Archive for July, 2008
In the Canadian legal system, there are generally two elements required to prove a crime: the act (actus rea) and the mental state (mens rea). Generally, without proof of these two elements there can be no criminal conviction. However, what may at first seem like a simple equation of two parts, can actually become a very complicated maneuver in the legal field known as criminal law.
The act, or actus rea, must fall in line with a specifically defined offense. Definitions of offenses are taken from the Criminal Code and can include both acts and failures to act. Yet, there is more involved than just reading a few lines from the Criminal Code. If a criminal case goes to trial, a judge will use the definitions in the Criminal Code as well as precedent to determine the outcome of a case. Precedents are previous decisions made by other courts in cases with similar facts. The facts of a case and precedent are often a very important part of a criminal lawyer’s argument, either within a trial setting or simply during negotiations.
Mens Rea is the second key argument for a criminal case. In Latin, Mens Rea means “guilty mind.” Hence, in the Canadian legal system, not only must a person commit an act, they must also have had a specific mental state, or guilty mind, related to the commission of the act. Types of mens rea include intention, knowledge, negligence, recklessness, and willful blindness. Intention and knowledge mean that the person performed an act purposefully, with a desire for the consequences or knowledge that the act will cause the consequence; Recklessness involves consideration that the consequences will possibly occur as a result of the act, but doing the act anyway; Willful blindness occurs when one commits an act while deliberately shutting their eyes to the risks because they do not want to know about the consequences; and Negligence involves a failure to think like a reasonable person given the circumstances. The mental state required to be convicted of a specific crime will likely depend on the act committed. Therefore, mens rea and actus rea almost always need to be partnered together to secure a conviction.
One exception to the mens rea/actus rea partnership is for “strict liability” crimes. If a crime falls within the strict liability category, the person is guilty simply because they committed the act. There are certain circumstances and exceptions which can still be used as defenses in strict liability cases; however mens rea is not one of them.
The Canadian Criminal Legal system is a complicated web of rules and facts that can be difficult to muddle through on your own. If you need assistance, an experienced criminal lawyer can help you work through your case to understand the mens rea, actus rea, rules, and precedent to effectively fight for your rights.
Starting July 2nd, the laws for driving under the influence of drugs in Toronto and throughout all of Ontario will become much stricter. Earlier this year, after almost 5 years of debate in the federal Parliament, a law was passed that will mandate roadside testing for drivers suspected of being under the influence of drugs. Under the new law from Bill C-2, drivers could be ordered to surrender to a urine, blood, or saliva samples at a local police station. If you choose to refuse the drug test, you could be fined $1,000.
While there are standard procedures to nab those who drive while under the influence of alcohol, many believe those who use drugs and drive have been under the radar, so to speak. While the Criminal Code expressly makes it an offense to drive while under the influence of drugs or alcohol under section 253(a), the laws did not allow for specific testing to be performed by police. Additionally, under the current version, evidence from drug tests is only allowable at court hearings if the driver voluntarily took the test.
However, based on the amendments passed under Bill C-2, a driver suspected of being under the influence of drugs does not have to volunteer to be tested. First, police officers will be allowed to administer Standard Field Sobriety Tests (SFST) if there is reasonable suspicion of driving under the influence. SFSTs can include walking a straight line, or testing a driver’s ability to multi-task. If the driver fails, under the new law, the police officer is authorized to send the driver to the police station for the administration of a Drug Recognition Expert (DRE) evaluation which involves interviews and observations. If after the DRE, it is decided that the individual appears to be under the influence, a drug test will be administered through urine, saliva, or blood samples.
This new law will apply to being under the influence illegal drugs as well as over-the-counter and prescription medications. While many applaud the new law, there is also great controversy surrounding it. For example, the drug test can produce results of drugs that were taken several weeks prior, yet the information is still allowable as evidence in a court hearing.
As such, if you live in the Toronto area and are pulled over for impaired driving, whether it’s for illegal or prescription substances, you will likely need a good Toronto Criminal Lawyer. There are many more additions to the Bill C-2 which create stricter penalties and restrictions for substance impaired driving. These laws can be complicated and frightening when faced with large fines or prison terms, so be sure to consult with an experienced Criminal Lawyer to fully understand your rights, especially under this new law.