The Trial in Canadian Criminal Court, Pt. 4: Defences Law 12 MUNDY – 2009
Mar 24, 2016
The Trial in Canadian
Criminal Court, Pt. 4:
Defences
Law 12MUNDY – 2009
What are defences used for?
Two purposes:1. to prove that accused is not guilty of
offence being tried2. to prove that accused is guilty of a
lesser offence than one accused of
Alibi – Best DefenceAn 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
Self-defenceSelf-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
Self-defenceAllowed 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
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
Legal DutyUsed 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 kidnappingResult is that accused will be found not guilty
Excusable Conduct:ProvocationUsed 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
Excusable Conduct:NecessityCriminal 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
Excusable Conduct: DuressOccurs 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
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
AutomatismDefined as: automatic functioning without
conscious effort or control
Two categories of automatism are = Insane AutomatismNon-Insane Automatism
Insane AutomatismKnown as “mental disorder” defenceCrown 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”
Insane AutomatismNot 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
Insane AutomatismProvincial 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
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?
Mental Fitness to Stand TrialIf 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
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
IntoxicationAs 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)
IntoxicationResult 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
Carter DefenceUsed 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
ConsentUsed as defence when victim has agreed
to the action takenUsed 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 14Result is accused will be found not guilty
EntrapmentAction 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
Mistake of FactUnlike “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
Mistake of FactConditions 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
Double JeopardySection 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
Double JeopardyJudge must determine if facts of case are
similar to previous trial
Result is judge will dismiss the trial