Test 3 Flashcards
Doling
what is mens rea?
- all mental elements that the crown must prove to obtain a conviction of a criminal offence
- varies crime to crime
what are the 3 elements of mens rea?
- conduct
- circumstances
- consequences
what is mistake of fact?
- we must ensure that we only prosecute those who are morally guilty of true crime under the CCC
- morally innocent don’t understand or intend the consequences of their actions
what is true crime? provide examples.
conduct that is abhorrent to values of society and ought to be completely prohibited (e.g., murder or theft)
an accused person who act under a fundamental mistake of fact as to an essential element of actus reus must what?
be acquitted of a true crime because they lack a necessary mens rea
what is subjective mens rea?
- accused persons may not be convicted of a crime unless they…
a) deliberately intend to bring about the consequences prohibited by law OR
b) subjectively realized that their conduct might produce such prohibited consequences and proceeded that conduct regardless of their knowledge of that risk
what is direct intention?
a person has a conscious aim or purpose to bring about a specific result, as opposed to merely foreseeing or accepting a likely consequence
what is indirect intention?
a defendant doesn’t directly aim for a specific outcome, but that outcome is a virtually certain consequence of their actions, and they are aware of this likelihood
what does objective mens rea not require the crown to do?
does NOT require the crown the prove deliberate intention or subjective appreciation of the risk that conduct might produce such a result
what is objective mens rea?
predicated on the principles that reasonable persons would appreciate that their conduct was creating a risk of prohibited consequences and would have taken the action to avoid doing so
in brief, what is the difference between objective and subjective mens rea?
- subjective: focuses on the actual mental state of the accused (intent, knowledge and recklessness)
- objective: focuses on what a reasonable person would have known or foreseen in the same circumstances (negligence)
what is standard of care?
- the fault of the accused does not lie in deliberately choosing to do something wrong
- fault is the fact that the accused has the capacity to live up to some standard of care expected of a reasonable peron and failed to do so
those accused of subjective mens rea are treated as what in compared to those accused of objective mens rea?
they are treated as more culpable than objective mens rea because of choice to deliberately to something wrong
what are the 4 types of mens rea? (levels of criminal culpability?)
- intention
- knowledge
- recklessness
- willful blindness
‘willful’ and ‘means to’ are synonymous with what?
intent
how can/does the crown prove fraud?
- important to note that fraud extends beyond simply telling a lie
- must establish dishonesty (mens rea) and deprivation (actus reus)
what is deprivation?
- actual economic loss as an outcome is not necessary
- the courts provided little guidance on how to prove mens rea/dishonest but have an easier time establishing that the conduct was deliberately dishonest/actus reus
what is it were a case of a joke or a prank?
- under the criminal law, one is not guilty on the basis that the accused ‘fraudulently’ engaged in conduct if the conduct was deemed a ‘prank’
- however, taking something for the purposing of depriving the victim is fraud
however, prank defence has a narrow scope
what must the crown prove for deprivation?
that the deprivation or risk or deprivation is temporal and/or absolute
what is the reasonable persons test often referred to as? what does it mean?
- yardstick analogy: a standard for making a critical judgment
- predicated on common sense standard so it is not always appropriate
what type of test is used to determine subjective intent?
reasonable persons test
what is the reasonable persons test?
- “what would a reasonable person have intended or known in the context of that particular situation he or she found him or herself in?”
- if there is a divergence between RPT and the accused’s statement, no credibility
it is a ____ task to prove that the defendant had requesite intent or knowledge
difficult, although in some cases, the facts speak for themselves
what is one form of mens rea that may be enough to convict a criminal offence?
recklessness
canadian courts have expanded the mens rea elements requires in relation to true crimes to include recklessness as an alternative to what?
to intention or knowledge
what is recklessness? provide an example
- individuals are reckless with respect to consequences f their actions when they foresee that it may occue but don’t foresee it as certain
- e.g., fireworks set off in hall, may not intend to kill but realizes the consequences and proceeds anyway
what is the basic premise of objective liability?
- not concerned with what one intended or knew but with what should have been in the mind had the accused proceeded reasonably
- conduct falling below the standard of the RPT is ‘negligent’
what is carelessness?
- ‘mere’ carelessness renders one liable perhaps under civil law
- conduct that falls a degree below the standard
- disposition of a fine, not guilty of a crime per se (only serious forms of negligence lead to a criminal conviction)
what is the difference between recklessness, carelessness, and negligence?
- negligence implies a failure to meet the standard of care expected from a reasonable person, causing harm.
- recklessness, on the other hand, transcends carelessness, involving a willful and blatant disregard for others’ safety.
what is the objective liability test?
- “would a reasonable person, having the exact same knowledge of the relevant circumstances as the accused, realize that thier conduct was creating a risk of bringing about prohibited consequences”
what does the objective liability test require the courts to consider?
- the nature of the activity of which the accused was engaged
- specific knowledge that she or he has of the circumstances (exception: not having the knowledge since I was relying on someone else’s expertise)
what is the purpose of the objective liability test?
- separate out those who choose to engage in criminally dangerous conduct
- maintain legal standard of care but which people are expected to meet
what is the fault threshold?
- aka minimum fault requirement
- minimum level of mental culpability or blameworthiness required for criminal conviction
what are the exception to the fault threshold?
- incapacity to appreciate the nature of the risk
- defined instance: grossly unjust to convict (visually impaired person lacks the physical capacity to understand the risk as someone who can see
what is the notion of ‘legion’?
- forgetfulness, maturity, education, culture
- not an excuse for criminal behaviour but factor to consider when thinking about the sentence/punishment
what test was created as an outcome of r v. hundal? what is it?
- the modified objective test
- the conduct amounted to a marked depature from the standard of care that a reasonale person would observe in the accused’s situation
- should be applied in context of the events surrounding inceident (that is how it is considered modified)
what is the air of reality test?
onus on the accused to establish an explanation for one’s conduct to off-set marked departure from the norm
what is the elevated standard of care?
- standard of care expected of a reasonable person who has acquired necessary expertise / training (e.g., explosive expert) to engage in certain high-risk activities
- typically applied to firearms, explosives, medical treatment provisions
- one fails the standard when a) lack of training and/or b) does not follow procedure
what is automatism?
“state of impaired consciousness … in which an individual, though capable of action, has no voluntary control over that action”
automatism consitutes ____ which is conceptually tied to the actus reus component of criminal liability
‘subset’ of the voluntariness requirement (cannot be mistaken for state of absolute unconsciousness but rather impaired or clouded mind or obscured consciousness that prevents one from acting voluntarily)
how is automatism different from amnesia?
- amnesia is loss of memory
- defence of automatism is concerned with the question of whether the accused perosns acted voluntarily at the time of the alleged offence
- the fact thhat you have no recollection of what happened does not mean that you acted voluntarily
what is NCRMD?
- rationale that accused persons suffering from a mental disorder should not be subjected to standard criminal culpability
- strict criteria to meet
- recidivism rates for individuals with NCRMD are relatively low
what is mental disorder as a partial defence?
- cases where condition of the accused at time of offence does not meet criteria for NCRMD
- i.e., MD of accused prevents him or her from forming specific intent required for murder or reobbery
can you get an absolute discharge with the NCRMD defence?
you CANNOT get an acquittal, you are admitting to some sort of guilt
what is the relation with mental disorder and premeditation/deliberation?
- MD prevented accused from acting in a premeditated or deliberate manner
- MD may or may not negate the elements of planning
deliberate is ____ with rationality in NCRMD and MD
not commensurate (equal to)
what are the 5 categories of automatism?
- normal conditions (e.g., sleep walking or hypnosis)
- external trauma (e.g., being punched in the head)
- involuntary induced by alcohol or drugs
- voluntary induced by alcohol or drugs
- resulting from disease od the mind
does involuntary induced by alc/drugs entitles one to an acquittal in automatism?
yes; on the basis of voluntariness
what is the general rule in automatism (voluntary self-induced by alc/drugs)?
- anyone who voluntarily drinks alcohol/drugs and consequently experience altered consciousness are exempt from the defence of automatism
- at best, partial defence of intoxication (no acquittal, just reduced sentence murder down to manslaughter, if successful)
can one be acquitted by reaosn for the defence of automatism caused by mental disorder?
cannot be acquitted by reason for the defence of automatism, if condition is result of mental disorder
what is the result of using NCRMD as a defence?
chances are that one will be restricted by some capacity (e.g., mental facility)
what is the external-internal test?
- if state of automatism is precipitated by an internal condition (i.e., epilepsy) then it is a ‘disease of the mind’
- if by external condition/cause (e.g., blow to head or injection of insulin) then it must be a non mental disorder automatism
what is the continuing danger theory?
if a condition was ongoing in nature and likely to recur, it constitutes disease of the mind, therefore entitled to some treatment to prevent recurrence
what is also known as the second alternate yardstick?
- continuing danger theory
- this forms a second alternate ‘yardstick’ to establish ‘disease of the mind inquiry’
what is the floodgate thesis?
- does not want to open a pandora’s box of defences
- eliminate too many acquittals, people must be held accountable for their actions
what is the difference between civil and criminal negligence
- civil: apportionment (distribution, allotment) of loss (doling out punishment)
- criminal/penal: punish the blameworth conduct
