What are the elements of a criminal defence? Every crime in Canada is made up of two elements: the Actus Reus and the Mens Rea. These are Latin for a guilty act and a guilty mind. The crown will need to prove both of these beyond a reasonable doubt in order to secure a conviction.
The Actus Reus is the actual act that this carried out which is not permissible by law. For example, if one individual, strikes another individual, the act of striking the latter constitutes that Actus Reus of an assault offence.
An Actus Reus need not be a physical act. Being found in a specific set of circumstances might constitute the Actus Reus for certain crimes. In Canada, it is against the law to be found in possession of narcotics. In this situation simply being in possession of an item will be enough to construct the Actus Reus. Furthermore, omitting to do something or acting in a way that is not itself illegal, but causes certain consequences, will also suffice to show an Actus Reus in various offences.
The mens rea is the guilty mind. In the above example striking somebody does not necessarily constitute an offence. If the assailant was having a stroke and could not control his actions, they could not have intentionally assaulted the victim. Since assault requires intention, then the accused would not be guilty.
Different crimes require different degrees of mens rea. Certain offences require specific intent. That is, the accused intended to do something which resulted in a crime. Wilful blindness, is a lower threshold. Specific intent need not be proven. It only needs to be shown that a person ought to have known something was a crime. A good example of this, is purchasing a brand new car for $500 and then attempting to claim that you did not know it was stolen. That may be true, but the prosecutor would only need to make out that ought to have know. Recklessness is made out, when the accused’s actions were so dangerous they ought to have foreseen that the act would flow from them.
Any offence which carries the possibility of jail needs a mens rea. However, regulatory offences such as parking tickets do not, because there is no risk of a criminal record or deprivation of liberty. Most of these offences are either strict liability, the accused bears the onus of showing that they acted with due diligence, or absolute liability, there is no need for any mental element to be made out.
If you live in the in the Greater Toronto Area or the Durham region, and have been charged with a criminal offence, contact the criminal defence lawyers at Bykov Law. We provide service in Polish, Ukrainian and Russian.
