CHAPTER 5 : Comprehensive Study Guide: Elements of Criminal Offences (Actus Reus and Mens Rea)

Elements of an Offence and Substantive Law Introduction

• Proof Beyond a Reasonable Doubt: In criminal law, the prosecution (the Crown) must meet a very high standard of proof known as reasonable doubt to prove the guilt of the accused person. Specifically, the Crown must prove all elements of the offence beyond a reasonable doubt.

• Two Separate Elements of an Offence:

  • Actus Reus: A Latin term translated as "the guilty act." It involves the physical elements of a criminal offence, describing the wrongful conduct, actions, or physical circumstances.

  • Mens Rea: A Latin term translated as "the guilty mind." It involves the mental or fault elements of a criminal offence.

The Actus Reus of an Offence

• General Definition: Despite being translated as "guilty act," not all offences require an active behavior or action. The types of actus reus are categorized into four types:

  1. Offences requiring an action, conduct, or certain behavior.

  2. Offences requiring the accused to be in specific prescribed circumstances.

  3. Offences involving a failure to act (omissions).

  4. Offences that cause certain consequences to occur.

• Offences Requiring Action, Conduct, or Behaviour:

  • Example: Section $372(2)$ of the Criminal Code regarding indecent telephone calls.

  • Statutory Text: "Every one who, with intent to alarm or annoy any person, makes any indecent telephone call to that person is guilty of an offence punishable on summary conviction."

  • Requirement: The accused must perform the specific action of making an indecent telephone call.

• Offences Requiring Specific Circumstances:

  • Example 1: Being found in a common gaming or betting house under Section $201(2)(a)$.

  • Standard: To be charged, the accused only needs to be in the house without a lawful reason. They do not need to be actively gambling. Lawful reasons might include reading the electric meter or delivering a pizza.

  • Example 2: Possession offences under Section $354(1)(a)$ and $(b)$.

  • Standard: Merely having stolen property in one’s possession (e.g., storing it in a garage) establishes the actus reus, even if the person did not steal it themselves, provided they know it was derived from an indictable offence.

• Offences Involving Failure to Act (Omissions):

  • Definition: An omission is a type of actus reus where the accused fails to do something they are legally required to do.

  • Legal Duty Constraint: A person cannot be convicted for a failure to act unless they have a legal duty to act created by statute (e.g., the Criminal Code).

  • Example: Section $215$ creates a legal duty for parents, foster parents, guardians, or heads of families to provide the necessaries of life for a child under $16$ years of age, or for a spouse/common-law partner, or for those under their charge who cannot withdraw themselves (due to detention, age, illness, or mental disorder).

  • Charter Note: Section $215(2)$ formerly stated "the proof of which lies on him," but this was struck down by the Ontario Court of Appeal (R. v. Curtis, 1998) as a violation of Section $11(d)$ of the Charter. The Crown must now prove beyond a reasonable doubt that the accused lacked a lawful excuse for the failure to act.

• Offences That Cause Certain Consequences (Causation):

  • Definition of Causation: A part of the actus reus requiring the Crown to prove the accused’s behavior resulted in a specified harm or consequence.

  • Example: Causing a disturbance under Section $175(1)$.

  • Context: Fighting, screaming, shouting, swearing, singing, using obscene language, being drunk, or impeding others in or near a public place. To secure a conviction, the Crown must prove the actions actually caused a disturbance. For instance, a drunk person staggering quietly down an empty street might not meet the actus reus because no disturbance was caused to anyone.

Voluntariness and Mens Rea

• Voluntariness of the Actus Reus: Illegal actions only result in criminal responsibility if they are conscious and voluntary.

  • Duress: If an accused is forced at gunpoint to commit an offence, they may be acquitted because the action was not voluntary.

  • Automatism: If an accused commits an offence while sleepwalking, they are acting as an automaton and may be acquitted.

• General Definition of Mens Rea: The "guilty mind." Courts must find a state of mind that is blameworthy or establish a level of fault. The same act (actus reus) may have different criminal implications based on intent.

  • Example: Pushing someone in anger vs. pushing someone accidentally on a subway to keep balance. Only the former is morally blameworthy and criminal.

Subjective and Objective Mens Rea

• Subjective Mens Rea: Concerned with what was actually going on in the mind of the specific accused at the time. It requires proof of actual intention, knowledge, or that the accused proceeded recklessly while knowing probable consequences.

• Objective Mens Rea: Concerned with what a "reasonable person" would have understood the risk to be in the same circumstances.

  • Reasonable Person Test: An objective test focused not on the accused’s mind but on what should have been there if they had acted reasonably.

  • Marked Departure Standard: In criminal law, objective mens rea (penal negligence) requires that the conduct was a "marked departure" from the standard of care of a reasonable person (R. v. Hundal, 1993).

• Levels of Blameworthiness: Subjective mens rea is generally viewed as more serious because it involves a deliberate choice to engage in wrongful behavior.

Specific Types of Mens Rea

• Intention: The accused meant to perform the act or purposely caused the consequences. Terms like "wilful," "wilfully," and "purposely" are often used synonymously with "intentionally."

  • Inferred Intention: In cases like Section $343(d)$ (robbery), intent is inferred from conduct (e.g., entering a bank with a shotgun).

  • Intention vs. Motive: Intention is the desire to commit the act; Motive is the "reason" why. Motive is an investigative tool but is not a requirement for conviction. A "good" motive (stealing to feed biological children) does not negate the intention to steal.

• Knowledge: Awareness of certain facts. Example: Section $201(2)(b)$ requires a landlord to "knowingly" permit a place to be used as a gaming house.

• Wilful Blindness: A type of mens rea where the accused intentionally closes their eyes to obvious criminal actions to claim ignorance.

  • Example: Buying a brand-new large-screen television for $\$50$ from a van behind a pub. Claiming ignorance that it was stolen is wilful blindness because the circumstances make the illegality obvious.

• Recklessness: Defined as gross carelessness or negligence where the accused foresees a risk of harm and proceeds anyway.

  • Subjective Foresight: Per Sansregret, criminal recklessness requires that the accused actually foresaw the risk and then took it.

  • Unjustifiable Risk: The risk taken must be unjustifiable (unlike a surgeon performing emergency surgery which carries an justifiable risk to save a life).

• Penal Negligence: A primarily objective test that takes into account the abilities of the actual accused. It asks if a reasonable person with the capabilities of the accused would have been aware of the risks.

Regulatory and Quasi-Criminal Fault

• Strict Liability: A standard for regulatory/provincial offences. The Crown proves the actus reus, and mens rea is presumed.

  • Due Diligence Defense: The accused can be acquitted if they prove, on a balance of probabilities, that they took all reasonable precautions to avoid the offence or made a reasonable mistake of fact.

• Absolute Liability: The standard involves no fault element. Once the actus reus is proven, the defendant is responsible regardless of intent or care taken.

  • Charter Compliance: Absolute liability offences only comply with the Charter (Section $7$) if they do not involve the possibility of a jail term (Re B.C. Motor Vehicle Act; R. v. Pontes).

Case Scenarios and Review

• Bonnie and Asha Scenario: Bonnie, in anger, sweeps dishes off a table, and a shard cuts Asha. Under Section $265(1)(a)$, Bonnie could be convicted of assault because she applied force intentionally (by sweeping the items) without consent, even if the cut was an indirect resulting consequence of the intentional sweep.

• Thomas (Hepatitis C) Scenario: Thomas, knowing he has a transmittable disease (Hepatitis C), donates blood. Even though the blood was caught and destroyed, he was aware of the risk of transmitting the infection through blood. This aligns with the concept of recklessness or penal negligence regarding being a common nuisance, as he foresaw the potential harm and proceeded anyway.