Subjective Liability & Criminal Law

• Subjective liability is related to the mental element of criminal law

Core Legal Concepts

• Mistake of fact
• Subjective liability
• Standard of care
• Recklessness
• Willful blindness

Mens Rea

• Refers to mental elements that the crown must prove to convict someone of a criminal offence
• Varies from crime to crime
• It is necessary to analyze mental elements required in relation to each component of actus reus of the specific offence (conduct, circumstances, consequences)

Mens Rea and Mistake of Fact

• Mens rea key in criminal law is to prosecute morally guilty individuals of true crimes under CCC
• Morally innocent individuals do not understand/intend consequences of actions
• Accused persons who act under a fundamental mistake of fact regarding an essential element of actus reus of an offence must be acquitted if there is no necessary mens rea

Examples in Sections of CCC

• Section 16 of CCC refers to mental disorder
• Section 13 of CCC states children under 12 years of age cannot be held criminally responsible
• Young people cannot fully understand consequences of their conduct

Subjective and Objective Mens Rea

• Accused persons may not be convicted of a crime without;
• Deliberately intending to bring about law-prohibited consequences
• Subjectively realizing that their conduct might produce prohibited consequences, proceeding regardless of that risk
• The crown must prove that the accused deliberately chose to do something wrong in subjective mens rea

Direct and Indirect Intention

• Direct intention is present when P points a rifle at J with the intent to kill even if J is too far away
• If J is shot dead, clear intent established and P is charged with murder
• If P misses, P is charged with attempted murder
• Direct intent involves a clear purpose and aim
• Indirect intention is present when M joins a gang of terrorists and is ordered to destroy a shipment of arms destined for the military
• M buries a land mine under the road
• As the truck passes, M intends to detonate the bomb
• M not intend on killing the driver but knows it is a likely outcome, even with a chance the driver could escape
• In this case, M would be deemed to have indirectly intended the death of the driver and be guilty of murder

Objective Mens Rea

• The crown is not required to prove deliberate intention/subjective appreciation if the risk that conduct might produce such a result
• Predicated on the principle that reasonable people would appreciate conduct was creating a risk of producing prohibited consequences and taken action to avoid it

Standard of Care

• The fault of the accused does not lie in deliberately choosing to do something wrong
• Fault lies in the fact that the accused had the capacity to live up to some standard of care expected of a reasonable person and failed to do so
• Those accused of subjective mens rea are treated as more culpable than objective mens rea individuals because of a choice to deliberately do something wrong
• A murder charge must establish the accused subjectively foresaw the risk, as it yields a harsh sentence and stigma

Particular Types of Mens Rea

• The crown may be required to prove intention, knowledge, recklessness, and willful blindness
• Many definitions of criminal offences contained in the CCC explicitly require the proof of mens rea in the form of an intended consequence or actual knowledge of particular circumstances
• An example cited is section 155 (1) states everyone commits incest who knows that another person is by blood relationship his or her parent

Non-Expressive Statements of Knowledge

• Not all provisions make expressive statements at this time
• Courts hold that if it is implied in the provision
• An example provided is being a member of an unlawful assembly under section 63 of CCC
• Knowledge of the likelihood that the assembly disturbs peace also is implied
• The judiciary asserts criminal law never intended to punish individuals unaware of relevant fact situations
• Courts rule that wilful and means are synonymous with intent

Knowledge Implies Truth Standard

• The crown must prove knowledge of a circumstance of a particular set of circumstances
• It must also be established that the accused knew/believed that something (ex. property/proceeds) was directly/indirectly derived from the commission of an offense
• An individual cannot be convicted of money laundering knowing funds in question are proceeds of crime if the funds were not obtained through criminal activity
• You cannot know something that is not true

Additional Elements Required: Fraud

• The crown, in addition to knowledge and/or intent, has to prove fraud/fraudulently in cases in which fraud is alleged
• It is important to note that fraud extends beyond simply telling a lie
• The crown must establish (1) dishonesty (mens rea) and (2) deprivation (actus reus)
• Dishonesty can be constituted when one accused of fraudulent behavior uses assets of a company for personal purposes rather than being bona fide for the corporation's benefit

Definition of Deprivation

• The crown must establish deprivation (the actus reus) or risk thereof to the other party
• Actual economic loss as outcome is not necessary
• Courts provided little guidance on proving mens rea (dishonesty) but have a easier time establishing that the conduct was deliberately dishonest (actus reus)
• In Theroux, the court judge noted that because he sincerely believed homes would be built and risk would not materialize, the belief cannot save him

Joke or Prank?

• One cannot be found guilty under criminal law if conduct was deemed a prank
• The prank defence has a narrow scope, however taking something for the purpose of depriving the victim is fraud
• The crown must prove that the deprivation of risk of deprivation is temporal/absolute

Proving Intention

• Reasonable person test used to determine subjective intent
• It is difficult task to prove a defendant had requisite intent/knowledge
• In some cases, the facts speak for themselves, but this is not always possible
• One establishes the credibility of the accused by asking what a reasonable person would have intended/known in the context of that particular situation
• If divergence exists between the RPT and the accused's statement, there is no credibility
• Similar responses obtained lead to a degree of credibility

The Reasonable Person Test

• Predicated on the common sense standard
• Not always an appropriate test, as it is often referred to as the yardstick analogy

Recklessness as Subjective Mens Rea

• One form of mens rea may be enough to convict someone of a criminal offence
• Canadian courts have expanded the mens rea elements requires in relation to true crimes to include recklessness as an alternative to intention or knowledge
• Individuals are reckless regarding the consequences of their actions when they foresee that it may occur but do not foresee it as certain
• Example: If fireworks are set off in a lecture hall, the defendant may not want to kill anyone but realizes someone may be hurt and proceeds anyways

Objective Liability

• Last week the elements of criminal offences in which the crown must establish intention, knowledge, recklessness and/or willful blindness were reviewed
• Objective liability requires the accused to be subjectively aware of the risk his/her conduct will cause in relation to certain prohibited consequences

Basic Premise of Objective Liability

• Not concerned with what on intended or knew, but with what should have been in the mind if the accused proceeded reasonably
• 'Negligence' is conduct failing below the standard of the reasonable person

Carelessness

• A criminal conviction can occur with only serious forms of negligence
• 'Mere' carelessness renders one liable perhaps under civil law
• Conduct that falls a degree below the standard leads to the disposition of a fine but is not considered a crime per se

Civil/Penal Negligence

• It is important to understand the differences, but not to conflate the two
• Civil standard of negligence involves apportionment (distribution, allotment) of loss and doling out punishment
• Penal negligence involves punishing blameworthy conduct

Marked Departure Test

• A marked departure test is used to determine negligence as result of true crime
• Involves one greatly deviating from the expected norm
• Upheld by section 7 of the charter, only those morally guilty can be convicted of a criminal offence
• One who commits an offence negligently should face a less severe punishment than an individual who subjectively understands the risks
• Ordinary acts of negligence do not justify imprisonment

Objective Liability Test

• There are fundamental questions to be answered
• Would a reasonable person having the exact same knowledge of relevant circumstances as the accused realize that his/her conduct was creating a risk of bringing about consequences that are prohibited by law?
• Invokes the requirements that the court consider the nature of the activity of which the accused was engaged and specific knowledge they had of circumstances

Objective Liability Purpose

• Separates out those who choose to engage in criminally dangerous conduct and maintains a uniform legal standard of care that people are expected to meet/satisfy
• The minimum fault requirement is a 'fault threshold'

Exceptions

• Incapacity to appreciate the nature of the risk features defined instances and is grossly unjust to convict someone
• More obvious exceptions concern visually impaired person lacking physical capacity to understand risk as someone who can see
• Notion of 'legion' consists of forgetfulness, maturity, education, and culture
• Not an excuse for criminal behaviour, but factor(s) to consider when thinking about the sentence

Conduct

• This is the appropriate test to apply to determine whether the accused had necessary mens rea, for example, for dangerous driving
• This test was created as an outcome of rv hundal
• The trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care an individual would observe in the accused's situation
• The test should be applied in context of the events surrounding the incident (that is, how it is considered modified)

Evidentiary Burden of Proof

• If a person has an excuse for what caused the accident that may lead to acquittal, must activate 'air of reality test'
• There onus is on accused to show evidence of such
• Must establish evidentiary burden of proof
• To establish explanation for ones conduct to offset/negate a determination of a 'marked departure' from the norm

Elevated Standard of Care

• This is required when someone is engaging in highly dangerous activities
• Legal provisions may require one to meet an ES of C (Elevated standard of care)
• Standard of care is expected of a reasonable person who has acquired necessary expertise/training (eg. explosives expert) to engage in certain high risk activities
• Typically applied to firearms,explosives, medical treatement provisions
• One fails the standard when there is a lack of training and/or failure to follow procedure

Criminal Negligence

• Examples would include posing as a doctor, treating someone, and prescribing a diet that subsequently kills a child
• Other examples include a blood donor who gives blood but has HIV, acting as midwife without proper traianing that leads to death of newborn, and a police officer that unlawfully discharges his/her firearm

Key Concepts

• Objective liability (versus subjective liability)
• Marked departure test – moral blameworthiness
• Minimum fault requirement
• Modified objective test
• Evidentiary burden of proof
• Elevated standard of care
• Ev hundal and rv beatty

Absolute Discharge

• Consists of not being monitored in the community any longer

Fitness to Stand Trial

• Concerns state of mind at the time of trial
• Consists of having the capacity to understand the nature and purpose of proceedings and the ability to communicate with counsel
• Delusions do not constitute a pass
• Cognitive capacity tests only require a minimal degree of ability to understand the nature and act of the proceedings
• Consists of sitting with a psychiatrist, engaging in some sort of testing, and in some cases, if only a treatment is required, the case will proceed after the treatment

NCRMD

• State of mind of the accused person at the time of alleged offence
• There is a rationale that accused persons suffering from MD should not be subject to standard criminal culpability
• Strict criteria are featured that few people meet
• Consists of being very exceptional
• Recidivism rates for individuals with NCRMD are relatively low
• It does not equate to 'not guilty'
• The accused may be subject to detainment in a mental health facility
  • Could potentially exacerbate their current state
• Criminalization leads to stigma, and isolation can worsen symptoms, diminishing the right to live a normal life (especially with a criminal record)
• People want to switch from a mental health facility to a penitentiary

M'Naghten Rules

• NCRMD laid in English case of M’Naghten (1843)
• Focuses exclusively on cognitive factors (i.e., ability to reason) to the exclusion of emotional and volitional factors
• Criticized for not considering the accused might know right from wrong but is incapable of controlling their conduct

Modern Form of NCRMD Defence

• Modern provision section 16 (1) of CCC mirrors much of the M'Naghten rules of 1843
• There are key differences in language however
• The 'insanity' defense

Criminal Code Section 16 (1)

• 16 (1) 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 are presumptions
• Every person is presumed not to suffer form a mental disorder to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is provided on the balance of probabilities
• There is a burden of proof
• The burden of proof that an accused was suffering form a mental disorder to be exempt from criminal responsibility is on the party that raises the issue

From Insanity to Mental Disorder

• There is a replacement of 'disease of the mind' in 1991 – stigma
• This is the first step in the determination process
• It must be severe enough to manifest psychotic symptoms

From Know to Appreciate

• Under the law, 'appreciate' is equal to 'know'
• There is a difference between appreciating the nature and quality of the act as opposed to knowing that something is wrong
• Parliament amended provisions to demarcate the two terms
• Ratio - accused may be aware of the physical character of an act (e.g., choking) but does not have the requisite capacity to know that choking could cause death

Nature and Quality of the Act

• Exclusively refers to the physical nature and quality of act Hitting someone on the head with a large rock with great force but not experiencing guilt/remorse does not permit an NCRMD ruling as in the case of psychopaths Consider that these individuals place the safety of the public in peril

Wrong

• A wrong is a legal wrong
• This is a second requisite
• Translates to ‘according to ordinary moral standards'
• The question to be asked is 'Did the mental disorder render the accused incapable of knowing that their actions were wrong?'

Irresistible Impulse

• Involves whether one is able to claim the benefit of the NCRMD defense
• Canada does not recognize the defence of 'impulse' 'Impulse' consists of a symptom of manifestation of the MD can only be used in conjunction with the other 2 requisites (if met)

Procedural Issues

• The power of the crown to raise NCRMD
• There is a burden and a standard of proof when defense is raised

Power of the Crown

• The crown can raise NCRMD even if accused resists
• Somebody who has an experience in that system and does not like it, perhaps they have their own stigma in their minds towards mental disorders or certain cultures do not believe in mental disorders
• Maybe they really think they have a greater chance of being exonerated
• Occurs only when the accused puts his/her state of mind in issue at trial or after a judge or jury has already concluded that the accused committed the act that formed the basis for the offence which he or she is charged with

Use?

• It is deemed fair for Crown to raise NCRMD

• Especially in cases where there could be grounds for an acquittal

• To avoid bias, It must be raised after the trial concludes as to not bias the proceedings and the right to a fair trial Burden of Proof

• One party who raises MCRMD must shoulder the burden of proving MD on the balance of probabilities

• Under Canadian law, the accused is presumed sane, and this is a reasonable limit under the Constitution

• The rationale is that there is an impossible burden on the crown and an accused who is not really NCRMD can escape punishment

Disposition

• Before 1992, accused kept in a psychiatric facility for a fixed period
• Facilities worse than penitentiaries
• Swain Case (1991) – automatic detainment violates sections 7 and 9 of Charter, invalidating CCC sections
• People with short-term mental disorders, if being in these facilities, would essentially violate liberty and rights
• New CCC provisions set out

Dealing with NCRs

• Review boards implemented to determine sentence and sentence length by a judge, psychiatrists, and social workers
• Dispositions available feature absolute discharge, conditions discharge, and an order to hold accused in psychiatric facilities
• Must consider public safety, needs of the accused, and re-integration potential

Advantages

• There are flexible options for only those dangerous subject to limitations of their liberties
• Provides access to appeal courts to challenge any restrictions placed on them by the board (decision)

MD as Partial Defence

• Cases where the condition of the accused at time of offence does not meet criteria for NCRMD
• A sufficient condition to warrant a reduction in charges, an MD prevents him/her from forming the specific intent for murder or robbery (for example, from murder 1 to manslaughter)

MD and Premeditation/Deliberation

• As per section 231 (2) of CCC, an MD prevented accused from acting in a premeditated/deliberate manner, and the first degree murder drops down to 2nd degree murder
• An MD may/may not negate elements of planning and deliberation, and “deliberate" is not commensurate with rationality

Key Points

• NCRMD v Fitness to stand trial
• M'Naghten Rules
• Modern Form of NCRMD
• Presumption of Sanity
• Know appreciate, quality of act, that wrong
• Impulse defence
• Burden of proof
• Review Boards

Automatism

• This entails a “state of impaired consciousness in which an individual, though capable of action, has no voluntary control over that action"
• may be a misnomer. Instead, it constitutes a ‘subset' of the voluntariness requirement which ties the actus reus component of criminal liability
• Cannot be mistaken for a state of absolute unconsciousness because of minds that prevent one from acting voluntarily

Distinction

• Amnesia is a loss of memory
• Automatism concerns itself with the question of whether accused persons acted voluntarily at the time of alleged offence
• Lack of recollection does not necessarily mean they acted voluntarily
• People cannot be absolved of criminal liability simply because they cannot remember what they did whilst voluntarily intoxicated

Categories of Automatism

• Caused by normal conditions such as sleepwalking/hypnosis (courts do not consider these mental conditions)
• Prompted by external trauma (being punched in the head)
• Involuntary induced by alcohol or drugs
• Voluntary induced by alcohol or drugs
• Resulting from disease of the mind

R. v. Parks

• Entitled to a complete acquittal
• Parks falls asleep, drives 23 kms to home of his inlaws, beats and stabs both, resulting in the death of his MIL while he recuperated from his injuries History – good relationship with in-laws, other family members suffer with extreme sleep disorders

Parks acquittal: upheld on appeal based on the fact that the brain operates on reflex but Parks did not voluntarily act Bleta (1965) (External-Trauma)

Accused acts in state of impaired consciousness and unable to recall events following trauma to their head

• Forming state of amnesia
• Bleta and Gafi in a street fight Cleta fell and injured hitting his head on the pavement and then followed Gafi and stabbed him
• Witnesses testified that Bleta was dazed
  • Legitimacy of automatism solidified as results this case

Related Concepts

• NCRMD and Automatism
• State of mind at the time of trial. The question posed is "Do you have the capacity to understand what the process is?”

Plea bargains & their validity must have the capacity to understand with the ability to communicate with counsel

Delusions do not constitute a pass with accused standing trial after a period of treatment NCRMD state of mind of the accused at time of offense

• Rationales that accused persons suffering from MD should not be subject to standard criminal culpability and Strict criteria meet by few people Does not equate to "not guilty," you will still be detained A defendant in a mental health facility has to deal with issues of detainment: Could exacerbate their symptoms being detained
• Criminalisation leads stigma and lost opportunities
• How is this a constitutional issue? Life liberty (s. 7) mental health facilities are WORSE than penitentiary systems

M'Naghten Rules

• In English case of M’Naghten (1843)
• Focus exclusively on cognitive factors (i.e. ability to reason) to the exclusion of emotional and volitional factor
• Criticised for not considering accused might know right from wrong, but is incapable of controlling conduct
  • E.g. delusions of persecution cause to loose control, like you say God told you to

Modern Form of NCRMD Defence:

• Modern provision of s.16 (1) of CCC mirrors the M’Naghten rules
• There are key differences in language, however like the term 'insanity'

  Section 16 (1) Criminal Code:

• No person is criminally responsible for an act commuted when suffering mental disorder that rendered the person in capable of appreciating the nature/quality of act, knowing that it was wrong
• Presumptions: Evry person presumed to not suffer from a mental disorder, (2) the party needs to prove to the courts that the accused was suffering from MD
• The burden of proof rests with defense

Terminology

• `Disease of the mind' replaced in 1991 for 'mental disorder' replaces for stigma
  • It Must be Severe enough for psychotic symptoms

Understanding

• Accused must be awarre the are of act ( eg know choking and not doing it

• Parliament has to amend terms "awarness ,quality"

• Is the term wrong not just legal wrong ,

• One Cannot claim Irresistible Impuse in their NCRMD - The 2 must exist

• Issues with procedual law.

Power of the Crown

• Crown can still prosecute the accused even if there is know wickness and and insanity
• The courts deem it fair for Crown to prove the accusations and and give grounds ( due to equal fair rights

Facts:

• All are accused as result of suffering trauma/ head

• Bleta and gafi are having a fight in the street

• Accused Acts in state of impaired consciousness and unable to recall events following trauma
  • Drug test , or not knowing ( Involuntary in duced if not known

Facts:

• Went to dentist, was not made to know the conciouss
• obvious and gulty due to no effect- Not enough to test

(1990) :

• When voluntairly induced is accused of auto ( is not guilty ) a charge to kill but down to man slaugter ( constitution

Harnish facts(991)

• "Harnish went to a motel room, consumed a large quantity of anti-depressants and sleeping pills with alcohol • His intention was to commit suicide Instead driving and the three charges are for it

1990 Penno

• Contened and it violets charter right 1991 , made that the druging driving and sociteys

Automism : Mental Disoder /Defination

• The right or not not " the right mind to see condition

Key

• internal ( disease mind if ( internal (diese - it gets "mental disorder

External :

• if extenal by heald and a non ment the theory that cant change

• ( Theory is that not to be acused

• efforts to automizum as disorder if it has the open mind

• Courts cant do for all case , to secure ( balance the accused and innocent and the trial assess all accused not same

• All has to come to one accused by automatism and triggers the same with all persons

Case : R stone stone facts

• Brutally assaults woman he inforiatted with • Claims he entered into state of automaton after reading a letter in which she wrote that he was nothing expressing

• Courg hold that it not constute in autom

• The courts want the persnal ( but the court deicdes how the automtion

• Auto defend applies is not an " extrreme triguer

Baley ( (1983 facts)

• Is whetehr voluntairly caused for auqutal Appeciate to cause if if the accused and test