Chapter 10.3 Other Defences

Mistakes of Law and Fact Ignorance of the law is generally not accepted as a defence. Ignorance of the facts, however, will be accepted as a defence, but only under two conditions: The mistake was genuine and not the result of the accused neglecting to find out the facts. The law accepts ignorance of the facts as a defence.

For example, you receive counterfeit money while shopping For example, you receive counterfeit money while shopping. When you try to pay a bill with it, you are arrested. You cannot be considered negligent for not finding out that the money was counterfeit – people do not usually check every bill they receive. In another example, you buy a used bicycle that was advertised in a bulletin board notice. Later, you are arrested under the Criminal Code, which states that it is an offence to “knowingly” possess stolen goods. If you can prove that you did not know the goods were stolen, then your mistake-of-fact defence will succeed.

Double Jeopardy Double jeopardy means to be tried twice for the same offence. Under section 11 of the Charter, it is prohibited: “Any person charged with an offence has the right…if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.”

In a case of double jeopardy, a pre-trial motion can be made using one of two pleas: In a plea of autrefois acquit, the accused states that he or she has already been acquitted of the charge. In a plea of autrefois convict, the accused states that he or she has already been convicted on the charge.  The judge then investigates the matter and rules on whether the current charge is based on the same facts as the previous charge that was tried. If so, the judge will dismiss the case.

Alibi Various defences are used to prove that the accused is not guilty of the offence charged or guilty of a lesser offence. The best possible defence is an alibi, a defence that places the accused somewhere else at the time the offence occurred. It is important that the accused disclose any alibi to the Crown at the earliest opportunity. Failing to do so may erode the credibility of both the accused and the alibi.

Entrapment Entrapment is a police action that encourages or aids a person to commit an offence. It is not recognized as a defence, but rather as an abuse by the police. A judge who finds that entrapment has occurred should stay the proceedings.

Consent Consent can be used as a valid defence, but only if the party injured by the accused could and did consent to the action. For example, many hockey and football players have been accused of assaulting opponents during a game. The defence usually is that by playing the game, the injured party consented, or agreed to the game’s rough physical contact. The defence of consent can never be used in cases involving firearms, murder or for various sexual offences committed under the age of 14.

Legal Duty Legal Duty allows certain people to commit acts that would otherwise be offences. For example, a police officer can drive above the speed limit when chasing a suspected criminal. In recent years, however, several innocent bystanders have been killed in police chases. An officer may also use as much force as necessary to make an arrest. Section 43 of the Criminal Code is very controversial because it allows a parent, schoolteacher, or person standing in place of a parent to use ‘reasonable force’ to correct a child.

Honest Mistake It means the offender truthfully did not know he or she had committed a crime. This defence is most commonly used by people who are found in possession of unpaid items while shopping. The onus is on the Crown to prove that the person accused of shoplifting did it intentionally. The accused’s credibility will largely determine whether this defence succeeds.