Criminal Defences

Criminal Defences What types of defences are available to an accused person charged with a crime? Can some defences lead to a full acquittal?

What are Criminal Defences • Review • A person accused of committing a crime is presumed innocent • The accused is found guilty only if the Crown can prove the guilty mind (mensrea) and the guilty act (actusreus) beyond a reasonable doubt • The accused can respond and present a defence to the charges

Possible Defences • Accused persons can put forth three possible arguments: • They can deny that they committed the act, disputing the actusreus. • They can argue that they lacked the necessary criminal intent or guilty mind, disputing the mensrea. • They can argue that they have a valid excuse for what happened while committing the act Possible Defences...

The Alibi Defence • An alibi is the most common and best defence. • It is the best proof that an accused individual could not have committed the criminal act because it places the accused somewhere else when the offence was committed. • Includes three parts • A statement indicating that the accused was not present at the location of the crime when it was committed • An explanation of the accused’s whereabouts at that time • The names of any witnesses to the alibi

The Alibi Defence cont... • All three parts are necessary for the accused to use this defence • Therefore... Being home alone during the time of a crime is not a sufficient alibi

Automoatism • Defined as automatic functioning without conscious effort or control. • The individual has no control over his or her actions, but is still capable of committing the act • There are two types of automatism • Non-insane automatism • Insane automatism • Both rely upon expert psychiatric evidence

Non-insane Automatism • Sometimes called ‘temporary insanity’ • Linked to external factors • Canadian courts have recognized that this state may be the result of the following: • Sleepwalking disorder • A physical blow • Physical ailments such as a stroke or hypoglycemia (low blood sugar), intoxication • Severe physchological trauma • If the judge accepts the defence the result will be a full acquittal

Insane Automatism • A mental disorder, or a disease of the mind, is defined in section 16 of the Criminal Code • It states that an individual is not criminally responsible (NCR) for a criminal offence providing the following: • At the time that the act was committed he or she was suffering from a mental disorder • The mental disorder made the individual incapable of appreciating the nature of the act or knowing that the act was wrong

Insane Automatism cont... • Either the Crown or the Defence can raise the NCR defence • Whoever raises the defence takes on the burden of proof • If the NRC defence is accepted the judge needs to decide if the individual is a danger to society and has two options • If not an danger they will be released • If he/she poses a threat they will be sent to a psychiatric facility to undergo treatment

Intoxication • We learned about the importance of mensrea in proving guilt • To use intoxication as a defence, the accused must show that he/she did not have the required intent (mensrea) at the time that the offence was committed. • Use of this defence can reduce a specific intent offence to a general intent offence

Intoxication cont... • An intoxicated person who was unable to form specific intent before striking someone cannot be found guilty of aggravated assault. • He/She can be found guilty of assault – general intent offence • All that needs to be proved in that the intoxicated person did strike someone (actusreus) • Goal of this defence is not acquittal but reduction in charge

Assignment • Read the following cases from the text and answer the accompanying questions • R. v. Maracle – pg 264 – Q1-4 • R. v. Luedecke – Pg 266 – Q 1-4 • R. v. Daviault – Pg 271 – Q 1-4

Defences that Provide a Reason for the Offence • In these types of cases, the accused are not denying that the offence took place • Instead they are providing an explanation about why they felt they had no other option but to act as they did (commit the offence)

Battered Women Syndrome • The Supreme Court first recognized prolonged abuse as a defence in R. v. Lavallee in 1990 • Angelique Lavalle shot her partner in the back of the head as he left a room one evening • He had told her that he was going to come back and kill her later that night, and she believed him • He had physically abused her for many years. • The court felt that it was reasonable for her to believe she had no other choice than to use lethal force to defend herself • Before this defence danger had to be imminent to use the defence of self-defence

Self Defence • You are allowed to defence yourself and your property • But you can only use "necessary" and "reasonable" force • The Criminal Code tries to define every circumstance where self-defence might occur and the intent of those involved

Self-Defence cont… • Definition: a person sometimes has no choice but to use force (even deadly force) to defend him/herself • When this happens the person is considered not criminally responsible • Essentially, the accused is in the right, and the victim got what he/she deserved • Can only be used in situations where the accused was forced to engage. A person who agrees to participate in a fight cannot use the self-defence argument if the other fighter gets injured

The Criminal Code and Self-Defence • (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if • (a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and • (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

Meaning… • The accused must feel that the threat was real • The action taken in self-defence were reasonable based on how an ordinary person in the same circumstance would have reacted • The action of the accused must be in proportion to the perceived threat • Cannot use any more force than is necessary • Deadly force only justified if you life is in danger

Necessity • Can be used as an excuse for a criminal act committed due to immediate and urgent circumstances. • The accused did not truly act voluntarily but were forced to act because of certain danger. No other choice • Example: Breaking speeding laws trying to get someone to the hospital

Duress • An accused commits a crime in response to some sort of external pressure. • A threat of harm by some other person, forcing the accused to act against his/her will • Example: Participating in a crime while held at gunpoint

Other Defences • Ignorance of the Law • Not an accepted defence. The nature of our legal system is that the law is freely accessible to all therefore it is your responsibility to know if what you are doing is wrong • Mistake of Fact • Ignorance of facts is a valid defence. Must be a genuine mistake • Example: Using counterfeit money, purchasing stolen goods

Other Defences • Entrapment • Occurs when police coerce, or forcefully encourage an individual to commit a crime. • Considered an abuse of police power • Double Jeopardy • You cannot be tried twice for the same crime using the same evidence • Section 11 of the Charter protects this right • Provocation • A wrongful act or insult that is so significant that is can deprive a person of self- control • The act must occur immediately after the provocation • Defined in the Criminal Code which can reduce a charge of Murder to Manslaughter

Criminal Defences