1. Chapter 8
Criminal Defences

2. Right to a Defence
In a criminal case, the Crown must prove beyond a reasonable doubt that the accused had the actus reus and mens rea to commit a crime.
In response, the accused has a basic legal right to present a defence.
There are 3 main arguments that an accused may use in his or her defence:
Deny committing the act; disputing the actus reus
Argue they lacked the intent; disputing the mens rea
Attempt to justify why they committed the act

3. Right to a Defence
Every person is entitled to present a defence at trial
A defence may be defined broadly as any denial or answer to the charge against the accused person
If the Crown's case is very weak, a defence lawyer may choose not to present any evidence
To convict, the Crown must prove the facts and the required state of mind
In a more narrow sense, a defence may be defined as a legally recognised excuse or justification for criminal conduct

4. R. v. Dudley & Stephens

5. Common Defences
There are several different legal defences that are available to a criminally accused person.
Some of the most common ones are:
Alibi
Automatism
Intoxication
Self-defence
Battered woman syndrome
Necessity & duress
Mistake of fact
Entrapment
Double jeopardy
Provocation

6. The Alibi Defence Definition: arguing that the accused was not at the
scene of the crime when it took place and
therefore could not have committed the crime.
A complete alibi must include three components:
A statement by the accused claiming they were not present at the crime scene when the crime was committed.
An explanation of where they were.
Names of any witnesses who can confirm the alibi.

7. Alibis – Strengths & Weaknesses
In order for an alibi to be considered strong, all three components must exist.
If a full and reliable alibi can be presented, this is the strongest defence an accused person can use and it will likely lead to an acquittal.
Weaknesses:
Alibis generally become weak when there are no witnesses to verify the claims made by the accused.
If one or more of the three basic components is missing, it becomes easier for the Crown to raise doubts about the alibi's credibility.

8. Automatism Definition: an involuntary action by a person who
cannot control his or her actions and who is in a
state of impaired consciousness.
Automatism can be divided into two types:
insane and non-insane
Various factors can influence “automatistic” behaviour, from sleepwalking, the consumption of drugs and alcohol, to a disease of the mind.

9. Insane Automatism
This type of automatism is linked to a disease of the mind.
If it can be proven that an accused person suffered from a mental disorder and as a result was incapable of knowing that what he or she was doing was wrong, the accused may be declared not criminally responsible (NCR).
Example: a person with paranoid schizophrenia murders someone he or she (wrongly) believes is a threat. Due to this person’s mental condition, he or she cannot truly appreciate that his or her action was wrong and can be found NCR; he or she may be referred for treatment instead of prison.

10. Not Criminally Responsible (NCR)
The NCR defence may be raised by the Crown or defence, but whoever raises it must prove it in court.
Before an NCR case can be brought to court, the accused must be deemed fit to stand trial.
A “fitness hearing” asks:
Does the accused understand the nature of the proceedings? In other words, does the accused understand that he or she is on trial?
Does the accused understand the possible consequences of a trial? (prison, psychiatric care)
Is the accused able to communicate with his or her lawyers?

11. NCR cont’d…
If an accused person is deemed “unfit” to stand trial, he or she may be sent back to prison, or more likely a psychiatric facility until he or she is deemed fit for trial.
If a trial proceeds and the accused is declared NCR for the crime, a provincial review board decides on the sentence.
If the review board decides the accused is no longer a threat to the public, he or she may be discharged back into society.
If the accused is still considered a threat, he or she is referred for treatment and the case is reviewed annually.

12. Non-Insane Automatism
This type of Automatism is often referred to as “temporary insanity.”
An accused person who uses this defence argues that he or she committed a crime while in a temporary state of impaired consciousness.
Canadian courts have recognized that a person may enter such an impaired state as the result of any of the following: a physical blow, sleepwalking, consuming drugs, a stroke, severe psychological trauma, and other physical ailments (e.g. hypoglycemia).
Example: While sleepwalking, a man murders his wife. After he wakes up, he has no recollection of doing so. Even though he was walking and blinking, he was not aware of what he was doing when he committed the murder.

13. Intoxication Definition: the accused demonstrates that he or she
did not have a guilty mind at the time of the crime because he or she was intoxicated (most commonly drugs and/or alcohol).
Intoxication may be used as a partial defence.
Generally, an intoxicated person cannot form specific intent but may be found guilty of a general intent offence.
If successful, this defence can lower a conviction or reduce a criminal sentence.
Example: If an intoxicated person severely assaults someone, he or she avoids being charged with aggravated assault because he or she did not endanger the person’s life knowingly (specific intent), but the accused may still be convicted of a lesser assault charge (general intent).

14. The Carter Defence Definition: More formally known as evidence to
the contrary, this defence aimed to dispute the
evidence put forth by the Crown in drinking and
driving cases.
In 1985, a breathalyzer test appeared to malfunction while recording Carter’s blood-alcohol content. Carter presented evidence that he only had two beers to drink that night, which should not have put him over the legal limit.
An amendment to the Criminal Code in 2008 no longer allows breathalyzer results to be questioned, thereby overruling the Carter defence.

15. Self-Defence Definition: the legal use of reasonable force in
order to defend yourself and your property.
The Criminal Code allows people to use force if they have to defend themselves, but the amount of force should not be excessive; no more than necessary.
The use or exchange of force must be reasonable.
Example: A person being attacked with a
weapon may use a weapon to defend him- or
herself.

16. Battered Woman Syndrome
Definition: a psychological condition caused by
severe and usually prolonged domestic violence.
The Supreme Court first recognized this defence in the precedent-setting case R. v. Lavalee, 1990, as an extension of self-defence.
The main difference between battered woman syndrome (BWS) and the traditional definition of self-defence is the issue of imminent danger.
In a typical self-defence case, the danger is immediate.
With BWS, the danger may not be immediate but instead is constant.

17. R. v. Lavallee This case established the BWS defence in Canada.
Angelique Lavallee was in an abusive relationship. One night she shot her partner in the back of the head as he was leaving a room.
She testified that he told her he would come back and kill her later that evening. She believed him and was also able to prove that he had physically abused her for many years.
The Supreme Court found that it was reasonable for Lavallee to use lethal force in this situation, even though her partner was leaving the room.

18. Necessity Definition: accused persons claim they were
forced to commit a criminal act because they
were in danger themselves.
The Supreme Court has ruled that this defence may only be used in situations where there appears to be “imminent risk.”
Example: A man speeds to get his wife to a hospital because she is in labour. If he is pulled over by a police officer for dangerous driving, he can try to argue that he is speeding out of necessity.

19. Duress Definition: when someone is threatened or
coerced to do something against his or her will.
Duress is similar to the necessity defence; in both defences the accused claims to have been forced to commit a crime as the result of being in imminent danger.
The main difference is that with duress the accused is forced to act as the result of a threat.
Example: Doug shoots someone and tells Eric
that he must help him dump the body. When Eric
refuses, Doug points his gun at him, which
compels Eric to cooperate.

20. Mistake of Fact Definition: this defence shows a lack of mens rea
due to an honest mistake.
Ignorance of the law, or not knowing a particular offence was illegal, is not a valid defence.
Ignorance of the facts, or not understanding all of the details of a situation, can be used as a defence.
Example: Someone receives counterfeit money as change. Unknowingly, he or she attempts to use the fake money somewhere else and is caught. The accused knows that counterfeit money is illegal, but truly did not know he or she possessed fake money.

21. Entrapment Definition: police action induces a person to
commit a crime.
If a police officer coerces or forces a person to commit a crime, the officer is guilty of entrapment.
If the accused can prove the police led him or her to participate in a crime, the court can dismiss the charges immediately.
Example: Jimmy is continually harassed by an
undercover police officer to purchase illegal drugs.
If Jimmy can convince the court that he would
not have purchased drugs without the undercover
officer's forceful encouragement, he can claim the officer
“entrapped” him.

22. Double Jeopardy Defence: being tried twice for the same offence,
which is generally not allowed in Canada.
Section 11 of the Charter states that anyone charged with or acquitted of an offence cannot be tried for it again.
This defence is usually presented as a pre-trial motion:
Autrefois acquit – accused claims he or she was already acquitted (found not guilty) of the charge(s)
Autrefois convict – accused claims he or she was already convicted (found guilty) of the charge(s)

23. Provocation Definition: a person is “provoked” to lose their self-
Control, and as a result commits a crime.
Provocation can be used as a partial defence to justify the accused’s actions.
Example: Andy is at a bar with his wife one night
when another man insults his wife. Andy then
assaults the man in a rage and causes significant
bodily harm. Andy can use provocation as a
defence and claim that if the man had not insulted
his wife, he in turn would not have committed an
assault that evening.