RATIO
|
Subjective knowledge requirements are specific to the element of the actus reus to which they attach.
Willful blindness can substitute for knowledge.
| R v. BRISCOE [2010] SCC
FACTS
|
Group of varied ages (from young offenders to eldest, the A, who was 34) randomly targeted an adolescent girl, took her to a golf course where she was sexually assaulted and murdered. A drove the car to the golf course and opened the trunk to provide weapons. A said he expected something bad to happen, but did not directly participate in the sexual assault and murder, though he restrained the victim at one point and witnessed the crimes. TJ finds enough evidence for a charge of aiding and abetting murder, but not for a charge of 1st degree murder. Crown appeals, and Court of Appeal finds an error in law in the trial judge's failure to consider willful blindness and orders a new trial. A appeals as of right to SCC.
|
RULING
|
Holding for the Crown - order for a new trial upheld. Briscoe was convicted at the new trial. Willful blindness can provide sufficient mens rea for 1st degree murder.
|
RATIO
|
Willful blindness is equivalent to knowledge, even in very serious offenses.
|
Note:
If Briscoe had not assisted in the commission of the offense, he would not have possessed the actus reus of the offense and would likely not have been convicted. Recall the criminal law's reluctance to punish omissions.
R v. LEWIS [1979] SCC
FACTS
|
Parmjeet K. Sidhu and Gurmail Sidhu, to whom she had been recently married, were killed when their kettle exploded. The mystery surrounding their deaths remained unsolved until January, 1976, when information obtained by the police resulted in the arrest of Lewis and, subsequently, the arrest of Sidhu's father, Tatlay, who was angry over the marriage and had constructed the bomb. Crown argues Lewis knew he mailed a bomb to the victims while Lewis argues he had no idea it was a bomb. Crown argues that there was a financial incentive for Lewis, but is inconclusive.
|
RULING
|
Holding for the Crown – no obligation to charge the jury on motive. Motive is a question of evidence, but not an essential element of the offense. Most of the time, a complete lack of evidence of motive should be brought to the jury's attention, but in this case there was evidence and it was inconclusive - therefore, up to the Judge's discretion what to charge the jury with regard to motive.
|
RATIO
|
Mens rea does not include motive.
|
R v. GORDON [2009] SCC
FACTS
|
Attempted murder case. A attempts to shoot Thompson while he is hanging out at a café. A fires 3 blasts from the sawed-off shotgun. Thompson escapes, but three innocent bystanders are hit and are seriously injured. A is charged with four counts of attempted murder – one for Thompson, and one for each of the three bystanders. Jury finds Thompson guilty and he is convicted of four counts of attempted murder.
|
RULING
|
The Court finds that the doctrine of transferred intent doesn't function well in cases of attempted murder - transferred intent is designed to transfer intent from one victim to the other. In this case, insufficient actus reus in inchoate murder like attempted murder to justify the application of transferred intent.
|
RATIO
|
Transferred intent requires sufficient actus reus.
Principle of transferred intent does not apply to attempted murder.
|
How much AR is enough?
Attempted Murder
Actus reus
|
Mens Rea
|
Some act beyond mere preparation
|
Actual intent to kill - not recklessness
|
"some act" is very broad - low AR
"Actual intent" is narrow - high MR
Share with your friends: |
