DEFENCES

1
DEFENCES

• Law 120

2
Defences

• 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.

3
Self Defence

• The Criminal Code permits you to defend yourself,
  those under your protection, your movable
  property, and your dwelling and real property.
  However, you can only use force that is
  necessary and reasonable according to the
  circumstances.
• The Criminal Code allows you to stop a thief from
  taking your personal property or to take it back,
  as long as you do not strike the thief or cause
  bodily harm. You can do more to defend your
  dwelling. Under section 40, you are justified
  in using as much force as is necessary to prevent
  any person from forcibly breaking into or
  forcibly entering your dwelling-house without
  lawful authority.

4
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.

5
Excusable Consent

• Provocation may be used as a partial defence for
  a charge of murder. Excusable conduct also
  includes duress, which is a threat or use of
  violence. In R. v. Morgentaler (1988) the
  Supreme Court stated that the defence would be
  successful only in urgent situations of clear
  and imminent peril where compliance with the law
  is demonstrably impossible.
• Honest mistake may also be accepted as a defence
  under excusable conduct. 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 accuseds credibility
  will largely determine whether this defence
  succeeds.

6
Mental Disorder

• The use of mental disorder as a defence has been
  debated by members of the legal profession for
  many years. The terms mental disorder and
  unfit to stand trial are defined in the
  Criminal Code as follows
• mental disorder ? means disease of the mind
• unfit to stand trial ? means unable on account of
  mental disorder to conduct a defence at any stage
  of the proceedings before a verdict is rendered
  or to instruct counsel to do so, and, in
  particular, unable on account of mental disorder
  to
• understand the nature of the proceedings
• understand the possible consequences of the
  proceedings
• communicate with counsel

7
Mental Fitness to Stand Trial

• An accused can be remanded for up to 60 days to
  evaluate his or her fitness to stand trial. This
  may include an assessment of his or her mental
  status at the time of the offence. A provincial
  or territorial review board determines if the
  accused is fit to stand trial the accused is
  sent back to court. If he or she is fit to stand
  trial, the case is heard. Usually, evidence
  given during a court-ordered psychiatric
  assessment is not admitted without the accuseds
  consent.
• If the accused is unfit, the court can order
  treatment to make him or her fit to stand trial.
  An inquiry is held every two years, until the
  accused is tried, to make sure there is still
  enough evidence to bring him or her to trial.

8
Mental Fitness at the Time of the Offence

• There is a presumption of sanity, just as there
  is a presumption of innocence. The Supreme Court
  has ruled that the Crown may not introduce
  evidence of mental disorder unless it had already
  proved actus reus and mens rea in a case. The
  defence can independently decide whether to
  introduce the defence of mental disorder.
• If the accused is found not guilty by reason of
  insanity, the verdict must state that the
  accused committed the act or omission but is not
  criminally responsible on account of mental
  disorder. The court then holds a hearing to
  determine what to do with the accused, or the
  review board determines the future of the
  offender.

9
Mental Fitness at the Time of the Offence

• The Court and the review board must protect the
  public. They consider the mental condition of
  the accused, the reintegration of the accused
  into society, and other needs of the accused.
  The mental state of the accused at the time of
  the hearing, not at the time of the offence, is
  the main concern. If considered not to be a
  threat, the accused may be discharged absolutely.
  Otherwise, the discharge will have conditions,
  or the accused will be held in custody in a
  hospital. Treatment, however, must not be a
  condition of release.

10
Necessity

• The defence of necessity means that the accused
  had no reasonable alternative to committing an
  illegal act. For example, Luke severs his hand
  with a band saw. Bo puts the hand on ice and
  drives Luke to the hospital running a red light
  on the way. After Luke is taken into emergency,
  a police officer hands Bo a summons for dangerous
  operation of a motor vehicle. Bo uses the
  defence of necessity because he believed his
  conduct was absolutely necessary to keep Luke
  from bleeding to death.
• For the defence of necessity to succeed, all of
  the following conditions must be met
• the accused must show that the act was done to
  avoid a greater harm
• there was no reasonable opportunity for an
  alternative course of action that did not involve
  a breach of the law.
• the harm inflicted must be less than the harm
  avoided.

11
Intoxication

• It is important to remember how specific and
  general intent offences work to understand the
  intoxication defence. A general intent offence
  is on in which the intent relates solely to
  committing the act (Fred hits Barney out of
  anger). If Fred hit Barney with the intent to
  kill he has committed aggravated assault and is a
  specific intent offence.
• Any intoxicated person who was unable to form
  intent before striking someone cannot be found
  guilty of aggravated assault. He or she can,
  however, be found guilty of assault, a general
  intent offence. All that needs to be proved is
  that the intoxicated person did strike someone.
  Similarly, a person charged with murder can use
  the defence of intoxication. If successful, this
  will lower the conviction of murder (a specific
  intent offence) to manslaughter (a general intent
  offence).
• There are situations where self-induced
  intoxication is not a defence to a criminal act.

12
Automatism

• Automatism has been described as unconscious,
  involuntary behaviour the state of the person
  who, though capable of action, is not conscious
  of what he is doing. Sleepwalking, convulsions,
  and behaviour caused by psychological stress are
  some examples. To be acquitted on this defence,
  the accused must prove that he or she was in a
  state of automatism when committing the offence.
• Automatism caused by a disease of the mind is
  called insane automatism. Here the source of
  the malfunction is rooted in the psychological or
  emotional makeup of the person. If this state is
  proved, the accused is entitled to a verdict of
  not criminally responsible on account of a
  mental disorder. The offender would then be
  subject to the procedures outlined under mental
  disorder.

13
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 games 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.

14
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.

15
Mistake of 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.

16
Mistake of Fact

• 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.

17
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 rightif 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.