The Trial in Canadian Criminal Court, Pt. 4: Defences

1. Law 12 MUNDY – 2009 The Trial in Canadian Criminal Court, Pt. 4:Defences

2. What are defences used for? • Two purposes: • 1. to prove that accused is not guilty of offence being tried • 2. to prove that accused is guilty of a lesser offence than one accused of

3. Alibi – Best Defence • An alibi proves that the accused was not at the scene of the crime at the time it was committed • Result is that accused will be considered not guilty if evidence is strong and supportive of alibi

4. Self-defence • Self-defence, used in assault cases or similar violent offences • Includes actions defending one’s person, property, dwelling • Result is that accused will be found not guilty

5. Self-defence • Allowed only if reasonable force, determined by strict guidelines, is used: • Accused did not provoke or initiate the conflict involving force • Not intending to cause grievous bodily harm or death (but may use if no choice) • Attacker is perceived to intend grievous bodily harm or death • Force is no more than necessary to defend oneself • Attempted to leave before self-defence

6. Battered Woman Syndrome • Used as defence when prolonged abuse creates psychological condition in which accused strikes out violently against abuser • Criminal act does not have to have been result of “imminent danger” (as in self-defence) • Results in acquittal

7. Legal Duty • Used by officers to justify use of force or seizure of items • ex.- being arrested does not allow accused to charge officer with kidnapping • Also used by parents, teachers, etc. to justify reasonable force and measures for corrective means • ex.- given a grounding or detention does not allow child to charge parent/teacher with kidnapping • Result is that accused will be found not guilty

8. Excusable Conduct:Provocation • Used for charges of murder • Must prove that action taken leading to death occurred immediately in response to provoking act • Action needs to be seen as due to loss of self-control that ordinary person would have committed in same situation • Result is that accused will have charges lowered to that of manslaughter

9. Excusable Conduct:Necessity • Criminal action is justified if accused is in “urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible” • Ex. – Accused breaks and enters to save child from burning building • Result is accused will be found not guilty

10. Excusable Conduct: Duress • Occurs when accused has committed crime that another has forced them to commit • Person forcing accused must be immediately present at time of offence and gave threats of immediate grievous harm and/or death • Result is that accused will be found not guilty

11. Excusable Conduct:Honest Mistake • Where accused honestly did not know that a criminal act had been committed • Not same as “ignorance of law” • Ex. – person leaves store paying for all items but pen that is now in pocket • Result is accused will be found not guilty

12. Automatism • Defined as: automatic functioning without conscious effort or control • Two categories of automatism are = • Insane Automatism • Non-Insane Automatism

13. Insane Automatism • Known as “mental disorder” defence • Crown must have already proved actus reus and mens rea • Result is accused found not guilty, with review board determining offender’s future • Verdict: “accused committed the act or omission but is not criminally responsible on account of mental disorder”

14. Insane Automatism • Not Criminally Responsible requires proof of: • suffering from mental disorder during commission of offence • mental disorder made individual incapable of appreciating the nature of the act or knowing that the act was wrong

15. Insane Automatism • Provincial Review Board determines mental fitness of offender at time of hearing (during sentencing) • They consider: • Mental condition of accused • Reintegration of accused into society • Other needs of accused • Whether accused is a threat to society • Can be released, either with conditions or not IF NOT THREAT TO PUBLIC SAFETY

16. Mental Fitness to Stand Trial • “Unfit to stand trial” = unable on account of mental disorder to conduct a defence at any stage of a trial • 1. Does the accused understand the nature of the proceedings? • 2. Does the accused understand the possible consequences of the proceedings? • 3. Can the accused communicate with their lawyer?

17. Mental Fitness to Stand Trial • If suspected to have mental disorder, accused is remanded for up to 60 days to evaluate condition • Final determination of mental fitness is up to provincial review board • If accused is unfit, court can order treatment to make accused fit to stand trial

18. Non-Insane Automatism • Known as “temporary insanity” • Burden of proof on accused for defence • Result is complete acquittal • Non-insane automatism includes sleepwalking, stroke, physical blow, hypoglycemia or severe psychological trauma

19. Intoxication • As intoxication (by alcohol or drugs) can cause loss of self control, allowed as defence • However, it is difficult to use self-intoxication as defence (where accused knowingly ingests alcohol or drugs to excess)

20. Intoxication • Result is that charge is reduced from specific intent to that of general intent • Ex. – From murder (specific – intended to kill) to manslaughter (general – intended to strike, yet resulted in death) • Specific intent – intended to cause further harm of criminal nature; • General intent – intended only actus reus

21. Carter Defence • Used to show that breathalyzer tests used to determine blood alcohol concentration (BAC) can be faulty and show incorrect results • Although in 2008 Criminal Code revised so that these tests cannot be questioned, • in 2010 case showed that test results are inaccurate by +/-.01

22. Consent • Used as defence when victim has agreed to the action taken • Used mainly for sports (i.e.- players consent to rough physical contact) • Used for assault cases (either physical or sexual) • Cannot be used for murder, firearms or sexual assault against persons under 14 • Result is accused will be found not guilty

23. Entrapment • Action taken by police officers that forcefully encourage or aids person in committing offence • Not technically a defence, but result is that motion for stay of proceedings takes place

24. Mistake of Fact • Unlike “ignorance of law”, ignorance of facts can lead to commission of offence unknowingly • Ex.- person gets change at store that includes counterfeit money, then uses it later and is arrested

25. Mistake of Fact • Conditions of this defence: • Mistake was not due to wilful blindness • The particular law allows for mistake of fact • Result is accused will be found not guilty

26. Double Jeopardy • Section 11 of Charter – no one shall be tried twice for same offence • Pre-trial motion is made to determine if double jeopardy is about to take place, based on one of two possible pleas: • Artefois acquit – accused has already been acquitted of charge • Artefois convict – accused has already been convicted of charge

27. Double Jeopardy • Judge must determine if facts of case are similar to previous trial • Result is judge will dismiss the trial