Additional Elements of Crime

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Law 12 Criminal Law Ms. Ripley

Additional Elements of Crime

Transferred Malice (Take Notice, Spetz, p.37-38)

If an accused, with the mens rea of a particular crime, does an act, which causes the actus reus of the same crime, the accused is guilty even if the result was unintended. For example, if A, with the intent to kill B, shoots and kills C, thinking that C is B, then A has murdered C, even though A had no intention to kill C. Or, if A, intending to commit burglary, breaks into the wrong house, thinking it belongs to B, A is still guilty of burglary even though the house does not really belong to B.

The requirement is that the actus reus and the mens rea must be of the same crime. For example, if A is annoyed by crows in the garden and blasts at them with a shotgun, it would not be murder if A's neighbour happened to be in the garden at the time and was killed. A could be convicted of manslaughter, however, since this crime requires a different intention.

Motive

Intent is often thought to mean the same thing as motive, but they are very distinct from each other. If the accused commits the actus reus and has the mens rea of a crime, it is entirely irrelevant whether the accused had a good or a bad motive. Assume that A kills an elderly relative B. A would he just as guilty of killing B, whether the motive was to spare B suffering from a painful illness or to inherit B's money.

This does not mean that motive is not "evidence." Motive is a question of fact, which a jury may consider. Proved absence of motive is an important fact in favour of the accused and worthy of note in a charge to a jury. Conversely, proved presence of motive may be an important part of the Crown's case and the jury may hear it, notably on the issues of identity and intention.

Lewis v. The Queen

Supreme Court of Canada, 1979

The appellants Lewis and Santa Singh Tatlay were jointly charged with the murder of P. Sidhu, Tatlay's daughter, and her husband. The instrument, which caused the deaths, was an electric kettle rigged with dynamite in such a manner as to explode when plugged into an electric outlet. The kettle was sent to the couple by mail. It exploded with fatal results. The accused were found guilty and Lewis' appeal eventually reached the Supreme Court of Canada. It was based upon the sole question of whether the trial judge erred in failing to define "motive" and failing to direct the jury as to the concept of motive. The case was totally devoid of evidence of motive.

The Supreme Court held that motive was not proven as part of the Crown's case but neither was absence of motive proven by the defence. There was no clear obligation in law to charge the jury on motive. Lewis admitted mailing the package but denied making the bomb. He had never met the deceased and had no reason to get involved in a family dispute. Lewis was a miner with the skill and experience with dynamite needed to make the bomb. He could not explain why he drove to another community to mail the package. He also commented to another man to listen to the radio news for "something interesting."

The Supreme Court of Canada upheld the conviction of the two accused men.

Those Incapable of Crime

Some persons are held to be doli incapax-incapable of committing a crime. Examples of such persons include children, the insane, spouses in some instances, and the Crown. Insanity as a defence is discussed in more detail later in this unit.

With regard to children, the Criminal Code states:

12. No person shall be convicted of an offence in respect of an act or omission on his part while he was under the age of seven * years.

13. No person shall be convicted of an offence in respect of an act or omission on his part while he was seven years of age or more, but under the age of fourteen years, unless he was competent to know the nature and consequences of his conduct and to appreciate that it was wrong.

The law rejects completely any suggestion that children under the age of seven years, have the ability' to appreciate the nature of their actions so as to be criminally responsible. The law further expresses grave doubts that a person under the age of fourteen years could have such a criminal intent. The Crown may, however, introduce evidence to prove that a person under the age of fourteen was capable of knowing the nature and consequences of conduct engaged in, and knew that the conduct Was wrong. There is considerable disagreement among jurists as to whether "wrong" means "legally wrong" or "morally wrong." Children of tender years might know the difference between right and wrong in a moral sense; but it seems unlikely that children would think in terms of "contrary to law" since they probably would have no idea of what the law was.

Husband and wife cannot be convicted of certain offences because of the special position of married persons. A husband and wife cannot conspire together. A married person cannot be an accessory for assisting his or her spouse to escape. Spouses cannot be charged with theft from each other while living together.

Recklessness (All About the Law, Gibson, p.110-115)

Recklessness is the careless disregard for the possible results of an action. When people commit acts with recklessness, they may not intend to hurt anyone. However, they understand the risks of their actions and proceed to act anyway. Driving over the speed limit and cutting people off in traffic could result in criminal charges if injury occurs as a result of these actions. Mens rea would exist if such recklessness were proven.

Offences without a Mens Rea

Some offences are less serious than those found in the Criminal Code. To prove that these offences occurred, it is not necessary to prove mens rea. These offences are usually violations of federal or provincial regulations passed to protect the public. Speeding, "short-weighting" a package of food, and polluting the environment are all examples of regulatory offences. Regulatory offences also carry lesser penalties. As a result, they do not carry the stigma associated with a criminal conviction.

R. v. Wilson [2001] B.C.W.L.D. 561 British Columbia Court of Appeal

Marven Wilson was convicted of dangerous driving causing death and received a sentence of four years. The same judge also acquitted him of impaired driving causing death. Wilson decided to appeal his sentence.

In 1996, Wilson had tried to overtake a pickup truck driven by his friend Todd McComber. Both had been drinking alcohol. Wilson hit McComber's truck, which caused it to roll over several times. Rocky Cameron, a passenger, was thrown from the truck and died of his injuries. Neither man was wearing a seat belt. Police arrested Wilson for being intoxicated in a public place, but did not take breath samples. Wilson had several previous convictions for drinking and driving, not wearing a seat belt, and speeding.

In his appeal, Wilson argued that the sentence was too harsh. He said that the trial judge had made a mistake-the judge had convicted him of dangerous driving causing death while under the influence of alcohol but had acquitted him of the impaired driving charge. This was a contradiction. The three Court of Appeal judges agreed with Wilson and reduced his sentence to three years' imprisonment.

Questions

1. Is there intent or recklessness in this case? Explain.

2. What contradiction is the Court of Appeal referring to in the trial decision?

3. What mistake did the arresting police make and how did it influence the decision of the case at trial?

4. Which verdict do you support? Justify your opinion by using the facts from the case to support your view.

R. v. Memarzadeh (2001) ;l42. O.A.C. 281 Ontario Court of Appeal

On June 29,1997, Said Memarzadeh was released from a police station with a written promise to appear in court on a certain date. Later that day, a citizen complained that a number of items had been stolen from a home near the police station. Although there was no evidence that a break-in had occurred, Memarzadeh's written notice to appear in court was found in the home.

Memarzadeh was arrested and convicted of break and enter. He received a 3O-day sentence. At his trial, he said he could not remember being at the police station on the day of the break and enter. It also emerged that he had spent eight years in an Iranian jail as a political prisoner and had undergone three brain operations following some severe beatings.

Memarzadeh successfully appealed his conviction for break and enter. The appeal court decision said there was no evidence that the home had been broken into, or that the accused had been on the premises. The fact that Memarzadeh's document the promise to appear in court-was found in the home did not prove he had been there.

Question

5. Identify the actus reus in this case.

6. Did mens rea exist here? Explain.

7. With which decision do you agree, the trial court decision or the appeal court decision?

There are two types of regulatory offences: strict liability offences and absolute liability offences. To prove a strict liability offence, it is only necessary to prove that the offence was committed. The accused can put forward the defence of due diligence, which means that the accused took reasonable care not to commit the offence or honestly believed in a mistaken set of facts.

Absolute liability offences are similar to strict liability offences in that the Crown does not have to prove mens rea. However, absolute liability offences have no possible defence--due diligence is not accepted as a defence for committing such offences. If the person committed the actus reus, he or she is guilty, no maUer what precautions were taken to avoid committing the offence.

Canadian law does not specify which regulatory offences are strict liability or absolute liability. It is left to the courts to decide what the government intended. Because absolute liability offences provide little opportunity for a successful defence, the Supreme Court of Canada ruled in Re B. C. Motor Vehicle Act (1985) that a prison term for an absolute liability offence was unconstitutional.

Attempt

A person who intends to commit a crime but fails to complete the act may still be guilty of a criminal offence. In Ron's case, a police officer could have observed him walking around the house at night with a flashlight, trying the doors to see if they were locked Ron would be found guilty of an attempt to break and enter under section 24(1) of the Criminal Code.

As with any crime, proving attempt means proving that there was intent to commit the offence. The actus reus for an attempt begins when the person takes the first step toward committing the crime. It is the judge who decides--even in trial by jury-when the preparation stage has ended and the attempt stage has begun. For example, Ron prepared for his crime by buying housebreaking tools and noting when Kathy entered and left the house. However, it was only when he took his first step toward the actual break-in that he attempted the crime.

During a trial, if the Crown is unable to prove that the offence was committed but only that an attempt was made, the accused may be convicted of the attempt. If the accused was originally charged with the attempt, but the evidence indicates that the offence was actually committed, the judge may order the accused to be tried for the offence itself.

Conspiracy

A conspiracy is an agreement between two or more people to commit a crime or to achieve something legal by doing something illegal. For example, if Ron and Hank discuss their plans to break into Kathy's house to steal her credit cards, they have conspired to commit a crime. Even if they do not carry out the plan, they have agreed to a conspiracy to commit the crime.

In a conspiracy, all the people involved must be serious in their intention to commit the crime. joke & or threats are not considered conspiracy.

Overview Questions

8. Identify the two elements that must exist for a crime to be committed.

9.Actus reus does not always require an action to be committed. Give an example of such a circumstance.

10. Distinguish among the different categories of mens rea and provide an example for each.

11. Distinguish between general and specific intent.

12. How is motive used in a criminal trial?

13. For which offence is the defence of due diligence available? Explain how it would be used.

14. Identify the element of a crime that must be proven in an absolute liability offence. Why do such regulatory offences exist?

15. When does an attempt begin? Provide an example of a situation where a criminal charge of attempt could be made.

16. When could individuals be charged with conspiracy?

R. v. Bernier 2001 BCCA 394 British Columbia Court of Appeal

A trial judge convicted Bernier of robbery while using a firearm; assault while using a weapon; breaking and entering a residence and committing theft; and possession of stolen property of a value less than $5000. Bernier appealed the first two conviction charges but not the other convictions.

Bernier was a member of a home-invasion gang in 1997. The gang broke down the door of Dean Eve's basement apartment while one member yelled: "Police, on your hands and knees!" They handcuffed Eve, who testified that one of the gang members had a gun. The gang members told him they were looking for money and drugs. They took $300 and then hit Eve on the head with the butt of the gun, causing injury. When the homeowner returned, he found that his upstairs apartment had been ransacked and several items were missing. When the gang members were arrested, some of the stolen items were found in their possession.