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.

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