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

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

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

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 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 Insane Automatism Non-Insane 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: 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 self-intoxication 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 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