Legal Articles Written by a BC Lawyers

In addition to publishing articles on this website and other websites, we publish on article directories. Our other legal articles are as follows:

• Breathalyzers and DUI Charges in British Columbia
• Compensation for Car Accident Injuries
• 3 Main Types of Criminal Offences in Canada
• Criminal Court Process
• WorkSafeBC Claims

A sample of a criminal article written by one of our criminal defence lawyers is as follows:

What Proves a Crime in British Columbia

For one to be convicted of a crime, such as impaired driving, assault, or any other crime in British Columbia, the prosecution (called crown counsel – there’s an Abbotsford Crown Counsel office) must establish two key elements vital to be found guilty. These are the actus reus, and the mens rea. The actus reus is the guilty act (external element of the crime), while the mens rea is the guilty mind (intent).



Typically, you cannot convict one of a crime in British Columbia until both of these requirements are satisfied. This can be expressed through the Latin maxim “actus non facit reum nisi mens sit rea,” which translates to, “there cannot be such a thing as legal guilt where there is no moral guilt.”¹ However, there are exceptions. Strict liability offences, which are usually statute based, can be imposed without the finding of a mens rea (i.e. running a red light.) So though criminal liability may be imposed without the presence of a guilty mind, it is almost never the case for one to have criminal liability imposed for just possessing the guilty mind.²

The mens rea is essentially a scale of moral responsibility and can usually be broken down into intention, or recklessness. If one goes about a certain action knowing of its illegality and consequences he has direct intent. However, if one wants to frighten someone, or harm them, yet realizes that by pursing this goal there is a minute possibility of death, they possess a recklessness as to their actions which may still be the mens rea for homicide. The criminal law believes those who intend or purposely commit an act of malice are more at fault than those who commit an act unintentionally or recklessly³ and this is why it is reluctant to impose liability upon those who are morally innocent. Unlike the actus reus, an outwardly visible element, the mens rea in an element that is personal to the perpetrator and therefore becomes difficult to decipher. Because of this a two part test is in place taking into both the subjective and objective. The subjective test focuses only on what the accused is thinking. even if his or her thoughts are wholly irrational, the jury must take them into account, and may also take into consideration characteristics that are unique to the defendant. (age, race, gender, exc...) However, this is then weighed against an objective standard, in which the defendant’s behaviour is compared to that of the reasonable persons.⁴ In this test no personal factors (that could be taken into account in the subjective test) are to be considered.

The actus reus is the external element of a crime and thus will differ from offence to offence based on statute or case law. For instance, the actus reus for murder would be to unlawfully cause the death of another human being, while the actus reus for theft would be the appropriation of property belonging to another.

Example:

Stacy hates Sally and plots to kill her on Tuesday using a butcher knife. She follows through with her plan and consequently Sally dies because of Stacy’s actions. In this case, Stacy caused the death of a human being⁵, thus satisfying the actus reus of murder. She also intended to cause Sally’s death,⁶ (it was not an accident) and therefore Stacy satisfies the guilty mind test. Therefore Stacy would be guilty of murder as both the actus reus and mens rea are satisfied.

But What if...

Mary is a four year old child who finds a loaded shotgun in her father’s room. She is playing with it, and unknowingly sets it off, killing her mother who has just walked into the room. Here the actus reus of murder would be satisfied, as Mary did cause the death of a human being.⁷ However, it would be difficult to prove that this four year old child possessed the guilty mind, or malice aforethought associated with establishment of the mens rea for murder. Therefore in this case though death did occur, and an actus reus could be established, a mens rea would be short of impossible to prove, thus resulting in no criminal liability. This is an example of the Latin maxim mentioned above in action; here there is no legal guilt as there is no moral guilt. In this way the criminal law is reluctant to impose liability on children, animals, or the insane.⁸

To be convicted of an offence it is not sufficient for the prosecution to establish these 2 elements and conclude liability. After doing so the prosecution must prove in some circumstances, concurrence, and causation.

There must be coincidence of the mens rea and actus reus. If the actus reus occurs first, and then a mens rea formulates after the offence is already committed, criminal liability cannot be established. For example, at the time of a murder, one must have intent to kill (mens rea) at the time the trigger of the gun is pulled. (actus reus) if the two elements do not coincide there will be no liability.

With respect to the actus reus, it must be proved in certain circumstances that the guilty act caused the prohibited consequence. This is called factual causation and is usually established using the ‘but for’ test. But for, the defendant’s action, would the consequence have occurred anyway? In other words, if the defendant didn’t do what he did, would the result have been the same anyways? If this is the case, the defendant cannot be to blame for the consequence and is not liable.

In this way, the actus reus and mens rea work together to show who the true perpetrator of a crime is, and who, if anyone, should be punished or held responsible.

If you've been charged with a DUI, assault, domestic assault, drug-related crime, or any other crime, be sure to discuss your case with a lawyer, because as you can see, the prosecution must prove both the act and the intent. Dykstra & Company, Abbotsford lawyers - have defended persons charged with crimes for many years - representing people from Vancouver to Chilliwack.

1. CLARKSON, C.M.V. KEATING, H.M. CUNNINGHAM, S.R. Clarkson and Keating Criminal Law. London: Sweetand Maxwell
2. ASHWORTH, A. 2006. The Principles of Criminal Law. Oxford: Oxford University Press at
3. Above n.1
4. STUART, D. DELISLE, R. Learning Canadian Criminal Law. Carswell
5. Criminal Code, R.S.C. 1985, c. C-46 229(a)
6. Above N. 5, 229 (a)(i)
7. Above N.1
8. Above N.2