THE CRIMINAL EQUATION:

actus reus + mens rea = CRIME

Proof of Offences
A person charged with a criminal offence is presumed innocent until that person pleads guilty or
is proven guilty in court. The Crown Prosecutor must prove that the accused person is guilty. That
person does not have to show that he or she is innocent.

How much proof is required?

At any criminal trial the Crown Prosecutor must prove beyond a reasonable doubt that the
accused person committed a criminal offence. The judge, or the members of the jury if there is
one, cannot find the person guilty if they have a reasonable doubt about the accused person's
guilt. They have a reasonable doubt if, after considering all the evidence, they are unsure whether
the accused person committed the offence. To convict, the judge or the jury must believe that the
only sensible explanation, considering all the evidence, is that the accused person committed the
crime.

What kind of proof is required?

To be found guilty of a crime, a person must have done something that is against the law while
having what is called a "guilty state of mind". The prosecution tries to prove that the person
intended criminal behaviour or that the person had a state of mind that was criminal. The
person's state of mind is not a question of motive. It is merely a question whether he or she
intended the act. At any criminal trial the prosecution must prove these two things: (1) the
criminal behaviour and (2) the accused person's state of mind.

The criminal behaviour

The criminal behaviour must fit precisely within the definition of
criminal behaviour set out in the law. Often the criminal behaviour is Actus Reus
an act, something the accused person did. Sometimes the criminal Latin for
behaviour is not doing something that the law requires in certain the guilty act
circumstances. This is called "an omission". For example, it is an This simply means the
offence to fail to provide food for your dependent children. Failing to physical act of
assist a police officer who needs and asks for help is also an offence. committing a crime

The criminal law sets out exactly what amounts to a crime, both the
person's behaviour and the circumstances under which it must take place. For example, section
175(1)(a) of the Criminal Code creates the offence of causing a disturbance:

175.(1) Everyone who

(a) not being in a dwelling-house, causes a disturbance in or near a public place,
(I) by fighting, screaming, shouting, swearing, singing or using insulting or obscene
language,
(ii) by being drunk, or
(iii) by impeding or molesting other persons ...
is guilty of an offence punishable on summary conviction.

A person can cause a disturbance in one of three ways: by fighting or by some other behaviour
listed in (I), by being drunk, or by bothering people. The Crown Prosecutor must show that (1)
the accused person acted in one of those ways; (2) the accused person was not in a
dwelling-house; (3) that the disturbance was caused in or near a public place; and (4) the
accused person's activity caused a disturbance. If the Crown Prosecutor cannot prove any one of
the above, there is no offence.
The criminal behaviour must be voluntary
If a person fell into a coma and did not provide food for his or her children, he or she could not be
found guilty of failure to provide necessaries of life. Movements that are beyond a person's control
are not voluntary. For example, a person who does a criminal act while sleepwalking may not be
guilty because the harmful actions were not done voluntarily.

The accused person's state of mind

The Crown Prosecutor must prove that the accused person intended to
do the act. Here we look at the person's state of mind when he or she
Mens Rea
committed the act or omission that is the subject of the offence. Latin for
the guilty mind
Different criminal offences require different states of mind. Most In the Criminal Code you
offences require one of intention, recklessness or negligence. By way will find the words, "with
of comparison, most provincial offences do not require proof of a knowledge", "with intent"
"guilty mind". These are called "absolute liability" offences. An and "knowing" all of
example is speeding. In a speeding offence, what the driver was which are often used to
thinking or whether he or she intended to drive over the speed limit is mean Mens Rea
not relevant. For other provincial offences, called "strict liability"
offences, the accused person may be acquitted if he or she showed
diligent efforts to avoid breaking the law. Since most criminal offences require intention,
recklessness or negligence, we will discuss these states of mind more fully.

Intention is when the accused person meant to do what he or she did. For example, let's look at
shoplifting. Shoplifting is theft. A person who knowingly takes something from a store without
paying for it commits theft. A preoccupied shopper who forgets to pay for something is not guilty
of shoplifting.

We will sometimes be responsible for the unintended results of our actions. Recklessness is
when a person realizes there is a certain risk involved, but commits the act anyway, regardless of
the risk. For example, the charge of murder can result from either intention or recklessness. One
part of the definition of murder says a person is guilty of murder if he or she intends to cause
another person's death. Another part says a person is guilty of murder if he or she injures
someone, knowing that the injuries are likely to cause death and is reckless whether the victim
dies or not.

Negligence is failing to act the way a responsible person acts or would act in the same
circumstances. A person who is negligent does not look ahead to the consequences as we expect
everyone to do. Where the definition of a crime includes negligence, a person can be guilty of
criminal behaviour without actually thinking about the result. Criminal negligence is not the same
as negligence in a civil case. Usually criminal negligence involves behaviour that is extremely
careless.

A common example of criminal negligence occurs in driving cases. A person can be found guilty of
criminal negligence if another person is injured or killed in a car accident as a result of the
accused person's criminally negligent driving. For example, a driver may be found criminally
negligent if his actions are far below the standard of a cautious and careful driver and if these
actions caused the accident. The driver may be guilty even if he did not realize his behaviour
could cause an accident.

How does the Crown Prosecutor prove what the accused person was thinking at the time of the
crime? It can be difficult. Only the accused person knows what he or she was thinking. The Crown
Prosecutor must rely on proof that a criminal act occurred and proof of statements or actions that
show what the person was thinking. For example, in a murder case, proof that the accused person
threatened to "get" the person who was killed may be accepted as evidence.

Classification of Criminal Code Offences

The Criminal Code classifies a criminal offence as one of three types of offences. These are: summary
conviction offences, indictable offences and dual or hybrid offences.

Summary conviction offences

Summary means in a quick and simple manner. Summary conviction procedure means the person
can get to court relatively quickly. A judge hears summary conviction cases in Provincial Court. There
is no choice of court nor is there a right to a jury trial. Generally, the maximum punishment is a fine
of up to $5,000, a jail term of up to six months, or both. The offence of sexual assault carries a
maximum jail sentence of 18 months.

Summary conviction offences are usually less serious offences. Some examples of summary
conviction offences are creating a disturbance, joyriding and committing an indecent act in public.
Summary conviction offences are often narrowly defined offences. For example, carrying a weapon
while attending or on the way to a public meeting is a summary conviction offence. Another example
is failure to keep watch while towing a person on water skis. Some summary conviction offences are
rare, for example, fraudulently practising witchcraft.

The trial procedure for summary conviction offences also differs in some ways from the procedure
for indictable offences. A person charged with a summary conviction offence does not have to appear
in court personally. A lawyer or an agent may appear in court on that person's behalf, unless the
judge asks the person charged to appear in person. An agent may be a friend or relative or a person
hired to appear in court.

There is a six-month limitation period for summary conviction offences. A person cannot be charged
more than six months after the facts occurred.

Very few offences in the Criminal Code are only summary conviction offences, though there are many
dual or hybrid offences that end up being prosecuted as summary conviction offences. Dual offences
are discussed below.

Indictable offences
Indictable offences are more serious crimes than summary conviction offences. There is more than
one procedure for indictable offences. The procedure that applies depends on the seriousness of the
offence. Some indictable offences must be tried by a judge in Provincial Court. No jury trial is
available for these offences. A number of very serious indictable offences, such as murder, must be
tried by a judge and jury unless both the Attorney General and the accused person agree to a trial
without a jury. For all other indictable offences, the Criminal Code gives the accused person a choice,
called an election.

A person charged with an indictable offence must show up personally in court. He or she may
represent himself or herself or may be represented by a lawyer. There is no limitation period for
indictable offences. This means that the police can charge a person years after the offence occurred.

Dual or Hybrid offences

Dual or hybrid offences can be prosecuted as summary conviction offences or as indictable offences.
The Crown Prosecutor makes this choice. The court the accused person appears in and the range of
penalties depend on whether the Crown Prosecutor prosecutes the offence as a summary conviction
or an indictable offence. Usually the Crown Prosecutor prosecutes less serious dual offences as
summary conviction offences. The Crown Prosecutor may choose to prosecute a dual offence as an
indictable offence if the accused person has a criminal record or where there are circumstances
making the crime more serious.
The Criminal Code includes many dual offences: assault, theft under $5,000 and impaired driving are
common dual offences. The police charge the accused person with an offence, like theft or impaired
driving. The dual offence is treated as an indictable offence until the Crown Prosecutor gets the case.
Then the Crown Prosecutor makes the choice to proceed by summary conviction or indictable
procedure.

Defences to a Charge
Every person, even someone arrested in very suspicious circumstances, is entitled to present a
defence at trial. A defence may be defined broadly as any denial or answer to the charge against
the accused person. This definition includes defences that cancel part of the prosecution's case,
such as the first defence listed below, "no criminal state of mind".

Occasionally the defence lawyer thinks the Crown Prosecutor's case is so weak that the defence
lawyer chooses not to present any evidence. The defence lawyer can still argue that the Crown
Prosecutor has not proven the facts or the required criminal state of mind, even when the defence
calls no evidence. To convict, the Crown Prosecutor must prove the facts and the required state of
mind in every case.

In a more narrow sense, a defence is a legally recognized excuse or justification for criminal
conduct. To raise such a defence, the accused person must be able to point to evidence that
supports the defence. For example, in an assault case, the Crown Prosecutor may have proved
that the accused person hit someone and that the accused person intended to hit that person.
Unless he or she raises a defence, the accused person will be convicted. The defence may present
evidence that the accused person was defending himself or herself. The defence of "self-defence"
may then justify what would otherwise have been criminal conduct.

A defence lawyer may use one or more of the following defences at a trial. The lawyer presents
evidence such as witnesses, physical evidence or the testimony of the accused to prove a
defence.

No criminal state of mind

Where the accused person did not have a guilty mind when committing the crime, he or she may
be found not guilty. For example, suppose that a person accidentally backed their car over a
neighbour's lawn ornament. As a result, the ornament was destroyed. The driver may be liable in
civil court for causing damage to the ornament. However, because it was an accident, there likely
was no guilty mind, so the driver should not be convicted of a criminal offence.

However, suppose that the driver drove over the lawn ornament on purpose, thinking that it was
too ugly to exist. In that case, he or she may be guilty of the crime of mischief. The crime of
mischief includes wilfully destroying another person's property.

Behaviour not voluntary

The accused person must have acted consciously. The criminal behaviour - what the person did -
must be voluntary. A person who does something while sleepwalking, for example, may not be
acting consciously. Similarly, a person's actions, brought on by an epileptic seizure or by a blow to
the head, are not truly voluntary. Crimes committed in an unconscious state are rare, but if the
actions were not voluntary the accused person will be acquitted. This is called the defence of
"automatism" because the person moves about automatically, without consciously controlling his
or her actions.

Alibi
An alibi is when an accused person claims that he or she was not present at the time of the
offence. Independent evidence supporting this claim strengthens an alibi defence.
Self-defence
A person who is attacked may use force to resist the attack. The person may use only the amount
of force necessary to defend against the attack. This is called "reasonable force". A person
charged with assault, murder or manslaughter may use this defence.

Defence of property
Defence of property is similar to self-defence. A person may use reasonable force to prevent
someone from entering his or her home or property. The person defending his or her property
may not use excessive force. This defence cannot justify shooting, stabbing or setting traps that
would injure a trespasser.

Duress
A person who commits an offence because he or she was threatened may claim the defence of
duress. The threat must be of immediate death or serious injury. It must have forced the person
to commit the offence. Duress is not a defence to violent crimes such as sexual assault,
aggravated assault or murder.

An innocent bystander, forced at gunpoint to drive the getaway car after a bank robbery, might
use this defence.

Provocation
Provocation is something that causes another person to lose their self-control. It can be an act or
an insult. Provocation can reduce a charge of murder to manslaughter. This is the only time a
person may use provocation as a defence. An accused person who acts on provocation before
"cooling off" may be acquitted of murder and convicted of manslaughter. If too much time passes
between the provocation and the offence, the defence of provocation may not be available. Even
so, evidence of provocation can lessen the punishment the accused person receives for the
offence if the person is convicted.

Mistake of fact
A person whose behaviour would otherwise be criminal may have a defence if he or she made a
mistake about the facts. Someone who leaves a bicycle in a bike stand, returns and rides off on
another bicycle the same colour and make could use this defence. The rider was mistaken about
which bike belonged to him or her, not about whether it was illegal to take someone else's bike.
The person must be mistaken about the facts, not the law. The mistaken belief must be an honest
one.

Mistake of fact, where it occurs, cancels any "criminal state of mind". It is related to the first type
of defence discussed earlier.

Mistake of law
Ignorance of the law is no excuse. Not knowing that something is a criminal offence does not
mean it is all right to commit the offence. But when an accused person can show that a
government official misled him or her about the law, an exception called "officially induced error"
applies. This is an example where mistake of law can provide a defence.

Mental disorders
An accused person who suffered from a mental disorder at the time he or she committed the
offence may not be criminally responsible. The person must not have understood the nature and
quality of what he or she did or that it was wrong. This defence was formerly called the defence of
insanity.

The judge may order an assessment of the accused person's mental condition. The assessment
may be done to see whether the accused person is unfit to stand trial, to see whether the accused
person was suffering from a mental disorder at the time of the offence, or for several other
reasons. A psychiatrist or other medical practitioner assesses the person and reports back to the
judge, the defence lawyer and the Crown Prosecutor.
If an accused person is found not criminally responsible, the judge has a choice. He or she may
make an order concerning the person or may choose instead to refer the case to a review board.
If the judge makes an order, there are three choices available: an absolute discharge, a
conditional discharge or a term in a psychiatric hospital. The judge may grant an absolute
discharge if the mentally ill person is not a threat to the public. Where the judge orders that the
person be kept in a psychiatric hospital, the judge's order lasts for a maximum of 90 days. After
that, the review board reviews the person's case.

If the judge does not make an order and refers the case to the review board, the board holds a
hearing and decides. The board has the same choices of absolute discharge, conditional discharge
or a term in a psychiatric hospital.

Necessity
A person who does an illegal act to prevent a more serious result may raise the defence of
necessity. There are several conditions. The accused must show that the act was done to avoid a
greater evil; that there was no alternative; and that the illegal act was not more than necessary
to avoid the evil.

Intoxication
Ordinarily intoxication by alcohol or drugs is no excuse. For example, in criminal law, a person
who gets drunk and does a criminal act is usually still responsible for his or her actions when
drunk. Intoxication may be a defence for a narrow range of offences, such as murder or theft.
These offences require the accused person to form a specific intent. A specific intent means the
accused thinks about and intends a particular result, such as the intent to kill in murder cases. A
person may be so intoxicated that she was unable to form this intent to kill. In this example, the
accused person may not be convicted of murder but could be convicted of manslaughter.

Long term drunkenness or abuse of drugs may cause a person's health to deteriorate so that a
mental disorder results. In that case, the accused person may not be criminally responsible for his
or her actions and could use a defence of mental disorder.

Special pleas
A person who has been tried for an offence cannot be tried again for a similar offence arising out
of the same facts. That person may plead a special plea that he or she has already been
acquitted, convicted or discharged. The Canadian Charter of Rights and Freedoms also gives this
right.

Entrapment and Abuse of Process

The police may carry out undercover activities to detect crime. In doing so, legally they may
present a person with the opportunity to commit a crime, but they may not harass, bribe or
otherwise induce the person to break the law. Police conduct that induces criminal behaviour is
called entrapment. The accused person must prove entrapment.

Entrapment is an abuse of process. It is so unfair and shocking to our stay >noun 1 a suspension or
sense of justice that it would be an abuse to force the accused person to postponement of judicial
stand trial in these circumstances. After accepting that there was an proceedings: a stay of execution.
abuse of process, the judge "stays" or stops the trial. -ORIGIN Latin stare 'to stand'.