Criminal Law – Criminal Law – DefencesDefences

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Another Comic…Another Comic…

AlibiAlibi

Best defence possibleBest defence possible Proof that the accused could not Proof that the accused could not

have possibly committed the offencehave possibly committed the offence Ex. Accused may be able to prove he Ex. Accused may be able to prove he

or she was in another location at the or she was in another location at the time of the offencetime of the offence

Legal DutyLegal Duty

A person can commit certain actions A person can commit certain actions which would constitute offences if he which would constitute offences if he or she were acting under a legal dutyor she were acting under a legal duty

Ex. A police officer can drive above Ex. A police officer can drive above the speed limit when chasing a the speed limit when chasing a suspected criminal… the officer may suspected criminal… the officer may use as much force as is necessary to use as much force as is necessary to make the arrestmake the arrest

However, he or she is criminally However, he or she is criminally responsible for any excessive forceresponsible for any excessive force

Legal Duty (Cont’d)Legal Duty (Cont’d)

The Code also allows for reasonable The Code also allows for reasonable force in the correction of a childforce in the correction of a child Every school teacher, parent, or person Every school teacher, parent, or person

standing in the place of a parent is standing in the place of a parent is justified in using force by way of justified in using force by way of correction toward a pupil or child, as the correction toward a pupil or child, as the case may be, who is under his care, if case may be, who is under his care, if the force does not exceed what is the force does not exceed what is reasonable under the circumstancesreasonable under the circumstances

DrunkennessDrunkenness

A successful defence of drunkenness may A successful defence of drunkenness may serve to change a conviction from an serve to change a conviction from an offence requiring specific intent to one not offence requiring specific intent to one not requiring itrequiring it

Ex. Def’n of murder in Code states that it Ex. Def’n of murder in Code states that it must be committed with “intent”must be committed with “intent”

If it can be shown that the accused If it can be shown that the accused committed the murder while in a drunken committed the murder while in a drunken state, and so could not form specific intent state, and so could not form specific intent to commit the murder, the conviction to commit the murder, the conviction would be manslaughter instead of murderwould be manslaughter instead of murder

Drunkenness (Cont’d)Drunkenness (Cont’d)

If drunkenness does not make it If drunkenness does not make it impossible for the accused to form impossible for the accused to form the necessary intent to commit the the necessary intent to commit the offence, then the defence will not offence, then the defence will not succeedsucceed

The defence of drunkenness will The defence of drunkenness will usually fail if it can be shown that a usually fail if it can be shown that a person intentionally got drunk to gain person intentionally got drunk to gain courage to commit the action, or to courage to commit the action, or to provide a possible defenceprovide a possible defence

ConsentConsent Consent is a valid defence for the Consent is a valid defence for the

accused if the injured party accused if the injured party consented to the action administered consented to the action administered to him or her, such as assaultto him or her, such as assault

Ex. Hockey and football players, have Ex. Hockey and football players, have been often charged with the assault been often charged with the assault of opponents during a gameof opponents during a game

The defence has been that, since the The defence has been that, since the injured parties participated in the injured parties participated in the game, they consented to be subject game, they consented to be subject to the physical contact implicit in the to the physical contact implicit in the gamegame

Consent (Cont’d)Consent (Cont’d)

Defence of consent cannot be used Defence of consent cannot be used in the case of murder, or for offences in the case of murder, or for offences committed against a person under committed against a person under 14 years of age14 years of age

Mistake of FactMistake of Fact Ignorance of the law is generally not Ignorance of the law is generally not

accepted as a defenceaccepted as a defence Ignorance of the facts can, however, Ignorance of the facts can, however,

be accepted as a defence under two be accepted as a defence under two conditions:conditions: (1) If there was a genuine mistake which (1) If there was a genuine mistake which

did not result from the negligence of the did not result from the negligence of the accused in not finding out the factsaccused in not finding out the facts

(2) If there is no provision in the law that (2) If there is no provision in the law that ignorance of the law is ignorance of the law is notnot a defence a defence

Mistake of Fact (Cont’d)Mistake of Fact (Cont’d) Ex. If someone receives change while Ex. If someone receives change while

shopping in a store, and one of the shopping in a store, and one of the bills is counterfeit, mistake of fact bills is counterfeit, mistake of fact would likely be a successful defence would likely be a successful defence if he or she is arrested for passing if he or she is arrested for passing the money to someone elsethe money to someone else

They can’t be considered negligent They can’t be considered negligent for not finding out the money was for not finding out the money was counterfeit, since people don’t check counterfeit, since people don’t check every bill they receiveevery bill they receive

Mistake of Fact (Cont’d)Mistake of Fact (Cont’d)

Another example… It is an offence to Another example… It is an offence to be “knowingly” in possession of be “knowingly” in possession of stolen goodsstolen goods

If a person did not know that the If a person did not know that the goods he bought were stolen goods he bought were stolen (assuming wilful blindness isn’t an (assuming wilful blindness isn’t an issue) then defence of mistake of issue) then defence of mistake of fact could succeedfact could succeed

AutomatismAutomatism

Automatism has been described as Automatism has been described as “unconscious, involuntary behaviour, “unconscious, involuntary behaviour, the state of a person who, though the state of a person who, though capable of action, is not conscious of capable of action, is not conscious of what he or she is doing”what he or she is doing”

Ex. Sleepwalking, convulsions, Ex. Sleepwalking, convulsions, psychological stress, or behaviour psychological stress, or behaviour while concussed due to a blow on the while concussed due to a blow on the headhead

Automatism (Cont’d)Automatism (Cont’d)

Burden is on the accused to prove Burden is on the accused to prove that the offence was committed that the offence was committed because of automatismbecause of automatism

If the accused can prove this, he did If the accused can prove this, he did in reality not voluntarily act, so that in reality not voluntarily act, so that actus reusactus reus is not prevent is not prevent

A person found not guilty due to A person found not guilty due to automatism is releasedautomatism is released

EntrapmentEntrapment Entrapment is the police action of Entrapment is the police action of

encouraging or aiding a person to encouraging or aiding a person to commit an offencecommit an offence

It is not recognized as a substantive It is not recognized as a substantive defencedefence

Rather, it is an abuse of process, so a Rather, it is an abuse of process, so a judge who finds entrapment has judge who finds entrapment has occurred should stay the processoccurred should stay the process

R. v. MackR. v. Mack SCC outlined principles SCC outlined principles relating to entrapmentrelating to entrapment

Self-Defence*Self-Defence*

Code states that a person may use Code states that a person may use force to defend against an force to defend against an unprovoked assault where there is unprovoked assault where there is not intent to kill or cause serious not intent to kill or cause serious bodily harm to the attackerbodily harm to the attacker

““Reasonable force”: may only use Reasonable force”: may only use the amount of force necessary to the amount of force necessary to defend against the attackdefend against the attack

* Contents included in handout* Contents included in handout

Self Defence (Cont’d)*Self Defence (Cont’d)*

What constitutes reasonable force What constitutes reasonable force depends on the circumstances of depends on the circumstances of each situationeach situation

Generally, the accused must believe Generally, the accused must believe they are in danger and could see no they are in danger and could see no other alternative to preserving other alternative to preserving themselves from death or grievous themselves from death or grievous bodily harmbodily harm

Battered Woman Syndrome*Battered Woman Syndrome*

The effect of prolonged spousal The effect of prolonged spousal abuse is used to advance the abuse is used to advance the justification of self-defencejustification of self-defence

A woman unable to escape a violent A woman unable to escape a violent relationship who truly believes that relationship who truly believes that the continued pattern of violence the continued pattern of violence puts her life in dangerputs her life in danger

Battered Woman Syndrome (Cont’d)*Battered Woman Syndrome (Cont’d)* In deliberating this defence a jury must In deliberating this defence a jury must

consider three elements:consider three elements: Why an abused woman might remain in an Why an abused woman might remain in an

abusive relationshipabusive relationship The nature and extent of the violence that The nature and extent of the violence that

may exist in a battering relationshipmay exist in a battering relationship The defendant’s ability to perceive danger The defendant’s ability to perceive danger

from her abuserfrom her abuser SCC has said that establishing a SCC has said that establishing a

woman suffers from BWS doesn’t woman suffers from BWS doesn’t necessarily justify using it as a defence necessarily justify using it as a defence in the casein the case

Necessity*Necessity*

Means that the accused has no Means that the accused has no reasonable alternative to committing an reasonable alternative to committing an illegal actillegal act

Following conditions must be met:Following conditions must be met: Act was done to avoid a greater harmAct was done to avoid a greater harm No reasonable opportunity for an No reasonable opportunity for an

alternative course of action that doesn’t alternative course of action that doesn’t break the lawbreak the law

The harm inflicted must be less than the The harm inflicted must be less than the harm avoidedharm avoided

Compulsion or Duress*Compulsion or Duress*

A person will be excused from having A person will be excused from having committed the offence if the accused committed the offence if the accused did so under the threat of bodily did so under the threat of bodily harmharm

Not a defence for violent crimes such Not a defence for violent crimes such as murder, sexual assault, robbery, as murder, sexual assault, robbery, or assault with a weaponor assault with a weapon

Provocation*Provocation*

Is any act or insult that causes a Is any act or insult that causes a reasonable person to lose self-controlreasonable person to lose self-control

This defence applies only to the This defence applies only to the crime of murdercrime of murder

May be considered as a partial May be considered as a partial defence to reduce the conviction defence to reduce the conviction from murder to manslaughterfrom murder to manslaughter

Provocation (Cont’d)*Provocation (Cont’d)*

All four of the following elements All four of the following elements must be present:must be present: Wrongful act or insult occurredWrongful act or insult occurred This act or insult was sufficient to This act or insult was sufficient to

deprive an ordinary person of the power deprive an ordinary person of the power of self-control of self-control

The person responded suddenlyThe person responded suddenly The person responded before there was The person responded before there was

time for passion to cooltime for passion to cool

ActivityActivityFor each of the following situations, identifyFor each of the following situations, identify

(a) which Criminal Code offense applies,(a) which Criminal Code offense applies,

(b) the actus reus of the offence,(b) the actus reus of the offence,

(c) the mens rea of the offence,(c) the mens rea of the offence,

(d) whether there are any defenses and if (d) whether there are any defenses and if there is one, what it is, andthere is one, what it is, and

(e) whether the crime is summary, (e) whether the crime is summary, indictable or hybrid and the likely indictable or hybrid and the likely punishment. You may use your Criminal punishment. You may use your Criminal Code offence duo-tang.Code offence duo-tang.

ActivityActivity 1. A law is passed to give animals all of the 1. A law is passed to give animals all of the

rights of a human being. Little Red Riding rights of a human being. Little Red Riding Hood “LRRH” is attacked by The Big Bad Hood “LRRH” is attacked by The Big Bad Wolf “BBW” who wants to eat her for Wolf “BBW” who wants to eat her for dinner (after killing her of course). dinner (after killing her of course). Unknown to the BBW, LRRH knows Wolf Unknown to the BBW, LRRH knows Wolf Karate and beats up the BBW. With her Karate and beats up the BBW. With her foot on the Wolf’s throat, LRRH, after some foot on the Wolf’s throat, LRRH, after some thought, decides to take out the BBF (i.e. thought, decides to take out the BBF (i.e. kill him) so that other little children won’t kill him) so that other little children won’t be threatened by the BBW any more. So, be threatened by the BBW any more. So, after some thought, LLRH crushes the after some thought, LLRH crushes the BBW’s throat, killing him. BBW’s throat, killing him.

ActivityActivity

2. A married lady, Wanda, is tired of her 2. A married lady, Wanda, is tired of her husband Keith playing video games all husband Keith playing video games all the time instead of spending time with the time instead of spending time with her. One day, Wanda decides that she her. One day, Wanda decides that she is going to commit the perfect murder, is going to commit the perfect murder, killing Keith. She wires up the video killing Keith. She wires up the video game to deliver a lethal shock. Her game to deliver a lethal shock. Her husband turns on the game the next husband turns on the game the next day and is killed instantly. day and is killed instantly.

ActivityActivity

3. Lucy adopted a baby 2 months ago. Before 3. Lucy adopted a baby 2 months ago. Before and after the baby was adopted, she was and after the baby was adopted, she was very depressed because she couldn’t very depressed because she couldn’t conceive a baby naturally. Her doctor says conceive a baby naturally. Her doctor says that this caused post-adoption depression. that this caused post-adoption depression. One day, Lucy is so sad that she decides to One day, Lucy is so sad that she decides to kill the baby so it won’t ever be hurt by the kill the baby so it won’t ever be hurt by the tough world. She smothers the baby with a tough world. She smothers the baby with a pillow. Her husband comes home and finds pillow. Her husband comes home and finds her cradling her dead baby in her arms.her cradling her dead baby in her arms.

ActivityActivity

4. Matthew and Luke are at a church 4. Matthew and Luke are at a church Bazaar. Matthew spills Eggnog on Luke Bazaar. Matthew spills Eggnog on Luke by accident. Luke gets very angry at by accident. Luke gets very angry at Matthew and calls him a “<**%&@” Matthew and calls him a “<**%&@” jerk. Matthew thinks Luke is being a jerk. Matthew thinks Luke is being a jerk and is overreacting so Mark loses jerk and is overreacting so Mark loses his temper and throws his big sharp his temper and throws his big sharp cake knife at Luke’s throat. Instead of cake knife at Luke’s throat. Instead of hitting Luke, the knife hits Father hitting Luke, the knife hits Father O’Malley in the head, killing him O’Malley in the head, killing him instantly. instantly.