Discuss About The Structure And Limits Criminal Law Routledge.
In the given set of circumstances we can see that Fred is in urgent need of finances to be able to pay back a gambling debt. He takes the money from his employer (without his employer’s knowledge) which amounts to $1000. Through a fortunate turn of events he is able to replenish his employer’s money without him noticing. The issue to be decided is if this amounted to the tort of theft which is an intentional interference with chattel.
It has been set out in the given circumstances that it is to be assumed that theft denotes the act of taking a piece of movable property with the intention of depriving of the owner of it permanently.
Such an act would amount to an intentional tort. Specifically this would amount to the tort of intentional interference with chattel (possession). In cases of theft such an intentional tort is termed as conversion which translates into the defendant assuming the plaintiff’s chattel.
Since theft translates into the intentional tort of conversion, the motive or intention of the party in contravention must be considered[1]. If the intention of the party was to permanently deprive the owner of possession it would amount to theft.
The actus reus or the actual (voluntary) act of the party must be looked at to ensure that the person in question was committing theft. Here, it is sufficient to establish that the act committed by the party would reasonably amount to depriving the owner of possession permanently[2].
The damages awarded in case of an intentional tort maybe limited to compensatory (damages to be paid) or punitive (punishment of the defendant). Compensatory damages are mainly awarded in cases where an injury has been caused and maybe compensated by monetary consideration[3]. However, in cases where more than a monetary consideration the act of the person is such that it shows a deviance from the social construct punitive damages would apply. Theft or the tort of conversion would warrant punitive damages.
Fred was in need of urgent finances and took the amount from his employer without his knowledge. It may be inferred that Fred had no intention of returning the amount to his employer. Thus he did deprive the owner of the money from it.
Further, he returned the amount after winning at gambling. Gambling however is based on probability and not practicality. Thus, he would not have returned the money had he not had a favourable turn of events. This establishes beyond any doubt that Fred intended to deprive the owner of the property permanently.
The action of recovering the money from the original owner’s possession maybe construed as the actus reus in this case[4]. It was voluntarily undertaken by Fred and amounted to deprivation of the owner of the property.
red would be liable to face punitive damages for the act committed by him.
Jullian has recently been associated with a street gang. He was also involved in vandalism with them (through graffiti painting). Certain members of the gang intentionally caused the death of a police officer. The issue here is if his association with the street gang would lead to the crime of aggravated homicide and if any tort has been committed.
It has been stated that the act of joining a street gang where one or multiple members have intentionally, negligently or recklessly caused the death of a person would amount to aggravated homicide.
It is also the clear position of law that a tort is a civil breach of non-contractual obligations that maybe translated into damages[5].
In a rule that attributes liability devoid of intention (relating to the crime) the mental state would not play a vital role. However if the intention to join the gang can be established it would follow that all liabilities arising from such an association would apply[6].
If from the way the person conducts himself/herself it may be inferred that the person is a member of such an organization then all liabilities arising from such an association would be applicable[7]. Acts that establish close association with the gang such as common activities undertaken alongside them would establish such association.
A crime cannot be resolved through awarding damages and requires due process of law to deal with the offender in the form of a criminal trial.
From the given circumstances it may be inferred that Jullian had voluntarily joined the street gang. He was not in any way unduly influenced by the members or solicited to become a member. He was not aware of the gang’s acts in causing the death of a police officer but the same would not exclude him from liability.
Jullian has been seen associating with the gang freely and has additionally engaged in vandalism through painting graffiti with them. Through this conduct it is evident that he was voluntarily a part of the gang.
In such a case Jullian would face criminal liability for aggravated homicide due to his association with the gang.
rank found out about his wife cheating on him. In an altercation between them he slaps her. However, the slap leads to a series of injuries which result in hear death. The issue here is if Frank is guilty of the crime of homicide and if any tort has been committed.
wingly, recklessly or negligently causing the death of a person amounts to homicide.
It is a clear position of tort law that causing bodily injury to a person amounts to battery which an intentional interference with the person which is an intentional tort[8].
In order to establish that a person is guilty of the crime of homicide it must be established that the person intentionally, recklessly or negligently caused the death. This means that if the person knew the act he was committing would lead to the death of the person this would apply. If he did not know but committed an act that be reasonably construed to result in death it would apply. If the person negligently omitted to observe a certain degree of duty of care which leads to death this would also apply.
The mental state need not be considered when dealing with battery charges as the damage caused would be quite conspicuous and intention does not play a part.
The act, whether intentional, reckless, negligent or otherwise, must be judged based on the action undertaken by the person in question. This means that if the action shows that the person could have had knowledge of such a result it would be construed as an intentional or reckless act.
If the plaintiff can establish bodily injuries caused by the plaintiff it would amount to battery.
In case of homicide that maybe proved the offender would face criminal liabilities. For the tort of battery compensatory damages would be awarded.
Frank’s mental state can clearly be inferred from the circumstances. He was mentally distraught due to the information received. However, a slap would not be intended as a lethal action and the subsequent result cannot be inferred to have been known or intended. There is no breached obligation either that would be inferred as negligence.
The action used by Frank was a slap. From the conduct battery may be inferred however the intention to cause death. Or the reasonable assumption that the action may cause death cannot be inferred.
As per the criminal charges, Frank would not be held liable for homicide and thus would not face criminal liability.
The tort of battery maybe remedied by awarding compensatory damages and the same would apply if Frank’s wife was alive to bring a civil action against him.
A student from Algoma U. faces sexually suggestive and inappropriate remarks in class from a professor. When a claim is made against such an issue the professor sites university guidelines safeguarding his teaching methodology. The issue to be determined here is if these remarks amount to sexual harassment in light of the laws of Canada and France.
Under Canadian law sexual harassment maybe a tort and/or a crime. It mainly includes unwelcome conduct of a sexual or gender-based nature. The intent of the person committing the offence is not taken into consideration. Only the impact of the conduct on the person making the complaint is considered. Damages are the applicable remedy in such a case. Canada also embodies the concept of a poisonous environment. This basically means the creation of a hostile or offensive environment through discriminatory conduct which may be construed as sexual harassment[9]. Anyone who is subject to such an environment may file a complaint.
In Europe however, sexual harassment only includes the solicitation of a sexual favour for themselves or for a third party (within institutional structures such as a workplace or a place of education) which causes the victim to feel intimidated, humiliated or subject to hostility[10].
In the given set of circumstances the professor at Algoma U. created a poisonous environment as defined Canadian law. His intention (which he claims was imparting education) would not be considered only the harassing effect it had on the student in question would be taken into consideration. Since the student was subject to a poisonous environment she is entitled to make a claim in that regard.
Under European laws however, this would not be considered at all since sexual harassment needs to include the soliciting of sexual favours for oneself or a third party. Here the harassment was confined to remarks and comments and cannot be construed as the solicitation of a sexual favour and thus it would not be considered sexual harassment in Europe.
Conclusion
Under Canadian law the professor would be deemed guilty of sexual harassment and damages could be applicable based on the complaint.
Under European law the professor’s conduct would be deemed to be outside the ambit of sexual harassment laws and thus would be within the scope of his discretion as per his teaching methodologies.
References
Badar, Mohamed Elewa. The concept of mens rea in international criminal law: the case for a unified approach. Bloomsbury Publishing, 2013.
Delgado, Richard. “Words that wound: A tort action for racial insults, epithets, and name calling.” Words that wound. Routledge, 2018. 89-110.
Epstein, Richard A., and Catherine M. Sharkey. Cases and materials on torts. Wolters Kluwer Law & Business, 2016.
Ginther, Matthew R., et al. “The language of mens rea.” Vand. L. Rev. 67 (2014): 1327.
Goldberg, John CP, Anthony J. Sebok, and Benjamin C. Zipursky. Tort Law: Responsibilities and Redress. Wolters Kluwer law & business, 2016.
Keiler, Johannes. Actus reus and participation in European criminal law. Maastricht University, 2013.
Lee, James. “Fictions in tort.” Legal fictions in theory and practice. Springer, Cham, 2015. 255-274.
Leroughe, L. and Hebert, L.C., 2013. The law of workplace harassment of the United States, France, and the European Union: comparative analysis after the adoption of France’s new sexual harassment law. Comp. Lab. L. & Pol’y J., 35, p.93.
Marshall, S.K., Faaborg-Andersen, P., Tilton-Weaver, L.C. and Stattin, H., 2013. Peer sexual harassment and deliberate self-injury: Longitudinal cross-lag investigations in Canada and Sweden. Journal of Adolescent Health, 53(6), pp.717-722.
Matulewicz, Kaitlyn. “Law and the construction of institutionalized sexual harassment in restaurants.” Canadian Journal of Law & Society/La Revue Canadienne Droit et Société 30.3 (2015): 401-419
Robinson, Paul H. “Should the Criminal Law Abandon the Actus Reus-Mens Rea Distinction?.” The Structure and Limits of Criminal Law. Routledge, 2017. 3-28.
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