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