Patrick J Ducharme

Generally, there cannot be a crime without a criminal act. This fact is almost always true. The ‘criminal act’ in criminal law is referred to as the actus reus. This Latin phrase translates literally into a “guilty act.” It is an essential element of almost every criminal offence.
It requires a willing mind having the capacity to make a choice and choosing to commit a criminal act.

Therefore, the elements of most crimes require a physical element and a mental element.

The physical element requires only a movement or act on the part of the accused. The mental element has two components, namely, a conscious awareness of the movement or act, and a conscious awareness or desire to achieve the consequences of the act. It is when the two elements combine in the doing of a criminal act that criminal responsibility attaches to the actions of an accused.

The combining of a criminal act with the mental element of wishing to achieve the consequences of the act is the necessary combination to establish both mens rea and actus reus fulfilling the classic definition of crime. Unfortunately, it’s not always that simple.

Sometimes our law includes a ‘duty to act.’ And, where our law imposes a duty to act, a criminal offence may be committed for failure to act as required by law.

Continue reading “The Physical Element of Crime May Include a Duty to Act”

Reasonable Doubt

(continued from part 1)

The problem with attempting to define reasonable doubt is that many jurors still struggle with understanding the instructions they receive from the Judge concerning its meaning. Most Judges will tell a jury that proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities. In this writer’s experience when the trial Judge attempts to explain reasonable doubt as a doubt that falls much closer to absolute certainty than to proof on a balance of probabilities, juries often deliberate for a while, then return to the courtroom and ask the presiding Judge to explain the concept more clearly or in greater detail.
We have become accustomed to jurors asking questions such as:
Continue reading “Reasonable Doubt (part 2)”

Reasonable Doubt

The phrase “reasonable doubt” is central to our criminal justice system. Judges will instruct a jury that a reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is, instead, a doubt based on reason and common sense. It is not a doubt based on sympathy for or prejudice against anyone, including the accused. Reasonable doubt usually arises naturally from the evidence, or the absence of evidence. Proof of the commission of a crime beyond a reasonable doubt does not extend to proof to an absolute certainty. In non-legalistic terms, proof of guilt beyond a reasonable doubt requires that the Judge or jury making the decision must be satisfied that the guilt of the accused has been proven beyond a reasonable doubt. Consequently, if the Judge or jury are not sure that the accused is guilty, they are required to find the accused not guilty of the crime alleged.

(see part 2)

Continue reading “Reasonable Doubt (part 1)”

Every trial court acts upon the principle that the accused is presumed innocent until the prosecution proves his or her guilt beyond a reasonable doubt. All courts accept that this obligation to presume a person’s innocence may, sometimes make proof of guilt so difficult that there may be an acquittal even in circumstances where the accused is, in fact, guilty.

Continue reading “Presumption of Innocence and Burden of Proof”

All courts embrace the notion that a crime consists of two elements, an objective element that embraces the act or the conduct that is alleged to be a crime, and a subjective element that includes a consideration of the mental state of the accused at the time of its commission.

Continue reading “The Objective and Subjective Elements of Crime”

The highest and most powerful court in Canada is the Supreme Court of Canada. There are nine appointed Judges to the Supreme Court of Canada. The court never sits with an even number of Justices to avoid a split court with equal numbers on each side of a legal decision. If, for example, one of the nine Justices is not available for a case, one other Justice will abstain from participating so that there is an uneven number of Justices presiding in each case to avoid a tie vote on any legal issue that the court is required to decide.
Continue reading “Court System in Canada: The Supreme Court of Canada”

A “precedent” is a rule or legal principle established by a previous legal case or cases that is either binding or at least persuasive for another court with similar issues or facts. Canada operates on a common-law legal system. Stare decisis refers to the legal principle of determining points of law according to precedent.

In Canada, stare decisis places significant value on deciding cases according to consistent, principled rules of precedent. The plan of the system is that similar cases with similar facts will yield similar, and therefore, predictable decisions. The observance of previous precedent, or in Latin terminology, stare decisis literally translated means “Let the Decision Stand”. The doctrine of precedent encourages lower courts to follow the direction and guidance of decisions by higher courts in previous similar cases. Failure to follow higher court decisions usually ensures success in challenging the decision that did not follow the principle of stare decisis on appeal.
Continue reading “The Doctrine of Precedent and Stare Decisis”

(continued from part 1.)

On January 15, 1994 and February 15, 1995 the Ministry of the Attorney General in Ontario announced broad, sweeping policy statements concerning disclosure. Included in these policy statements was the principle that the prosecution is under a duty to disclose all information in its possession relevant to the guilt or innocence of the accused unless the information is excluded from disclosure by a legal privilege. The duty is to disclose any relevant information in the possession or control of the prosecution, whether favourable or unfavourable to the Crown that is not clearly irrelevant. These statements acknowledge the duty to disclose is an ongoing obligation of the Crown.

Continue reading “Disclosure (part 2)”

A person charged with an offence has a constitutional right to disclosure. Our courts see it as a part of the accused’s right to make full answer and defence and this right is now enshrined in the overall principles contained in section 7 of the Charter.
The prosecutor’s obligation to disclose is triggered by defence counsel’s timely request in writing for disclosure. As a practical matter where the original defence request is broadly worded, the defence would be wise to make a detailed demand before bringing an application for relief, especially in complex cases. Applications for relief should be brought to the trial Judge. The defence is not obliged to pay for the cost of providing disclosure. The requirement of the prosecution to provide disclosure is unconditional.

Continue reading “Disclosure (part 1)”

Part of the right to make full answer and defence includes the right to have competent counsel assisting. When the accused has retained counsel he or she is entitled to the effective assistance of counsel. The right of effective assistance of counsel is a constitutionally protected right and an aspect of the right to make full answer and defence. In some instances an accused may be determined to represent himself at trial. The accused is, of course, entitled to represent himself. Depending on the circumstances, the court may intervene, even to the point of ordering funded counsel for the accused.
Continue reading “Effective Legal Representation”