Chapter 5 Flashcards
Objective Liability
What does Men’s Rea refers to the guilty mind
Men’s Rea refers to the guilty mind, the wrongful intention, of the accused.
What is the function of Men’s Rea
The function of Men’s Rea is to prevent the conviction of the morally innocent- those who do not understand or intend the consequences of their acts.
- Function is to establish blameworthiness of the facts
Typically concerned with the consequences of the prohibited conduct, actus reus
What are the two forms of Men’s Rea
Subjective and Objective
What is Subjective Mens Rea?
Requires that the accused intended the consequences of his or her acts that knowing of the probable consequences of those acts, the accused have proceeded recklessly in the face of the risk.
- “What is going on in the mind of the accused at the time in question?”
- Focuses on connecting the offence
How do you prove subjective liability
the crown must establish that the accused intended the consequences of his/her conduct, or the accused proceed in reckless disregard of the risk or was willfully blind
What are the 3 forms of subjective mens rea?
Intention/knowledge
Reckless
Willful blindness
What is intention?
The exercise of a free will to use a particular means to produce a particular results
What are the three different kinds of intent?
Direct, Indirect, Transferred
What is Direct Intent?
Refers to the intention of a individual acting with the desire, purpose, aim, objective, or design to achieve a certain consequences
What is Indirect intent?
Refers to the situation in which a person does not desire to bring about the consequences prohibited but is nevertheless considered to have intended them
Case of Guess
A jury on the case of the 6 men charged with murder etc. Jury started to form relationships with the accused. She was convicted for obstruction of justice. The conduct of the accused never intended to obstruct justice
What is the requirement of Transferred intent?
the requirement is that the accused intent may be transferred only where the actus reus and men’s reus of the same coincide
What is transferred intent?
Takes the men’s rea of an offence in relation to an intended victim and transfers it to the actus reus of the same offence committed upon another victim.
- The mens rea (intended victim) lack actus reus and the actus reus (actual victim) lacks mens rea.
Case of Droste
Unhappily married, stages a fire to kill her and collect benefits
Witnesses see him applying gasoline to the outside of the car
Fire broke in the care and starts hitting the wife
Crown argues this was planned and deliberately
Disclosed the intention to kill his wife
Applied gas to his car before heading for a party with his wife and two children
A fire break out, struggled and the car hit the abutment of a bridge. Both parents managed to escape but unable to save the children and they died
What is motive?
Precedes and induces the exercise of the will
Outline motive is to set the stage, highlight the context to outline intention
Case of Latimer
Daughter born with health complications with lots of hospital visits
Kills his daughter, motive was to end the suffering of the child
He asphyxiated his severely disabled daughter
Men’s reus
Motive: end the intolerable suffering
Convicted of second degree murder under section 745 CC
Was granted constitutional exemption
Intention
The exercise of a free will to use a particular means to produce a particular result
What is Objective Men’s rea
The crown does not require proof that the accused persons deliberately intended to bring about a prohibited consequence or event even that they subjectively appreciated the risk that their conduct might produce such a result.
- Men’s rea is predicted on the principle that a reasonable person, in the circumstances and with the same knowledge of those circumstances as the accused, would have appreciated that their conduct was creating a risk of producing prohibited consequences and would have taken action to avoid doing so
What are the examples of offences requiring proof of recklessness
- Murder
- Damage
- Arson
What is Willful Blindness?
An accused person is virtually certain that particular circumstances exist (that goods are stolen) but deliberately “shut their eyes” to these circumstances
Deliberate ignorance is a state of mind equivalent to actual knowledge
What is the crown required to prove for Willful blindness?
- A subjective realization
- Of the likely result of their action
Deliberately avoid actual knowledge while engaging in or pursuing the activity
Case of Briscoe
Drove the victim to gulf course with prior knowledge that Labouchan has said that he “wanted to kill”
Briscoe’s associate expresses intent to rape and murder
Briscoe picks up 13 and 14 year old
Briscoe hands a wench to the associate to kill the victim
Charged with 1st degree (aiding (assisting) and abetting (refers to men’s rea): assist encourage)
Crown proved willful blindness
1st trial judge decision “not have actual knowledge” of Laboucan plan
Not guilty of aiding and abetting (lack of men’s rea)
COA. “ he was willfully blind
SCC of “deliberate ignorance
(if a victim dies in the manner of sexual assault, it is automatically first degree)
Case of Smith
Two acquaintance on hunting trip, argue erupts and Smith shot the victim in his elbow- smith followed him and shot him two more times.
Trial Judge decision
Guilty of 1st degree but convicted of 2nd degree
COA
Not guilty of 1st degree but convicted of 2nd degree (killing was not planned and deliberate)
First degree
Eligibility for parole is after 1/3 of their sentencing
Statutory Parole is release into community under supervision of parole officer
What is the sentencing for 1st degree
25 to life
What is the sentencing for 2nd degree
10 to 25. Parole eligibility will be decided by a judge
What is Statutory Parole?
Release into community under supervision of parole officer
Fraser (2015)
Fraser charged with one count of 1st degree and 1 count of 2nd degree
Trial judge decision; guilty
COA; rejected appeal
SC: rejecting appeal
“the time between the moment he made the plan, and its execution is not determinative in the consideration of “planning and deliberation” (Bujold)
What is less culpable?
Objective mens rea is less culpable than subjective mens rea
What is First degree murder according to the criminal code of Canada?
The crown must prove that the accused intended to kill their victim
What is second degree murder according to the criminal code of canada
The crown must prove that the conduct of the accused caused bodily harm that it is likely to cause death and is reckless whether death ensues or not
Objective Men’s Rea
predicted on the principle that a reasonable person, in the circumstances and with the same knowledge of those circumstances as the accused, would have appreciated that their conduct was creating a risk of producing prohibited consequences and would have taken action to avoid doing so
