Elements of Offences #

The following is a consolidated list of Criminal Code offences covered in the spring term of criminal law at TRU and their elements.

Preliminary note: Parties and Attempt #

A person can be found guilty as a party to an offence or for attempting to commit an offence using distinct elements found in party and attempt provisions of the Code.

In other words, courts do not combine a list of the elements for the index or predicate offence along with those for being a party or for attempt.¹

Aiding (s 21(1)(b)) #

The actus reus:

• doing or omitting to do something to assist in the commission of an offence.

The mens rea:

• an intent to assist the principal in committing the offence; and

• knowledge of the type of offence the principal intends to commit (but not the precise manner). (Briscoe)

Abetting (s 21(1)(c)) #

The actus reus:

• doing something or omitting to do something that encourages the principal to commit the offence.

The mens rea:

• an intent to abet the principal in committing the offence; and

• knowledge of the type of offence the principal intends to commit (but not the precise manner). (Cowan)

Common intent (s 21(2)) #

The actus reus:

• forming of an intent in common to carry out an unlawful purpose (a criminal act) and to assist each other in carrying it out, and
• the offence being carried out or any reasonably foreseeable offence (or lesser included offence).

The mens rea:

• an intention to carry out the unlawful purpose and to assist the other person(s) therein, and
• knowledge or objective foreseeability that the (actual) offence would be carried out. (Hibbert)

Attempt (s 24) #

The actus reus:

• taking steps beyond mere preparation to commit the offence. (Deutch)

The mens rea:

• having the intent to commit the predicate offence. (Ancio)

Party to murder or attempt murder (21) #

For party to murder in ss 21(1)(b) or (c) and 21(2)

• AR is as set out above in party provisions
• MR adds the element of subjective knowledge of the likelihood of death. (Briscoe, Martineau)

For party to attempt murder in ss 21(1)(b) or (c) and 21(2):

• AR is as set out above
• MR would also include the party to the common venture (or the aider or abetter) knowing that it is probable that his accomplice would do something with the intent to kill in carrying out the common purpose. (Logan)

Accessory after the fact (s 23) #

The actus reus:

• receiving, comforting, or assisting a fugitive.

The mens rea:

• subjective knowledge that the fugitive has been a party to an offence, and
• assisting the fugitive for the purpose of helping him escape. (Duong)

Common nuissance (s 180) #

The actus reus:

• doing an unlawful act [the AR of it] or failing to discharge a legal duty and
• thereby:
  • endangering lives, safety, health, property or comfort of the public; or
  • obstructing the public in the exercise or enjoyment of any right that is common to members of the public.

The mens rea:

• the MR for the unlawful act and objective foresight of endangerment or obstruction; or
• objective foresight that breach of the duty could lead to endangerment or obstruction.²

Conspiracy (s 465) #

The actus reus:

• (even in a prosecution against a single conspirator) an agreement between the accused and one or more other persons to commit an offence, and
• the intention on the part of at least two or more of the parties (including the accused) to carry out the planned offence. (Dynar)

The mens rea:

• the accused’s intention to enter into the agreement, and
• her intention to put the common design into effect. (Dynar)

Criminal negligence causing death or bodily harm (ss 219, 220, 221) #

The actus reus:

• the accused undertook an act or omitted to do anything that it was his or her legal duty to do, and
• the act or omission caused someone’s death (or bodily harm)

The mens rea:

• the accused was aware of the risk arising from the conduct, or
• the accused’s failure to foresee the risk and take steps to avoid it constituted a marked and substantial departure from the standard of care of the reasonable person in the circumstances. (Javanmardi; R v JF)

Counselling a crime that is committed (s 22(1)) #

The actus reus:

• active inducement or encouragement to do an act that is an offence, and
• the offence being committed or an offence that is reasonably foreseeable from the act counseled.

The mens rea:

• the accused intentionally counsels (encourages / induces), and
• intends that the act be committed or knows that it likely will be. (Janeteas)

Counselling a crime that is not committed (s. 464) #

The actus reus:

• active inducement or encouragement of the commission of a criminal offence.

The mens rea:

• intent that the offence counselled be committed, or
• knowingly counseling when aware of an unjustified risk that the offence is likely to be committed. (Hamilton)

Dangerous driving (s. 320.13) #

The actus reus:

• driving that is “objectively dangerous, having regard to all the circumstances.”

The mens rea:

• the accused foresaw the risk arising from the driving, or
• the accused’s failure to foresee the risk and take steps to avoid it constituted a marked departure from the standard of care of the reasonable driver. (Beatty, Roy)

Failing to provide the necessaries of life (s 215(1)(a)) #

The actus reus:

• conduct of the accused depriving the child of the necessaries of life.

The mens rea:

• a “marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life.” (Naglik; R v JF)

Murder (s 229(a)(i),(ii)) #

This section sets out two ways of committing murder:

i. 229(a)(i) causing death where the accused means to cause death;

ii. 229(a)(ii) causing death where the accused means to cause bodily harm that he **knows is likely to cause death.

The actus is the same for both:

• an act causing death

The mens rea for 229(a)(i)

• intending to cause death

The mens rea for 229(a)(ii)

• “(a) subjective intent to cause bodily harm; (b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death.” (Cooper)

Unlawful act causing bodily harm (s 269) #

The actus reus:

• the accused committed an unlawful act and that act caused bodily harm

The mens rea:

• MR for the unlawful act, and
• objective foreseeability of the risk of bodily harm that is neither trivial nor transitory.³ (DeSousa; Creighton)

Unlawful act manslaughter (s 222(5)(a)) #

The actus reus:

• the accused committed an unlawful act and that act caused a person’s death

The mens rea:

• the mens rea for the unlawful act, and
• objective foreseeability of the risk of bodily harm that is neither trivial nor transitory.⁴ (Creighton; Javanmardi)