1. Can committing a criminal offence ever be completely justified?
Criminal Defences
Can committing a criminal offence ever be completely justified?

2. What is a criminal defence?
A denial for having committed a wrongful act
A justification for what otherwise would be regarded as criminal behaviour

3. Mental Disorder Intoxication Automation
Defences Related to Mental State of Accused at the Time of the Alleged Criminal Offence
Mental Disorder
Intoxication
Automation

4. Mental State
The court has to determine whether the accused is mentally fit to understand the proceedings and to participate in his or her defence
An accused person is presumed fit to stand trial unless the Court is convinced that the accused is suffering from a mental disorder at the time the trial is scheduled to take place
If unfit – judge will issue an assessment order and then decide on an appropriate course of action based on the assessment report

5. Mental Disorder Defence, S.16
Defined as a disease of the mind; individual unable to form the Mens Rea of a crime
i.e. incapable of understanding the nature of the criminal act, or knowing the criminal act is wrong.

6. In Canada, this defence is not commonly used:
It has a “reverse onus” provision
It can only be raised as a defence after the accused
has been found guilty.
Judge has 3 options if accused is deemed legally insane:
Absolute Discharge of the Accused – if accused is not a danger to society
Conditional Discharge of the Accused
Confinement to a psychiatric hospital – max 90 days, then a Criminal Code Review Board looks at case
Important: Judge can ask for a psychiatric evaluation to see if the accused is “fit to stand trial”

8. Automatism Defence Automatism:
A condition in which a person has no conscious control over his or her actions; the person lacks the mens rea of the crime. (sleepwalking, suffering a concussion, misuse of medication)
2 Types of Automatism:
Insane: Caused by a mental disorder. Accused would not be found criminally responsible for acts but they are released into psychiatric custody, not back into society.
Non-Insane: Caused by a temporary factor, i.e. drugs, head injury, hypnotism and sleepwalking. In these cases, an acquittal is possible.

9. You be the Judge! Is sleepwalking a valid defence?

10. Intoxication Defence
Intoxication: the condition of being overpowered by alcohol or drugs to the point of losing self-control.
In turn, it is generally not allowed as a defence except in 2 cases:
1. Crime committed is one of specific intent. Courts believe these offences require too much planning to be a ‘spur of the moment’ drunken decision. But can still be found guilty of general intent (manslaughter)
2. Proven that the intoxication of accused was very extreme; like having a temporary mental disorder.
R v. Daviault: A rapist got off using this defence because they thought that extreme intoxication would violate the principles of fundamental justice. People were VERY MAD after this - Criminal Code was amended to prevent its use in rape cases.

11. Intoxication is never a defence to a drunk driving charge
Intoxication is never a defence to a drunk driving charge. If you were driving while intoxicated, had an accident, and unintentionally killed someone, you could be charged with impaired driving causing death. The maximum penalty is life in prison

12. Justifications Self- Defence Battered Woman Syndrome
Defence of a dwelling
Necessity
Compulsion or duress
Provocation
Aboriginal or Treaty rights

13. Self Defense Unprovoked:
S. 34 of Criminal Code states that a person may use force to defend against an unprovoked assault; no intent to kill or cause serious bodily harm.
Only able to use the amount of force necessary to repel the attack (reasonable force)
Under s. 26 of Criminal Code, a person may be charged if they use excessive force.

14. Provoked: S. 35 of the criminal code deals with provoked self-defence.
A person may use force in the following situations:
Believes his or her life is in danger
Believes opponent is capable of causing such harm
Lacked Mens Rea to cause grievous bodily harm to opponent
Tried to remove self from situation

16. Battered Woman Syndrome
When a woman is in an abusive relationship and reacts by killing their spouses
R v. Lavallee
First case in Canada to introduce battered woman syndrome (prolonged spousal abuse)
used to advance the justification of self-defence (More of a justification than a defence)

17. R. v. Lavallee
Shot her husband in the back of the head with a rifle as he left her room after violent argument
Testimony showed there were a lot of violent encounters
As a result she was treated in the hospital with several serious injuries
On the night of the shooting, her husband slapped her in the face and told her he would come back later to kill her
Psychiatrist found she was terrorized and life in danger
Jury acquitted Lavallee, Manitoba court of Appeal overturned the acquittal

18. R. v. Lavallee
Lavallee appealed to the Supreme Court of Canada which restored her acquittal
In its decision – they found that the jury should be instructed on 3 elements:
Why an abused woman might remain in abusive relationship
nature and extent of the violence that may exist in battering relationship
defendant’s ability to perceive danger from her abuser

19. Battered Women’s Syndrome
Reverse Onus Provision:
Accused must prove that she really feared for her life at the time of the alleged offence.
Accused may also introduce records of a pattern or history of abuse. as evidence in court

20. Defence of a Dwelling
Any building or other structure that is occupied on a permanent or temporary basis
A person is allowed to defend his or her dwelling from any unlawful entry as to remove a trespasser if he or she has entered
Must be reasonable
Self-defence provision of the code would be applied

21. Necessity Defence
The accused had no reasonable alternative but to commit the offence.
Example: Luke severs his finger with a saw, Jenny puts his finger on ice and drives him to the hospital. Runs a red light on the way. Police officer hands Jenny a summons for dangerous operation of a motor vehicle.
3 Conditions Must Be Met To Prove Necessity:
Acts was done to avoid greater harm
No reasonable opportunity for an alternative course of action
Harm inflicted must be less than the harm avoided

22. Compulsion or Duress (s. 17 of Criminal Code)
A defence in which the accused person is forced by threat of violence to commit a criminal act against their will.
S. 17 identifies that it cannot be used in cases of violent crimes such as: murder, sexual assault, robbery or assault w/ a weapon.
S. 17 used to also state that the threat be immediate. But, a court decision in 2001 overturned this requirement; no new law has been written.

23. Example: Taxi driver is forced at gunpoint to drive someone who has just robbed a bank to a certain location. Driver is charged with accessory after the fact but pleads not guilty because of compulsion and is acquitted

24. Provocation Defence
A partial defence that reduces the crime of murder to manslaughter; defence must show that accused was provoked into killing the victim.
4 Criteria Must Be Proved in Court:
Wrongful act or insult occurred
Act was sufficient to deprive an ordinary person the power of self control
Accused responded suddenly
Accused responded before there was time for “passion” to cool.
Do you think the defence of provocation allows deadly rage & violence to be treated less seriously than other deliberate killings?

25. Aboriginal or Treaty Rights
Aboriginal peoples may argue that they have treaty right to act in a way that would be illegal for anyone else (Hunting and Fishing)
Purpose is to recognize that Aboriginal peoples occupied Canada first and this grants certain rights
Supreme Court of Canada has to balance rights

26. R. v. Sparrow – accused of fishing with a net that was longer then allowed. He argued he had Aboriginal right to fish for food. Supreme court stated that anyone claiming an Aboriginal right must prove that the right exists and that the right has been infringed.
The court overturned his conviction and ordered a new trial. The new trial never took place because the Crown withdrew the charges.

27. Other defences Do not fit as mental states or justifications
Mistakes of Fact and law
Alibi
Double jeopardy
Entrapment

28. Mistake of Law
Ignorance of the law is not usable as a defence except in 2 circumstances:
Officially Induced Error: A defence that the accused relied on erroneous legal advice from an official responsible for enforcing/interpreting laws.
Mistake of Fact: honest mistake leading to the commission of the offence; accused doe not have the Mens Rea. (Sharon taking wrong bike)

29. Mistake of Fact: In order to use mistake of fact accused must prove:
That the mistake was an honest one
That the offence wouldn’t have been committed w/out knowing the truth

30. Double Jeopardy
Accused person cannot be tried twice for the same offence
Paolo is acquitted on a robbery charge, police cannot bring the same charge against him 2 years later with more evidence
NOTE: crown does have the right to appeal an acquittal or sentence if they think a court has made a mistake of law

31. Alibi
A defence raised by the accused claiming that he or she was somewhere else when the offence was committed

32. Entrapment Defence
Defence against police conduct that illegally induces the defendant to commit a criminal act.
Police are allowed to go undercover for the purpose of catching criminals, but they are not allowed to harass, bribe or induce a person to commit an offence.
A reverse-onus defence. Thus, the accused must prove that:
Prior to being approached by the police, they were not involved in criminal activity.
The police went beyond merely offering a chance to commit the offence.

33. Example:
Will was a drug addict who was persuaded to sell drugs to an undercover female police officer. He resisted the officer’s repeated demands until the officer stated that she urgently needed drugs because she was sick. Will finally agreed in transaction and was arrested after. He was acquitted because of entrapment defence