Detailed table of contents

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology. University of Toronto
• Pages: vii-xix

FOREWORD xxi

PREFACE xxiii

CHAPTER 1:

OVERVIEW 1

1. Crime in Canada 1

2. The Criminal Process 3

3. Sources of Criminal Law 5

4. Criminal Offences 5

5. Regulatory Offences 6

6. The Criminal Law and the Constitution 6

7. Substantive Fairness 7

8. Procedural Fairness 8

   I. The Elements of Criminal Offences 9

10. The Prohibited Act, or Actus Reus 10

11. Attempts and Other Unfulfilled Crimes 11

    L. Participation in Crimes 12

13. The Fault Element, or Mens Rea 13

14. Regulatory Offences and Corporate Crime 15

15. Defences 17

16. The Special Part: Some Selected Offences 20

17. Sentencing 21

    Conclusion 22

    Further Readings 23

    CHAPTER 2:

    THE CRIMINAL LAW AND THE CONSTITUTION 24

1. Criminal Justice And The Division Of Powers 25

   1) Federal Jurisdiction over Criminal Law 25

   2) Provincial Jurisdiction to Enact Regulatory Offences 27

   3) Prosecutors, Police, and Prisons 28

   4) Trials and Trial Courts 28

   5) Appeals and Appellate Courts 30

2. Criminal Law And The Charter Of Rights 31

   1) Division of Powers and the Charter Compared 32

   2) The Charter and the Investigation of Crime 33

   a) Search and Seizure 33

   b) Arbitrary Detention and Imprisonment 36

   c) Right to Counsel 39

   d) Entrapment 42

   3) The Charter and the Criminal Trial Process 44

   a) Disclosure 45

   b) Right to Full Answer and Defence 46

   c) Trial in a Reasonable Time 47

   d) Pre-Trial Publicity 48

   e) Right to a Jury Trial 48

   f) Right to Be Presumed Innocent 50

   i) Quantum of Proof 50

   ii) Persuasive Burdens 51

   iii) Presumption Applies to Elements of Offences, Collateral

   Factors, and Defences 52

   iv) Evidential Burdens and Mandatory Presumptions 55

   v) Threshold “Air of Reality” Tests 56

   vi) Summary 58

   g) Other Trial Rights 58

   4) The Charter and Substantive Criminal Offences and Defences 59

   a) Fundamental Freedoms 60

   b) Principles of Fundamental Justice 62

   c) Vagueness and Overbreadth 64

   d) Arbitrariness and Gross Disproportionality 64

   e) Fault Requirements 66

   i) Moral Innocence and Absolute Liability 67

   ii) Negligence As a Sufficient Fault Element under the Charter for Most Offences 68

   iii) Negligence Standards: Marked Departure from the Standards of a Non-Individuated Reasonable Person 70

   iv) No Requirement of Correspondence or Symmetry between Prohibited Act and Fault Element 71

   v) Subjective Fault Required in Relation to the Prohibited Act for a Few Offences with Special Stigma 71

   f) Criminal Defences 75

   g) Moral Involuntariness 76

   5) The Charter and Punishment 77

   Conclusion 78

   Further Readings 80

   CHAPTER 3:

   THE PROHIBITED ACT, OR ACTUS REUS 81

1. Codification of the Criminal Act 82

   1) Strict and Purposive Construction of the Criminal Law 84

   2) Requirements for Marked Departure and the De Minimis Defence 89

   3) Unconstitutionally Vague and Overbroad Laws 91

   4) Ignorance of the Law 94

   a) Distinguishing Mistakes of Law and Fact 95

   b) Preclusion of Mistake of Law As the Only Defence Making an Offence One of Absolute Liability 97

   c) Non-Publication 97

   d) Mens Rea, Colour of Right and Mistake of Law 98

   e) Officially Induced Error 99

   5) Application of the Criminal Code: Territorial and Age-Based Restrictions 100

   6) Policy Elements in the Definition of the Actus Reus: The Case of Consent 101

2. The Role Of The Actus Reus In Criminal Liability 106

   1) The Coincidence of the Actus Reus and Mens Rea 106

   2) Causing Prohibited Consequences 108

   a) Statutory Provisions Concerning Causation 108

   b) General Principles of Causation 109

   c) Concurrent Causes and New Acts That Sever the Chain of Causation 111

   d) Causation in Non-Homicide Cases 113

   e) Attempts and Accomplice Liability as Alternative Forms of Liability in Cases of Reasonable Doubt About Factual Causation 114

   3) Omissions 115

   4) Voluntariness of the Act 117

   Conclusion 119

   Further Readings 122

   CHAPTER 4:

   UNFULFILLED CRIMES AND PARTICIPATION IN CRIMES 124

1. Attempts 127

   1) Mens Rea for Attempts 128

   a) Constitutional Fault Element for Attempted Murder 129

   b) Mens Rea for Other Attempted Offences 130

   2) The Actus Reus of Attempts 131

   3) Impossibility and Attempts 134

2. Conspiracy 136

   1) The Actus Reus of Conspiracy 137

   a) Attempted Conspiracies and Other Attempts to Combine Inchoate Forms of Liability 138

   2) The Mens Rea for Conspiracy 139

   3) Impossibility and Conspiracy 140

3. Counselling A Crime That Is Not Committed 141

   1) The Actus Reus of Counselling a Crime That Is Not Committed 141

   2) The Mens Rea for Counselling a Crime That Is Not Committed 142

   3) Impossibility and Counselling 144

4. Counselling a Crime that Is Committed 145

   1) The Actus Reus of Counselling a Crime That Is Committed 146

   2) The Mens Rea for Counselling a Crime That Is Committed 146

5. Aiding and Abetting 147

   1) The Actus Reus of Aiding and Abetting 148

   2) The Mens Rea for Aiding and Abetting 150

6. Common Intention To Commit An Unlawful Purpose And Section 21(2) 154

   1) The Actus Reus of Section 21(2) 154

   2) The Mens Rea for Section 21(2) 155

   a) Common Unlawful Purpose 155

   b) Knew or Ought to Have Known That the Crime Would Be Committed 156

7. Accessory After The Fact 158

   1) The Actus Reus of Being an Accessory after the Fact 158

   2) The Mens Rea for Being an Accessory after the Fact 158

   Conclusion 159

   Further Readings 161

   CHAPTER 5:

   THE FAULT ELEMENT, OR MENS REA 163

1. Conceptual Considerations 164

   1) The Relation of the Fault Element to the Prohibited Act 164

   2) Subjective and Objective Fault Elements 166

   3) Common Law Presumptions of Mens Rea 169

   4) Constitutional Requirements of Mens Rea 171

   a) Requirements of Subjective Fault in Relation to Prohibited Act for Special Stigma Crimes: Murder...