DEFENCES

1. DEFENCES

2. Types of defences: • JUSTIFICATIONS • Self-defence - Criminal Code allows one to defend oneself, those under one’s protection, and one’s property Requirements: - necessary and reasonable force - in cases of assault: must fear death or bodily harm - no other alternative to stop harm or death -(can provoke the assault)

3. Battered Woman Syndrome – the effects of prolonged spousal abuse • Not a defence, but a psychiatric explanation of an abused woman’s state of mind that can be used to help the justification of self-defence • ( jury must consider: why an abuse woman might remain in relationship, natture and extent of violence, ability to perceive danger from abuser)

4. Defence of a Dwelling – rules for self-defence extended to “dwelling” house • Person is allowed to defend his or her dwelling from unlawful entry or to remove a trespasser – reasonable and necessary force

5. Necessity– defence stating that the accused had no reasonable alternative to committing an illegal act • Requirements: • Accused must show that act was done to avoid a greater harm • No reasonable opportunity for an alternative course of action • Harm inflicted must be less than harm avoided

6. Compulsion or Duress – a defence in which the accused person is forced by the threat of violence to commit a criminal act against his or her will • Compulsion is not a defence in violent crimes such as murder, sexual assault, robbery • Requirements for compulsion: ( declared unconstitutional- see R.v. Ruzic p.261) • Threatener has to be physically present • Threat has to be immediate

7. Provocation – any action or words that may cause a person to lose self control • Used to reduce a murder charge to manslaughter 1. A wrongful act or insult occurred 2. Act/insult must be of a nature to cause loss of self-control ( for an ordinary person) 3. Person responds immediately after provocation ( before time for passion to cool)

8. Aboriginal or Treaty Rights • Agoriginals may argue that they have Treaty right to act in way that would be illegal for others • Eg. hunting and fishing rights • S 35 of Constitution Act

9. MENTAL STATES • Mental Disorder – “disease of the mind’ • Defence must show accused most likely suffers from mental disorder • Requirements: • Could not understand the nature and quality of the act • Incapable of knowing that the act or omission was wrong

10. Not criminally responsible on account of mental disorder ( not able to form the mens rea) Judge or Criminal Code Review board may discharge or order time in Psychiatric unit Accused person must also be mentally fit at time of trial

11. Automatism – a person acts without being aware of what he or she is doing (unconscious, involuntary behaviour ) • Insane automatism ( caused by mental disorder) • Non-insane automatism (caused by an external factor such as sleepwalking, effects of prescribed drugs) • Example R. v Parks (1992)

12. Intoxication: the condition of being overpowered by alcohol or drugs to the point of losing self-control • Generally not a defence to crimes • Exceptions: • Intox. may be a defence to crimes of specific intent, but not general intent • If a person’s intox. is so extreme it almost amounts to a mental disorder ( but not for offences that interfered with the “bodily integrity” of others ( assault, sexual assault)

13. OTHER DEFENCES • Alibi- a defence that places the accused in a different place than the scene of the crime • Entrapment – inducing a person into commiting an offence • Not a defence, but abuse of process • Judge will stay the proceedings

14. Double Jeopardy- cannot be tried for the same crime twice • If current charge is founded on same facts as the previous charge. • Mistake of Fact