LAWS2302 Crim Quiz 2

1. In general, the law requires that the elements of a criminal offence be proven for an accused to be criminally liable. 2. In 20 lines or less provide the names of the elements! 3. How are they defined? 4. Who bears the burden of proving them and the standard upon which those elements must be established? The two core elements of a criminal offence that must be proven in order for an accused to be criminally liable are the actus reus or the guilty act, and the mens rea or the guilty mind. The actus reus refers to the guilty act that is committed and its consequences. Actus reus can also refer to an act of omission from the accused. For example, in a bar fight, if someone is charged with an assault for punching someone in the face, the actus reus would be making a fist and actually striking the victim in the face. An example of an actus reus offence that deals with omission would be a parent neglecting to feed their infant child and then that child dies. They might not have intended for the specific consequence, but it is the result of their omission to care for their child, which they are bound to do by law. The mens rea refers to the intention behind the actions of the accused. The mens rea deals with the accused and their level of moral blameworthiness. For example, in a first-degree murder, if a person finds out their spouse is having an affair and then they purchase a gun, wait for their partner to get home from work and then confront, shoot and kill them, this proves the premeditated intent to kill and solidifies the mens rea to a judge. However, if a person is way over the legal limit of blood alcohol concentration and they get in their car to drive, and then they crash and kill a person, this still proves the mens rea element. Although they might not have intended to hurt or kill anyone, the consequences of this criminal action are reasonably foreseeable, so they are criminally liable for the person’s death. The criminal law standard in Canada is that the Crown has the burden to prove the case beyond a reasonable doubt. This means that when a judge looks at a case, the evidence must be so compelling that no reasonable doubt exists as to the defendant’s guilt. The crown has that burden, and it remains with the Crown throughout the entire process. The accused does not have to testify or assist the Crown in any part of the process, the Crown must rely solely on facts and evidence and prove their case through the parameters of the law.

2. The Supreme Court of Canada has considered if and when the offender's subjective view should be applied when assessing the elements of an offence. In doing so, they considered a specific test. 1. In 20 lines or less, name, describe and explain the test . 2. Explain in what circumstances, if any, it should be applied and how it can impact criminal liability for an offender. 3. Please be sure to provide the name of the case (from your readings) that dealt with this issue and the specific issue that had to be determined by the Court . [10 marks] The Supreme Court of Canada decided that in specific circumstances where the subjective test of the mens rea element in a case is analyzed but somewhat unclear, a trier of fact should consider the objective test along with the subjective elements surrounding a specific case, in this situation they will use a specific test called the “modified objective test” . This means that the jury should consider the relevant and specific situation of the accused, and then proceed to determine if they exercised a reasonable standard of care in that unique situation. The subjective test requires that the trier of fact establish what was reasonably going through the mind of the accused in the given circumstance, this is hard to prove because the accused will almost always say they never meant to do it. So, a trier of fact must judge purely based of the facts and what a reasonable person would have been expected to do in that situation. The objective standard requires the trier of fact to establish a clear and marked departure from what a reasonable person would have done in the situation of the accused. It does not consider what was going through their mind, only their factual actions and consequences. These elements and tests are not always easy to prove because of the unique circumstances that arise in different cases. The specific case that dealt with this principle in class was R. v. Hundal, [1993] 1 S.C.R. 867. To summarize the case very briefly, Hundal was driving a truck in downtown Vancouver, it was raining and the roads were slick, his truck was overloaded by 1160kg, and he drove through an amber light turning red and struck another vehicle, killing the driver of that vehicle on impact. Witnesses also testified that Hundal was swerving through lanes prior to the accident. Hundal claims that he did not think he could stop in time, so he honked his horn and proceeded through the intersection. The specific issue that had to be determined by the court was whether or not the accused should have been reasonably aware of the risks associated with their conduct and whether or not they did everything they could to uphold their standard of care. In the case of R. v. Hundal it was difficult to prove the specific or objective mens rea element of the case and so the flexible “modified objective test” was put to use. The triers of fact determined through a “modified objective test” that Hundal did not exercise the necessary objective standard of care and given the specific circumstances, along with witness testimonies, Hundal was found guilty of dangerous driving causing death.