THEORY OF OFFENSE:
It is the lens through which we can analyze whether a particular conduct is a crime or not.
A crime is an actus reus performed with the required mens rea, provided that there are no defenses.
ACTUS REUS
It is the physical act specified in the crime. It is
It is important because it permits us to accommodate our conducts in advance so as to avoid punishment.
Legality principle.
The actus reus consists of a voluntary
act that causes social harm.
·
Voluntary
act
·
Causation
· Social harm
For
example, if I pick a knife and stab you, killing you, the actus reus of
homicide has occurred: I have performed a voluntary act (stabbing you), that
caused your death (the social harm).
Voluntary
act:
No punishments
for thoughts:
I want the PM to be dead.
General rule:
few crimes actually speak about the voluntary act but it is a precondition for
any crime.
Act: it is simply
a bodily movement, a muscular contraction. Examples would be to pull the
trigger of a gun, to blink an eye or simply put one leg in front of the other
to walk.
Sometimes there
can be bodily movement but no act, e.g. someone moves my arm.
Voluntary:
The concept of
volition is tied to the notion that criminal law responsibility should only
attach to those who are accountable for their actions in a very personal way.
The threshold
is very low. It simply requires a willed contraction of a muscle or a movement
of the body which follows our volition.
So, epileptic
seizures are not voluntary.
Voluntariness
at the edges:
Hypnotism: may
be considered involuntary
Multiple
personality disorder (dissociative identity):
One of these
cases reached the courts in the US –State v. Grimsley. Robin & Jennifer.
The court rejected this reasoning and said that there was only one person
driving the car and only one person accused of drunk driving and in another
case the court held that we will not begin to parcel criminal accountability
out among the various personalities of the mind.
Time frame: what must be
voluntary is the relevant conduct, the one that causes the social harm. Bomb in
the mail.
Status offenses are not permitted. For example,
in the past in the US statutes made it an offense to be a vagrant or in CA it
was prohibited to be addicted to narcotics.
Omissions: An omission or failure to act is not a basis for criminal liability, except:
Not every moral
obligation to act creates a concomitant legal duty. We are not our brothers and
sisters’ keepers. Criminal law requires us not to do social harm but –save for
some specific circumstances- it does not require us to prevent harm.
This has raised
enormous criticism. The effect of this rule is to exonerate people who are
guilty of moral indifference. Swimmer case.
The criminal conduct stands in a caausal connection with the harm.
·
but-for
test: but-for the criminal conduct, the harm would not have resulted.
·
Criminal
conduct does not have to be the sole cause.
·
extent
of causal link:
o
(1) look to appropriateness
of punishment (a)
use utilitarian view of punishment to determine
o (2) don’t allow absurd/ unfair results
Social harm
Society values
and has an interest in protecting people and things, which may be tangible (automobile)
or intangible (emotional security, reputation, personal autonomy). Society is
wronged when an actor invades any socially recognized interest. Specifically,
social harm is the negation, endangering or destruction of an individual, group
or state interest which was deemed socially valuable.
·
Wrongful conduct
Intentionally
driving under the influence of alcohol: here the social harm of the crime is a
conduct because no harmful result is required, i.e., the offense is complete
whether or not anyone or any property is tangibly injured because of the
intoxicated driving. It is enough that socially valuable interests have been
jeopardized.
·
Wrongful result
An offense may
be defined in terms of a prohibited result. Murder is a result crime, because
the social harm is the death of another human being.
·
Attendant circumstances
Some attendant circumstances may be included in the definition of a
particular offense and so be an element of the crime. For example, common law
burglary is the breaking and entering in the dwelling house of another at
nighttime.
A person is not guilty unless he performs a voluntary act that causes social harm with a mens rea, i.e., a guilty mind, a culpable state of mind.
This is basic. You should not be punished if you did not have a guilty mind and you should not be punished in the same degree if you did not intent something, if you merely were negligent.
This is something almost instinct in human nature. My 7 year old kid reacts immediately if I get mad for something he did and says to me “But Daddy, I didn’t mean it”.
My dog also knows the difference between being stumbled over and being kicked on purpose.
Crimes are public wrongs. The implication of a guilty verdict is that the convicted party wronged the community as a whole. By convicting a criminal defendant, society denounces the actor; it condemns and stigmatizes him as a wrongdoer. Respect for human dignity suggests that such stigma should not attach, and liberty should not be denied, to one who has acted without a culpable state of mind.
MENS REA
Mens Rea: The particular state of mind provided for in the definition of an offense.
So, for example, murder is defined as the intentional killing of another human being. The actus reus is the killing of another human being and the mens rea is intentional. So, if I kill unintentionally, there is no murder because I lack the specific state of mind required in the definition of the offense.
Four states of mind:
· Knowing: “OK, I know but I don’t mind. So be it”. [Also: “I don’t want to know.”]
·
Reckless: the actor disregarded a substantial and
unjustifiable risk of which he was aware (subjective test). “No, it won’t
happen”.
·
Negligent: “I didn’t even think of it”. (objective
test).
It was the actor’s purpose, desire, intention or conscious objective to cause the result or engage in the specified conduct.
There is a difference between motive and intention. Motive is irrelevant in substantive criminal law, i.e., the intention to cause social harm is no less intentional simply because the actor’s motive was not evil in character. E.g., Dr. Kevorkian, his killings are still intentional even if the motive may be good. Motive is essential at the sentencing stage.
Transfer intent (bad aim cases): the law transfers the actor’s state of mind regarding the intended victim to the unintended one.
Knowledge
In general, a person who
knowingly causes a particular result or knowingly engages in specified conduct
is commonly said to have intended the harmful result or conduct.
Two definitions: (i) one that
applies to results, and (ii) and another that applies to conduct and attendant
circumstances.
(i) With respect to result, the actor acts with knowledge that the result is virtually certain to occur as a result of his conduct. Airplane bomb example (he doesn’t want to kill the other passengers, he even prays they will not be killed).
(ii) With attendant circumstances and conduct elements, one acts knowingly if he is aware that his conduct is of that nature that such attendant circumstances exist. For example, D fired a loaded gun in V’s direction and is prosecuted for knowingly endangering the life of another. D is guilty if he was aware that his conduct endangered the life of another person. If he was not aware, perhaps because he didn’t know that V was in the vicinity, even if this was obvious, then he is not guilty.
Similar approach applies with attendant circumstances. E.g., if D purchased stolen property and was prosecuted for knowingly receiving stolen property, D would be guilty of the offense if when he received the property he was aware that it had been stolen. Another example of knowledge of an attendant circumstance is the following. It is a crime for a person knowingly to import any controlled substance into the country. So, a person that drives a car with marijuana into the US is not guilty unless he knows of the presence of the contraband. A person has knowledge of a material fact if he is aware of the fact or he correctly believes that it exists. So in the example he knows if he himself concealed it in the car or saw someone do it or if he smells it and as a consequence believes that it is present.
Our courts have equated wilful blindness with
actual knowledge. The idea behind this is that an accused cannot
deliberately remain ignorant and escape criminal liability as a result.
Deliberately choosing not to know something when given reason to believe further inquiry is necessary can satisfy the mental element of an offence requiring knowledge. A finding of wilful blindness involves an affirmative answer to the question: did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?
Negligence
A person’s conduct is negligent if it constitutes a deviation from the standard of care that a reasonable person would have observed in the actor’s situation. Conduct constitutes such as deviation if the actor takes an unjustifiable risk of causing harm to another. Thus, negligence constitutes objective fault, i.e., he is punished for his failure to live up to the standards of the fictional reasonable person.
Should negligence be punished? Mens rea means guilty mind, and yet the negligent actor is blamed and punished for what is not in his mind, i.e., attention to risk that a reasonable person would display.
Recklessness
The actor disregarded a substantial and unjustifiable risk of which he was aware. It implies subjective fault.
DEFENSES
In Canada, the defense must first prove to the courts that there is an air of reality for the defense to be admitted.
Justifications: conduct is not wrong in the context. Excuse: conduct is wrong but actor is excused from criminal liability. Defenses include both justifications and excuses.
Canada: No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
There is a presumption of sanity, so defense must prove on a balance of probabilities that he/she is insane.
M’Naghten right-wrong test: at the time of committing the act, the
party accused was laboring under such a
defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it that he did not know he was doing what was
wrong.
·
Before automatic indeterminate detention
·
Now, hearing.
·
If the accused is not a significant threat to society, he is released.
·
If threat to safety of public, a disposition that is the least onerous
and restrictive to the accused
Burden of proof
of insanity: The accused on a balance of probabilities. There is a presumption
of sanity (so the prosecutor does not have to prove beyond reasonable doubt
that accused is sane).
Very little room to avoid conviction
The law treats addicts no differently.
·
Involuntary
o Almost the
same as insanity
o Valid defense
·
When the defendant was coerced to commit a crime by the use of, or a
threat to use, unlawful force against his person or the person of another.
·
There may not be a safe avenue to escape.
·
Originally, necessity had to be great and the harm actually done to be
less than the harm avoided.
·
Not in Canada, the court should not balance the social utility of
breaking the law against obeying the law.
·
In Canada, only when the accused has no realistic choice but to violate
the law and there is no other safe avenue. It applies to normatively
involuntary behavior (e.g., natural disasters). The risk must be imminent,
there may not be a legal reasonable alternative, and no legal way out or no
safe way to escape. The danger is caused by natural forces or by human conduct
other than intentional threat of bodily harm.
Self defense
In Canada,
complex rules
Requirements:
1) The accused is
unlawfully assaulted (but the accused may react to threats, there is no need to
wait to be physically assaulted.
2) The accused
did not provoke the assault.
3) Reasonably
necessary to enable the accused to defend himself (referred to as
“proportional” in other jurisdictions).
4) It is not
intended to cause death or serious bodily injury, except that the person
defending himself or herself cannot otherwise preserve his or her life. In this
case, 3 requisites must be fulfilled: (i) unlawful assault –subjective test;
(ii) reasonable fear of death or serious bodily harm –objective test; and (iii)
the accused must believe that there is no other way to save himself or herself
(objective test).
Subjective and
objective test regarding the accused.
Defense of
others: alter ego doctrine. 3rd party is placed in the shoes of the
one being defended or the 3rd party may defend another person if it
reasonably appears to the intervenor (3rd party) that using force is
justified in defense.
Defense of
property: non deadly force may be used. Only force that is necessary to prevent
imminent and unlawful dispossession of that property. This defense does not
apply too recapture already –long time- dispossessed property. Once
dispossessed right to use force is extinguished.
Defense of
private home: In Canada, as much force as necessary to prevent entering (but not
deadly force, unless self-defense applies).
No unsuccessful
or putative self-defense in Canada. Risk to innocent bystanders: Transferred
justification doctrine.