Class 8 The Fault Requirement Flashcards
What is legal mens rea?
Refers to the criminal intent necessary for the particular/specific crime that the crown must BRD.
What is a true crime?
An act that is considered criminal. There is a presumption that without mens rea, a person should not be held liable.
Do all crimes require mens rea?
Certain crimes require mens rea and others do not. the ones who do not is absolute liability crimes.
What are the two classifications of mens rea and explain them?
Subjective and objective.
Subjective is all of the accused individuals factors are taken into account (gender age race etc)
Objective is a marked departure from the objective norm aka the reasonable person. no consideration of the personal factors.
What was the Hundal case about? Dangerous driving of an overloaded dump truck, they talked about the difference between objective and subjective mens rea. What is the difference?
this case showed how to differentiate between objective and subjective mens rea.
Discusss differences, for the subjective test they don’t care whether they would have foreseen on a reasonable person idea.
Objective test is for negligence and absolute liability. no need to establish intention.
The Theroux case discuss fraud and what mens rea test should be used.
What did the court say?
aving aside offences where actus reus is negligence or absolute liability, the test is subjective.
Basically everything except these two are subjective.
What is the subjective test?
Test is whether the accused subjectively appreciated the foreseen consequences.
courts looked to the accused intention and the facts as the accused believed them to be.
Subjective awareness of the consequences can be inferred from the act itself.
What was the Mulligan case about? Stabbing case. Issue was there intention to cause death or to cause bodily harm? What did the court say?
You can infer intent. You you must consider all of the evidence. “What a man does is often the best evidence of the intention he had in mind.
Intention is always a fact in issue that has to be determined by a consideration of all the evidence.
What was the Ortt case about? The accused was charged with murder and the person died from knife wounds. There was a problem with jury charing as they told the jury “it is a presumption that a person intends there actions” Why is this problematic?
Court held that it is an error in law to tell a jury that it is a presumption of law that a person intends their actions. this is not the case , it is one relevant piece not everything in a subjective test.
it would be acceptable if he used the word generally.
The Wallee case talks about what juries are allowed to do regarding inferences about mens rea. Comment on what this case discusses.
The case said that juries are permitted to make the common law inference that a sane person intends the natural and probable consequences of their actions.
a person usually knows the predictable consequences of their actions.
GIVE ME A BREIF SUMMARY OF SUBJECTIVE V OBJECTIVE
Objective state of mind is a reasonable person.
Subjective state of minds intention, wilful blindness and recklessness. look at what they are thinking and their actions are (everything)
Tell me about public welfare and regulatory offences
These are here to protect the general public and social interest.
Absolute liability is basically all of this.
The Sault Ste Marie case talks about pollution. It creates its own type of offence and talks about the three types and their standards for mens rea/actus reas. Explain all three
3 crimes
True crimes (criminal offences)
- mens rea consist of some positive state of mind and must be proven BRD
Strict Liability
- crown does not have to prove mens reus but only acts reus. defendant can use due diligence
Absolute liability
- just has to prove actors reus and nothing else
What is the Wholesale Travel case? Sold packages about false advertising. They considered this a regulatory offence. Talk about the mens rea for this
Sold packages about false advertising.
found that if you do not have to prove mens rea it is not a true crime.
This was considered a regulatory offence
Reference Re Section 94 (2) talks abut a person whose licence was suspended but he never received noticed and was arrested. It was found it was a strict liability offence and he was imprisoned. Why is this problematic?
Liscense was suspended, never received notice, and pulled over and arrested. it was a strict liability offence.
If there’s a chance of imprisonment there has to be at strict liability and CANNOT be absolute liability.
A due diligence defence can be used.
