Crime Series Part 3 - Criminal Negligence in Canada

 

Author: Tracey Young. (March 17, 2022). Crime Series: Part 3 - Criminal Negligence in Canada. C4D - Canadians 4 Democracy. Retrieved from: https://c4d-canadians4democracy.blogspot.com/2022/03/crime-series-part-3-criminal-negligence.html.

Disclaimer: I am not a lawyer. I am a Public Interest Advocate. The information contained in this article is not intended to be used for legal advice. Please consult a legal professional for legal advice or speak with a local law enforcement agency if you believe a criminal act/action has taken place.

Criminal Negligence Criminal Code Violations

In Canada, there are more than one set of violations of the Criminal Code of Canada for Criminal Negligence. These are introduced below.

Criminal negligence

• 219 (1) Every one is criminally negligent who

  • (a) in doing anything, or

  • (b) in omitting to do anything that it is his duty to do,

  shows wanton or reckless disregard for the lives or safety of other persons.

• Definition of duty

  (2) For the purposes of this section, duty means a duty imposed by law.

Causing death by criminal negligence

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

• (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

• (b) in any other case, to imprisonment for life.

Marginal note:Causing bodily harm by criminal negligence

221 Every person who by criminal negligence causes bodily harm to another person is guilty of

• (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

• (b) an offence punishable on summary conviction.

Duty of persons directing work

217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.

Source: Government of Canada.

Sec. 219.1 – Criminal Negligence

Link: https://laws-lois.justice.gc.ca/eng/acts/C-46/section-219.html.

Sec. 220 – Causing bodily harm by criminal negligence

Link: https://laws-lois.justice.gc.ca/eng/acts/C-46/section-221.html

Sec. 221 – Causing death by criminal negligence

Link: https://laws-lois.justice.gc.ca/eng/acts/C-46/section-220.html

Sec. 217.1 – Duty of persons directing work

Link: https://laws-lois.justice.gc.ca/eng/acts/C-46/page-32.html#docCont

                                           Credit: Patrice F. Band. (2014) **

What Elements Must be Present to Prove Criminal Negligence

Proving criminal negligence under s. 219 should include:^[1]

1. ☐ identity of accused as culprit
2. ☐ date and time of incident
3. ☐ jurisdiction (incl. region and province)
4. ☐ the culprit had a legal duty;
5. ☐the culprit did something or omitted to do something that it was their legal duty to do;
6. ☐ the conduct showed "wanton or reckless disregard for the lives or safety of others"

Proving criminal negligence causing death under s. 220 should include:

1. ☐ elements of s. 219;
   1. ☐ the conduct showed a "marked and substantial departure" form the conduct of a reasonably prudent and
2. ☐ the alleged act caused the death of another person.

Proving criminal negligence causing bodily harm under s. 221 should include:

1. ☐ elements of s. 219;
2. ☐ another person suffered bodily harm
3. ☐ the alleged act caused the harm

Source: Dostal, P. (2012/2022). Criminal Negligence (Offence). The Criminal Law Notebook. Retrieved from: http://criminalnotebook.ca/index.php/Criminal_Negligence_(Offence).

** Source: Band, P.F. (2014). Criminal liability and defences to criminal charges. Presentation. Retrieved from: https://www.slideserve.com/lovie/criminal-liability-and-defences-to-criminal-charges.

Copyright © 2022. Tracey Young/C4D Canadians 4 Democracy. All Rights Reserved.

Crime Series: Part 2 - Fraud: Criminal Code of Canada and Elements of Fraud in Civil Cases

 

Author: Tracey Young. (March 12, 2022). Crime Series: Part 2 - Fraud: Criminal Code of Canada and Elements of Fraud in Civil Cases. C4D - Canadians 4 Democracy. Retrieved from: https://c4d-canadians4democracy.blogspot.com/2022/03/crime-series-part-2-fraud-criminal-code.html.

Disclaimer: I am not a lawyer. I am a Public Interest Advocate. The information contained in this article is not intended to be used for legal advice. Please consult a legal professional for legal advice or speak with a local law enforcement agency if you believe a criminal act/action has taken place. 

Fraud

• 380 (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,

• (a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument ** or the value of the subject-matter of the offence exceeds five thousand dollars; or

• (b) is guilty

  • (i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or

  • (ii) of an offence punishable on summary conviction,

  where the value of the subject-matter of the offence does not exceed five thousand dollars.

• Source: Government of Canada. Fraud. Retrieved from: https://www.laws-lois.justice.gc.ca/eng/acts/c-46/section-380.html.

• 
  
  
• ** testamentary instrument includes any will, codicil or other testamentary writing or appointment, during the life of the testator whose testamentary disposition it purports to be and after his death, whether it relates to real or personal property or to both; 

• ________________________________________

• 

• Fraud According to the Criminal Code of Canada

  • Section 380(1) of the Criminal Code uses a two-part definition to describe fraud:

  • • 1) a prohibited act of “deceit, falsehood or other fraudulent means;” and 

    • 2) that this act deprives the public or specific person of “any property, money or valuable security, or any service.”

  Ensuing sections of the Code describe “intent” as a crucial component of fraud charges and subsequent legal precedents set by Canadian courts mandates that the Crown has to prove intent to secure a conviction. While this is helpful for defending against fraud charges, it also means that people can be charged for their intent to commit fraud, even if they were unsuccessful in their efforts.

• Source: Mass Tsang. (2021). What is Considered Fraud in Canada. Retrieved from: https://www.masstsang.com/blog/post/what-considered-fraud-canada/.

• • ________________________________________

Elements of Fraud in Civil Cases

In order to prove fraud in civil court cases (not criminal), these four elements are needed:

1. There must be a misrepresentation of material fact.

2. The misrepresentation of fact must have been perpetrated by a party that knew it was false.

3. The plaintiff must have relied on the misrepresentation.

4. Injury or loss must have been incurred as a result of the plaintiff relying on the misrepresentation.

All four of these elements must have taken place in order to successfully litigate a case of fraud. In many jurisdictions a “preponderance of evidence” is also needed. This means that the plaintiff has a higher burden of proof and needs to show the court evidence that their version of facts is more credible and convincing than not.

Source: Lithgow, C. (2018). How to prevent fraud in court. The Civil Litigator. Retrieved from: https://www.civillitigator.net/how-to-prove-fraud-in-court/.

Copyright © 2022. Tracey Young/C4D Canadians 4 Democracy. All Rights Reserved.

Crime Series: Part 1: Essential Elements That Must Be Present to be Considered Criminal Misconduct in Canada

 

Author: Tracey Young. (March 12, 2022). Crime Series: Part 1: Essential Elements That Must Be Present to be Considered Criminal Misconduct in Canada. C4D Canadians 4 Democracy. Retrieved from: https://c4d-canadians4democracy.blogspot.com/2022/03/crime-series-part-1-essential-elements.html.

Disclaimer: I am not a lawyer. I am a Public Interest Advocate. The information contained in this article is not intended to be used for legal advice. Please consult a legal professional for legal advice or speak with a local law enforcement agency if you believe a criminal act/action has taken place. 

Canadian Case Law About the Required Elements of a Crime

In R. v. Foster, 2018 ONCA 53, Justice Watt provided a comprehensive overview of the basic and essential elements that there must be evidence of. Key excerpts of this ruling are provided below. 

The Elements of an Offence

[51]      Expressed in the Latin maxim, actus non facit reum nisi mens sit rea, it is a fundamental principle of our criminal law that a person may not be convicted of a crime unless the Crown proves beyond a reasonable doubt that the person:

i. engaged in conduct in circumstances forbidden by the criminal law (the actus reus or external element); and

ii. had a defined state of mind in relation to the prohibited conduct (the mens rea or mental or fault element).

[52]      The external element or actus reus includes all the elements of the offence except for the mental or fault element. As a result, the external element or actus reus can include:

i.  conduct (act or omission);

ii. circumstances or state(s) of affairs; and

iii. result.

Sometimes, this element requires proof that the conduct, which occurred in required circumstances, yielded or caused a certain result. On other occasions, less frequent in their occurrence, proof of conduct alone is sufficient: Smith and Hogan, at pp. 50-51.

[53]      Identifying the starting and ending point of the actus reus of an offence is important for at least two reasons. The first is the substantive requirement that, at some point, the actus reus and mens rea must coincide: see, for example, R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146. The second has to do with procedural issues, such as the time frame of the charge and territorial jurisdiction over the offence: Smith and Hogan, at p. 51.

[54]      Sometimes, the conjunction or concurrence of the actus reus and mens rea, which makes the offence complete, does not terminate the offence. The conjunction of the two elements essential for the commission of the offence continues. As a result, an accused remains in what might be described as a state of criminality so long as the offence continues: Bell v. The Queen, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 471, at p. 488. We describe these offences, such as possession, as continuing offences: Bell, at p. 488.

Source: R. v. Foster, 2018 ONCA 53 (CanLII). Retrieved from: https://www.canlii.org/en/on/onca/doc/2018/2018onca53/2018onca53.html. 

Core Elements That Must Be Present to be Considered Criminal Misconduct in Canada

In order to prove that a crime has occurred under the Criminal Code of Canada (1985), the complainant must be evidence of all of the elements listed below. 

1. A criminal act has occurred (Actus reus) - Evidence must exist that an unlawful act, or unlawful omission of an act must have occurred. 

2. Criminal intent (Mens rea) - "For a criminal act to qualify as a crime, the mental state of the perpetrator must be taken into consideration. The theory of mens rea holds that a defendant can only be held culpable when there is criminal intent." (Coolidge, 2019). 

Elements of Mens rea: Intent, knowledge, motive and recklessness (Canadian Legal System). 

3. Concurrence - "The coexistence of criminal intent and a criminal act. Without evidence that the mens rea preceded or occurred at the same time as the actus reus, the burden of proof falls short." (Coolidge, 2019).

4. Causation - "... the relationship between the defendant conduct and the end result. The prosecution must prove beyond a reasonable doubt that the defendant’s actions were what led to the resulting crime in question, which is typically harm or injury." (Coolidge, 2019).

Source: Coolidge, T. (2019). What are the Elements of a Crime? Todd Coolidge website. Retrieved from: https://coolidgelawfirmaz.com/what-are-the-elements-of-a-crime/. 

Canadian Legal System. Elements of a crime. Retrieved from: https://allaboutcanadianlaw.weebly.com/elements-of-a-crime.html.

Copyright © 2022. Tracey Young/C4D Canadians 4 Democracy. All Rights Reserved.