Carleton Law and Legal Studies - Criminal Law Student Blogs - 2018 Compilation

May 7, 2018

As a class assignment, beginner students in RobsonCrim co-editor Rebecca Jaremko Bromwich's undergraduate Criminal Law course at Carleton's Department of Law and Legal Studies authored blog posts on issues relating to law and legal studies.  What follows is a compilation of some excerpts from interesting contributions made by these second year undergraduate students.  The editors certainly hope these promising students carry on thinking critically about the criminal law as they pursue further study!

 

from The Legal Ramifications of the Ability of AI to Premeditate Crime  - Adam Daudi

 

"One new issue the law faces is the existence of Artificial Intelligence. These entities rule our day-to-day lives. The use of multifaceted algorithms to analyse and interpret ever changing situations to create pinpoint results is no longer an arithmetic crusade, but an everyday constant we take for granted. It becomes an ethnographic mission to attempt to analyze its impact on us.The question remains if these entities were to commit crime, Artificially Intelligent Crime – or AIC, if you will – could it be determined that AI has the capability to produce mens rea? To begin discussing the degree of mental premeditation AI may be capable of, first one must be introduced to a brief background into AI. Then into an investigation of the mens rea element and how to find it, followed by the penal results of AIC."

 

Reference:

 

Gabriel Hallevy, When Robots Kill: Artificial Intelligence Under Criminal Law (Boston: University Press of New England, 2013)

 

from: Mens Rea and the Mentally Ill: A Critical Analysis: - Rosalie Burgess

 

 

"The purpose of our criminal justice system is not only to administer punishments but also engage in active preventative measures to ensure the safety of the public. Unfortunately I cannot provide a concrete solution to ease the suffering of grieving victims. My best attempt to aid those in grievance would be to increase public awareness of mental disorders and better educate law enforcement personnel to prevent crimes in the first place. Until we as society can recognize that a disease of the mind is as adequate as a disease of the body, the ignorance of those who suffer will continue and impact the lives of everyone."

 

from: Not Criminally Responsible Due to Mental Disorder: Should it be a Defense?  - Natasha McDonough

 

"A phrase brought forward by Marcus Aurelius stating "furiosus satis ipso furore punitor" describes the severity that mental illness has on an individual. In English, the phase is translated to "the madman is sufficiently punished by his madness." Mental illness is punishment enough. The mens rea behind crimes is clearly defined and therefore, it is appropriate to excuse guilt from NCRMD cases because of provisions set in place, therefore reform is not needed under Canadian criminal law."

 

Reference: Julio Arboleda-Florez, “Insanity Defence in Canada” (1978) 23:1 CAN PSYCHIAT ASSOC J 23

 

 

from: Amendments to Adolescent Mens Rea - Alexandra Chadwick 

 

"Adolescents should not be sentenced as adults.  They do not possess a full adult mens rea, which is solely about whether the person in full mental capacity knew the extent of their actions. The mens rea standard of having a guilty mind and understanding murder should not be applicable to adolescents as it is currently written because it has been proven through study of adolescent brain development that they do not have the same capacity as adults."

 

 

from: Determination of Fault Under the Law of Homicide -  Cynthia Taylor

 

"I am a believer in our justice system. Canada has the Charter of Rights and Freedoms and a Criminal Code that is set out to protect the individual and society as a whole. The mens rea component to a criminal case is essential when determining which degree of homicide is appropriate for conviction. The courts have identified the importance of aggravating and mitigating factors of these brutal instances. In terms of homicide, there is a grey area in the law for cases in which the law has failed to address the circumstantially dependent component of actus reus to a crime. Despite this, I conclude that the concerns of mens rea under the Criminal Code are already satisfied under s34 and do not need to be reformed when determining fault."

 

 

from: Infanticide Law: Outdated and Sexist  - Yefim Belyavsky

 

"A disturbed mind, or mens rea altered by a disease of the mind, is certainly a mitigating factor that judges should consider during sentencing. However, the law should give both males and females “disturbed mind” leniency rather than only one. Infanticide laws address the "disturbed minds" of women only, on the basis of old, wrong ideas about women. They should be deleted. This way, all persons who murder a newborn will have their mental state (mens rea) taken into consideration equally."

 

 

 

from Murder of Peace Officers and Mens Rea  - Daniella Filoso

 

"Section 231(1)(4) (a-c) of the Criminal Code of Canada should be changed so that a more stringent mens rea standard is required in order to charge an individual with first degree murder of a peace officer. The existing murder provision relating to peace officers challenges the importance of actus reus and mens rea. This has negative implications for individuals from marginalized groups. Further, not needing a "planned and deliberate" mens rea to be charged with the murder of a peace officer creates a disparity between the responsibility of Canadian individuals and peace officers."

 

From Gradations of Murder  - Izzidine Al Mufti

 

"The current gradation and harsh periods of parole ineligibility can very well act as a means of pressuring the accused into entering plea negotiations. Despite homicide rates having declined since the 1976, the rate of first degree murder charges has risen."

 

Reference: Isabel Grant, Rethinking the Sentencing Regime for Murder, 39 Osgoode Hall L.J. 655 (2001), at 708. 

 

from Murder Provisions and Assisted Suicide - Colm O'Sullivan

 

"Those who administer assisted suicide have a job unlike any other since they can legally kill a person because the person wants them to. Doctors are vulnerable to being charged with homicide in unjust circumstances since the premeditated ending of life could be seen as murder because they are not excluded from the murder provision."

 

 

from Offender History and Intent  - Cameron Fox

 

"I would like to see us introduce using offender history-analysis as an aid in determining whether the mens rea existed for a crime. While I am not suggesting we replace Canadian courts with psychiatric institutions, more studies are surfacing about the effects one’s childhood has on their adult life. Emphasis on this aspect is imperative. “Thought” is not something we can bag and display as exhibitory evidence in a courtroom. What we can show are historical facts about the offender during his/her formative years. This idea is an extremely powerful tool, one that cannot be used as the only source of evidence- of course. These historical facts are to be used when the question of mens rea teeters in the center of interpretation, and the only source of intent-evidence is too subjective. I posit analysis of an offender’s history, and risk factors presented to them in earlier stages of life will allow the Crown to confidently, and correctly determine what he meant." 

 

from The Mind of a Murderer - Braedan de Bakker

 

"...The charge of first-degree murder logically and legally requires subjective mens rea standard. Applying an objective standard to the highly stigmatized crimes such as first-degree murder would lead to illogical conclusions as well as unjustly lower the standard of proof. It is because of this that the subjective mens rea standard aptly fits the crime of first-degree murder. Cases such as Creighton, Martineau, and Droste effectively demonstrate this. The standard of evidence should always at the highest possible threshold for grand accusations or claims; anything less would be a violation of justice and intellect."

 

References: 

 

R. v. Creighton, [1993] 3 S.C.R. 3

R. v. Droste, [1984] 1 S.C.R. 208

R. v. Martineau, [1990] 2 S.C.R. 633

 

 

from Mens Rea Within Canadian Homicide - Jordan Reid

 

"Winston Churchill once famously said, “If you kill a murderer, the quantity of murderers will not change.” Staying true to these immortal words, in 1976, Canada embraced a reformative approach to criminal justice as opposed to the previous punitive approach when it introduced Bill C-84 in its Criminal Code thus abolishing the practice of death penalty."

 

from Defence of Property and Murder: Current Issues  - Anthony Colonico

 

"Especially after Colten Boushie's death and the acquittal of Gerald Stanley for it, Canada's law needs to show that a person’s life is valued over a piece of property. This is crucial to Canadian common law, as well as addresses the complexity of this debate today, given recent events."

 

from Mens Rea Matters - Katrina Doering

 

"The Criminal Code in Canada is a set of rules made for individuals who break the law, and therefore should be a document that is trustworthy and just."

 

 

 

 

from  We Can and Must Do Better  - Kelsey Rhude

"While clearly there is no simple solution, it is time that the criminal justice system lives up to its promise of justice, not only for Canadians of one particular cultural and ethnic background, but for all Canadians."

 

 

 

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