Chapter 2 Flashcards
Chapter 2
What is the fundamental principle of justice
Innocent until proven guilty
What are the two elements of offences that are to be proven beyond a reasonable doubt
Men’s Rea and Actus Reus
What is Actus Reus
- The physical element of a criminal offence
- A particular event or state of affairs was “caused” by the accused person’s conduct
What is commision?
Knowingly taking action like hitting somone
What is Omission
Act of leaving out or excluding something
What are the four justifications of the intervention of CJS
1) To be held criminally responsible: the Crown must prove beyond reasonable doubt all the necessary actus reus elements
2) The existence of mens rea (by itself) does not lead to conviction
3) Actus reus and Mens rea must coincide
4) Voluntariness (meaning that one commits an act out of free will, lack of force or suffering, or sycosis) elements in actus reus
What are the three elements of Actus Reus
Conduct, Circumstances and Consequences
What is the element of Conduct?
A voluntary act or omission or state of being; constituting the central feature of the crime
What is the element of circumstances
The “surroundings and material”
The act that makes the action an offence
What is the element of Consequence
The consequence must be proven beyond a reasonable doubt
The conduct must be a direct link to the consequence
What does the element of Actus Reus refer to?
Refers to all other elements of the offence that must be proved by the crown beyond a reasonable doubt
What does the element of Mens Rea refer to?
Refers to the mental element of an offence
What is the central feature of crime?
Conduct
What are 3 exceptions where conduct is not a required element of Actus reus
Overall offences where conduct is not required element of the Actus Reus,
- the Crown must prove that the accused was discovered in a particular condition or state.
this includes
- Being in Possession of Housebreaking instruments
- Being the occupant of a motor vechile without the consent of the owner
- Being in Care or Control of a vehcile while impaire or “above 80”
Has Parliament defined the word sexual in the CCC?
No. It is up to the crown to present the conduct as lacking consent and conduct was of a sexual nature
What are the Actus Reus requirements of sexual assault?
- Proof of touching
- the sexual nature of the contact
- The absence of consent
What two requirements of Actus Reus for sexual assault are objective and subjective?
Objective:
- The proof of touching
- the sexual nature of the contact (Reasonable observer)
Subjective:
- The absence of consent
(Refers to the complainant’s subjective internal state of mind towards the touching the same it occurred
The Case of Chase
- He entered the victim, 15 year old girl, without invitation, seized her shoulders and grabbed breasts. Attempted to grab the genitals but did not succeed.
COA said that because of no contact with the genitals and wanted to charge common assault.
- SC stated in deciding whether the nature of the offence is sexual in nature the crown must prove that a reasonable observer would see the seen and determine the actions are sexual in nature. The reasonable observer is a person aware of the situation.
All circumstances surrounding the conduct must be sexual in nature - Ruled that the sexual integrity of the victim was violated.
- Ultimately charged with Sexual Assault
The Case of V.(K.B)(1993)
Charged with sexual assaults
Disciplining his 3-year-old son
The defence is the lack of intention of sexual gratification
The SC verdict
“Sexual integrity of the victim was violated”
The Case of Semchuk (2012)
To review
Case: R.v. Moquin (2012)
- Domestic violence
- A Man hit and squeezed her hand so hard.
- The victim had multiple bruises and her hand had bruising, soreness and inability to bend it for a week. She needed assistance from her daughter
- The trial judge held that these physical injuries did not amount to “bodily harm” as required and accordingly convicted the accused of common “assault.”
- COA refers to SC to interpret the standard of serious bodily harm
- SC says “bodily harm does not require a fully functional impairment. Bodily harm is hurt or injury that interferes with the health or comfort of the person.”
What is assault causing bodily harm?
- Bodily harm is hurt or injury that interferes with the health or comfort of the person.”
What defines assault?
- Any hurt or injury Without the consent of another he applies force intentionally to that person directly or indirectly
- Carries or threatens to use a weapon
What is a reasonable observer?
Someone who would interpret the actions as sexual, lacking consent and violating the sexual integrity of the persons
How do you determine impairment?
It is an issue of fact( based on the evidence) .. any degree of impairment ranging from slight to great “ (Alberta Court of Appeal)
Not general ability but ability to drive is impaired
Toews
- was found in a sleeping bag with the key in ignition
The court found in Guilty.
COA found him not guilty
The CROWN decided that he lacked care and control, bc of the sleeping bag supporting that he was using the truck as a place to sleep
- Found not guilty
What is care and control?
Significant use of the vehicle fitting and equipment (Toews), enhanced realistic risk that the vehicle could be set in motion; or if he awoke, he might intentionally set the vehicle in motion.
The Case of Buckingham (2007)
sits in driver seat, turn on car, foot on the gas petal, gear lever was in the “park position”
Trial judge decision found him not guilty, the crown appealed
COA found him guilty because he was significantly using the equipment of the vehicle in a highly toxic state that enhanced the realistic risk that the vehicle could be set in motion
Boudrealut (2012)
Bar tender calls a cab. Waits in Truck to warm up. Falls asleep to tuen on the wheel while waiting for the cab.
Trial judge decision found him not guilty
Acquitted based on the fact that he would not put his vehicle in motion(he had no intention of driving his vehicle)
Found not guilty because he did not pose a realistic risk
Quebec Court of Appeal: set aside the acquittals and entered convictions
Supreme Court of Canada elaborated the meaning of care and control within the meaning of section 253(1)
An “international course of conduct associated with a vehicle
By a person who ability to drive is impaired or whose blood alcohol level exceeds the legal limit;
In circumstances that create a realistic risk as opposed to a remote possibility of danger to person or property
Why is it important to have an alternative plan in relation to driving impaired or “above 80”
To present that the individual did not pose as a realistic risk
What does the issue of law mean?
Based on the judge’s decision
How do you assess realistic risk?
Assed by the plan in place
