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

Report
Law 12
MUNDY – 2009
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
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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
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
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
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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 selfdefence)
 Results in acquittal

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
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

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
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
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
Automatism

Defined as: automatic functioning without
conscious effort or control

Two categories of automatism are =
Insane Automatism
Non-Insane Automatism
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”

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
Insane Automatism
Provincial Review Board determines
mental fitness of offender at time of
hearing (during sentencing)
 They consider:

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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 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
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
Intoxication

As intoxication (by alcohol or drugs) can
cause loss of self control, allowed as
defence

However, it is difficult to use selfintoxication as defence (where accused
knowingly ingests alcohol or drugs to
excess)
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

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

Consent

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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
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
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
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
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

Double Jeopardy

Judge must determine if facts of case are
similar to previous trial

Result is judge will dismiss the trial

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