DEFENCES

1. DEFENCES

2. CRIMINAL DEFENCES • Audi alterum partem – “to hear the other side” • The right to a criminal defence is one of our fundamental rights; • Between the Criminal Code and case law, the accused has a variety of lawful excuses or justifications for escaping criminal responsibility even when there is overwhelming evidence against him or her.

3. NEGATIVING DEFENCES

4. What are Negativing Defences? • Defences that raise a reasonable doubt about whether the accused committed the offence charged; • Negates an essential element in the Crown’s case – either the actus reus or the mens rea.

5. MISTAKE OF FACT (Honest Mistake) • Success depends on the accused not having the mensreanecessary for the offence; • Enables the accused to escape culpability, or criminal responsibility, if he/she can show • The mistake was an honest one; and, • No offence would have been committed had the circumstances been as the accused believed them to be. • Cannot be used in ABSOLUTE LIABILITY offences (those where only actusreus needs to be proved) i.e. You can’t say you didn’t know you weren’t driving the speed limit because your speedometer was faulty.

6. MISTAKE OF LAW • Ignorance of the law • Typically not allowed, however may be used in those circumstances where an “officially induced error” exists. • An officially induced error refers to a situation in which the accused relied on the erroneous legal advice of an official responsible for enforcing a particular law.

7. INTOXICATION • Being rendered incapable of forming criminal intent by alcohol or drugs; • May be used to disprove the existence of mensrea for some crimes; • Generally, not allowed to be used as a defence to a crime, however there are exceptions.

8. MENTAL DISORDER (formerly Insanity) • Defined in s. 16 of the Criminal Code as a “disease of the mind”; • An accused person who suffers from a mental disorder at the time the offence is committed cannot be held criminally responsible because he/she would not have been able to from the mens rea of the offence; • A person must also be declared mentally fit to stand trial – instruct counsel, understand the proceedings and their consequences, and communicate with counsel and the court. If they can’t due to mental disorder, a review board decides on a course of action based on an assessment.

9. AUTOMATISM • A condition in which a person acts without being aware of what he or she is doing. For example, someone who sleepwalks gets up and goes to the washroom, but does not remember getting up and going. • Negates the actusreusof a crime because someone in such a state does not act voluntarily – they have no conscious control over their actions. • There are 2 types of automatism: insane and non-insane automatism.

10. INSANE AUTOMATISM • A form of automatism caused by a mental disorder; • A person with insane automatism will be found not criminally responsible due to mental disorder; • Even if acquitted, the accused may not be released back into society (medical treatment).

11. NON-INSANE AUTOMATISM • A form of automatism caused by an external factor, such as a concussion, medication, or sleepwalking; • If proven successfully, the accused will be acquitted and can be set free.

12. AFFIRMATIVE DEFENCES

13. Affirmative Defences: • Provide a justification for an accused’s conduct, or that the accused should be excused from punishment because criminal conduct was the only reasonable option.

14. SELF-DEFENCE • The accused had the requisite mensrea, but his/her actions were justifiable due to the right of one to defend his/her self, property, and others. • CAN ONLY BE USED WHEN THE ACCUSED IS AN INNOCENT VICTIM WHO HAS BEEN ASSAULTED WITHOUT HAVING PROVOKED THE ASSAULT • This means that 2 people who consent to a fight cannot claim self-defence.

15. SELF-DEFENCE • Basic elements of self-defence claims are: • The accused believed he or she was about to be physically harmed; • The accused used only the force required to avoid the threatened harm • Use of excessive force could result in a charge of assault or even murder.

16. DEFENCE OF A DWELLING • A person is allowed to defend his or her dwelling from any unlawful entry and to remove a trespasser if he or she has entered. • Force must be reasonable under the circumstances. • If a trespasser resists the owner’s attempts to protect the dwelling, then it is considered assault, and the owner would be allowed to use whatever force is necessary.

17. PROVOCATION • A partial defence that reduces the crime of murder to manslaughter providing the accused can prove they were provoked. • Must occur in the heat of passion caused by sudden provocation; • The provoking act must be of such a nature that it would cause an ordinary person to lose their self-control (seriously upset a reasonable person).

18. NECESSITY • Rarely used; • An excuse, not a justification; • Can be used if it can be shown that the accused acted to protect life or limb in a reasonable manner

19. DURESS/COMPULSION • The accused was forced to commit a criminal act under threat of immediate personal injury or death; • The threatener must be present at the time of the offence. • Excluded if the crime is one that causes serious harm, such as murder, abduction, or assault with a weapon.

20. BATTERED WOMAN SYNDROME • Recognizes prolonged abuse as a defence; • First introduced in 1990 in the case R. v. Lavalee, who was acquitted of killing her partner by shooting him in the back of the head after he told her he was going to come back and kill her. • He had physically abused her for many years. • The court found that it was reasonable for her to believe that she had no other choice than to use lethal force to defend herself.

21. Consent (Implied) • Implied consent is a form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and circumstances of a particular situation (or in some cases, by a person's silence or inaction). • In sports, players consent to some forms of intentional body contact and to the risk of resulting injury. The bodily contact to which they consent is that which falls within the rules and customary norms of the game. • But some forms of bodily contact involve such a great risk of injury and distinct probability of serious harm as to go beyond what the players impliedly consent to or beyond what they are capable, in law, of consenting to. Conduct in a game that is meant to inflict injury will generally fall outside the immunity provided by implied consent. Consent: Fights • The defence of consent does not extend to serious injury resulting from a fist fight or brawl between adults. However, the defence continues to apply to children who in the course of a fight unintentionally cause serious hurt.

22. OTHER DEFENCES

23. ALIBI • The best possible defence • Places the accused somewhere else at the time the offence occurred. • The only thing the defence must disclose to the Crown before a trial. • Usually introduced on arrest, and includes 3 parts • A statement indicating that the accused was not present at the location of the crime when it was committed. • An explanation of the accused’s whereabouts at that time. • The names of any witnesses to the alibi.

24. CORPORAL PUNISHMENT DEFENCE • Justifies the hitting of a child, by a parent or a person in place of a parent, like a guardian or teacher, for the purposes of correction, providing that the force used is reasonable under the circumstances. • Cannot • Be used against children under age 2 • Be used against children of any age who have a disability • Cause harm or raise the prospect of harm to a child over 2 • Be degrading • Be used on teenagers • Involve the use of objects such as straps or belts • Involve slaps or blows to the head.

25. DOUBLE JEOPARDY • In Sect. 11 of the Charter, it states that we cannot be tried for the same offence twice – this is the defence of double jeopardy. • A pre-trial motion is made using one of two pleas: • A plea of AUTREFOIS ACQUIT – where the accused states that he/she has already been acquitted of the charge. • A plea of AUTREFOIS CONVICT – where the accused states that he/she has already been convicted of the offence.

26. THE “TWINKIE” DEFENCE • The accused was charged with murder. • He claimed that his addiction to junk food, specifically Twinkies, had caused him to suffer from depression from too much sugar. • The Harvey Milk case – the accused was a San Francisco city employee who had been laid off and was upset so he killed the Mayor and city employee Harvey Milk • The defence was successful, and the accused was convicted of the lesser charge of manslaughter.