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DEFENCES. CRIMINAL DEFENCES. Audi alterum partem – “to hear the other side” The right to a criminal defence is one of our fundamental rights;

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criminal defences
  • Audi alterum partem – “to hear the other side”
  • The right to a criminal defence is one of our fundamental rights;
  • Between the Criminal Code and case law, the accused has a variety of lawful excuses or justifications for escaping criminal responsibility even when there is overwhelming evidence against him or her.
types of defences
  • In addition to an Alibi, Double Jeopardy, and Entrapment, there are 2 main types of defences available:
    • NEGATIVING defences, and
    • AFFIRMATIVE defences.
what are negativing defences
What are Negativing Defences?
  • Defences that raise a reasonable doubt about whether the accused committed the offence charged;
    • Negates an essential element in the Crown’s case – either the actus reus or the mens rea.
mistake of fact honest mistake
MISTAKE OF FACT (Honest Mistake)
  • Success depends on the accused not having the mensreanecessary for the offence;
  • Enables the accused to escape culpability, or criminal responsibility, if he/she can show
      • The mistake was an honest one; and,
      • No offence would have been committed had the circumstances been as the accused believed them to be.
  • Cannot be used in ABSOLUTE LIABILITY offences (those where only actusreus needs to be proved) i.e. You can’t say you didn’t know you weren’t driving the speed limit because your speedometer was faulty.
mistake of fact honest mistake example 1
MISTAKE OF FACT (Honest Mistake) – example 1
  • If a Harleen grows a plant in her garden that, unknown to her, is marijuana, the Crown can charge her with possession of marijuana, however the Crown must be able to prove that she knew the plant was marijuana.
    • The accused can claim the defence of mistake of fact if she honestly believed the plant was not an illegal drug;
    • The Crown cannot establish a fault element if the accused honestly, but not necessarily reasonably, was mistaken about whether the plant was marijuana.
example 2
Example 2
  • R. v. Burgess [1970]
    • the accused was convicted of possession of opium, even though he believed the drug was hashish.
    • The mistake of fact defence failed because the accused was still knowingly in possession of a controlled or illegal substance, just not the one he thought he had.
mistake of fact and sexual assault
Mistake of Fact and Sexual Assault
  • The Mistake of Fact defence is restricted with regard to consent;
  • The C.C. now states that the accused cannot claim they honestly believed the complainant consented if
    • It arose from the accused’s
      • Self-induced intoxication
      • Recklessness or wilful blindness
    • The accused did not take reasonable steps to make sure the complainant was consenting.
mistake of law
  • Ignorance of the law
  • Typically not allowed, however may be used in those circumstances where an “officially induced error” exists.
    • An officially induced error refers to a situation in which the accused relied on the erroneous legal advice of an official responsible for enforcing a particular law.
mistake of law example
MISTAKE OF LAW - example
  • Ann is waiting for her husband in his car which is parked in a no-parking zone;
  • An officer approaches Ann and advises her that if the vehicle is not moved immediately it will be towed;
  • In their discussion, the officer finds out that Ann’s licence has been suspended.
  • Ann believes that the officer has given her permission to drive her husband’s car to the parking lot which is one block away.
  • On her way to the lot, Ann is stopped by a different police officer , who charges her with driving a motor vehicle with a suspended licence.
  • In this circumstance, the court may acquit Ann if she can prove that she honestly believed the first officer was advising her to move her car to the parking lot from the no-parking zone.
  • Being rendered incapable of forming criminal intent by alcohol or drugs;
  • May be used to disprove the existence of mensrea for some crimes;
  • Generally, not allowed to be used as a defence to a crime, however there are exceptions.
intoxication exceptions
  • According to case law, it may be a defence to crimes of SPECIFIC intent – having a deliberate aim to commit one offence with the general intent to break the law, like murder, theft and robbery, but not to those of GENERAL intent – to simply intend on committing a criminal act, such as manslaughter or assault.
      • i.e. Robbery – is a specific intent offence, requiring that the accused person commit assault with the intention of stealing something from the victim
      • If a person lacks the ability to form the specific intent to commit the offence because of intoxication, then the mental element cannot be proven and the accused cannot be found guilty of the specific intent offence. HOWEVER, they may still be found guilty of the general intent offence.
      • For example, if acquitted for the specific intent to commit robbery, the accused may still be found guilty of the general intent to commit assault. Or, if the accused is charged with murder, and they are claiming intoxication as their defence, basically they couldn’t have formed the intent to plan it, then the accused could still be convicted of manslaughter, a general intent offence.
intoxication exceptions14
  • The second exception occurs when the person’s intoxication is so extreme it amounts to mental disorder.
      • Established by the Supreme Court of Canada’s 1994 decision in R. v. Daviault
      • Daviault, the defendant, had consumed large amounts of alcohol and then sexually assaulted a 65 year old partially paralyzed woman;
      • The court ruled that his intoxication was so severe that he was incapable of forming the intent to commit the act and Daviault was acquitted;
      • The public was outraged, forcing Parliament to amend the Criminal Code to make intoxication an invalid defence to general intent offences that involve the “bodily integrity of another person”, so it can no longer be used against a charge of assault or sexual assault.
mental disorder
  • Defined in s. 16 of the Criminal Code as a “disease of the mind”;
  • An accused person who suffers from a mental disorder at the time the offence is committed cannot be held criminally responsible because he/she would not have been able to from the mens rea of the offence;
  • A person must also be declared mentally fit to stand trial – instruct counsel, understand the proceedings and their consequences, and communicate with counsel and the court. If they can’t due to mental disorder, a review board decides on a course of action based on an assessment.
mental disorder cont d
  • A person is presumed not to suffer from a mental disorder until the contrary is proven “on the balance of probabilities” (a greater likelihood);
  • The burden of proof is on the party that first raises the issue (usually the defence), which means that they would have to prove that there is a greater likelihood that the accused did suffer from a mental disorder than that he or she did not.
  • This defence can be used by fulfilling one of the following 2 requirements:
mental disorder requirement 1

The mental disorder left the accused incapable of appreciating the nature and quality of the act

  • The accused must have the capacity to measure and foresee the consequences of the act;
  • This can be determined by asking if the accused would still commit the act if a police officer were standing beside them.
    • i.e. A psychopath may be mentally ill, but if he or she displays knowledge that an act is legally wrong, he/she would not be able to use the defence of mental disorder.
mental disorder requirement 2

The mental disorder left the accused incapable of knowing that the act or omission was wrong.

  • If Tom has a mental disorder which makes him believe that Joe is a dictator bent on destroying democracy, and a psychiatrist testifies that Tom thought that by killing Joe he was protecting his country, the courts will conclude that Tom did not know his actions were wrong.
mental disorder19
  • The decision made in a case where mental disorder has been used as a defence is to determine whether or not the accused can be held criminally responsible for the crime;
    • If found not criminally responsible, the judge may either “make an order” concerning the accused(grant an absolute discharge, conditional discharge, or a term in a psychiatric hospital for up to 90 days), or refer the accused to a provincially appointed Criminal Code Review Board.
    • If the case is referred to the Review Board, the Board holds a hearing and decides on a course of action for the accused. They have the same options as the judge, however if they commit the accused to a psychiatric hospital, it is for an indefinite period of time, and the accused will only be released if it can be proved by professionals that he/she is cured.
mental disorder20
  • Not widely used because:
    • The law assumes that everyone is sane, so the burden of proof is on the defence to prove that their client is suffering from a disease of the mind rendering them incapable of “appreciating the nature and quality of the act”
        • This can only be used after the accused has been found guilty.
    • It often becomes a battle between psychiatrists, which can become difficult for a jury to understand;
    • The period of confinement in a mental institution could be longer than a prison sentence for a less serious offence.
  • A condition in which a person acts without being aware of what he or she is doing. For example, someone who sleepwalks gets up and goes to the washroom, but does not remember getting up and going.
  • Negates the actusreusof a crime because someone in such a state does not act voluntarily – they have no conscious control over their actions.
  • There are 2 types of automatism: insane and non-insane automatism.
insane automatism
  • A form of automatism caused by a mental disorder;
  • A person with insane automatism will be found not criminally responsible due to mental disorder;
  • Even if acquitted, the accused may not be released back into society (medical treatment).
non insane automatism
  • A form of automatism caused by an external factor, such as a concussion, medication, or sleepwalking;
  • If proven successfully, the accused will be acquitted and can be set free.
automatism case example
Automatism – Case Example
  • R. v. Parks
    • The accused, who was a heavy sleepwalker, drove 20km to his in-law’s house where he stabbed and killed his mother-in-law and seriously injured his father-in-law.
    • When he woke up, he went to the police station and told them what he thought he had done, but claimed that he had been sleepwalking when he committed the crimes.
    • With psychiatric testimony, he was able to prove that he had actually been in a hypnotic state, and was acquitted – his actions were not voluntary as he was in an unconscious state of mind, therefore both the actusreus(voluntary action) and the mensrea (knowledge of what he was doing when he committed the crime) did not exist.
affirmative defences26
Affirmative Defences:
  • Provide a justification for an accused’s conduct, or that the accused should be excused from punishment because criminal conduct was the only reasonable option.
self defence
  • The accused had the requisite mensrea, but his/her actions were justifiable due to the right of one to defend his/her self, property, and others.
    • This means that 2 people who consent to a fight cannot claim self-defence.
self defence28
  • Basic elements of self-defence claims are:
    • The accused believed he or she was about to be physically harmed;
    • The accused used only the force required to avoid the threatened harm
  • Use of excessive force could result in a charge of assault or even murder.
self defence and provocation
  • Self-defence in an UNPROVOKED assault is justified if the force used is not intended to cause death or grievous bodily harm and no more than necessary to defend oneself.
  • Self-defence in a PROVOKED assault is allowed if
    • The force is used under fear of death or grievous bodily harm from the person he assaulted or provoked
    • It is believed on reasonable and probable grounds to be necessary to preserve oneself from death or grievous bodily harm
    • When provoking the assailant, there was no attempt to cause the other person death or grievous bodily harm
    • One tries to avoid further conflict before it became necessary to protect oneself from death or grievous bodily harm.
  • A person can also use force to defend his/herself or a third party as long as no more force than is necessary is used.
test for self defence
  • There has to be the existence of an unlawful assault;
  • There must be a reasonable understanding of a risk of death or serious bodily harm;
  • There must be a reasonable belief that it is not possible to save oneself from harm except by harming the other person.
defence of a dwelling
  • A person is allowed to defend his or her dwelling from any unlawful entry and to remove a trespasser if he or she has entered.
  • Force must be reasonable under the circumstances.
  • If a trespasser resists the owner’s attempts to protect the dwelling, then it is considered assault, and the owner would be allowed to use whatever force is necessary.
  • A partial defence that reduces the crime of murder to manslaughter providing the accused can prove they were provoked.
    • Must occur in the heat of passion caused by sudden provocation;
    • The provoking act must be of such a nature that it would cause an ordinary person to lose their self-control (seriously upset a reasonable person).
  • Rarely used;
  • An excuse, not a justification;
  • Can be used if it can be shown that the accused acted to protect life or limb in a reasonable manner
duress compulsion
  • The accused was forced to commit a criminal act under threat of immediate personal injury or death;
  • The threatener must be present at the time of the offence.
  • Excluded if the crime is one that causes serious harm, such as murder, abduction, or assault with a weapon.
battered woman syndrome
  • Recognizes prolonged abuse as a defence;
  • First introduced in 1990 in the case R. v. Lavalee, who was acquitted of killing her partner by shooting him in the back of the head after he told her he was going to come back and kill her.
    • He had physically abused her for many years.
  • The court found that it was reasonable for her to believe that she had no other choice than to use lethal force to defend herself.
consent implied
Consent (Implied)
  • Implied consent is a form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and circumstances of a particular situation (or in some cases, by a person's silence or inaction).
  • In sports, players consent to some forms of intentional body contact and to the risk of resulting injury. The bodily contact to which they consent is that which falls within the rules and customary norms of the game.
  • But some forms of bodily contact involve such a great risk of injury and distinct probability of serious harm as to go beyond what the players impliedly consent to or beyond what they are capable, in law, of consenting to. Conduct in a game that is meant to inflict injury will generally fall outside the immunity provided by implied consent.

Consent: Fights

  • The defence of consent does not extend to serious injury resulting from a fist fight or brawl between adults. However, the defence continues to apply to children who in the course of a fight unintentionally cause serious hurt.
  • The best possible defence
  • Places the accused somewhere else at the time the offence occurred.
  • The only thing the defence must disclose to the Crown before a trial.
  • Usually introduced on arrest, and includes 3 parts
    • A statement indicating that the accused was not present at the location of the crime when it was committed.
    • An explanation of the accused’s whereabouts at that time.
    • The names of any witnesses to the alibi.
corporal punishment defence
  • Justifies the hitting of a child, by a parent or a person in place of a parent, like a guardian or teacher, for the purposes of correction, providing that the force used is reasonable under the circumstances.
  • Cannot
    • Be used against children under age 2
    • Be used against children of any age who have a disability
    • Cause harm or raise the prospect of harm to a child over 2
    • Be degrading
    • Be used on teenagers
    • Involve the use of objects such as straps or belts
    • Involve slaps or blows to the head.
  • Only accepted if the accused can show that they were “set up”, or trapped, by lawful authorities into doing something he/she would otherwise not have done.
  • The courts determined, in R. v. Mack [1988], that entrapment occurs if authorities actually induce the commission of the offence, i.e. through threats; if they use deceit, fraud, trickery, or reward; if it involved an exploitation of human characteristics like friendship, and whether the police exploited someone who was mentally impaired or had a drug addiction.
  • Can only be raised after guilt has been established;
  • Results in a permanent stay of proceedings - no finding of guilt or innocence;
  • Rests with the accused on a balance of probabilities, but the judge decides if it has been proven.
double jeopardy
  • In Sect. 11 of the Charter, it states that we cannot be tried for the same offence twice – this is the defence of double jeopardy.
  • A pre-trial motion is made using one of two pleas:
    • A plea of AUTREFOIS ACQUIT – where the accused states that he/she has already been acquitted of the charge.
    • A plea of AUTREFOIS CONVICT – where the accused states that he/she has already been convicted of the offence.
the twinkie defence
  • The accused was charged with murder.
  • He claimed that his addiction to junk food, specifically Twinkies, had caused him to suffer from depression from too much sugar.
  • The Harvey Milk case – the accused was a San Francisco city employee who had been laid off and was upset so he killed the Mayor and city employee Harvey Milk
  • The defence was successful, and the accused was convicted of the lesser charge of manslaughter.