Analytic Structure: Canadian Criminal Code
I. Definition: Criminality ("Offense")
Does the behavior constitute criminal conduct? (was a (penal) law violated?)
A. in general: Does the penal code apply (jurisdiction)?
B. in particular: Does the behavior meet the definition of a particular criminal offense defined in the penal
1. What are the elements of the offense as defined?
(a) Actus Reus
- only required in result offences (e.g. homicide [s.222])
- e.g. nature of offender (peace officer [s.69]) or victim (statutory rape [s.151], assaulting peace officer [s.270(1)(a)]);
time (s.230; trespass at night [s.177]);
(absence of) consent [s.265(1)];
justification ("without lawful excuse" [s.177])
- only required in result offenses (e.g. homicide [s.222], causing death by criminal negligence [s.220])
(b) Mens Rea: Mode of Culpability, Mental State (w/ respect to each element)
- may be required (e.g. wilful promotion of hatred [s.319(2)]
- [rules of interpretation]
- e.g. intent(ion), knowledge, wilful blindness, recklessness, criminal negligence (due diligence defence), wilfulness.
(see comparative chart)
2. Does the behavior satisfy each element of the offense?
- omission (criminal negligence [s.219])
- imputation/derivative liability (party liability [s.21])
- complicity [s.21]
- corporate actors [s.22.1-2]
(b) Circumstances (e.g. (absence of) consent [s.193(1), s.465])
- causation [ss.222(6), 224 to 226 and 228]
(d) Mode of Culpability (w/ respect to each element)
(i) mistake "of fact" (i.e. as to satisfaction of offense element)
(ii) intoxication [s.33.1]
(iii) diminished capacity
II. Justification: Illegality/Unlawfulness/Wrongness ("Defense")
the criminal conduct unlawful generally speaking?
(was the law violated?)
A. in general (nature of justification; justification vs. excuse)
B. specific defenses
1. law administration and enforcement [s.25]
2. authority [s.43]
3. defense (self [s.34]; another [s.37]; property [s.38])
[4. consent (cf. s.14 (no consent to death)]
[5. necessity (duress of circumstances) (cf. "public good" defense: ss.162(6), 166(3))]
C. reasonable mistake re: satisfaction of justification element [s.34(2)]
III. Excuse: Inculpation/Responsibility/Accountability/Blameworthiness ("Defense") Can the accused be held culpable for the facially criminal conduct?
A. Did the accused lack the capacity for conduct (incapacity)?
1. insanity [s.16]
- (exculpatory) intoxication (not available; but see I. (intoxication))
2. infancy [s.13]
B. Was the accused incapable of exercising his capacity for culpable conduct? (inability/impossibility/unavoidability)
(a) personal [s.17]
(b) circumstantial (see II.B.5 (necessity)
2. provocation (homicide only) [s.232]
3. superior orders [s.32(2)]
- inchoate crimes
6. mistake (ignorance) "of law" [s.19]
(a) reliance on official misstatement
(b) unreasonable mistake re: satisfaction of justification element