Elements of the Offence October 9, 2007

Elements of the Offence Legal Requirements of the Offence Found in the statute (and the way that the statute has been interpreted)

Essential Elements Actus reus, the physical components Mens rea, the mental component or fault Two parts must come together

Actus Reus: What is it? Act/omission Usually physical act eg inflicting force, failing to provide necessaries Usually found in the description of the offence

Mens Rea: What is it? Blameworthiness, fault, guilty mind Includes intention, knowledge Usually statute silent about the nature of mens rea required Starting point, mr requirement is subjective but sometimes objective

Parts of the Actus Reus Conduct Circumstances Consequences

Conduct Voluntary act or omission Note same act may be crime in some circumstances, non-criminal in other circumstances

Circumstances That surround the act to make it criminal (eg. Absence of consent to sexual activity, being a parent in failing to provide necessaries, bigamy pre-existing marriage

Consequences Certain crimes require particular harm to have been caused Eg homicide assault causing bodily harm destruction of property Certain crimes do not include consequences eg perjury, attempted murder (sometimes called conduct crimes)

Consequences (cont.) With consequence crimes, Crown must prove: 1. Consequence occurred AND 2. Conduct of the accused caused the consequence

Included Offences An offence for which all of its elements are in the offence charged Accused can only be convicted of offence charged or an included offence Eg charged with murder But Crown doesn’t prove death, may be attempt murder (no proof of consequence a.r.) Crown does not prove intent, may be manslaughter(no proof of requisite m.r.)

Included Offences (cont) Eg Crown fails to prove death and fails to prove intent, may be assault or assault b/h.

Omissions May satisfy the conduct requirement of the a.r. as a failure to act BUT ONLY: Where there is a legal duty OR Parliament expressly states that a crime committed by omission Limitation on omission reflects policy orientation

Examples of Omissions S. 129(b) S. 215 S. 242 S. 252

Voluntariness Principle applies to the conduct of the actus reus Voluntariness not a principle of mens rea Involuntary acts are considered not the acts of the accused because not the acts of an operating mind Eg reflex, seizure, sleepwalking

Principle of legality Section 11(g) of the Charter Section 9 of the Code Example: Frey v. Fedoruk Is peeping a crime? Why does that matter? Arguments in favor of making peeping a crime: if it went unpunished, three was potential for fear that may lead to violence and cause a breach of peace in the community Arguments against making it a crime: certainty in the criminal law it is Parliament’s duty to make law, not the court