DEFENCE

The list of excuses to absolve oneself of criminal responsibility. For example:

"I was framed,"

"The devil made me do it,"

"I didn't know it was a crime,"

"I had no choice, it was either him or me,"

"I just couldn't take it any more,"

"I was sleepwalking when it happened," or

"I have a blood sugar sensitivity.” The point is that even when the evidence against an accused may

appear overwhelming, the defendant may still have grounds to plead not guilty or to argue a lack of culpability.

In Canada, there are a number of legitimate defences available to an accused, including alibi, automatism, mental disorder, intoxication, mistake, self-defence, duress, consent, legal duty and provocation.

DEFENCE

Alibi: proof that an accused could not have committed the criminal act, or actus reus because [s]he was in another place at the time the offence occurred.

Can be used for indictable and summary offences (murder, loitering)

Example: accused can prove that he or she had been seen by a number of people in a busy restaurant.

ALIBI

Automatism: criminal act occurs as a result of unconscious involuntary behvaiour due to illness or disease. [s.16]

It acknowledges that individuals may act in a criminal manner while they have lost control over their mental functions

This means that the criminal acts done in an unconscious state cannot form the necessary actus reus for an offence

If found not guilty can follow procedures outlined under mental disorder

Can be used for summary and indictable (murder/assault)

For example: criminal act committed by a person during an epileptic seizure OR during sleep walking [ R. v. Parks (1990)]

AUTOMATISM

Mental Disorder: must prove that [s]he has a “disease of the mind” that was such a nature that it was impossible to realize the full consequences of the crime committed

Under this defence, the accused is committed to a mental institution under the supervision of a psychiatrist

Mainly used for murder cases if at all

Example: murder is committed by woman but is found unstable by physiatrist

MENTAL DISORDER

Intoxication: the accused is claiming that [s]he is not responsible for having committed a criminal act because of being influenced by drugs or alcohol

Intoxicated individuals are usually unable to form intent before sticking someone, which can result in not being found guilty of aggravated assault. But they can still be found guilty of assault, all that needs to be proved is that the intoxicated individual struck someone [general vs. specific intent]

Can be used to try to prove a lack of mens rea with some crimes (murder/assault) but can’t be self intoxication

R. v. Daviault [1994] –can’t be used as a defence for harming another person

Example: drank a spiked drink and was not thinking clearly

INTOXICATION

Ignorance of the law is generally not accepted [s.19] Mistake of fact [ignorance of facts] can be accepted as a

defence, but ONLY under 2 conditions:

1. The mistake was genuine & not the result of the accused neglecting to find out the facts

2. The law accepts ignorance of the facts as a defence

Can be used for indictable and summary (theft, assault)

Example: you receive counterfeit money while shopping, you use it and you get arrested

MISTAKE OF FACT

Self-defence: justification for the alleged criminal act The criminal code allows you to defend yourself, property,

and other people However, you can only use force that is “necessary” &

“reasonable” according to circumstances. [s. 38] R. v. Lavallee [1990] –battered wife syndrome

Can be used for indictable and summary (aggravated assault, theft)

Example: accused is followed home and attacked by a peer and they fight back

SELF- DEFENCE

Duress: compulsion by threats The person who commits the act must be threatened

with immediate death or bodily harm

Cannot be used with serious offences (treason, murder, robbery or arson)

Example: steals a car due to threats from some else (immediate)

DURESS

Consent: having consent for the criminal act to occur Possible valid defence? Sports… The defence is usually consenting to the action and the

game’s rough physical contact Does not work in cases involving firearms, murder,

sexual offences

Can be used for summary (assault)

Example: the accused may state they believed that they had consent

CONSENT

Legal duty: police have a legal duty to carry out searches Must be reasonable!

Can be used for summary offences (assault)

Example: search a suspect for weapons and the suspect believes that the officers used force which equals to assault)

LEGAL DUTY

Entrapment: the individual was “set-up” Results may lead to a permanent stay in proceedings Must be clear to accept this as a defence

Can be used for indictable and summary (assault/theft)

Example: Police tell accused they have found their DNA at scene leading to a confession

ENTRAPMENT

Double jeopardy: being tried twice for the same offence [s. 11]

Can be appealed if there was a error in law or fact

Can be used for indictable and summary (murder/theft)

Example: accused of killing someone, can’t be accused again

DOUBLE JEOPARDY