Criminal Defences

1. Criminal Defences Acceptable defences to a charge in Canada

2. Introduction Accused person can put forth three possible arguments against their charge: They can deny that they committed the act, dispute actus reus They can argue that they lacked the necessary intent or guilty mind They can argue that they have a valid excuse for what happened while committing the act

3. Alibi Defence The best possible defence is the alibi- the accused is somewhere else when the offence occurred Generally if this is a defence the accused is expected to testify in court and be cross examined about their whereabouts

4. What is a Defence? • A defence is a denial of, or a justification for, criminal behavior. • The most common defence is denial! • In other situations an accused may admit to the crime but has a defence to excuse or justify his or her actions. • The accused can either be acquitted or found guilty of a less serious offence. • The following slides present some of the defences an accused can use………….

5. Mental Disorder • Defined in the criminal code as a “disease of the mind”, it was formally referred to as the insanity defence. • Goes to mens rea, that is, the accused is unable to form the elements of the “guilty mind”. • The onus is on the defence to prove, on the balance of probabilities, that the accused suffered from a mental disorder and fulfilled one of these two requirements: • The accused is incapable of appreciating the nature and quality of the act. • The accused is incapable of knowing that the act or omission was wrong.

6. If the accused is not criminally responsible the judge can “make an order”, with three choices available: an absolute discharge, a conditional discharge or a term in a psychiatric hospital. • The judge may also refer the case to the Criminal code review board, who would hold a hearing to decide the course of action for the accused. • The board has the same three choices as the judge, with one key difference. If they send the accused to a psychiatric hospital, it will be for an indefinite period of time, with regular reviews. • If the board is convinced that the accused has been cured, they can order a release. That is why this defence is only used in serious cases, because the time spent in a mental hospital could be longer than a jail term. • An accused is unfit to stand trial if they are unable to understand the nature of the trial proceedings, the consequences of the proceedings or are unable to give adequate instructions to counsel.

7. Automatism Not mentioned in the criminal code but has developed through precedent and case law Automatic functioning without conscious effort or control- non-insane and insane Insane is connected to a disease of the mind and non-insane is connected to external factors, such as sleepwalking or health ailments

8. Automatism con’t • This is a condition in which a person acts without being aware of what he or she is doing. • It negates the Actus Reus of a crime because the person acts involuntarily. • Automatism can be the result of sleepwalking, medication, a concussion, a brain tumor or involuntary ingestion of drugs. • The law recognizes two types of automatism: insane automatism, a form caused by a mental disorder, resulting in an accused being not criminally responsible, and non-insane automatism, a form caused by a external factor. Here the accused would be acquitted.

9. Intoxication • Intoxication is the condition of being overpowered by drugs or alcohol to the point of losing self-control. • It is not generally a defence to a crime but the exception is a crime of specific intent. For example, a person may be too intoxicated for the specific intent of murder, but would still be guilty of manslaughter, a general intent offence. • Another exception might be someone so intoxicated that it amounts to a mental disorder. However, this defence is rarely used and cannot be used in cases of assault or sexual assault. • This defence can never be used for drinking and driving.

10. Self-Defence • Self-defence is the use of reasonable force to defend against an attack, provided the attack was unprovoked and the force used was no more than is necessary to defend yourself. • If you kill someone while defending yourself, it is justified only if you reasonably feared that you would be killed or seriously harmed.

11. Necessity • Necessity is a defence used when the accused had no reasonable alternative to committing an illegal act. • For this defence to succeed, all of the following conditions must be met……. • The accused must show that the act was done to avoid a greater harm • There was no reasonable opportunity for an alternative course of action • The harm inflicted must be less than the harm avoided.

12. Battered Woman Syndrome • A type of self-defence where the prolonged effects of spousal abuse led to the abusive spouse being killed by the victim. • The Supreme Court of Canada found that the jury should be instructed in such cases on three elements. • Why an abused woman might stay in an abusive relationship • The nature and extent of the violence that may exist in the battering relationship • The defendant’s ability to perceive danger from her abuser The syndrome is not a defence in itself. It is a psychiatric explanation for the state of mind of an abused woman, which can therefore be used to justify self-defence.

13. Battered Woman Syndrome Psychological condition caused by severe domestic abuse/violence Previously only self defence was allowed but this can only be used in an immediate danger situation

14. Compulsion or Duress • An accused may be excused from committing an offence if it was done under compulsion or duress, that is, the accused person is forced by the threat of violence to commit a criminal act against his or her will. • It is not a defence in violent crimes!

15. Entrapment • A defence against police conduct that illegally induces the defendant to commit a criminal act. • The burden is on the accused to prove entrapment. Usually the result of police undercover work. The police can present an opportunity to commit a crime but cannot harass, bribe or induce a person to break the law. • If the judge agrees to this defence, the judge will “stay” the proceedings or stop the trial.

16. Entrapment- Double Jeopardy Police action that induces a person to commit an offence Tried twice for the same offence (charges based on the same offences)

17. Provocation • Any act or insult that causes a reasonable person to lose self-control. • This defence only applies to murder. To be successfully used, the defence must prove all four of these elements…. • A wrongful act or insult occurred • This act or insult was sufficient to deprive an ordinary person of the power of self-control • The person responded suddenly • The person responded before there was time for passion to cool. It is used to reduce murder to manslaughter. (R vs. Stone)

18. R v Stone Stone was driving to see his two sons from a previous marriage with his wife. She did not want him to see them and as a result of her reticence he was only able to visit with them for 15 minutes. On the drive back she continued to berate him, telling him he was a loser, that he was terrible in bed, that he had a small penis, and that she was going to go to the police with trumped up assault charges. He pulled the car over and put his head down. He testified that he blacked out and felt a "woosh" go through his body. When he came to he had stabbed her 47 times with a hunting knife that he kept in the car. He hid her body in his truck's tool chest, picked up a six pack, drove home, left a note for his daughter, and took off to Mexico. After a few weeks in Mexico he decided to return to Canada and turn himself in. In his defence, Stone pleaded insane automatism, non-insane automatism, lack of intent, and in the alternative, provocation. The judge allowed for a defence of insane automatism which was presented to the jury. The jury convicted him of manslaughter and sentenced him to seven years. The verdict was upheld by the Court of Appeal.

19. Issue Should the defence of non-insane automatism have been left to the jury? DECISION Appeal Dismissed REASONS There was significant evidence given by psychiatrists for the Crown and the defence. They both agreed that Stone's situation sounded like he had a condition induced by the words that put him in an "dissociative state", and that if this were true he would have been unable to control his actions, however, there is no way to prove that this happened beyond his testimony.

20. Provocation Reduces murder charges to Manslaughter A wrongful act or insult that is so significant in nature that it can deprive an ordinary person of the power of self control- the act must be done in the ‘heat of passion’ after the provocation Examples?

21. The End • Now you are all ready for the second part of the Major Criminal Assigment...Letter from Lawyer to the Accused. • Good Luck!!!