Class 6 Omission and Voluntariness Flashcards
What is Omission?
The legal duty to act. Criminal responsibility for omission is ONLY where there is a LEGAL duty to act, and not a MORAL duty.
Can the court create legal duties under common law?
What about under statute?
YES. The mattress on fire case.
Also yes by statute (the statute which dictates parents have vicarious liability of their children)
Fagan V. Police 1968. Ran over a police persons foot on purpose. Was he liable?
What needs to be present in order to amount to assault?
A mere omission to act cannot be an assault, a intentional act must be preformed.
There must be actus reus and mens rea at the same time. Actus reus is the action causing the effect on the victim’s body (or mind). The mens rea is the intention to cause that effect. The act and the intent must be present at the same time to constitute a crime.
Not necessary that mens rea should be present at the beginning of the actus reus; it can be superimposed on an existing act…however the subsequent inception of mens rea cannot convert an act which has been completed without mens rea into an offence (in this case an assault).
R. v. Miller 1983. Miller slept on mattress, saw it caught on fire, slept on another bed and the house burned down. What did the court say?
A person who creates a dangerous situation is under a duty to take reasonable steps to avert that danger.
Created a common law duty.
R. v. Thornton. Donating blood knowing HIV positive. What did the court say?
Court determined there was a duty in common law not to harm and donation was harm.
You must refrain from conduct which you foresee may cause serious harm to other persons so thus a legal duty.
R. v. Browne 1997. Girlfriend swallowed drugs, died, boyfriend did not take to hospital. What did the court say?
He did not have a legal duty to act but arguably a moral duty. The mere expression of words indicating a willingness to act does not trigger legal duty.
Nothing short of a binding commitment can give rise to the legal duty contemplated by s. 217.
SUMMARY OF OMISSIONS.
Talk to me about actress reus and mens rea.
Do you need a legal duty to act?
Can commission constitute acts reus?
is there a legal duty to aid someone in peril even if you won’t risk your life?
An omission can constitute actus reus in certain circumstances.
Actus reus and mens reus must take place at the same time
In order for omission to be a crime, must have a legal duty to act. Legal duty refers to duty imposed by statute or common law (at least according to OCA in Thorton).
An omission or failure to act will constitute actus reus and give rise to liability only when the law (common law or statute) imposes a legal duty to act, and the defendant is in breach of that duty.
Note: There is no legal duty (common law or statute) to aid someone who is in peril, even if the aid can be done without any risk to him or herself. [If you are in Quebec there is legislation that requires you to assist unless danger to yourself or third person, or another valid reason.]
R. v. King 1962 SCC. Had dentist procedure, he drove after when he was told not to. Argued he was not conscious. What did the court say?
No actus reus unless it is the result of a willing mind at liberty to make a definite choice or decision. There must be a willpower to do an act.
R. v. Rabey 1980 SCC. Student struck a girl with a rock twice. Was it voluntary? Tell me about voluntary actions.
Crown has the burden of proving a voluntary act BRD
Consciousness is an essential condition to criminal liability.
No act is criminal unless it is done voluntarily.
An involuntary act entitles the accused to an acquittal.
R. v. Parks 1992. While sleepwalking he killed his mother in law. What did the court say?
Voluntariness is part of the actus reus requirement.
Generally where it can be shown that the conduct of the accused is not of conscious mind, there is no actus reus.
R. v. Lucki 1955. Accused made a right turn and hit another car. What did the court say?
Judge found the car got onto the wrong road by an involuntary act, and therefore he was not criminally liable. INVOLUNTARY=NOT LIABLE.
R. v. Wolfe 1975. Wolfe got sucker punched and instinctively punched someone in a reflex action. What does the court say?
Reflex actions are an involuntary act because there was no intent AND INTENT IS REQUIRED. (intent in this case is mens rea)
R. v. Swaby 2001. Gun found in car, defendant said he had no knowledge of the gun in the car. Does the criminal code stipulate an act has to be voluntary?
Voluntary conduct is necessary for criminal liability and this exists by virtue of judicial reasoning, IT IS NOT CODIFIED but is in common law.
The act must be voluntary for the actus reus to exist.
R. v. Ryan 1967. Sleep walking case.
What did the court discuss?
Discussion on whether an act should be considered voluntary or involuntary
SUMMARY ON VOLUNTARINESS.
Can an act be criminal if not done voluntarily?
What if it is involuntary?
If someone is not of conscious mind then what?
Who had to prove the voluntary act?
Voluntary conduct is a necessary element for criminal liability. Voluntariness is part of the actus reus requirement. No act can be criminal unless it is done voluntarily.
No actus reus unless it is the result of a willing mind at liberty to make a definite choice or decision. In order for an act to fulfill actus reus, it has to be done purposefully, at one’s own voluntary/free will. A defence that the act is involuntary entitles the accused to a complete and unqualified acquittal.
Generally, where it can be shown that the conduct of the accused is not of his conscious mind, then there is no actus reus.
The Crown always bears the burden of proving a voluntary act. (BRD)
