Criminal Defences

Criminal Defences

Criminal Defences • Defences are used to prove that the accused is not guilty of the offence, or guilty of a lesser offence. • The best defence is an alibi. • The alibi must be disclosed to the Crown at the earliest opportunity. Failure to do this will look like the alibi is false

Self-Defence • You are allowed to protect yourself, those under your protection, your movable property, and your dwelling and real property. • You may only use force that is “necessary” and “reasonable.”

Self-Defence • You may stop a thief from taking your personal property, or to take it back, as long as you do not strike the thief or cause bodily harm. • You are “justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the [your] dwelling-house without lawful authority.”

Legal Duty • Some people are allowed to commit acts which would otherwise be considered offences. • A police officer may drive above the posted speed limit in order to respond to an emergency. • Also, “reasonable force” may be used to correct a child. (Can this be controversial?)

Excusable Conduct • Provocation may be a partial defence for murder. • Duress – the threat or use of violence – may also be a defence. • Honest Mistake – if the offender truthfully did not know that they had committed a crime. • This is most common in cases of shoplifting.

Mental Disorder • Mental fitness to Stand Trial • An accused can be held for 60 days to determine if they are mentally fit to go through the trial process. • A provincial review board makes this decision. And a psychiatric assessment is required. • If found unfit, the accused will be held in a mental health facility until they are ready to stand trial. • Their case will be reviewed every two years.

Mental Disorder • Mental Fitness at the Time of the Offence • You are presumed sane, just as you are presumed innocent. • Therefore, it is the defence’s responsibility to prove insanity (reverse onus). • If a person is found not guilty due to mental fitness, the verdict must state that “the accused committed the act or omission but is not criminally responsible on account of mental disorder.”

Mental Fitness at the Time of the Offence • If the accused is deemed not be a threat to the public, they may be released. • However, if they are deemed to be a threat to the public they can be held in a mental health facility until they are no longer a threat to society.

Intoxication • This defence can be used to drop a charge of aggravated assault to assault. • The accused is considered to have been incapable of specific intent, only general intent. • Also applicable to reduce a murder charge to manslaughter.

Automatism • “unconscious, involuntary behaviour – the state of a person who, though capable of action, is not conscious of what they are doing.” • The person cannot form criminal intent

Consent • If the party who is injured by the accused agreed to the action. • Used in sexual assault cases, and in assault cases which occurred during the playing of a sport. • Cannot be used if a firearm is involved, or if it is a sexual assault case involving someone under the age of 14.

Entrapment • The police cannot encourage or aid a person to commit an offence. • This is considered an abuse by the police, and the judge should stay the proceedings.

Mistake of Fact • This is acceptable under two conditions: • The mistake was genuine and not the result of the accused neglecting to find out the facts. • The law accept ignorance of the facts as a defence. • If you receive counterfeit money, and do not realize that it is counterfeit, the defence applies.

Double Jeopardy • To be tried twice for the same offence • This does not mean that if you assault one person, and are tried, that you can assault the person again and use this defence. • The defence applies to one specific offence/action.

C’estFini Read R. v. Charlebois on pg. 237-236 and question # 1-4.

Criminal Defences