Learned a new latin phrase: mens rea


gopher
+1
#31  Top Rated Post
``From reading case law, I can see that police officers get ripped to shreds all of the time in the courts.``


Don't be too impressed by one case.

I spent three years in law school and can give you dozens of horror stories in which police were the real criminals and got away with murder more than once.
 
Kreskin
#32
Mens Rea is an awful bowel condition.
 
warrior_won
#33
Quote: Originally Posted by gopherView Post

``From reading case law, I can see that police officers get ripped to shreds all of the time in the courts.``


Don't be too impressed by one case.

I spent three years in law school and can give you dozens of horror stories in which police were the real criminals and got away with murder more than once.

One case? There are literally thousands.

I realize that it is much tougher to put a noose around the neck of a crooked cop, but that in no way suggests that it cannot be done. And more than 5000 cases before the courts in this country shows that the courts are not adverse to you giving it your best shot.
 
Niflmir
#34
It is very important not to conflate "Intent" with "mens rea". The best interpretation is merely, guilty mind. Different crimes require differing degrees of mind set. Mens rea can in varying cases mean
  1. Intent: intent on committing the actus rea.
  2. Neglect: knowing that your actions may cause the actus rea but proceeding anyways.
  3. Wilful ignorance: knowing that maybe your actions are "dangerous" and should be considered more carefully, but not considering them so as to not cause cognitive dissonance.
  4. Criminal ignorance: honestly being ignorant that one's actions would bring about the actus rea, but any "reasonable" person would have known.
There are more, I believe, and each one requires varying degrees of evidence. Generally, one must use context to clearly see the distinctions.

There is a world of difference between an attorney and an officer of the peace, in general. Sometimes it may be unethical for an attorney to question an officer of the peace, but it requires some sort of shared interest between the two of them more than merely interest in justice. One would have to build up some sort of conflict of interest between the attorney's supposed role and the matter to which the attorney is questioning the witness that goes beyond similarity in semantics of titles.
 
MikeyDB
#35
Entirely valid observations Niflmir

The kernel of truth that rests behind all these concepts is the nature of the combination of reason intellect and emotion that serves as agent to behavior. It's also true that given circumstances where action is required, the absence of action is also product of these notions as well.
 
Kreskin
#36
Good points Niflmir. Overall, in various forms, the state of mind of the person of the accused is a major judicial element. The state of mind of the accused means is essentially everything, outside of the physical facts, in criminal court.
 
MikeyDB
#37
Kreskin

How do we assertain the state of mind of the accused or anyone else for that matter? Is the 'state of mind' of someone coming out of the latest big screen extravaganda starring Bruce Willis or Arnold Shwartzennegger as the 'hero' in a bloody rage as he kills the 'bad-guys' the same as somone who leaves the theatre next door after watching Bambie?

Is the state of mind of the youngster sitting on a bus playing a new portable video game that awards greater points for killing the bad-guy with a blow to the head that rewards the player with an exploding cranium the same as the state of mind of the person who's listening to music on their Ipod..?

We are product of environment and the 'state of mind' is as fluid as getting off the bus at the wrong stop and finding yourself in the middle of a protest featuring skin-heads looking to encourage hatred for ...well pick an ethnic minority.....

We'd like to believe and I think we've been challenged to believe that identifiable discrete phenomena like neurotransmitter imbalances or testosterone and hormone levels are the agents behind the spectrum of 'state of mind'....

What we don't want to acknowledge is that behaviors that at one time weren't tolerated by communities is now allowed under the aegis of "freedom".....

I'd suggest there's a lot more to the contributory mix that results in 'state of mind' than those we're eager to accept and embrace as substantiation for an altered sense of reality.
 
Kreskin
#38
Mikey, determining the state of mind is often not an issue. If someone buys rope at the store, then handcuffs and a gun, then kidnaps and murders someone..well you string together the evidence and the state of mind, for criminal court purposes, becomes apparent. The court system does a pretty good job of it using layers upon layers of evidence, witnesses etc. It's not the state of mind for abstract discussion, it's the state of mind of criminal liability/responsibility.
 
MikeyDB
#39
I agree with that analysis but you'd have to admit that its utter simplicity is apparent...

If we differentiate between "murder one" and "second degree murder" on the basis of whether someone has planned and set events into motion with the idea that the target will fall victim to these machinations we preclude those who are responsible for the more subtle forms. I understand what you're saying, but a significant element in todays justice system relies on the anticipated effort of proscecutors and legal systems to be able to adequately prove that events that contributed to the murder or situation will remain unproveable... "I can't recall" or "I don't remember that.." are the grist of the new legal mill. Justice has been made not only two tiered but vulnerable to the manipulation of percpetion and complications that practiced criminals are certainly capable of providing. If there were this simple linear relationship between the hardware store the rope and the body, why do we end up with Karla Homolka cutting deals and paying convicted felons for information in the pursuit of other criminals?

I'm suggesting that other than crimes of passion (not a murder-one event) or crimes of negligence (although arguable) crime has become far more complex in its planning and execution than it has been ever before, and as with many things in life this is both regrettable and entirely predicatable. We have seen the Steven Truscotts and other potentially innocent people incarcerated and sentenced to death on the basis of faulty evidence, contaminated expert testimony...a coroner in Ontario...provision for situations like Munchousens by Proxy, Post Partum Depression and false memories...etc. etc. etc.

The picture you paint of the investigation and logical course of argument is valid in many situations but I'll contend that those are the exceptions as opposed to the rule in modern day criminology and jurisprudence.
 
Kreskin
#40
They put people on the stand and it's up to the judge or jury to determine whether they are credible. In many cases it is reasonable not to remember. I can barely remember what I did yesterday. And the law looks at things like reasonableness. Should a 21 year old have known it wasn't right to drive 140 mph in a construction zone? It doesn't matter whether he just played a video game or not, he ought to have known. The onus is on him to change the minds of everyone else.

If anyone has a better idea for a court system...
 
MikeyDB
#41
I agree ..generally....

If the posted speed limit is say 100 KPH and the flow of traffic on any of the 400 series highways in Ontario is monitored...and is actually (the speed of the majority of traffic) around 130, is the responsibility for ignoring the posted speed limit a function of 'frame of mind' or is it something else?

I too have memory deficits and fully understand that people forget things... Have you ever heard so many utterances of these statements in court and in government as you have in the past 20 years?

We can pretend that it (the judicial system) "works" but we have ample evidence indicating that it doesn't work all that well...

When we factor in the effects of altered states of mind...whether thats excessive estrogen in meat, carcinogens and poisons consumed as recreational material...pot booze and other things.....when we have the example for our children of the wealthy and the powerful recieving a different level of "justice" than the poor, is there any liklihood that the attitude of "getting away with it" is more than simply product of situational circumstance?
 
warrior_won
#42
Quote: Originally Posted by NiflmirView Post

It is very important not to conflate "Intent" with "mens rea". The best interpretation is merely, guilty mind. Different crimes require differing degrees of mind set. Mens rea can in varying cases mean

  1. Intent: intent on committing the actus rea.
  2. Neglect: knowing that your actions may cause the actus rea but proceeding anyways.
  3. Wilful ignorance: knowing that maybe your actions are "dangerous" and should be considered more carefully, but not considering them so as to not cause cognitive dissonance.
  4. Criminal ignorance: honestly being ignorant that one's actions would bring about the actus rea, but any "reasonable" person would have known.

Hogwash. Negligence is negligence. Pure and simple. The Court does not recognize ignorance of the law as a valid defense. You cannot argue that you didn't know the posted speed limit was the maximum speed in which you could drive. The Court will not accept the argument that you believed the posted speed limit to be a mere guide as to how fast you should drive.

Take the case of a person who is racing in the street and becomes involved in an accident causing death. Clearly the intent was not to cause death or to even become involved in an accident. The accident and death were simply consequences of the original crime. The law does not allow you to escape prosecution for the unintended actions. Instead, the Court takes the view that you were breaking the law in exceeding the speed limit. The Court also takes the view that the speed limits are set for purposes of safety, and you should have had a reasonable expectation that the consequences of your actions could have been most severe.

Quote:

There is a world of difference between an attorney and an officer of the peace, in general. Sometimes it may be unethical for an attorney to question an officer of the peace, but it requires some sort of shared interest between the two of them more than merely interest in justice. One would have to build up some sort of conflict of interest between the attorney's supposed role and the matter to which the attorney is questioning the witness that goes beyond similarity in semantics of titles.

Again, hogwash! You are making a most disturbing argument. Firstly, you are suggesting that a "peace officer" can present evidence or offer testimony in a trial without having that evidence or testimony questioned. If courts were to deem such conduct unethical, there would be no end to the number of innocent people convicted of crimes they had not committed.

Secondly, you're taking the position that Peace Officers should not be held accountable for their actions or inactions. You obviously haven't the foggiest notion of the law and remain entirely ignorant of the findings of the Courts over the last half century. Just this year, for example, the Court of Appeals held that peace officers may be personally sued for negligence.

Neither the law nor the courts allow peace officers to be treated as a special class of citizen. The law gives peace officers some latitude in the performance of their duties, but they have made it very clear that their actions be "reasonable" under the circumstances.
 
warrior_won
#43
Quote: Originally Posted by MikeyDBView Post

Kreskin

How do we assertain the state of mind of the accused or anyone else for that matter?

I think the more important question for consideration, is "How is the state of mind relevant" to the issue before the Court?

Obviously, in a case of unnatural death, the state of mind of the accused is most important. Did the accused premeditate and carry out the offense of murder? This is an important element for finding of murder in the first degree. Did the person cause the death willfully, but without premeditation? This is important for a finding of murder in the second degree.

Was the death unintended but the result of criminal negligence? i.e. drunk driving or unsafe use of a firearm.

The state of mind is also an important component in establishing whether the accused can be held responsible for the crimes he/she is accused of having committed. Is the accused capable of knowing that his or her actions would cause harm, for example? Was the accused acting with reasonable apprehension of fear for his/her own safety or life? These are legitimate considerations.

The law offers some latitude in situations where there is a reasonable apprehension of danger, providing the response to that danger is also reasonable. The law also says that a person who cannot reasonably be expected to know what he or she is doing is wrong be given some latitude.

The law does not and will not recognize "good intent" in the commision of a crime. The law will not condone vigilantes, for example. Private citizens are generally discouraged from taking the law into their own hands.

So would a court consider that you had just come out of a Rambo movie and gone on a mad shooting rampage? No! Not for the most part. The Court doesn't really care that you watched a movie. The Court is only concerned with the mad shooting rampage you went on, and the result of that shooting rampage. You are expected to be able to discern from fantasy and reality. If you cannot discern between fantasy and reality, the court will take that into consideration. But high testoseone levels? Not a valid defense!
 
Tonington
#44
Quote: Originally Posted by warrior_wonView Post

Hogwash. Negligence is negligence. Pure and simple. The Court does not recognize ignorance of the law as a valid defense. You cannot argue that you didn't know the posted speed limit was the maximum speed in which you could drive. The Court will not accept the argument that you believed the posted speed limit to be a mere guide as to how fast you should drive.


As you just recently learned what mens rea is, perhaps you should study the subject with a more thorough effort before calling something hogwash. Criminal negligence is only a small portion of the mens rea, and if you read what Niflmir said a little further down, you would see that he said these differences are in need of context for disambiguation. Of course the example you give doesn't count. Anyone with a license had to take a test, and speeding limits are required knowledge.

What can be argued, via the subjective and objective tests for mens rea, is that driving at 200 km/h is not reasonable. A death caused by a person speeding along like that would meet the criteria of mens rea, ie. criminal negligence causing a death.

Perform a search for Model Penal Code, if you want to see the different levels of mens rea.
 
lone wolf
#45
Maybe you'd better incorperate a little humility into the act. Should you go before a judge spouting lawyerese, you can bet you're going to be held to a higher standard than some poor fool representing himself. Know what a crossed 'T' and a dotted 'I' means. There IS a huge difference between theory and case-by-case reality (as is the question on ethics)

Woof
 
warrior_won
#46
Quote: Originally Posted by ToningtonView Post

As you just recently learned what mens rea is, perhaps you should study the subject with a more thorough effort before calling something hogwash. Criminal negligence is only a small portion of the mens rea, and if you read what Niflmir said a little further down, you would see that he said these differences are in need of context for disambiguation. Of course the example you give doesn't count. Anyone with a license had to take a test, and speeding limits are required knowledge.

I have been doing research by looking at decisions made by the Ontario Court of Appeal and the Supreme Court of Canada.

In Canada, Intention, Recklessness, and Willful Blindness are generally treated the same. So in a very real sense what Niflmir posted is hogwash. All three satisfy the fault element.

I've been looking at the applicability of Section 21 of the Criminal Code of Canada as it relates to mens rea.

21. (1) Every one is a party to an offence who

(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.


From wikipedia:
Quote:


Criminal offences require that the prosecuting crown to prove that there was criminal conduct (known as the actus reus or "external element") accompanied by a criminal state of mind (known as the mens rea or "fault element")[2] on a standard of "beyond a reasonable doubt".[3] Exception to the mens rea requirement for strict and absolute liability offences.
The specific elements of each offence can be found in the wording of the offence as well as the case law interpreting it. The external elements typically require there to be an "act", within some "circumstances", and sometimes a specific "consequence" that is caused by the action.[4]
The mental or fault elements of an offence...

Quote has been trimmed





Quote:

Perform a search for Model Penal Code, if you want to see the different levels of mens rea.

The MPC was developed by the American Law Institute in 1962 and last updated in 1981. It was meant to stimulate legislators and was not enacted into law.

The courts will use the MPC on rare occasions for non-code criminal statutes -- In the United States.
Last edited by warrior_won; Dec 13th, 2007 at 08:33 PM..
 
warrior_won
#47
Quote: Originally Posted by lone wolfView Post

Maybe you'd better incorperate a little humility into the act. Should you go before a judge spouting lawyerese, you can bet you're going to be held to a higher standard than some poor fool representing himself. Know what a crossed 'T' and a dotted 'I' means. There IS a huge difference between theory and case-by-case reality (as is the question on ethics)

Woof

If I am to go before a Judge spouting lawyerese, it will be from the tongue of an actual lawyer.

Perhaps I should offer this question:

Under what circumstances should it be considered "unethical" for a lawyer to question the credibility or intent of a police officer in a court of law?

Suppose a police officer were to offer into testimony a set of circumstances that clearly defy common sense, reason, or logic, would it be deemed unethical for the defense attorney to question this? Suppose the lawyer's client were the victim of an orchestrated conspiracy to maliciously railroad him on a false charge. Would it be deemed unethical for the lawyer to suggest that there was an abuse of process by the police officer? I would think not!

To me, you appear to be taking the position that what a police officer says or does is legitimate and valid regardless of the circumstances. You appear to be taking the position that it is okay to send 100 innocent people to prison as long as one guilty police officer goes free.

How, may I ask, would the Crown pursue criminal charges against a police officer if it were deemed unethical to hold that the accused police officer were anything other than upstanding and of the highest integrity? How, may I ask, would it be possible for a citizen to bring a negligence suit against an officer if it were deemed unethical for the citizen's lawyer to level allegations against the officer?

With all due respect, Lone Wolf, your position on this matter leaves much to be questioned. Not only that, but it flys in the face of what is obvious evidence to the contrary.
Last edited by warrior_won; Dec 13th, 2007 at 09:19 PM..
 
Kreskin
#48
We should have a legal forum. The law is fascinating to talk about and debate.
 
warrior_won
#49
Quote: Originally Posted by ToningtonView Post

What can be argued, via the subjective and objective tests for mens rea, is that driving at 200 km/h is not reasonable. A death caused by a person speeding along like that would meet the criteria of mens rea, ie. criminal negligence causing a death.

Which is pretty much consistent with what I said previously. Disobeying posted speed limits would impute absolute liability. It is expected that the driver had absolute knowledge of the offense and the requirement for mens rea is nullified. i.e. You exceeded the speed limit and that is all there is to it.

Were the speeder to cause an accident and/or death, the courts would first look to the relevant code. If the code established the requirements for mens rea, there would be no need to look at the objective or subjective tests. Why? Because the law specifically states that if you are speeding and cause an accident or death, you are guilty of the consequences. It does not matter that you were ignorant of the fact that your speeding could have resulted in the more serious consequence. And ignorance of the law is not a valid defense.

Correct me if I'm wrong. I'm not here to be right... I'm here to discuss.
 
Kreskin
#50
However, if it was discovered that the man had received a call about his kid being near death after an accident, and he was driving home to see the kid who may only have minutes to live, his state of mind would be different from a joyriding street racer.
 
warrior_won
#51
Quote: Originally Posted by KreskinView Post

However, if it was discovered that the man had received a call about his kid being near death after an accident, and he was driving home to see the kid who may only have minutes to live, his state of mind would be different from a joyriding street racer.

Would that mean that the driver did NOT commit the offense though? Does the fact that a death is imminent give the father the right to put others' lives in potential peril?

Suppose the father, while speeding home to be with his son in his final moments, hit and killed another pedestrian, does that put the speeding father in the right?

I'm not going to touch this one with a ten foot pole.
 
lone wolf
#52
The above is a perfect description of another great legal term: Slippery slope....

Woof!
 
Kreskin
#53
It might be the difference between negligence and criminal negligence. One could probably argue the defense of necessity as well.
 
Tonington
#54
Quote: Originally Posted by warrior_wonView Post

I have been doing research by looking at decisions made by the Ontario Court of Appeal and the Supreme Court of Canada.

In Canada, Intention, Recklessness, and Willful Blindness are generally treated the same. So in a very real sense what Niflmir posted is hogwash. All three satisfy the fault element.

What Niflmir posted, was an explanation of the difference between intention and mens rea. It's not hogwash, it just is. Negligence refers to a mental element of the offence, as can intention. Neglect is not a defense, as you seemed to interpret. The guilty mind in law exists within some of the conditions mentioned by Niflmir.
Quote: Originally Posted by warrior_wonView Post

I've been looking at the applicability of Section 21 of the Criminal Code of Canada as it relates to mens rea.

21. (1) Every one is a party to an offence who

(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

So, when someone: "does or omits to do anything for the purpose of aiding any person to commit it,"

The guilty mind is from neglect. The person neglected to act when a situation occured. Maybe someone left the scene of a car crash. The crime itself, is the omission of your duties under the law, it is a choice you made. That is one example a guilty mind. The actus rea could be operating a motor vehicle under the influence.

Quote: Originally Posted by warrior_wonView Post

The MPC was developed by the American Law Institute in 1962 and last updated in 1981. It was meant to stimulate legislators and was not enacted into law.

The courts will use the MPC on rare occasions for non-code criminal statutes -- In the United States.

moritzlaw.osu.edu/osjcl/Artic...ary/simons.pdf (external - login to view)
This is a good essay discussing the relevance of the MPC on mens rea.
 
warrior_won
#55
Quote: Originally Posted by ToningtonView Post

What Niflmir posted, was an explanation of the difference between intention and mens rea. It's not hogwash, it just is. Negligence refers to a mental element of the offence, as can intention. Neglect is not a defense, as you seemed to interpret. The guilty mind in law exists within some of the conditions mentioned by Niflmir.

Nowhere did I state explicitly, or implicitly, that neglect was a defense. I said that neglect would satisfy the fault element for a finding of guilt. What I also said was that Canadian law, at least the Supreme Court of Canada, views recklessness, willful blindness, and knowing as being pretty much the same thing. The Supreme Court of Canada generally takes the view that if you failed to take steps to gain knowledge of something as a means of shielding yourself from "knowing", it is the same as knowing.

I'm not even going to bother. I'll assume that you can read and that you are just attempting to aggravate me.

Quote:

So, when someone: "does or omits to do anything for the purpose of aiding any person to commit it,"

The guilty mind is from neglect. The person neglected to act when a situation occured. Maybe someone left the scene of a car crash. The crime itself, is the omission of your duties under the law, it is a choice you made. That is one example a guilty mind. The actus rea could be operating a motor vehicle under the influence.

I was looking at a Supreme Court decision on this matter. I believe it was Regina v. Annex and a reporter whose name I don't recall at the moment.

Anyway the case was such that a newspaper had published details of a trial, including the complainants name, in contravention of publication ban. The Crown brought charges against both the reporter and Annex ("paper").

The paper was convicted and the reporter was acquitted. The Crown was seeking a conviction under Section 21 of the Criminal Code. Essentially, the Crown took the position that the Paper had violated the publication ban, and that the reporter had aided and abetted the paper in doing so.

You can go to the CanLII website and search for it. I'm not going to explain what the Court has already so clearly explained.


Quote:

moritzlaw.osu.edu/osjcl/Artic...ary/simons.pdf (external - login to view)
This is a good essay discussing the relevance of the MPC on mens rea.

Yes, I'm quite impressed by an essay undertaken by an American University, with comment by American Scholars and Lawyers, with respect to an American Statutory Document. Care to tell me how this means anything in a Canadian Court?

The MPC is not law, by the way. Roughly 1/3 of U.S. States don't even bother with it. I have done some research on this. I've become reasonably familiar with it. More familiar with it than I would ever need to be, given I have no intention of ever practicing or studying to practice law.

Absolute Liability ---> No Mens Rea
Strict Liability ---> Partial Mens Rea
Mens Rea ---> Full Mens Rea

Absolute Liability includes offenses such as watering your lawn on an even numbered day when the law says that odd numbered homes must water their lawns on odd numbered days.

Strict Liability includes offences where the criteria is pecifically set out in the code of the offense.

Full Mens Rea applies to things like murder and other serious offenses.

Then there's the two part test. Firstly, the test for objective mens rea test. Then if that passes, the subjective mens rea test. yada, yada, yada...

Bowl me over with a balance of probabilities, why don't ya? Let's look at foreseeability and the scale of probabilities. Was the outcome of the actus reas ineviable, probable, possible, or remote? Yada, yada, yada...
 
warrior_won
#56
Here's an interesting tidbit that I found on the Internet:

"In Canada, discussions about the “guilty mind” requirement for criminal culpability (mens rea), can seem deceptively straightforward. For more than a generation, the Canadian conception of mens rea, the one that has been repeatedly endorsed by the Supreme Court, turns on what is essentially a descriptive inquiry. Although the offence creating provision may modify what would otherwise be required, generally speaking, beyond finding that the accused committed the prohibited act (actus reus), the trier of fact must also be satisfied that the accused did so knowingly or intentionally. Willful blindness, defined as a subjective awareness of a need for further inquiry, and a choice not to inquire because of a desire to insulate oneself from perfect knowledge, is equated with actual knowledge. Similarly, recklessness, an appreciation of the risk that the actus reus will be realized but proceeding indifferent to that possibility, is also generally treated the same. In short, intention, knowledge, willful blindness and recklessness (varying legal constructs of different but closely related mental conditions) all turn on the subjective mindset of the individual accused. Each is treated as generally satisfying the “guilty mind” requirement (mens rea) for liability under Canadian criminal law."

Example:

I am under unlawful surveillance. The people watching me under surveillance claim that they don't know that I'm under surveillance. The Supreme Court of Canada has traditionally held that the accused party, in choosing not to inquire, does so out of a desire to shield one's self from having knowledge. The Supreme Court of Canada therefore says that "Willful blindness" as a result of the choice not to gain knowledge, is equal to having knowledge. Therefore, the criteria for mens rea is met. The fault element has been established!

See what I'm driving at here? Someone says, "Yeah, we watched you, but we didn't know that you were under surveillance. We thought you were seeking fame." I reply with, "Did you inquire? You knew that I was complaining of being under surveillance. So you should have made an inquiry. Did you inquire?" You say, "No!" I say, "Why not?" You say, "I didn't care!" I say, "You didn't care that you were involved in a crime? You didn't feel any need to inquire?" You say, "No! I didn't want to know!" I say, "So you chose to shield yourself from having actual knowledge?" You say, "Exactly! As long as I don't know, I'm not guilty of anything." I say, "Thank you! You've just met the criteria for mens rea."


Last edited by warrior_won; Dec 14th, 2007 at 04:59 AM..
 
Niflmir
#57
I find it amusing that your interpretation of what I said is the exact opposite of the intended meaning.

Quote: Originally Posted by warrior_wonView Post

[/list]Hogwash. Negligence is negligence. Pure and simple. The Court does not recognize ignorance of the law as a valid defense. You cannot argue that you didn't know the posted speed limit was the maximum speed in which you could drive. The Court will not accept the argument that you believed the posted speed limit to be a mere guide as to how fast you should drive.

Take the case of a person who is racing in the street and becomes involved in an accident causing death. Clearly the intent was not to cause death or to even become involved in an accident. The accident and death were simply consequences of the original crime. The law does not allow you to escape prosecution for the unintended actions. Instead, the Court takes the view that you were breaking the law in exceeding the speed limit. The Court also takes the view that the speed limits are set for purposes of safety, and you should have had a reasonable expectation that the consequences of your actions could have been most severe.

Yes. Negligence is negligence, negligence is not intent. Negligence is part of mens rea. This is why you can be held criminally responsible for a crime you did not intend to commit, due to negligence. This illustrates why one must not confuse intention with mens rea. The examples I outlined were examples of mens rea and were meant to be distinguished from intent. As I stated, criminal ignorance is a form of mens rea, or in your words: "The Court does not recognize ignorance of the law as a valid defense." You should try to understand what I have said before you posit something, which I said but in your own words, in argument against what I said.

Quote: Originally Posted by warrior_wonView Post

Again, hogwash! You are making a most disturbing argument. Firstly, you are suggesting that a "peace officer" can present evidence or offer testimony in a trial without having that evidence or testimony questioned. If courts were to deem such conduct unethical, there would be no end to the number of innocent people convicted of crimes they had not committed.

Secondly, you're taking the position that Peace Officers should not be held accountable for their actions or inactions. You obviously haven't the foggiest notion of the law and remain entirely ignorant of the findings of the Courts over the last half century. Just this year, for example, the Court of Appeals held that peace officers may be personally sued for negligence.

Neither the law nor the courts allow peace officers to be treated as a special class of citizen. The law gives peace officers some latitude in the performance of their duties, but they have made it very clear that their actions be "reasonable" under the circumstances.

Again, you don't seem to understand what I said. I said, more or less, "It is almost never unethical for a peace officer to be questioned in a court of law." I even went as far as to say what conditions are necessary for it to be unethical, without providing context though. How you managed to get anything about my personal belief about peace officer accountability out of that is beyond me.

Perhaps you should brush up on your English language before you dig into the law and make rude comments towards people attempting to help elucidate you. If you seriously have concerns with the information I have presented, I would be more interested in them then in your attacking a straw man argument which does not belong to me.
 
warrior_won
#58
Quote: Originally Posted by NiflmirView Post

Yes. Negligence is negligence, negligence is not intent. Negligence is part of mens rea. This is why you can be held criminally responsible for a crime you did not intend to commit, due to negligence. This illustrates why one must not confuse intention with mens rea. The examples I outlined were examples of mens rea and were meant to be distinguished from intent. As I stated, criminal ignorance is a form of mens rea, or in your words: "The Court does not recognize ignorance of the law as a valid defense." You should try to understand what I have said before you posit something, which I said but in your own words, in argument against what I said.

I didn't say that negligence was intent. Where did I say that? Where did I imply that?

Mens rea as far as the Canadian Courts are concerned can be summed up like this:

The fault element is established if:

1) The person acted with deliberate intent. ie. The person knew.
2) The person ought to have reasonably known based on a subjective analysis of foreseeability.

That's it. That's mens rea in a nutshell. The Supreme Court takes the view that if you ought to have reasonably known, based on a subjective analysis of forseeability, then you knew. This is based on the assumption that the person is of average intelligence and is capable of understanding the simple concept of cause and effect. It's no more difficult than that!


Quote:

Again, you don't seem to understand what I said. I said, more or less, "It is almost never unethical for a peace officer to be questioned in a court of law." I even went as far as to say what conditions are necessary for it to be unethical, without providing context though. How you managed to get anything about my personal belief about peace officer accountability out of that is beyond me.

I'll have to read what you wrote again. It's possible I was confusing you with Lone Wolf.

Quote:

Perhaps you should brush up on your English language before you dig into the law and make rude comments towards people attempting to help elucidate you. If you seriously have concerns with the information I have presented, I would be more interested in them then in your attacking a straw man argument which does not belong to me.

I'm not here to be right. I'm here to discuss. I have no intention of studying or practicing law. My interest in the law is entirely self-serving and I endeavour to limit myself to areas that specifically apply to my personal situation.
 
Niflmir
#59
Quote: Originally Posted by warrior_wonView Post

I didn't say that negligence was intent. Where did I say that? Where did I imply that?

Mens rea as far as the Canadian Courts are concerned can be summed up like this:

The fault element is established if:

1) The person acted with deliberate intent. ie. The person knew.
2) The person ought to have reasonably known based on a subjective analysis of foreseeability.

That's it. That's mens rea in a nutshell. The Supreme Court takes the view that if you ought to have reasonably known, based on a subjective analysis of forseeability, then you knew. This is based on the assumption that the person is of average intelligence and is capable of understanding the simple concept of cause and effect. It's no more difficult than that!




I'll have to read what you wrote again. It's possible I was confusing you with Lone Wolf.



I'm not here to be right. I'm here to discuss. I have no intention of studying or practicing law. My interest in the law is entirely self-serving and I endeavour to limit myself to areas that specifically apply to my personal situation.

I am glad we have this matter resolved. Conflict is always a bit disconcerting.

No one said negligence was intent, but we all know (implicitly or explicitly) that negligence is a form of mens rea. Before I posted the thread was moving in a direction which focused on intent as mens rea, in fact using them almost synonymously, it was merely a warning not to think of them as synonymous that I orginally posted.

The summary you give of mens rea above is fairly good. But the second condition is anything but clear, especially the subjective element. Merely because a judge or jury might have known that a certain action would occur does not mean most reasonable persons would have known, and trial judges must weigh such a consideration.

In regards to law and ignorance of the law, and as an aside, there are some very special laws in Canada with regards to prohibited weapons. There is a law which makes it an offense to own a prohibited weapon, ignorance is no defense. Then there is a law which makes it an offense to own a prohibited weapon when one knows that it is prohibited, clearly ignorance of the first law is one's only defense against this second law when one is guilty of the first. Which is a very strange situation.
 
gopher
+1
#60
``more than 5000 cases before the courts in this country shows that the courts are not adverse to you giving it your best shot.``


The courts are controlled by right wing activist judges who let those crooked cops go off scot free just like they did with racist criminal punk Mark Fuhrmann.

Then, when people are finally compensated for what they suffer at the hands of those racist punks, it is the taxpayers who foot the bill while the police criminals laugh and celebrate.
 

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