Elements of an Offence

Presentation to High SchoolLaw Classes

Elements of an Offence

• What the Crown Attorney must prove to substantiate a charge.

• They are like basic building blocks.• A police investigation must uncover all the

required elements.

Two Main Elements

• Most elements can be divided into two main categories:

Actus Reus (The Act)Mens Rea (The Mental Element or Intent)

More Specific Elements

• Almost like a math equation, the elements of an offence (a + b + c), must all be present in order to say that the offence has occurred.

Discussion Example

• The punishment for theft is in section 334 of the Criminal Code.

• Theft is defined in section 322:Every one commits theft who fraudulently and

without colour of right takes, or converts to his own use or the use of another person, anything whether animate or inanimate, with intent

Theft Discussion Continued

• Elements needed to prove offence:1.A person2.Fraudulently and without colour of right3.Takes4.Something5.With intent

Discussion with Reference to a Retail Environment

• The Crown generally wants to see four specific events proven in order to proceed with a shoplifting charge:

1.Selection2.Concealment3.Continuity4.Past the Point of Purchase

Discussion Question

• Two people are leaving a meeting and both go to grab their umbrella out of the umbrella holder. The first person grabs the second person’s umbrella without thinking and continues on his way.

Question: Has a theft occurred?

Another Discussion Example

• The punishment for assault is in section 266 of the Criminal Code.

• Assault is defined in section 265 of the Criminal Code.

A person commits assault when without the consent of another person, he applies force to that other person, directly or indirectly

Assault Discussion Continued

• Elements needed to prove an offence:1.A person2.Without consent3.Applies force4.To another person

Discussion Question• Two hockey players square off against each other

and throw their gloves on the ice and then start to punch each other.

Question: Has an assault occurred?

• During the fight, one of the players goes down and becomes unconscious. The other player continues to throw punches while on top of the unconscious player.

Has an assault occurred?

Intent

• Most criminal offences require the element of intent to be proven.

• One criminal offence where the mens rea is a little different is Failure to Stop at the Scene of an Accident (s. 252). Here the intent of the offender was never to cause the physical harm. The intent lies in the wish to escape criminal liability.

Further Discussion of Intent

• Another section where intent is slightly different is in Failing to Provide the Necessities of Life (s. 215). Again the intent of the offender was not to cause harm, but the offender did things or failed to do things that he or she ought to have known would cause harm. There is almost a “reverse onus” on the accused to show that they did everything they could to prevent the harm that was done.

Reverse Onus

• Another area where reverse onus often shows up is in possession of stolen property. Often police will attempt to show that the accused had knowledge the item was stolen by showing the possession was recent to the theft (the knowledge here is the mens rea). It often then falls to the accused to somehow prove that they did not have knowledge of the theft.

General vs Specific Intent

• Some sections of the Criminal Code of various degrees of intent. One such section is culpable homicide (s. 222). If the Crown can prove a general mens rea to cause harm, often there will be a conviction for manslaughter. If the Crown can prove a more specific intent (ie a planned murder) then there will likely be a murder conviction.

Defences• An accused might try to use a defence to block or

deny mens rea. One such defence is drunkenness. The accused may state that they were too intoxicated to form the necessary intent. Case Law (ie Judges’ decisions) have often only allowed this defence in situations of extreme intoxication. Again it comes down to ought to have known; if you start drinking you ought to know you will have decreased inhabitations to cause harm to others (and ought to have known does form mens rea).

Defences Continued

• Another defence that there was no mens rea is the defence of insanity. Here the defence is that the accused was mentally incapable of forming the necessary intent.

• In Canada, this defence often backfires on an accused because if they are declared legally insane then they can be confined to a mental institution for an indefinite period of time.

The Reasonable Person

• When looking at difficult questions of mens rea, one of the measures the courts often look to is the “reasonable person” standard. If the average everyday person was to look at this issue, would they find the person at fault. For instance, in “ought to have known” cases, would the reasonable person have known that the action or failure to act would cause harm.

A Final Word: Criminal Law vs Other Laws

• The standard of proof for a criminal offence is as we can see very high. The standard is in fact called, “beyond a reasonable doubt.” (did aliens implant a probe that caused the person to do the act – it may be considered slightly possible but it is not reasonable)

• Civil law or torte law has a different standard. The proof required is in the “balance of probabilities”

Civil Law Example

• An example to show this “balance” Say a contractor is hired to do a job. When

the contractor stops, the other party feels there is more work to be done and withholds payment. A civil judge would have to determine who is most at fault in this specific case (ie who is at least 51% at fault – whereas with criminal cases, the convicted person is found to be 100% at fault).

Regulatory Laws

• With regards to intent, regulatory laws may proscribe issues of strict or absolute liability (ie this act must be done or this act must be avoided).

• Factories are often held to high inspection standards. For instance, a bottling company must take steps to ensure there are is no broken glass in their beverage containers.

Other Regulatory Laws

• Another more familiar law where there is strict liability is the Motor Vehicle Act (a Provincial Law). You have to adhere to speed laws and stop at stop signs etc. There is no intent that must be proven to prosecute these matters.

• In these matters especially, ignorance of the law is no excuse.

Questions?