Legal Defences

1. Legal Defences • Once a person has been charged with a criminal offence, the criminal justice system allows the accused to put forth a defence to the charge. • Accused is under no obligation to enter a defence. • Defence generally argues that the accused committed the offence, but has a legal reason, excuse, or justification.

2. Mistake of Fact • Accused does not have the necessary mens rea • Must prove: • Honest mistake • No offence if circumstances were as accused believed them to be • Cannot be used for absolute liability offence (ex. Speeding ticket)

3. Mistake of Fact CASE • 3 Bluevale business teachers were driving in downtown Toronto • Car made an illegal right hand turn on to a VERY ritzy street • Cop was waiting to catch people who took this short-cut • Teachers pleaded that they were from Waterloo and didn’t realize they couldn’t turn right (“we can turn right anywhere in Waterloo!”) • Cop proceeded to write out a $116 ticket ($85 fine + a victim surcharge)! • Therefore, defence didn’t’ work!

4. Entrapment • The defence that a legal authority “set-up” or “trapped” the accused to catch them doing something they would not have otherwise done (ex. police coerced, threatened, encouraged or otherwise manipulated the accused) • Can only be raised if guilt has been established and only under the clearest of circumstances • Does not lead to an acquittal, leads to a permanent stay in proceedings

5. R v. Mack / R. Nutall & Karody • R. v. Mack [1988] • Over a six month period an undercover informer asked Mack several times to sell him drugs all, Mack refused every time. When the informer threatened him the accused finally gave in and sold him drugs. The Court ruled that this was unacceptable conduct on the behalf of the police. • R. v. Nutall & Karody • Trial beginning Jan 26 2015 • The RCMP was monitoring the couple for months. During this time the two built homemade explosive devises they planned to detonate at Victoria’s legislative buildings on Canada day (2013). They were under “tight control” by the RCMP and did not succeed in doing so. • Their lawyer is using entrapment as a defense saying that their radiation was “perhaps assisted by others”

6. Self Defenceby: Taylor and Alysha What is Self Defence? “The protection of one's person or property against some injury attempted by another.” What are the Limitations? • The other person lunges at you or tries to punch you, you can protect yourself by fighting back • If you fight back and the other person gives up or is unable to defend himself, you can't continue to hit him - it's an unreasonable use of force • If the other person doesn't come close enough to you to actually hit you and he doesn't have a weapon and he starts to walk away, you can't chase after him and hit him - the threat of harm to you isn't imminent

7. Self Defence A person is not guilty of an offence if- • (a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person • (b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force • (c) the act committed is reasonable in the circumstances.

8. Self Defence Case • Vince Li, Greyhound Bus Beheader, Granted Unsupervised Outings • http://www.huffingtonpost.ca/2014/02/27/vince-li-unsupervised_n_4869267.html#slide=973502

9. Self Defence Case • Yes, in this case the defence did work. Vince Li was found to have a mental illness and was sentenced to a mental facility for recovery. • As of Feb 24th, 2014. Li was granted new freedoms from the hospital and will soon be allowed out of the facility without an escort.

10. Necessity Defence • Forced to act because of direct and immediate danger and had no other choice • Harm avoided was greater than the harm that took place

11. NESSESITY CASE • A former Bluevale teacher became an international fugitive when she abducted her seven-year-old triplets and fled to Mexico • She put the triplets in the back of her car to cross the US Border • Ms. Vandenelsen testified that she fled with the children because she feared she was about to have her access to them terminated at a hearing scheduled for Oct. 23 as only her husband has custody at that time • She argued that being deprived of their mother would cause the triplets irreparable harm, and thus, she was trying to protect them by spiriting them away • Canada's Criminal Code states parents who abduct their children to protect them from imminent harm can be found not guilty by reason of necessity.

12. Intoxication • Some argue that a person who commits a crime while intoxicated from alcohol or drugs may not have criminal intent, or mens rea • Defense of intoxication are classified by those that require general or specific intent

13. Intoxication • General intent requires that the accused did not plan to commit a crime Ex. They intended to assault someone but not to kill • Specific intent means that the crime required the accused to have some plan Ex. Robbery

14. Provocation - Explanation • Accused was provoked into committing murder • Partial defence to reduce first or second degree murder to manslaughter • S. 232 of Criminal Code

15. Provocation - Conditions • Must prove: • Provocation was a sudden act or insult • Reasonable person would have been upset by comment(s) / action(s)

16. Provocation - Limitations • Cannot be used if: • Victim provoking accused was exercising legal right

17. Provocation - Case • R v. Tran • Caught his wife cheating on him • Stabbed lover and slashed wife • Claimed provocation • Denied • Went to kitchen to get knives • Not “an insult” the Criminal Code outlines

18. Automatism • Automatism is when you do something without conscious thought or action in regards to it. INSANE AUTOMATISM • Falls under “mental disorder” • Even if acquitted, may never be reintegrated into society • NON-INSANE AUTOMATISM • Blow to the head • A severe psychological shock • Sleepwalking • Temporary factor causing mental impairment

19. R. V. Parks – Automatism Defence Case • Drove 20 km to his in-laws house and killed them in their sleep • Mr. Parks was a known sleep walker • Turned himself in to police after realizing that he may have killed someone • Doctors testified on his behalf (5 neurologists)