Criminal Defences

1. Criminal Defences CLN4U

2. Defences • Every person is entitled to present a defence at trial • A defence may be defined broadly as any denial or answer to the charge against the accused person • If the Crown's case is very weak, a defence lawyer may choose not to present any evidence • To convict, the Crown must prove the facts and the required state of mind • In a more narrow sense, a defence may be defined as a legally recognised excuse or justification for criminal conduct

3. Defences • Let’s look at some specific defences

4. Alibi • When an accused person claims that he or she was not present at the time of the offence. • Independent evidence supporting this claim strengthens an alibi defence.

5. Self-Defence • The right to defend oneself of one's family from death or serious injury • A person must not have provoked the assault • Reasonable Force: A person who is attacked may use only the amount of force necessary to defend against the attack. • Has been extended to include "battered woman syndrome", such as in R. v. Lavallee [1990]. (page 48)

6. Defence of Property • Similar to self-defence • A person may use reasonable force to prevent someone from entering his or her home or coming onto that person's property • No excessive force • Does not justify shooting, stabbing, or setting traps that would injure a trespasser

7. Provocation • Something that causes another person to lose his or her self-control • Can be an act or an insult • Can reduce a charge to manslaughter - only time a person may use provocation as a defence

8. Duress (or Compulsion) • A person who commits an offence because he or she was threatened with immediate death or serious injury • Not a defence to violent crimes such as sexual assault, aggravated assault, or murder

9. Necessity • A person who does an illegal act to prevent a more serious result may raise the defence of necessity • There are several conditions: • The accused must show that the act was done to avoid a greater evil • There must have been no alternative • The illegal act must not have been more than necessary to avoid the evil

10. Automatism • Criminal behaviour must be voluntary • Crimes committed in an unconscious state are rare, however require an acquittal if proven, ex. sleepwalking, epileptic seizure, blow to the head... • Precedent is R. v. Parks [1992]

11. Mistake of Fact • A person whose behaviour would otherwise be criminal may have a defence if he or she made a mistake about the facts, not the law • Must be an honest mistake • Mistake of fact, when it occurs, cancels any "Criminal State of Mind" • Can not be used as a defence to absolute liability offences

12. Mistake of Law • Ignorance of the law is no excuse; not knowing that something is a criminal offence does not mean it is all right to commit the offence • But, when an accused person can show that a government official misled him or her about the law, an exception called "Officially induced error" applies

13. Mental Disorders • Formerly known as "Defence of Insanity" • An accused that suffered from a mental disorder at the time of the offence may not be criminally responsible. • Law assumes all persons are sane - burden of proof of mental illness falls to the defence • The person must not have known what he or she did, or that it was wrong

14. Mental Disorders • The judge may order an assessment of the accused person's mental condition. The assessment may be done: • To see whether the accused person if fit to stand trial. • To see whether the accused person was suffering from a mental disorder at the time the offence was committed • Several other reasons • The psychiatrist or other medical practitioner assesses the person and reports back to the judge, the defence lawyer, and the crown prosecutor

15. Mental Disorders • If an accused is found not guilty by mental disorder, the judge has a choice: make an order concerning the person or refer the case to a review board. • If the judge makes an order, there are three choices available: • An absolute discharge • Done if the mentally ill person is not a threat to the public. • A conditional discharge • A term in a psychiatric hospital

16. Mental Disorders • When the judge orders that the person be kept in a psychiatric hospital, the judge's order last for a MAXIMUM of 90 days. After that, the review board reviews the person's case. • If the judge does not make an order and refers the case to the review board, the board has a hearing and makes a decision. • The review board has the same three choices as the judge: absolute discharge, conditional discharge, term in psychiatric hospital.

17. Intoxication • Ordinarily, intoxication by alcohol or drugs is no excuse • Ex: In criminal law, a person who gets drunk and commits a criminal act is usually still responsible for his or her actions when drunk • Intoxication may be a defence for a narrow range of offences, such as murder or theft; these offences require the accused person to form a specific intent. • A specific intent means the accused thinks about and intends a particular result, such as the intent to kill in murder cases

18. Intoxication • A person may be so intoxicated that he/she was unable to form this intent to kill. In this example, the accused person may not be convicted of murder, but could be convicted of manslaughter • Long-term drunkenness or abuse of drugs may cause a person's health to deteriorate so that a mental disorder results. In that case, the accused person may not be criminally responsible for his/her actions and could use a defence of mental disorder. • See explanation of R. v. Daviault (1994) on page 333

19. Entrapment and Abuse of Process • The police may carry out undercover activities to detect crime • In doing so, they may legally present a person with the opportunity to commit a crime, but they may not harass, bribe, or otherwise induce the person to break the law. • Police conduct that induces criminal behaviour is called "entrapment" • The accused person must prove entrapment • Precedent setting case is R. v. Mack [1988]

20. Special Pleas • A person who has been tried for an offence cannot be tried again for a similar offence arising out of the same facts. • That person may plead a special plea that he or she has already been acquitted, convicted or discharged (provided by the Charter, section 11.(h))