Criminal Law: Defences, Mens Rea, and Case Analysis
NCRMD: Defence of Mental Disorder
The defence of mental disorder (NCRMD) applies to an accused who commits criminal acts but cannot be found criminally responsible because their mental processes were impaired. This means they are incapable of appreciating the nature and quality of a criminal act or omission, or of knowing that it is legally and morally wrong.
That said, the mere presence of a mental disorder does not determine the defence applicable. In establishing if the accused is not criminally responsible, the court must determine whether the accused suffered a disease of the mind, which is outlined in precedent of R. v. Stone. In this case, it was determined that there needs to be a holistic approach in considering the factors that makes one not criminally responsible. These considerations include whether mental disorder is caused internally or externally for it must be internal in order to be a disease of the mind, and also, if the offender is a continuing danger to the public.
After establishing that the convicted is not criminally responsible, they will be acquitted and in Ontario, they would then be transferred to the authority of the Ontario Review Board which will decide further treatment. The panel will decide if the accused is a significant threat to the safety of the public, and if not, they will be discharged with no conditions but if they are, they are entitled to a non-restrictive and non-troublesome disposition. Additionally, the acquitted will be entitled to yearly reviews afterwards.
Mens Rea: Subjective vs. Objective
The key difference between the two types of mens rea is that the subjective kind focuses on the intent and knowledge specific to the offender in a case, whereas objective mens rea raises attention to what the reasonable person in that situation would do.
For subjective mens rea, the question asked is: what was in the accused’s mind? In this case, the accused must have known and intended the likely consequences of their actions and must have acted upon this purpose. This type of mens rea is required for serious offences that lead to significant penalties, such as murder.
The first category and highest level of subjective mens rea is intent, purpose, and wilfulness, which provides that the individual(s) act with the purpose of achieving the prohibited result, that they acted with the intent to achieve that result, and that they wilfully pursued the result. The second category is knowledge, which requires that there is awareness of the probability of the prohibited act.
Similarly, the third category, recklessness, requires that the accused be aware of the possibility of the prohibited act or the risk.
On the other hand, objective mens rea is the other form of a criminal act in which is constitutionally sufficient for less serious crimes, such as dangerous driving. It is defined by inferencing what a reasonable person would do in the same circumstance as the accused. Specifically, it examines what the accused ought to have known or foreseen as the possible consequences.
Constitutional Law: A Four-Step Analysis
The first step is to determine whether the law falls under the jurisdiction of the federal government or the provincial government. This is because the Constitution Act, 1867 gives certain powers to each level of government, and it is important to determine whether the law in question falls within the scope of these powers.
The second step is to assess whether the law violates any of the rights and freedoms protected by the Charter of Rights and Freedoms. This includes assessing whether the law infringes on the right to life, liberty, and security of the person, or any of the other fundamental rights protected by the Charter.
If the law is found to infringe on any of these rights, the court will move on to the third step, which is to determine whether the infringement can be justified under Section 1 of the Charter. This section allows for certain limitations on Charter rights if they can be justified as a reasonable limit in a free and democratic society.
The fourth and final step is to determine whether the law can be saved through a process of severance. This means that the court will determine whether the unconstitutional aspects of the law can be removed while leaving the rest of the law intact.
Intoxication and Mens Rea
If the accused only needs to have intended the prohibited act, evidence of intoxication is generally not enough to negate mens rea. However, in cases of extreme intoxication, where the accused was so intoxicated that they lacked the ability to form any intention at all, it may be possible to argue that they lacked the mens rea required for the offense. This is known as automatism, and it is a complete defense to a criminal charge.
The law on intoxication and mens rea varies across Canada. In Ontario, the Criminal Code was amended in 2018 to include a provision that allows for evidence of self-induced intoxication to be taken into account for certain offenses, such as sexual assault, where the accused’s intent is a key element of the offense. This means that evidence of extreme intoxication may be used to negate mens rea in these cases.
In other provinces, such as British Columbia and Alberta, the law on intoxication and mens rea is still evolving. Courts in these provinces have taken different approaches to the issue, with some allowing evidence of intoxication to be taken into account in certain circumstances, and others rejecting it outright.
In summary, evidence of intoxication can sometimes be used to negate mens rea in criminal cases, but it depends on the degree of intoxication and the type of offense involved. In Ontario, recent amendments to the Criminal Code have made it possible to consider evidence of self-induced intoxication in certain cases, but the law on this issue is still developing in other parts of Canada.
Excuse vs. Justification in Criminal Law
In criminal law, what is the difference between an excuse and a justification?
Give one example of a defence that is an excuse and one example of a defence that amounts to a justification, and explain the circumstances in which each of those two examples could apply.
An excuse is an action that constitutes as a crime but is not morally voluntary. In other words, the act is still wrongful but shouldn’t be punished given the circumstances. An example of an excuse is the defense of duress, which is applied when external circumstances result in an otherwise criminal act being involuntary. It is only available in situations where the accused is threatened for the purpose of compelling the commission (Criminal Code s. 17). This provision outlines that a person does not hold full responsibility for a crime if they believe that they will be harmed or killed if they do not do it, under compulsion from a person who is present when the offence is committed. This excuse is relevant in a case where an individual kills or harms someone because they were threatened by a third party that they would kill them if they did not, and the offender honestly believed this threat would be carried out.
Separately, a justification is an action that constitutes a crime is not morally wrongful. In this situation, the victim is the originator of danger and caused their own misfortune. An example includes defense of person, which is codified under s. 34 of the Criminal Code. This can be used in a situation where the accused uses force as self defense when they believe on reasonable grounds that force is being used against them or another, meaning they commit a crime for the purpose of protecting themselves or another person.
Common Law in Canada
Section 9 of the Criminal Code states that no one shall be convicted of an offence “at common law” except contempt of court, which has been constitutional since 1953. This is because judges cannot create criminal offences in Canada, and common law is law made by judges in deciding the cases that come before them. Since the constitution limits the power of the judicial system while ensuring just procedures, their role is limited when it comes to law making.
That said, someone can be convicted of contempt of court because the offence takes place in the court room and therefore the judges can implement this because the individual has disobeyed the court’s authority. With this in mind, common law is unfair to the people because crimes should not be identified retroactively. This is why Canadian law is codified, because it reflects a defined law for people should be able to know in advance whether certain behaviors are illegal.
In turn, the judge’s responsibility is interpreting existing offences and non-codified offences. They decide whether a potential law is within the Parliaments authority, and whether laws comply with the Charter. Additionally, they have the authority to strike down a law if it is deemed unconstitutional because of reasoning of ultra vires or a breach of the Charter. Therefore, despite the fact that they have little authority when it comes to authentic law creation, judges still hold one of the most significant roles in in the application of law.
Case Analysis: Ryder and First-Degree Murder
Assume that you are the Crown Attorney prosecuting the case. What do you have to prove in order to establish that Ryder is guilty of first-degree murder? What evidence and arguments would you rely on to prove your case? What do you anticipate defence counsel would argue, and how would you address those arguments? Explain each of your answers thoroughly. You must clearly refer to the case law and relevant Criminal Code provisions to support your argument.
As the Crown Attorney to this case, I have carefully analysed every facet of information and I establish Ryder guilty of first-degree murder. Ryder had made plans with his significant other, Jasmine, to rob from a drug dealer. After much deliberation, the two decided to bring duct tape to tie the drug dealer, Nico, up and not bring any form of weapon. Ryder had gotten a friend to drive them to the victim’s house and once there, Ryder said “This is a robbery, don’t do anything stupid or you’ll get hurt!”. Nico punched him and started a grapple between the two of them. This led to Jasmine hitting him in the top of head with a baseball bat, which she found outside, and leaving him unconscious. Nico was noticeably bleeding from the head and was lying on the ground making moaning noises when Ryder demanded that he tell them where the money is. After not answering, Ryder hit him in the side of the face with a fireplace poker and they then left, leaving Nico’s body.
With this information, I will provide the required actus reus and mens rea that Ryder exemplified in committing the crime to prove him guilty of first-degree murder. Ultimately, Ryder is responsible for the death of Nico because he had hit him in the side of the face with the fireplace poker. As outlined in the provision for assault, a person commits the offence when he applies force intentionally to the other person without their consent (Criminal Code s. 265 (1) (a)). This offence is exemplified by Ryder when he asked Jasmine to hand him the fireplace poker, then forcefully swings it, hitting Nico in the side of the face. This actus reus is represented by him physically swinging the pole and hitting the victim, clearly without consent, and additionally the mens rea is clear when he asks Jasmine for her to pass him the object for he intended to hit Nico with it. This then led to the death of Nico, and subsequently deems Ryder guilty of culpable homicide because he caused the death of a human being by means of an unlawful act (Criminal Code s. 222 (5)(a)).
The question lies whether or not Ryder obtained the required elements to consider the homicide a first-degree murder. As outlined in the provision, culpable homicide becomes murder when a person for an unlawful purpose, does anything that he knows or ought to know is likely to cause death and does cause it, despite the fact that the person desires to affect his object without causing death (Criminal Code s. 229 (c)). Therefore, there needs to be subjective foresight of death. This coincides with four elements that must be present in performing the unlawful object, including to intentionally commit a dangerous act, to achieve an unlawful object, that he or she know or ought to know is likely to cause death, and that actually causes death (Criminal Code s. 229 (c)). This is made apparent in precedent of R v Shand, which concluded with a charge of murder for in the case of an armed robbery, the accused pointed the gun at someone, and it accidentally discharged, causing death (R v Shand). Since the accused met the elements required to deem a homicide murder under s. 229 (c) of the Criminal Code, it instituted the framework necessary in finding a suspect guilty of the greater charge.
When looking at the case at hand pertaining to Ryder’s role in the crime, it is evident that he has committed first-degree murder under s. 229. He meets all the required elements: he intentionally committed the dangerous act of assault, he did this in order to achieve the unlawful object of attempted robbery, in hitting Nico with the pole he knew it or ought to know that would have caused death, and he did cause the demise of Nico. Ryder knew or ought to know that hitting Nico with the fireplace poker would kill him, especially in considering that Ryder was aware that Nico had been hit with a baseball bat twice prior to his actions. He therefore had the subjective foreseeability because Nico was making noises and was bleeding from his head before he had hit him with the poker.
The defense counsel for Ryders case brought up that the final autopsy on Nico’s body conducted by the pathologist, concluded that although the immediate cause of death was asphyxiation from being hit by Ryder, the brain damage caused by the blows from the baseball bat were also fatal. They found that the noises that both Ryder and Jasmine heard Nico making were symptomatic of an unconscious person dying from brain damage. It was concluded that Nico would have died from the blows with the baseball bat even if Ryder had not hit him, and the injuries caused by Ryder’s actions would not be fatal on their own. Therefore, the defence is it was Jasmine’s actions that inevitably killed Nico, not Ryder’s.
In addressing this argument, I brought up chain of causation, and s. 226 of the Criminal Code. In analysing this provision, it is stated that in causing a bodily injury that results in death, he causes the death despite that the effect of bodily injury accelerates his death from a disease or disorder arising from another cause (Criminal Code s. 226). Since Ryder’s action accelerated the unset of Nico’s death caused by the brain damage, he is responsible for his demise. They heard the concerning noises that Nico was making in his unconscious state and yet, Ryder still decided to hit him again for no beneficial reason but to cause pain or accelerate death. This is precedent in R v Smithers, where the accused kicked the victim in the stomach and killed them because the victim had a malfunctioning epiglottis. It outlines that if the contributing cause of death was beyond the de minimus range, meaning beyond being so insignificant that a court may overlook it, then it is reason enough to cause liability (R v Smithers). Since Ryder’s actions are beyond the de minimus range, I instill him with liability for his death.
Similarly, Ryder sets off the chain of causation despite the inevitability of Nico’s death from the brain damage that ensued from Jasmine’s actions. Ryder’s action makes up the qualifications of an intervening act for it was independent of Jasmine’s action of hitting Nico with the baseball bat and was not reasonably foreseeable. Since Ryder broke the chain of causation, it is his actions that led to the immediate death of Nico. After careful analyses of the facts pertaining to Ryder in the case, some other relevant defenses were brought up.
There was still speculation of whether his actions made up intent for first-degree murder, rather than second-degree murder or a lesser charge of manslaughter. They brought up the fact that in interrogating Ryder, he said, “I’m not a bad guy! I’ve just been so worried and stressed out about money and the business that I started thinking about things I never would even have considered a year ago…I’ve always had a bad temper and I’ve been working on it- but what am I supposed to do?”. He went on to say that he was so mad that he was seeing red, and he didn’t have plans to even lay a finger on him, but it was like some rage had come over him and he could not control it.
The counsel then brought up the partial excuse of provocation under section 232 of the Criminal Code. This states that culpable homicide as murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation (Criminal Code s. 232 (1)). Ryder’s actions do not meet this criterion because through the required two-part test of provocation, there needs to be a wrongful act that would cause an ordinary person to lose control, and the accused must actually be deprived of their self-control. My opinion comes from the outcome of the precedent which outlines that provocation must be an action “acting on the sudden” and in the “heat of passion” (R v Tran). Ryder was not acting in the heat of passion because Nico was obviously unconscious and would not be able to answer him when asked where the money is, there is no clear instigation to his actions to ‘act on the sudden’.
Similarly, there was no wrongful act in the moment that would have made an ordinary person lose control. Furthermore, the defendant argued that there was no plan or deliberation on Ryder’s end in the consequence of Nico’s death. Although Ryder may not have initially planned or deliberated to kill Nico, that changed when he allowed Jasmine to bring the baseball bat into the house and there is suggestion that he thought about it when he said, “…I started thinking about things I never would even have considered a year ago”. This suggests that Ryder may have considered his actions before and did not act on impulse. He also holds secondary intent of firstdegree murder because he has subjective intent to cause bodily harm and that this harm is likely to cause death. As mentioned earlier, the moaning coming from Nico and blood coming from his head are knowledge enough to assume that another hit would inevitably ensure death.
Therefore, after prudently analysing all the facts of the case and issues at hand, I have come to the conclusion that Ryder should be charged with first-degree murder under section 231 of the Criminal Code.
Case Analysis: Jasmine’s Defence
Assume that you are defence counsel for Jasmine. What argument(s) would you raise in her defence to the first-degree murder charge? In your submission, what if anything should she be convicted of? Explain each of your answers thoroughly. You must clearly refer to the case law and relevant Criminal Code provisions to support your argument(s).
After careful consideration of all of the relevant facts pertaining to Jasmine in this case, as the defense counsel I have decided that Jasmine should not be charged with first-degree murder, and instead should be charged with the lesser included offence of manslaughter for an unlawful purpose under s. 222 (5)(a). I base this off of the defense of person, and a break in the chain of causation.
Jasmine was under lots of stress because of the pandemic and so decided that robbing a drug dealer of $20,000 with her boyfriend would solve their problems. Jasmine and her boyfriend, Ryder, had set up a plan to go to the drug dealers house with only duct tape and ski masks, to hide their identity. After getting a ride from their friend, the two entered Nico’s house and Jasmine had grabbed a baseball bat that she had seen outside and brought it in with her. When Nico became aware if their presence, he punched Ryder in the face and in response, Jasmine hit Nico on the top of the head with the baseball twice. After Nico hit the floor, he started to make concerning noises and blood was leaking from his head. They left the premise after they heard a car pulling into the driveway.
With these facts in mind, I have decided that Jasmine lacks the required actus reus and mens rea required for the charge of first-degree murder. Jasmine is a co-principle in the act with Ryder, but the facts show that her part in the crime is not in accordance with the charge of firstdegree murder. As outlined in the provision, a homicide becomes a murder when a person causes the death of a human being because they meant to or caused bodily harm that he knows is likely to cause death (Criminal Code s. 229(a)). Since objective mens rea is not permissible in the case of murder for it violates s. 7 of the Charter (R v Martineau), subjective mens rea is necessary for the punishment attached to this charge. Jasmine does not acquire the subjective mens rea necessary for the death of Nico because she does not have the intent to kill him or knowledge that her actions would kill him, as required for the guilty mind. Therefore, Jasmine does not obtain an essential element required for her actions to deem her responsible for murder. Instead, she should be charged with manslaughter for an unlawful act because she caused death by means of an unlawful act (Criminal Code s. 222 (5)(a)). As outlined under this provision, the act must be objectively dangerous, and the attempted robbery performed by Jasmine is considered just that. Additionally, there was clear objective foreseeability of harm in hitting Nico over the head with a bat but lacks foreseeability of death. This is especially relevant because she did not have any intention of using it all. This is evident when Ryder asks why she picked up the bat and she simply replied with, “It will make us look scarier”. It is reasonable to assume that she truly did not plan on using the weapon and only brought it with her to intimidate the victim. Accordingly, Jasmine fits the criteria for manslaughter, better than she does for first-degree murder.
It could be argued that since it was Jasmine’s actions that would have killed Nico, if it were not for further action by Ryder, then she should be charged with first degree murder. The pathologist conducting the autopsy on Nico’s body found that although asphyxiation was the immediate cause of death, he would have died from the brain damage resulting from being hit with the baseball bat whether or not Ryder hit Nico with the fireplace poker. This sets partial responsibility of Nico’s death onto Jasmine. That said, she did not foresee death and there are multiple reasons in defence of her actions. This includes defence of person. A person is not guilty of an offence if they believe on reasonable grounds that force is being used against another person and perform an unlawful act in defence of this force (Criminal Code s. 34 (1)). After analysing the circumstances of the case, Jasmine was clearly defending Ryder when she hit Nico over the head. Since Nico had punched Ryder in the face and started fighting him, she was worried for the safety of her significant other. Jasmine figured that the only use of force she could rely on in this situation was that resulting from the baseball bat and so she swung without much deliberation. Also, considering Jasmine and Ryder were two strangers offending Nico in his own home, she probably thought that Nico would not hesitate to cause harm, or even death, upon them. These are a few of the factors regarded in determining whether defence of person is legitimate in such cases (Criminal Code s. 34 (2)). With this in mind, it is clear that Jasmine was acting in defense of Ryder and should not be guilty of the full penalty of first-degree murder.
Additionally, considering Ryder delivered the action that was the immediate cause of Nico’s death, Jasmine should not be penalized for murder. It is argued by the Crown that Jasmine was party to this action because she provided Ryder with the weapon when he said, “hand me that thing” in referring to the fireplace poker, and she obliged. They argued that she was an aid to the offence for assisting Ryder in committing his fatal action, deeming her a party to this specific offence (Criminal Code s. 21 (1)). That said, she may have assumed that he would poke Nico with it or hit him gently, it is unfair to assume that she knew he would forcefully hit him in the side of the face with it. Therefore, she does not meet the requirements for party liability for she did not have knowledge of his intent.
Ultimately, since the pathologist discovered that asphyxiation from the aspirated teeth and blood pooling in Nico’s death was the immediate cause of his death, this broke the chain of causation. This is evident in the precedent of R v Smithers, where an individual was killed by being kicked in the stomach but only due to the fact that he had a malfunctioning epiglottis. The kick was a ‘significant contributing factor’ (R v Nette), beyond the de minimis range, and therefore, sets off a chain of causation. This precedent forms the trajectory that the chain of causation can be broken by an action independent of the accused’s actions and that is not reasonably foreseeable from their actions (R v Smithers). Ryder’s actions meet these conditions for breaking the chain of causation because they are completely separate from Jasmine’s actions and were not foreseeable. Therefore, Ryder is primarily responsible for Nico’s death, not Jasmine.
With all of these facets of information in mind, it is clear that Jasmine should only be charged with the lesser included offence of manslaughter, instead of the full punishments of first-degree murder.
Case Analysis: Allen’s Potential Charges
Assume that you are the police investigating this offence. Based on Allen’s actions, the conversations he had with Jasmine and Ryder and what he witnessed Jasmine and Ryder doing, could you charge Allen with any offence(s) in relation to Nico’s death?
As the police investigating this offence, it is my responsibility to determine if there is proper actus reus and mens rea that is required for Allen to be charged of a crime. Although it seems that Allen could be guilty as a party to the offence of first-degree murder, based on the information and knowledge that I obtained, I have decided not to charge him with any offence in relation to Nico’s death. This is because he lacks the mens rea required for aiding and abetting a crime, for he was unaware of the actions that were planned to take place. This is apparent when Allen asked Ryder if what they were doing was dangerous, he answered with “No, you don’t even have to get out of the car. Trust me, everything will be fine, you don’t need to know any more details than that”. Additionally, on the night of the crime when Allen asked where they were going, Ryder just put the address in the GPS and made no further comments about it. Therefore, Allen had no knowledge of the intent of Ryder and Jasmine’s actions, he simply assumed that it was safe. Even after the crime took place, the two accused mentioned nothing to Allen in the car ride back into Toronto.
Parties to an offence requires that the individual in order to have committed, aided, or abetted has the intent to do so, but also the knowledge of what the principle is intending to do (Criminal Code s 21). This constitutes as the mens rea behind being a party to an offence, but since Allen was unaware of what Ryder and Jasmine had intended to do, nor did he have any intention to assist a robbery, he does not meet this requirement. Since he had no knowledge of the robbery, he therefore had little reason to believe that they there was a chance of death to another in driving his friend somewhere and should not be charged with party to murder. It seems that he had mere presences at the crime, which under precedent, has been deemed insufficient to establish liability as a party (R v Dunlop and Sylvester). According to this case, something more than presence is needed to be considered party liability, unless there is prior knowledge of the intent. In Allen’s case, he lacked the requirements to be a party to robbery and murder.