Criminal Law – Defences

1. Criminal Law – Defences

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4. Alibi • Best defence possible • Proof that the accused could not have possibly committed the offence • Ex. Accused may be able to prove he or she was in another location at the time of the offence

5. Legal Duty • A person can commit certain actions which would constitute offences if he or she were acting under a legal duty • Ex. A police officer can drive above the speed limit when chasing a suspected criminal… the officer may use as much force as is necessary to make the arrest • However, he or she is criminally responsible for any excessive force

6. Legal Duty (Cont’d) • The Code also allows for reasonable force in the correction of a child • Every school teacher, parent, or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances

7. Drunkenness • A successful defence of drunkenness may serve to change a conviction from an offence requiring specific intent to one not requiring it • Ex. Def’n of murder in Code states that it must be committed with “intent” • If it can be shown that the accused committed the murder while in a drunken state, and so could not form specific intent to commit the murder, the conviction would be manslaughter instead of murder

8. Drunkenness (Cont’d) • If drunkenness does not make it impossible for the accused to form the necessary intent to commit the offence, then the defence will not succeed • The defence of drunkenness will usually fail if it can be shown that a person intentionally got drunk to gain courage to commit the action, or to provide a possible defence

9. Consent • Consent is a valid defence for the accused if the injured party consented to the action administered to him or her, such as assault • Ex. Hockey and football players, have been often charged with the assault of opponents during a game • The defence has been that, since the injured parties participated in the game, they consented to be subject to the physical contact implicit in the game

10. Consent (Cont’d) • Defence of consent cannot be used in the case of murder, or for offences committed against a person under 14 years of age

11. Mistake of Fact • Ignorance of the law is generally not accepted as a defence • Ignorance of the facts can, however, be accepted as a defence under two conditions: • (1) If there was a genuine mistake which did not result from the negligence of the accused in not finding out the facts • (2) If there is no provision in the law that ignorance of the law is not a defence

12. Mistake of Fact (Cont’d) • Ex. If someone receives change while shopping in a store, and one of the bills is counterfeit, mistake of fact would likely be a successful defence if he or she is arrested for passing the money to someone else • They can’t be considered negligent for not finding out the money was counterfeit, since people don’t check every bill they receive

13. Mistake of Fact (Cont’d) • Another example… It is an offence to be “knowingly” in possession of stolen goods • If a person did not know that the goods he bought were stolen (assuming wilful blindness isn’t an issue) then defence of mistake of fact could succeed

14. Automatism • Automatism has been described as “unconscious, involuntary behaviour, the state of a person who, though capable of action, is not conscious of what he or she is doing” • Ex. Sleepwalking, convulsions, psychological stress, or behaviour while concussed due to a blow on the head

15. Automatism (Cont’d) • Burden is on the accused to prove that the offence was committed because of automatism • If the accused can prove this, he did in reality not voluntarily act, so that actus reus is not prevent • A person found not guilty due to automatism is released

16. Entrapment • Entrapment is the police action of encouraging or aiding a person to commit an offence • It is not recognized as a substantive defence • Rather, it is an abuse of process, so a judge who finds entrapment has occurred should stay the process • R. v. Mack SCC outlined principles relating to entrapment

17. Self-Defence* • Code states that a person may use force to defend against an unprovoked assault where there is not intent to kill or cause serious bodily harm to the attacker • “Reasonable force”: may only use the amount of force necessary to defend against the attack • * Contents included in handout

18. Self Defence (Cont’d)* • What constitutes reasonable force depends on the circumstances of each situation • Generally, the accused must believe they are in danger and could see no other alternative to preserving themselves from death or grievous bodily harm

19. Battered Woman Syndrome* • The effect of prolonged spousal abuse is used to advance the justification of self-defence • A woman unable to escape a violent relationship who truly believes that the continued pattern of violence puts her life in danger

20. Battered Woman Syndrome (Cont’d)* • In deliberating this defence a jury must consider three elements: • Why an abused woman might remain in an abusive relationship • The nature and extent of the violence that may exist in a battering relationship • The defendant’s ability to perceive danger from her abuser • SCC has said that establishing a woman suffers from BWS doesn’t necessarily justify using it as a defence in the case

21. Necessity* • Means that the accused has no reasonable alternative to committing an illegal act • Following conditions must be met: • Act was done to avoid a greater harm • No reasonable opportunity for an alternative course of action that doesn’t break the law • The harm inflicted must be less than the harm avoided

22. Compulsion or Duress* • A person will be excused from having committed the offence if the accused did so under the threat of bodily harm • Not a defence for violent crimes such as murder, sexual assault, robbery, or assault with a weapon

23. Provocation* • Is any act or insult that causes a reasonable person to lose self-control • This defence applies only to the crime of murder • May be considered as a partial defence to reduce the conviction from murder to manslaughter

24. Provocation (Cont’d)* • All four of the following elements must be present: • 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

25. Activity For each of the following situations, identify (a) which Criminal Code offense applies, (b) the actus reus of the offence, (c) the mens rea of the offence, (d) whether there are any defenses and if there is one, what it is, and (e) whether the crime is summary, indictable or hybrid and the likely punishment. You may use your Criminal Code offence duo-tang.

26. Activity • 1. A law is passed to give animals all of the rights of a human being. Little Red Riding Hood “LRRH” is attacked by The Big Bad Wolf “BBW” who wants to eat her for dinner (after killing her of course). Unknown to the BBW, LRRH knows Wolf Karate and beats up the BBW. With her foot on the Wolf’s throat, LRRH, after some thought, decides to take out the BBF (i.e. kill him) so that other little children won’t be threatened by the BBW any more. So, after some thought, LLRH crushes the BBW’s throat, killing him.

27. Activity 2. A married lady, Wanda, is tired of her husband Keith playing video games all the time instead of spending time with her. One day, Wanda decides that she is going to commit the perfect murder, killing Keith. She wires up the video game to deliver a lethal shock. Her husband turns on the game the next day and is killed instantly.

28. Activity 3. Lucy adopted a baby 2 months ago. Before and after the baby was adopted, she was very depressed because she couldn’t conceive a baby naturally. Her doctor says that this caused post-adoption depression. One day, Lucy is so sad that she decides to kill the baby so it won’t ever be hurt by the tough world. She smothers the baby with a pillow. Her husband comes home and finds her cradling her dead baby in her arms.

29. Activity 4. Matthew and Luke are at a church Bazaar. Matthew spills Eggnog on Luke by accident. Luke gets very angry at Matthew and calls him a “<**%&@” jerk. Matthew thinks Luke is being a jerk and is overreacting so Mark loses his temper and throws his big sharp cake knife at Luke’s throat. Instead of hitting Luke, the knife hits Father O’Malley in the head, killing him instantly.