1. Criminal Defences CLN4U

2. Defences Every person is entitled to present a defence at trial 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 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 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 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 In a more narrow sense, a defence may be defined as a legally recognised excuse or justification for criminal conduct

3. Defences Let’s look at some specific defences Let’s look at some specific defences

4. Alibi When an accused person claims that he or she was not present at the time of the offence. When an accused person claims that he or she was not present at the time of the offence. Independent evidence supporting this claim strengthens an alibi defence. Independent evidence supporting this claim strengthens an alibi defence.

5. Self-Defence The right to defend oneself of one's family from death or serious injury The right to defend oneself of one's family from death or serious injury A person must not have provoked the assault A person must not have provoked the assault Reasonable Force: A person who is attacked may use only the amount of force necessary to defend against the attack. Reasonable Force: A person who is attacked may use only the amount of force necessary to defend against the attack. Has been extended to include "battered woman syndrome", such as in R. v. Lavallee [1990]. (page 48) Has been extended to include "battered woman syndrome", such as in R. v. Lavallee [1990]. (page 48)

6. Defence of Property Similar to self-defence Similar to self-defence A person may use reasonable force to prevent someone from entering his or her home or coming onto that person's property A person may use reasonable force to prevent someone from entering his or her home or coming onto that person's property No excessive force No excessive force Does not justify shooting, stabbing, or setting traps that would injure a trespasser Does not justify shooting, stabbing, or setting traps that would injure a trespasser

7. Provocation Something that causes another person to lose his or her self-control Something that causes another person to lose his or her self-control Can be an act or an insult Can be an act or an insult Can reduce a charge to manslaughter - only time a person may use provocation as a defence Can reduce a charge to manslaughter - only time a person may use provocation as a defence

8. Duress (or Compulsion) A person who commits an offence because he or she was threatened with immediate death or serious injury A person who commits an offence because he or she was threatened with immediate death or serious injury Not a defence to violent crimes such as sexual assault, aggravated assault, or murder Not a defence to violent crimes such as sexual assault, aggravated assault, or murder

9. Necessity A person who does an illegal act to prevent a more serious result may raise the defence of necessity A person who does an illegal act to prevent a more serious result may raise the defence of necessity There are several conditions: There are several conditions: The accused must show that the act was done to avoid a greater evil The accused must show that the act was done to avoid a greater evil There must have been no alternative There must have been no alternative The illegal act must not have been more than necessary to avoid the evil The illegal act must not have been more than necessary to avoid the evil

10. Automatism Criminal behaviour must be voluntary Criminal behaviour must be voluntary Crimes committed in an unconscious state are rare, however require an acquittal if proven, ex. sleepwalking, epileptic seizure, blow to the head... Crimes committed in an unconscious state are rare, however require an acquittal if proven, ex. sleepwalking, epileptic seizure, blow to the head... Precedent is R. v. Parks [1992] Precedent is R. v. Parks [1992]

11. Mistake of Fact A person whose behaviour would otherwise be criminal may have a defence if he or she made a mistake about the facts, not the law A person whose behaviour would otherwise be criminal may have a defence if he or she made a mistake about the facts, not the law Must be an honest mistake Must be an honest mistake Mistake of fact, when it occurs, cancels any "Criminal State of Mind" Mistake of fact, when it occurs, cancels any "Criminal State of Mind" Can not be used as a defence to absolute liability offences Can not be used as a defence to absolute liability offences

12. Mistake of Law Ignorance of the law is no excuse; not knowing that something is a criminal offence does not mean it is all right to commit the offence Ignorance of the law is no excuse; not knowing that something is a criminal offence does not mean it is all right to commit the offence But, when an accused person can show that a government official misled him or her about the law, an exception called "Officially induced error" applies But, when an accused person can show that a government official misled him or her about the law, an exception called "Officially induced error" applies

13. Mental Disorders Formerly known as "Defence of Insanity" Formerly known as "Defence of Insanity" An accused that suffered from a mental disorder at the time of the offence may not be criminally responsible. An accused that suffered from a mental disorder at the time of the offence may not be criminally responsible. Law assumes all persons are sane - burden of proof of mental illness falls to the defence Law assumes all persons are sane - burden of proof of mental illness falls to the defence The person must not have known what he or she did, or that it was wrong The person must not have known what he or she did, or that it was wrong

14. Mental Disorders The judge may order an assessment of the accused person's mental condition. The assessment may be done: The judge may order an assessment of the accused person's mental condition. The assessment may be done: To see whether the accused person if fit to stand trial. To see whether the accused person if fit to stand trial. To see whether the accused person was suffering from a mental disorder at the time the offence was committed To see whether the accused person was suffering from a mental disorder at the time the offence was committed Several other reasons Several other reasons The psychiatrist or other medical practitioner assesses the person and reports back to the judge, the defence lawyer, and the crown prosecutor The psychiatrist or other medical practitioner assesses the person and reports back to the judge, the defence lawyer, and the crown prosecutor

15. Mental Disorders If an accused is found not guilty by mental disorder, the judge has a choice: make an order concerning the person or refer the case to a review board. If an accused is found not guilty by mental disorder, the judge has a choice: make an order concerning the person or refer the case to a review board. If the judge makes an order, there are three choices available: If the judge makes an order, there are three choices available: An absolute discharge An absolute discharge Done if the mentally ill person is not a threat to the public. Done if the mentally ill person is not a threat to the public. A conditional discharge A conditional discharge A term in a psychiatric hospital A term in a psychiatric hospital

16. Mental Disorders When the judge orders that the person be kept in a psychiatric hospital, the judge's order last for a MAXIMUM of 90 days. After that, the review board reviews the person's case. When the judge orders that the person be kept in a psychiatric hospital, the judge's order last for a MAXIMUM of 90 days. After that, the review board reviews the person's case. If the judge does not make an order and refers the case to the review board, the board has a hearing and makes a decision. If the judge does not make an order and refers the case to the review board, the board has a hearing and makes a decision. The review board has the same three choices as the judge: absolute discharge, conditional discharge, term in psychiatric hospital. The review board has the same three choices as the judge: absolute discharge, conditional discharge, term in psychiatric hospital.

17. Intoxication Ordinarily, intoxication by alcohol or drugs is no excuse Ordinarily, intoxication by alcohol or drugs is no excuse Ex: In criminal law, a person who gets drunk and commits a criminal act is usually still responsible for his or her actions when drunk Ex: In criminal law, a person who gets drunk and commits a criminal act is usually still responsible for his or her actions when drunk Intoxication may be a defence for a narrow range of offences, such as murder or theft; these offences require the accused person to form a specific intent. Intoxication may be a defence for a narrow range of offences, such as murder or theft; these offences require the accused person to form a specific intent. A specific intent means the accused thinks about and intends a particular result, such as the intent to kill in murder cases A specific intent means the accused thinks about and intends a particular result, such as the intent to kill in murder cases

18. Intoxication A person may be so intoxicated that he/she was unable to form this intent to kill. In this example, the accused person may not be convicted of murder, but could be convicted of manslaughter A person may be so intoxicated that he/she was unable to form this intent to kill. In this example, the accused person may not be convicted of murder, but could be convicted of manslaughter Long-term drunkenness or abuse of drugs may cause a person's health to deteriorate so that a mental disorder results. In that case, the accused person may not be criminally responsible for his/her actions and could use a defence of mental disorder. Long-term drunkenness or abuse of drugs may cause a person's health to deteriorate so that a mental disorder results. In that case, the accused person may not be criminally responsible for his/her actions and could use a defence of mental disorder. See explanation of R. v. Daviault (1994) on page 333 See explanation of R. v. Daviault (1994) on page 333

19. Entrapment and Abuse of Process The police may carry out undercover activities to detect crime The police may carry out undercover activities to detect crime In doing so, they may legally present a person with the opportunity to commit a crime, but they may not harass, bribe, or otherwise induce the person to break the law. In doing so, they may legally present a person with the opportunity to commit a crime, but they may not harass, bribe, or otherwise induce the person to break the law. Police conduct that induces criminal behaviour is called "entrapment" Police conduct that induces criminal behaviour is called "entrapment" The accused person must prove entrapment The accused person must prove entrapment Precedent setting case is R. v. Mack [1988] Precedent setting case is R. v. Mack [1988]

20. Special Pleas A person who has been tried for an offence cannot be tried again for a similar offence arising out of the same facts. A person who has been tried for an offence cannot be tried again for a similar offence arising out of the same facts. That person may plead a special plea that he or she has already been acquitted, convicted or discharged (provided by the Charter, section 11.(h)) That person may plead a special plea that he or she has already been acquitted, convicted or discharged (provided by the Charter, section 11.(h))