May a person harvest the fruits of a defense to criminal liability, without establishing -- at the time the conduct took place -- a mental state towards the objective circumstances of the defense? If no, then what kind of mental state should it be? Furthermore, in such instances, would the actor be liable for a completed offense or solely for criminal attempt? These three questions have been the subject of an intensive amount of scholarly writing. While acknowledging their valuable contribution, we hold the view that existing writings on this matter are incomprehensive, inconsistent with the fundamental principles of criminal law, and standing in sharp contradiction to the role of criminal taw. Bearing in mind the difference in nature between claims of justification and others of excuse, we argue that in the former case fu ll awareness of the justificatory circumstances is an essential and sufficient condition for the formation of the mental state element - to require a more specific thought process would mean that improper thoughts could be criminalized. Unlike the case for justifications, we assert that in that an act performed under excusing circumstances does not correspond to what is right and proper to do under those circumstances, and therefore full awareness is though essential yet still insufficient; i.e. intention to avert the danger is required as well. Additionally, we perceive the outcome of a case of unknowing justification as identical to the outcome of the case of impossible attempt - i.e. it is not a classic case of impossible attempt, but the ramification is the same as the case of impossible attempt. To say, it is a similar situation to the case where no real harm is caused to a protected social interest; and therefore the actor is entitled to a greater leniency than would have been granted for a completed offense. However, when excusing defenses are concerned, the harm caused to the legal interest is anti-social, and therefore an actor who is unaware of the excusing circumstances may not invoke the fundamental rationale for discharging him or her from criminal liability for the harm caused by his or her action. Rather, he or she is entitled to leniency at the sentencing stage by virtue of having protected an endangered legal interest. Finally, we assert, innovatively, that our analysis and conclusions are necessitated by the constitutional understanding of the fundamental principles of criminal law, inparticular the constitutional right to dignity vis-à-vis the notion of the mental state requirement in criminal law.
|Number of pages||35|
|Journal||Canadian Criminal Law Review|
|State||Published - 2017|
- CRIMINAL liability
- CRIMINAL law