ecdp1028 - IIM - Criminal Code Offences

FUNCTIONAL COMPETENCY

Acquiring and Analyzing Information - Knowledge: Specialized Law, Policy and Procedure [Criminal Code]

TABLE OF CONTENTS

For any Criminal Code offence provided, identify all the elements that must be proved for a conviction against that offence.

Every charge laid under any statute must be based on the elements which comprise that offence. Taken together these elements constitute the crime or offence. In order to convict the accused, you are required to prove each element of the case to the satisfaction of the justice, judge or jury.

The purpose of this module is to help you understand these "elements" and how to determine what they are. Your success as an investigator depends on your ability to gather information that will prove or disprove each element and subsequently lead to a fair and appropriate conclusion to a trial.

Once you understand this concept and master the skill of identifying the elements of a charge, you will be able to conduct more thorough investigations to prove these elements.

Elements of an offence can be divided into two categories. The first is the constant elements which must be proved in every case. The second category could be considered variable elements which change from one situation to another; from one charge to another. The following formula will help put this idea into perspective.

(1)

ACTUS REUS

PROVE PHYSICAL
ACT

(2)

MENS REA

PROVE GUILTY
KNOWLEDGE

As you can see from the formula the elements of Actus Reus and Mens Rea are constants and must be proved in each case. Let's look at each separately to see how they contribute to the commission of an offence.

This simply means the physical act of committing a crime. It is tantamount to proving that the offence actually occurred.

Example: If someone complains of having been assaulted, your first element to prove is that the assault actually took place. If someone saw the assault taking place, that would be proof that it happened. If you were able to examine the assaulted person and saw bruises, scars or other injuries, that would also contribute to proving the assault.

Notwithstanding the charge, there has to be proof that the crime actually occurred and this is known as Actus Reus.

As an investigator you don't need to prove all of these but they must be considered as part of the "real act".

To summarize then, your first task as an investigator is to prove the offence actually occurred which is referred to as the Actus Reus of the offence.

The second constant element that must be proved in all charges is Mens Rea, which literally translated means guilty mind.

In the Criminal Code you will find the words, "with knowledge", "with intent" and "knowing" all of which are frequently used to mean Mens Rea. Let's use a few examples from the Criminal Code to make the point. Read Section 264.1(1).

The key phrase in this offence is "knowingly, utters, conveys or causes any person to receive a threat". Mens Rea is inferred in this offence, in that the threat was uttered or conveyed knowing that it would be a threat.

Another example is Section 265(1)(a). Read that section, identify the reference to Mens Rea in it and write that reference below.

In this case the offence of assault is committed when, without the consent of another person, someone applies force intentionally to that other person, directly or indirectly. Mens Rea is indicated with the word intentionally.

Our third example would be the case of theft as described in Section 322(1). Read that section and write the reference to Mens Rea below.

You should have identified "with intent" as the reference to Mens Rea in this case. The offence consists of taking or converting to one's own use, property of someone else with intent. Section 322(1)(a to d) then define four conditions that represents intent with respect to theft.

The point is, in every offence you must prove the accused knew that the act being carried out was wrong, (guilty mind) and that the offence was committed notwithstanding.

Section 429(1) provides a reasonable description of Mens Rea relative to property rights. Read that section and paraphrase its intent in your own words.

Note: There are two conditions here. The first is knowledge that the act will probably cause the eventual consequence. The second concerns recklessness or acting without due regard to the potential consequences of the act. Both these conditions form a part of Mens Rea.

Courts have also ruled that ignorance of a consequence, or statements from the accused that they really didn't intend a particular outcome, are not sufficient defenses. Courts use the "common sense" standard of a "reasonable" person, which infers that people must be assumed to have intended the natural and probable consequences of their actions.

If a reasonable person would conclude the outcome of an occurrence, or an ordinary person should reasonably know the outcome of an act, that is sufficient to prove Mens Rea in most cases.

Canadian courts have also expanded the definition of Mens Rea to include such things as recklessness, carelessness and willful blindness. These concepts will be elaborated further as you progress through your program, but for the moment it is sufficient to understand that they exist and can be used to prove Mens Rea.

Let's take a moment now and review the two common or constant elements of an offence; Actus Reus and Mens Rea.

Actus Reus consists of three elements which are the event itself, the environment or circumstances surrounding the event and the consequences of the conduct.

Mens Rea is guilty knowledge of the act; that the occurrence or event was wrong. It includes carelessness or recklessness in considering the possible outcomes and willful blindness, i.e., refusing to see what really happened.

That brings us to the third part of our formula, the variable elements of an offence that have to be proved.

Turn to Section 177 of your Criminal Code which is trespassing at night. Read the section and in the space below, list those items you think would have to be proved for a conviction of this offence.

These other elements are the essential parts or pieces of the offence which, when combined create the offence. These elements are found in the Criminal Code, usually contained in the section describing the offence.

Here's another example. Turn to Section 140(1) of the Criminal Code which deals with Public Mischief. Identify the elements of that offence and list them below.

Our final example is Section 175(1) - causing a disturbance. Read Sub-section (1)(a) and identify below the elements of that offence.

Section 175(1)(b),(c) and (d) describe other types of disturbances, each with their own elements to prove.

Let's return now to this phrase which was used in our example of trespassing, and clarify what is meant by a "Fact in Issue". A fact in issue is a principal fact of the case that the accused might use as a defense. Facts in issue usually stem directly from the elements of the offence.

For example, in our trespassing case, the accused could argue that he had a lawful excuse to be there. That now becomes a fact in issue that must be proved by the crown.

Another fact in issue in this case could be that the accused was not aware of being on someone else's property and therefore did not have Mens Rea. It would be up to you to develop evidence to prove otherwise.

The accused might also claim that the property is accessible to the public, which means that the status of the property is now a fact in issue.

It is possible to have a number of facts in issue at the same trial, so you must consider these as part of your investigative responsibilities.

In essence then, the elements of the offence constitute the offence itself. Facts in issue would normally flow from those elements and must be proved by presenting evidence in the case.

Now for some practice. Use the items on the next page to practice identifying the elements for the offenses listed. This will help assess your understanding of the concept. The correct answers are provided for your own verification.

Read the following sections of your Criminal Code and identify the critical elements in each section.

If your answers were consistent with those provided, you are now ready to complete the Criterion Test for this module. If you had any difficulty, review the pertinent part of the module, or discuss the issue with a colleague or your supervisor. If you require a bit more practice to consolidate your skill in the area, select any Section in Parts III, V, VIII or IX to practice on.

When you feel confident you can readily identify the elements of an offence, review the following SUMMARY, then complete the Criterion Test for this module.

For each of the offences listed below, identify all the elements that must be proved to obtain a conviction against an accused charged with that offence.

CRIMINAL CODE OFFENCES