Criminal flowchart

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Osgoode Hall Law School Student Review
http://legalandlit.ca/summaries/second/2010/criminallaw&pro-jensen-2010.docx
1. Go to provision in CC
2. Establish AR
a. ACT + conditions
- Trigger words: commits, discharges a firearm, disposes, administers, operates a
motor vehicle, etc
- Act of the accused, under the conditions specified
b. OMISSION
- Trigger words: under a legal duty, fails to discharge
- To not do something when duty imposed by the law
c. STATUS
- Trigger word: is
- AR is the person’s status or state of affairs
d. CAUSATION
- Trigger word: causes, results
- Factual causation
o “but for test”
- Legal causation
o Moral culpability
o “thin skull rule”
o General: “a significant contributing cause” (Smithers; Nette)
o 1st/2nd degree murder: “a substantial cause” (Nette)
3. Establish MR
SUBJECTIVE MR
a. INTENT
- General intent
o Trigger word: purpose of
o Conscious object to engage in prohibited act
- Specific intent
o Trigger word: wilfully
o Seeks to bring about a proscribed consequence
b. KNOWLEDGE
- Trigger words: knows, knowing
- Accused must generally know that the conditions of the AR exist
- Generally presumed that the accused knows of the relevant conditions
- Reasonable person standard will not satisfy MR where knowledge required
c. RECKLESSNESS
- Trigger words: reckless, recklessly
- Morally blameworthy to persist in conduct when you are aware of the risk in
prohibited consequences/act
o General: “substantial risk”
o Murder: “likelihood risk”
- Where KNOWLEDGE involved, recklessness WILL NOT APPLY
o Conscious of the risk and proceeding in the face of it
d. WILFUL BLINDNESS
- Trigger words: none really, implied from knowledge
- Deliberate ignorance / realizing risk is highly probable and refusing to know more
- Where KNOWLEDGE involved, wilful blindness may be applicable
Osgoode Hall Law School Student Review
http://legalandlit.ca/summaries/second/2010/criminallaw&pro-jensen-2010.docx
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Deliberately failing to inquire when the accused knows there is reason for
inquiry
Imputed knowledge
OBJECTIVE MR
a. SIMPLE negligence (aka civil negligence)
- Objective test
- Relating to regulatory offences
b. GROSS negligence (“marked departure”)
- Objective test
- Ex. Unlawful act manslaughter (S. 225(5)(a) and (b)) – Beatty
c. PENAL negligence (“marked and substantial departure”)
- Modified-objective test
- Ex. Criminal negligence (or anything relating to it), dangerous operation of motor
vehicles (S. 249)
**The question about whether to put an offence into the gross (obj) or penal (mod-obj) categories is
merely based on case law**
4. If AR & MR satisfied, apply DEFENCES
______________
5. SENTENCING
- if applicable...
** Keep in mind criminal procedure will spring up randomly. **
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