12. Strict and Absolute Liability
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the Defence of All Reasonable Care I. Canadian
294 ALBERTA LAW REVIEW [VOL. XVIII, NO. 2 . THE DEFENCE OF ALL REASONABLE CARE . even a dog knows the difference between being kicked and being stumbled over.1 I. CANADIAN AUTHORITY Prior to May 1978, there was no clear Canadian authority recognizing the existence of a defence of all reasonable care. For some offences it was necessary that the Crown prove affirmatively beyond a reasonable doubt a mens rea, that is, an intent to commit the offence. For other offences, sometimes called offences of strict or absolute liability, the Crown did not have to prove mens rea, but merely the actus reus. There was no sure and certain method of determining whether an offence was in the first category or the second.2 For example, in R. v. Pierce Fi,sheries3 the Supreme Court of Canada decided that mens rea or proof of knowledge was not required to convict on a charge of having possession of undersized lobsters contrary to regulations made pursuant to the Fisheries Act, R.S.C. 1952, c. 119. But the same court decided that possession of a drug without knowing what it was is no offence.4 In May 1978, the Supreme Court of Canada, with Dickson J. writing for a unanimous court, clearly defined a new category of strict liability offences. This new category does not require the Crown to prove mens rea beyond a reasonable doubt. It allows the defendant to exculpate himself by showing on a balance of probabilities that he took all reasonable care to avoid committing the offence.5 A. -
Section 7: Criminal Offense, Criminal Responsibility, and Commission of a Criminal Offense
63 Section 7: Criminal Offense, Criminal Responsibility, and Commission of a Criminal Offense Article 15: Criminal Offense A criminal offense is an unlawful act: (a) that is prescribed as a criminal offense by law; (b) whose characteristics are specified by law; and (c) for which a penalty is prescribed by law. Commentary This provision reiterates some of the aspects of the principle of legality and others relating to the purposes and limits of criminal legislation. Reference should be made to Article 2 (“Purpose and Limits of Criminal Legislation”) and Article 3 (“Principle of Legality”) and their accompanying commentaries. Article 16: Criminal Responsibility A person who commits a criminal offense is criminally responsible if: (a) he or she commits a criminal offense, as defined under Article 15, with intention, recklessness, or negligence as defined in Article 18; IOP573A_ModelCodes_Part1.indd 63 6/25/07 10:13:18 AM 64 • General Part, Section (b) no lawful justification exists under Articles 20–22 of the MCC for the commission of the criminal offense; (c) there are no grounds excluding criminal responsibility for the commission of the criminal offense under Articles 2–26 of the MCC; and (d) there are no other statutorily defined grounds excluding criminal responsibility. Commentary When a person is found criminally responsible for the commission of a criminal offense, he or she can be convicted of this offense, and a penalty or penalties may be imposed upon him or her as provided for in the MCC. Article 16 lays down the elements required for a finding of criminal responsibility against a person. -
The Morality of Strict Liability
THE MORALITY OF STRICT TORT LIABILITY JULES L. COLEMAN* Accidents occur; personal property is damaged and sometimes is lost altogether. Accident victims are likely to suffer anything from mere bruises and headaches to temporary or permanent disability to death. The personal and social costs of accidents are staggering. Yet the question of who should bear these costs has turned the heads of few philosophers and has occasioned surprisingly little philo- sophic discussion. Perhaps that is because the answer has seemed so obvious; accident costs, at least the nontrivial ones, ought to be borne by those at fault in causing them.' The requirement of fault at one time appeared to be so deeply rooted in the concept of per- sonal responsibility that in the famous Ives2 case, Judge Werner was moved to argue that liability without fault was not only immoral, but also an unconstitutional violation of due process of law. Al- * Ph.D., The Rockefeller University; M.S.L., Yale Law School. Associate Professor of Philosophy, The University of Wisconsin-Milwaukee. The author wishes to acknowledge the enormous impact that Joel Feinberg and Guido Calabresi have had on the philosophic and legal ideas set forth in this Article, and to express appreciation to Mitchell Polinsky, Bruce Ackerman, and Robert Prichard for their valuable assistance. This Article constitutes part of the author's forthcoming book, RESPONSIBIITY AND Loss ALLOCATION OF THE LAW OF TORTS (Ed.). 1. The term "fault" takes on different shades of meaning, depending upon the legal context in which it is used. For example, the liability of an intentional or reckless tortfeasor is determined differently from that of a negligent tortfeasor. -
Crimes Act 2016
REPUBLIC OF NAURU Crimes Act 2016 ______________________________ Act No. 18 of 2016 ______________________________ TABLE OF PROVISIONS PART 1 – PRELIMINARY ....................................................................................................... 1 1 Short title .................................................................................................... 1 2 Commencement ......................................................................................... 1 3 Application ................................................................................................. 1 4 Codification ................................................................................................ 1 5 Standard geographical jurisdiction ............................................................. 2 6 Extraterritorial jurisdiction—ship or aircraft outside Nauru ......................... 2 7 Extraterritorial jurisdiction—transnational crime ......................................... 4 PART 2 – INTERPRETATION ................................................................................................ 6 8 Definitions .................................................................................................. 6 9 Definition of consent ................................................................................ 13 PART 3 – PRINCIPLES OF CRIMINAL RESPONSIBILITY ................................................. 14 DIVISION 3.1 – PURPOSE AND APPLICATION ................................................................. 14 10 Purpose -
Competing Theories of Blackmail: an Empirical Research Critique of Criminal Law Theory
Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory Paul H. Robinson,* Michael T. Cahill** & Daniel M. Bartels*** The crime of blackmail has risen to national media attention because of the David Letterman case, but this wonderfully curious offense has long been the favorite of clever criminal law theorists. It criminalizes the threat to do something that would not be criminal if one did it. There exists a rich liter- ature on the issue, with many prominent legal scholars offering their accounts. Each theorist has his own explanation as to why the blackmail offense exists. Most theories seek to justify the position that blackmail is a moral wrong and claim to offer an account that reflects widely shared moral intuitions. But the theories make widely varying assertions about what those shared intuitions are, while also lacking any evidence to support the assertions. This Article summarizes the results of an empirical study designed to test the competing theories of blackmail to see which best accords with pre- vailing sentiment. Using a variety of scenarios designed to isolate and test the various criteria different theorists have put forth as “the” key to blackmail, this study reveals which (if any) of the various theories of blackmail proposed to date truly reflects laypeople’s moral judgment. Blackmail is not only a common subject of scholarly theorizing but also a common object of criminal prohibition. Every American jurisdiction criminalizes blackmail, although there is considerable variation in its formulation. The Article reviews the American statutes and describes the three general approaches these provisions reflect. -
The Senior Management Mens Rea: Another Stab at a Workable Integration of Organizational Culpability Into Corporate Criminal Liability
Case Western Reserve Law Review Volume 62 Issue 1 Article 11 2011 The Senior Management Mens Rea: Another Stab at a Workable Integration of Organizational Culpability into Corporate Criminal Liability George R. Skupski Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation George R. Skupski, The Senior Management Mens Rea: Another Stab at a Workable Integration of Organizational Culpability into Corporate Criminal Liability, 62 Case W. Rsrv. L. Rev. 263 (2011) Available at: https://scholarlycommons.law.case.edu/caselrev/vol62/iss1/11 This Note is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. 1/5/2012 3:02:17 PM THE SENIOR MANAGEMENT MENS REA: ANOTHER STAB AT A WORKABLE INTEGRATION OF ORGANIZATIONAL CULPABILITY INTO CORPORATE CRIMINAL LIABILITY INTRODUCTION “It is a poor legal system indeed which is unable to differentiate between the law breaker and the innocent victim of circumstances so that it must punish both alike.”1 This observation summarizes the pervasive flaw with the present standards of vicarious liability used to impose criminal liability on organizations. As in civil lawsuits, corporate criminal liability at the federal level and in many states is imposed using a strict respondeat superior standard: -
CRIMINAL ATTEMPTS at COMMON LAW Edwin R
[Vol. 102 CRIMINAL ATTEMPTS AT COMMON LAW Edwin R. Keedy t GENERAL PRINCIPLES Much has been written on the law of attempts to commit crimes 1 and much more will be written for this is one of the most interesting and difficult problems of the criminal law.2 In many discussions of criminal attempts decisions dealing with common law attempts, stat- utory attempts and aggravated assaults, such as assaults with intent to murder or to rob, are grouped indiscriminately. Since the defini- tions of statutory attempts frequently differ from the common law concepts,8 and since the meanings of assault differ widely,4 it is be- "Professor of Law Emeritus, University of Pennsylvania. 1. See Beale, Criminal Attempts, 16 HARv. L. REv. 491 (1903); Hoyles, The Essentials of Crime, 46 CAN. L.J. 393, 404 (1910) ; Cook, Act, Intention and Motive in the Criminal Law, 26 YALE L.J. 645 (1917) ; Sayre, Criminal Attempts, 41 HARv. L. REv. 821 (1928) ; Tulin, The Role of Penalties in the Criminal Law, 37 YALE L.J. 1048 (1928) ; Arnold, Criminal Attempts-The Rise and Fall of an Abstraction, 40 YALE L.J. 53 (1930); Curran, Criminal and Non-Criminal Attempts, 19 GEo. L.J. 185, 316 (1931); Strahorn, The Effect of Impossibility on Criminal Attempts, 78 U. OF PA. L. Rtv. 962 (1930); Derby, Criminal Attempt-A Discussion of Some New York Cases, 9 N.Y.U.L.Q. REv. 464 (1932); Turner, Attempts to Commit Crimes, 5 CA=. L.J. 230 (1934) ; Skilton, The Mental Element in a Criminal Attempt, 3 U. -
What Does Intent Mean?
WHAT DOES INTENT MEAN? David Crump* I. INTRODUCTION ................................................................. 1060 II. PROTOTYPICAL EXAMPLES OF INTENT DEFINITIONS......... 1062 A. Intent as “Purpose” ..................................................... 1062 B. Intent as Knowledge, Awareness, or the Like ............ 1063 C. Imprecise Definitions, Including Those Not Requiring Either Purpose or Knowledge .................. 1066 D. Specific Intent: What Does It Mean?.......................... 1068 III. THE AMBIGUITY OF THE INTENT DEFINITIONS.................. 1071 A. Proof of Intent and Its Implications for Defining Intent: Circumstantial Evidence and the Jury ........... 1071 B. The Situations in Which Intent Is Placed in Controversy, and the Range of Rebuttals that May Oppose It................................................................... 1074 IV. WHICH DEFINITIONS OF INTENT SHOULD BE USED FOR WHAT KINDS OF MISCONDUCT?....................................... 1078 V. CONCLUSION .................................................................... 1081 * A.B. Harvard College; J.D. University of Texas School of Law. John B. Neibel Professor of Law, University of Houston Law Center. 1059 1060 HOFSTRA LAW REVIEW [Vol. 38:1059 I. INTRODUCTION Imagine a case featuring a manufacturing shop boss who sent his employees into a toxic work environment. As happens at many job sites, hazardous chemicals unavoidably were nearby, and safety always was a matter of reducing their concentration. This attempted solution, however, may mean that dangerous levels of chemicals remain. But this time, the level of toxicity was far higher than usual. There is strong evidence that the shop boss knew about the danger, at least well enough to have realized that it probably had reached a deadly level, but the shop boss disputes this evidence. The employees all became ill, and one of them has died. The survivors sue in an attempt to recover damages for wrongful death. -
Article 273F of the Dutch Criminal Code Valid from 1 July 2009 (Non-Official Translation)
Article 273f of the Dutch criminal code valid from 1 July 2009 (non-official translation) 1. Any person who: 1° by force, violence or other act, by the threat of violence or other act, by extortion, fraud, deception or the misuse of authority arising from the actual state of affairs, by the misuse of a vulnerable position or by giving or receiving remuneration or benefits in order to obtain the consent of a person who has control over this other person recruits, transports, moves, accommodates or shelters another person, with the intention of exploiting this other person or removing his or her organs; 2° recruits, transports, moves, accommodates or shelters a person with the intention of exploiting that other person or removing his or her organs, when that person has not yet reached the age of eighteen years; 3° recruits, takes with him or abducts a person with the intention of inducing that person to make himself/herself available for performing sexual acts with or for a third party for remuneration in another country; 4° forces or induces another person by the means referred to under (a) to make himself/herself available for performing work or services or making his/her organs available or takes any action in the circumstances referred to under (a) which he knows or may reasonably be expected to know will result in that other person making himself/herself available for performing labour or services or making his/her organs available; 5° induces another person to make himself/herself available for performing sexual acts with or for a -
A Timely History of Cheating and Fraud Following Ivey V Genting Casinos (UK)
The honest cheat: a timely history of cheating and fraud following Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 Cerian Griffiths Lecturer in Criminal Law and Criminal Justice, Lancaster University Law School1 Author email: [email protected] Abstract: The UK Supreme Court took the opportunity in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 to reverse the long-standing, but unpopular, test for dishonesty in R v Ghosh. It reduced the relevance of subjectivity in the test of dishonesty, and brought the civil and the criminal law approaches to dishonesty into line by adopting the test as laid down in Royal Brunei Airlines Sdn Bhd v Tan. This article employs extensive legal historical research to demonstrate that the Supreme Court in Ivey was too quick to dismiss the significance of the historical roots of dishonesty. Through an innovative and comprehensive historical framework of fraud, this article demonstrates that dishonesty has long been a central pillar of the actus reus of deceptive offences. The recognition of such significance permits us to situate the role of dishonesty in contemporary criminal property offences. This historical analysis further demonstrates that the Justices erroneously overlooked centuries of jurisprudence in their haste to unite civil and criminal law tests for dishonesty. 1 I would like to thank Lindsay Farmer, Dave Campbell, and Dave Ellis for giving very helpful feedback on earlier drafts of this article. I would also like to thank Angus MacCulloch, Phil Lawton, and the Lancaster Law School Peer Review College for their guidance in developing this paper. -
Fraud: District of Columbia by Robert Van Kirk, Williams & Connolly LLP, with Practical Law Commercial Litigation
STATE Q&A Fraud: District of Columbia by Robert Van Kirk, Williams & Connolly LLP, with Practical Law Commercial Litigation Status: Law stated as of 16 Mar 2021 | Jurisdiction: District of Columbia, United States This document is published by Practical Law and can be found at: us.practicallaw.tr.com/w-029-0846 Request a free trial and demonstration at: us.practicallaw.tr.com/about/freetrial A Q&A guide to fraud claims under District of Columbia law. This Q&A addresses the elements of actual fraud, including material misrepresentation and reliance, and other types of fraud claims, such as fraudulent concealment and constructive fraud. Elements Generally – nondisclosure of a material fact when there is a duty to disclose (Jericho Baptist Church Ministries, Inc. (D.C.) v. Jericho Baptist Church Ministries, Inc. (Md.), 1. What are the elements of a fraud claim in 223 F. Supp. 3d 1, 10 (D.D.C. 2016) (applying District your jurisdiction? of Columbia law)). To state a claim of common law fraud (or fraud in the (Sundberg v. TTR Realty, LLC, 109 A.3d 1123, 1131 inducement) under District of Columbia law, a plaintiff (D.C. 2015).) must plead that: • A material misrepresentation actionable in fraud • The defendant made: must be consciously false and intended to mislead another (Sarete, Inc. v. 1344 U St. Ltd. P’ship, 871 A.2d – a false statement of material fact (see Material 480, 493 (D.C. 2005)). A literally true statement Misrepresentation); that creates a false impression can be actionable in fraud (Jacobson v. Hofgard, 168 F. Supp. 3d 187, 196 – with knowledge of its falsity; and (D.D.C. -
In Defence of the Due Diligence Defence: a Look at Strict Liability As Sault Ste
In Defence of the Due Diligence Defence: A Look at Strict Liability as Sault Ste. Marie Turns Forty in the Age of Administrative Monetary Penalties by Allison Meredith Sears A thesis submitted in conformity with the requirements for the degree of Master of Laws Faculty of Law University of Toronto © Copyright by Allison Meredith Sears 2018 Defence of the Due Diligence Defence: A Look at Strict Liability as Sault Ste. Marie Turns Forty in the Age of Administrative Monetary Penalties Allison Meredith Sears Master of Laws Faculty of Law University of Toronto 2018 Abstract The author looks back at the Supreme Court of Canada’s creation of a presumption that public welfare offences are strict liability offences affording defendants the opportunity to make out a due diligence defence. It is argued that the availability of this defence is receding in the face of a resurgence of absolute liability by means of administrative monetary penalties, which are increasingly being used by regulators to enforce compliance with regulatory requirements. While there is some support for the availability of the due diligence defence in the face of a potential administrative monetary penalty, the courts remain divided and numerous statutes expressly exclude it. It is argued that this ignores the important function that strict liability offences have served in encouraging corporate social responsibility through the development of compliance programs with the dual purpose of preventing harm and being able to demonstrate the taking of all reasonable care. ii Acknowledgments I would like to thank my thesis supervisor Kent Roach for his helpful guidance and light-handed regulation.