defences for the accused

Defences for the Accused Defences for the Accused – Mental States– Mental States

Law 120 – C DentonLaw 120 – C Denton

What is a Defence?What is a Defence? The most common defence to a criminal charge is The most common defence to a criminal charge is

denialdenial. . If accepted, this defence represents the absence of mens If accepted, this defence represents the absence of mens

rea, and the accused will be acquitted. rea, and the accused will be acquitted.

In some situations, however the accused may In some situations, however the accused may admit to the crime in question but may still use a admit to the crime in question but may still use a defence to excuse or justify his/her actions. defence to excuse or justify his/her actions. If such a defence is accepted, the court may acquit the If such a defence is accepted, the court may acquit the

accused or, in some cases, find the accused guilty of a less accused or, in some cases, find the accused guilty of a less serious offence. serious offence.

A A defencedefence therefore is either a denial of having therefore is either a denial of having committed a wrongful offence or a justification for committed a wrongful offence or a justification for what would otherwise be regarded as criminal what would otherwise be regarded as criminal behaviour.behaviour.

Justifications as a DefenceJustifications as a Defence

For a defence to succeed, the accused For a defence to succeed, the accused must produce evidence that supports it. must produce evidence that supports it. i.e. Ron is charged with assault when he hits i.e. Ron is charged with assault when he hits

Harry with a two-by-four. Harry with a two-by-four. The Crown proves Ron did it intentionallyThe Crown proves Ron did it intentionally

Without a defence, Ron will be convicted. Without a defence, Ron will be convicted. Ron’s lawyer presents eye-witness evidence Ron’s lawyer presents eye-witness evidence

that Ron was defending himself. that Ron was defending himself. If jury accepts self-defence and finds him not guilty If jury accepts self-defence and finds him not guilty

Ron succeeded in justifying behaviour that normally Ron succeeded in justifying behaviour that normally would be considered criminal conduct.would be considered criminal conduct.

Mental StatesMental States The mental state of the accused at The mental state of the accused at

the time the alleged offence was the time the alleged offence was committed has an impact on whether committed has an impact on whether the accused can be held criminally the accused can be held criminally responsible for the offence. responsible for the offence.

Before a trial can proceed, the court Before a trial can proceed, the court has to determine whether the has to determine whether the accused is mentally fit to understand accused is mentally fit to understand the proceedings and to participate in the proceedings and to participate in his/her defence. his/her defence.

Mental DisorderMental Disorder

Mental DisorderMental Disorder (formerly called the (formerly called the insanity defenceinsanity defence) is defined in the Criminal ) is defined in the Criminal Code as a “disease of the mind”. Code as a “disease of the mind”.

An accused person who suffers from a mental An accused person who suffers from a mental disorder at the time the offence was disorder at the time the offence was committed cannot be held criminally committed cannot be held criminally responsible because he/she would have been responsible because he/she would have been unable to form the mens rea of the offence. unable to form the mens rea of the offence.

Balance of ProbabilitiesBalance of Probabilities

a person is presumed not to suffer from a mental a person is presumed not to suffer from a mental disorder until the contrary is proven ‘on the disorder until the contrary is proven ‘on the balance of probabilitiesbalance of probabilities’ (a greater likelihood). ’ (a greater likelihood). The balance of probabilities is somewhat less than The balance of probabilities is somewhat less than

‘‘beyond a reasonable doubtbeyond a reasonable doubt.’ .’

The burden of proof is on the party that first The burden of proof is on the party that first raises the issue, which is usually the defence.raises the issue, which is usually the defence. The defence would have to prove that there is a greater The defence would have to prove that there is a greater

likelihood that the accused did suffer from a mental likelihood that the accused did suffer from a mental disorder than that he/she did not.disorder than that he/she did not.

Requirements for Mental Requirements for Mental Disorder DefenceDisorder Defence

1.1. Mental disorder left accused incapable of Mental disorder left accused incapable of appreciating the nature and quality of the act. appreciating the nature and quality of the act.

accused repeatedly stabbed another person, not accused repeatedly stabbed another person, not realizing that this act could lead to severe injury or realizing that this act could lead to severe injury or death. Due to a mental disorder, the accused would not death. Due to a mental disorder, the accused would not have been able to foresee the consequences of the act.have been able to foresee the consequences of the act.

2.2. The mental disorder left the accused incapable of The mental disorder left the accused incapable of knowing that the act or omission was wrong. knowing that the act or omission was wrong.

Phillip had mental disorder leading him to believe that Phillip had mental disorder leading him to believe that Terrance was a dictator bend on destroying democracy. Terrance was a dictator bend on destroying democracy. A psychiatrist testified that Phillip thought that by A psychiatrist testified that Phillip thought that by killing Terrance he was protecting his country. The killing Terrance he was protecting his country. The court concluded Phillip did not know that his actions court concluded Phillip did not know that his actions were wrong.were wrong.

Judge’s DecisionsJudge’s Decisions If the court finds that the accused is not criminally If the court finds that the accused is not criminally

responsible, the judge may either ‘make an order’ responsible, the judge may either ‘make an order’ concerning the accused, or refer the case to a concerning the accused, or refer the case to a provincially appointed Criminal Code Review Board. provincially appointed Criminal Code Review Board.

If the judge makes an order, there are three choices If the judge makes an order, there are three choices available: available: 1.1. absolute dischargeabsolute discharge2.2. conditional dischargeconditional discharge3.3. a term in a psychiatric hospital. a term in a psychiatric hospital.

The judge may grant an The judge may grant an absolute dischargeabsolute discharge if the if the mentally ill person is not a threat to society. If the mentally ill person is not a threat to society. If the judge orders that the person be kept in a psychiatric judge orders that the person be kept in a psychiatric unit, the judge’s order lasts for a maximum of 90 days. unit, the judge’s order lasts for a maximum of 90 days. After 90 days, the provincially appointed Criminal After 90 days, the provincially appointed Criminal Code Review Board reviews the case.Code Review Board reviews the case.

Review Board’s Review Board’s DecisionsDecisions If the judge does not make an order and refers the If the judge does not make an order and refers the

case to the Review Board, the Board holds a hearing case to the Review Board, the Board holds a hearing and decides on the course of action for the accused. and decides on the course of action for the accused.

Board has same three choices available to the judge. Board has same three choices available to the judge. if the Board commits accused to a psychiatric hospital, it will if the Board commits accused to a psychiatric hospital, it will

be for an indefinite period of time, with regular reviews of be for an indefinite period of time, with regular reviews of the person’s status. If the Board is convinced, on evidence the person’s status. If the Board is convinced, on evidence provided by qualified professionals, that the accused has provided by qualified professionals, that the accused has been cured, then the Board will order the accused be been cured, then the Board will order the accused be released.released.

The defence of mental disorder is only used for the The defence of mental disorder is only used for the most serious offences because the period of most serious offences because the period of confinement in a mental institution could last longer confinement in a mental institution could last longer that a prison sentence for a less serious offence.that a prison sentence for a less serious offence.

Fitness to Stand TrialFitness to Stand Trial An accused person is presumed fit to stand trial An accused person is presumed fit to stand trial

unless the court is convinced that the accused is unless the court is convinced that the accused is suffering from a mental disorder at the time the suffering from a mental disorder at the time the trial is scheduled to take place. trial is scheduled to take place.

Such a disorder may mean that the accused is Such a disorder may mean that the accused is unable to understand the nature of the trial unable to understand the nature of the trial proceedings, to understand the consequences of proceedings, to understand the consequences of the proceedings, or to instruct counsel. the proceedings, or to instruct counsel.

If at any time during the trial there are reasonable If at any time during the trial there are reasonable grounds to suspect that the accused is mentally grounds to suspect that the accused is mentally unfit, the judge can issue an assessment order unfit, the judge can issue an assessment order and then decide on an appropriate course of and then decide on an appropriate course of action based on the assessment report.action based on the assessment report.

AutomatismAutomatism AutomatismAutomatism refers to a condition in which refers to a condition in which

a person acts without being aware of what a person acts without being aware of what he/she is doing.he/she is doing.

For example, a sleepwalker gets out of bed, For example, a sleepwalker gets out of bed,

goes to the kitchen and makes a sandwich. The goes to the kitchen and makes a sandwich. The sleepwalker eats the sandwich but does not sleepwalker eats the sandwich but does not remember what happened. This person is in a remember what happened. This person is in a state of automatism because his/her actions state of automatism because his/her actions were not guided by a conscious state of mind. were not guided by a conscious state of mind.

Examples of other situations that may result in Examples of other situations that may result in automatism include suffering a severe automatism include suffering a severe concussion or taking the wrong medication. concussion or taking the wrong medication. Automatism negates the actus reus of the crime Automatism negates the actus reus of the crime because someone in such a state does not act because someone in such a state does not act voluntarily. voluntarily.

Automatism (Automatism (contcont))

Current case law recognizes two types of automatism: Current case law recognizes two types of automatism: insane automatism and non-insane automatism.insane automatism and non-insane automatism.

Insane automatismInsane automatism is caused by a mental disorder. is caused by a mental disorder.

A person suffering from insane automatism will be A person suffering from insane automatism will be found not criminally responsible due to a mental found not criminally responsible due to a mental disorder. The Criminal Code allows for a range of disorder. The Criminal Code allows for a range of results, including sending the individual to a results, including sending the individual to a psychiatric hospital.psychiatric hospital.

Non-insane automatismNon-insane automatism is caused not by a mental is caused not by a mental

disorder, but by an external factor, such as a disorder, but by an external factor, such as a concussion or medication. If proven, the accused will concussion or medication. If proven, the accused will be acquitted.be acquitted.

IntoxicationIntoxication

IntoxicationIntoxication is the condition of being overpowered by alcohol or is the condition of being overpowered by alcohol or drugs at the point of losing self-control. Generally, intoxication is drugs at the point of losing self-control. Generally, intoxication is not a defence to a crime. A person who gets drunk and commits a not a defence to a crime. A person who gets drunk and commits a criminal offence is still responsible for his/her actions. criminal offence is still responsible for his/her actions.

However, there are exceptions. First, according to case law, However, there are exceptions. First, according to case law, intoxication may be a defence to crimes of specific intent, but not intoxication may be a defence to crimes of specific intent, but not to those of general intent. A general intent offence occurs when a to those of general intent. A general intent offence occurs when a person commits a wrongful act for its own sake, with no ulterior person commits a wrongful act for its own sake, with no ulterior motive. A specific intent offence occurs when a person commits motive. A specific intent offence occurs when a person commits one wrongful act for the sake of accomplishing another. If a one wrongful act for the sake of accomplishing another. If a person lacks the ability to form the specific intent to commit the person lacks the ability to form the specific intent to commit the offence because of intoxication, then the mental element cannot offence because of intoxication, then the mental element cannot be proven, and the accused person cannot be found guilty of the be proven, and the accused person cannot be found guilty of the specific intent offence. In such a case, however, the accused specific intent offence. In such a case, however, the accused person may still be found guilty of a general intent offence.person may still be found guilty of a general intent offence.

Intoxication (Intoxication (contcont)) The second exception to the rule is if a person’s The second exception to the rule is if a person’s

intoxication is so extreme that it almost amounts to a intoxication is so extreme that it almost amounts to a mental disorder. This defence, sometimes used for mental disorder. This defence, sometimes used for general intent offences, was established by the general intent offences, was established by the Supreme Court of Canada’s 1994 decision in the case Supreme Court of Canada’s 1994 decision in the case of R v. Daviault. of R v. Daviault.

The defendant consumed a large amount of alcohol The defendant consumed a large amount of alcohol and then sexually assaulted a 65 year old woman. and then sexually assaulted a 65 year old woman. The Court ruled that Daviault’s intoxication was so The Court ruled that Daviault’s intoxication was so severe that he was incapable of forming even the severe that he was incapable of forming even the most basic or simple intent to commit the wrongful most basic or simple intent to commit the wrongful act. act.

The Court said that in such cases of extreme The Court said that in such cases of extreme intoxication, convicting the accused would violate intoxication, convicting the accused would violate the principles of fundamental justice. The accused the principles of fundamental justice. The accused may be at fault for voluntarily becoming intoxicated, may be at fault for voluntarily becoming intoxicated, but that fault cannot be directly linked to the offence.but that fault cannot be directly linked to the offence.

Intoxication (Intoxication (contcont))

Even though the Supreme Court of Canada Even though the Supreme Court of Canada warned that this defence could only be used in warned that this defence could only be used in the rarest of cases, a public outcry followed the the rarest of cases, a public outcry followed the decision. Some people were afraid that the ruling decision. Some people were afraid that the ruling invited offenders to get extremely drunk and then invited offenders to get extremely drunk and then sexually assault their victims. sexually assault their victims.

Parliament quickly amended the Criminal Code to Parliament quickly amended the Criminal Code to make self-induced intoxication an invalid defence make self-induced intoxication an invalid defence to general intent offences that interfered with to general intent offences that interfered with ‘the bodily integrity of another person.’ This ‘the bodily integrity of another person.’ This meant that the defence could no longer be sued meant that the defence could no longer be sued against the charge of assault or sexual assault.against the charge of assault or sexual assault.

JUSTIFICATIONSJUSTIFICATIONS In some situations, an accused is exonerated from In some situations, an accused is exonerated from

committing an apparently criminal act because the committing an apparently criminal act because the circumstances justified or excused his/her conduct. circumstances justified or excused his/her conduct. One of these situations is self-defence, which One of these situations is self-defence, which includes defending oneself or others as well as one’s includes defending oneself or others as well as one’s property.property.

The law also excuses certain actions that occur out The law also excuses certain actions that occur out

of necessity and compulsion, or duress. Another of necessity and compulsion, or duress. Another defence – the defence of provocation – can be used defence – the defence of provocation – can be used to reduce a charge of murder to manslaughter but to reduce a charge of murder to manslaughter but cannot be used to win and acquittal. cannot be used to win and acquittal.

Note, too, that in some cases if an Aboriginal person Note, too, that in some cases if an Aboriginal person is charged with a Criminal Code or regulatory is charged with a Criminal Code or regulatory offence, the accused can argue that an Aboriginal or offence, the accused can argue that an Aboriginal or ‘treaty right’ justifies the act in question.‘treaty right’ justifies the act in question.

Self-DefenceSelf-Defence

Self-DefenceSelf-Defence is set forth in s.34 of is set forth in s.34 of the Criminal Code. Section 34 (1) the Criminal Code. Section 34 (1) states that a person may use force to states that a person may use force to defend against an unprovoked defend against an unprovoked assault where there is no intent to assault where there is no intent to kill or to cause bodily harm to the kill or to cause bodily harm to the attacker. attacker.

Self-Defence Self-Defence (cont)(cont) A person who is assaulted, without provocation, A person who is assaulted, without provocation,

may only use the amount of force necessary to may only use the amount of force necessary to defend against the attack (reasonable force).defend against the attack (reasonable force).

What is considered to be reasonable force What is considered to be reasonable force

depends on the circumstances of each situation.depends on the circumstances of each situation. Suppose Mike is walking home late after a party. Suppose Mike is walking home late after a party.

Unexpectedly, he is approached by Ike, who grabs Unexpectedly, he is approached by Ike, who grabs him by the collar and threatens to beat him up. Mike him by the collar and threatens to beat him up. Mike is allowed to use reasonable force to defend himself.is allowed to use reasonable force to defend himself.

Self-Defence Self-Defence (cont)(cont)

However, suppose the circumstances However, suppose the circumstances are slightly different. Ike threatens are slightly different. Ike threatens to stab Mike with a knife he is to stab Mike with a knife he is holding. In this case, Mike may holding. In this case, Mike may seriously injure or kill Ike if he seriously injure or kill Ike if he believes that he will suffer serious believes that he will suffer serious injury or death and cannot save injury or death and cannot save himself in any other way.himself in any other way.

Battered Woman’s Syndrome Battered Woman’s Syndrome (cont)(cont)

Violence against women has become an Violence against women has become an issue of great concern in Canadian society. issue of great concern in Canadian society. The courts have tired a number of cases The courts have tired a number of cases in which women in abusive relationships in which women in abusive relationships reacted by killing their spouses. reacted by killing their spouses.

R. v. Lavallee, [1990], marked the first R. v. Lavallee, [1990], marked the first

time that battered woman syndrome – the time that battered woman syndrome – the effects of prolonged spousal abuse – was effects of prolonged spousal abuse – was used to advance the justification of self-used to advance the justification of self-defence. Lavallee shot her common-law defence. Lavallee shot her common-law husband in the back of the head with a husband in the back of the head with a rifle as he left her room late one night rifle as he left her room late one night after a violent argument. after a violent argument.


Testimony showed that over the Testimony showed that over the course of their relationship the course of their relationship the couple often argued violently. As a couple often argued violently. As a result, Lavallee had been treated in result, Lavallee had been treated in hospital for several serious injuries.hospital for several serious injuries.

On the night of the shooting, her On the night of the shooting, her husband slapped her on the face and husband slapped her on the face and told her he would come back later to told her he would come back later to kill her. kill her.

Battered Woman’s Syndrome Battered Woman’s Syndrome (cont)(cont) A psychiatrist called by the defence testified A psychiatrist called by the defence testified

that Lavallee was terrorized by her husband, that Lavallee was terrorized by her husband, that she found herself unable to escape the that she found herself unable to escape the relationship despite the ongoing violence, relationship despite the ongoing violence, and that the continued pattern of violence and that the continued pattern of violence had put her life in danger. He characterized had put her life in danger. He characterized the shooting as a final, desperate act of a the shooting as a final, desperate act of a woman who sincerely believed she would be woman who sincerely believed she would be killed that night. killed that night.

The jury acquitted Lavallee, but the Manitoba The jury acquitted Lavallee, but the Manitoba Court of Appeal overturned the acquittal. Court of Appeal overturned the acquittal. Lavallee appealed to the Supreme Court of Lavallee appealed to the Supreme Court of Canada, which restored her acquittalCanada, which restored her acquittal


In its decision, the Supreme Court In its decision, the Supreme Court stated that in cases involving battered stated that in cases involving battered woman syndrome, the jury should be woman syndrome, the jury should be instructed on the following three instructed on the following three elements:elements:1.1. why an abused woman might remain in an why an abused woman might remain in an

abusive relationshipabusive relationship2.2. 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 relationship3.3. the defendant’s ability to perceive danger the defendant’s ability to perceive danger

from her abuserfrom her abuser


Since R. v. Lavallee, the Supreme Court Since R. v. Lavallee, the Supreme Court has taken pains to note that battered has taken pains to note that battered woman’s syndrome is not, strictly woman’s syndrome is not, strictly speaking, a defence in itself. Rather, it is speaking, a defence in itself. Rather, it is a psychiatric explanation of an abused a psychiatric explanation of an abused woman’s state of mind that can be used to woman’s state of mind that can be used to help advance the justification of self-help advance the justification of self-defence. defence.

In other words, merely establishing that a In other words, merely establishing that a woman suffers from battered woman’s woman suffers from battered woman’s syndrome does not necessarily justify an syndrome does not necessarily justify an act of violence against the abuser.act of violence against the abuser.

Defence of a DwellingDefence of a Dwelling

Sections 40 and 4 of the Criminal Coe Sections 40 and 4 of the Criminal Coe extend the rules for self-defence to extend the rules for self-defence to the defence of a ‘dwelling house.’ the defence of a ‘dwelling house.’ Section 2 of the Code defines a Section 2 of the Code defines a dwelling housedwelling house as the whole or any as the whole or any part of a building or structure that is part of a building or structure that is occupied on a permanent or occupied on a permanent or temporary basis. temporary basis.

Defence of a Dwelling Defence of a Dwelling (cont)(cont)

A person is allowed to defend his/her A person is allowed to defend his/her dwelling from any unlawful entry and dwelling from any unlawful entry and to remove a trespasser if he/she has to remove a trespasser if he/she has entered. The force used to defend entered. The force used to defend one’s dwelling must be reasonable one’s dwelling must be reasonable under the circumstances. under the circumstances.

Defence of a Dwelling Defence of a Dwelling (cont)(cont)

If the trespasser resists the owner’s If the trespasser resists the owner’s attempts to protect the dwelling, the attempts to protect the dwelling, the trespasser is considered under the trespasser is considered under the law to be committing an assault. The law to be committing an assault. The self-defence provisions of the Code self-defence provisions of the Code would then apply, allowing the owner would then apply, allowing the owner to use whatever force might be to use whatever force might be necessary.necessary.

NecessityNecessity The defence of The defence of necessitynecessity means that the means that the

accused had no reasonable alternative to accused had no reasonable alternative to committing an illegal act. committing an illegal act. Luke severs his finger with a band saw. Han Luke severs his finger with a band saw. Han

puts the finger on ice and drives Luke to the puts the finger on ice and drives Luke to the hospital, running a red light on the way. After hospital, running a red light on the way. After Luke is taken into emergency, a police officer Luke is taken into emergency, a police officer hands Han a summons for dangerous operation hands Han a summons for dangerous operation of a motor vehicle. Han could use the defence of a motor vehicle. Han could use the defence of necessity because he believed his conduct of necessity because he believed his conduct was absolutely necessary to keep Luke from was absolutely necessary to keep Luke from losing his finger.losing his finger.

Necessity Necessity (cont)(cont) For the defence of necessity to For the defence of necessity to

succeed, all of the following succeed, all of the following conditions must be met:conditions must be met: The accused must show that the act was The accused must show that the act was

done to avoid a greater harm.done to avoid a greater harm. There was no reasonable opportunity for There was no reasonable opportunity for

an alternative course of action that did an alternative course of action that did not involve the breach of the law.not involve the breach of the law.

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

Compulsion or DuressCompulsion or Duress Section 17 of the Criminal Code says that a Section 17 of the Criminal Code says that a

person will be excused from having committed person will be excused from having committed an offence if the accused did so under an offence if the accused did so under compulsioncompulsion, which means that the person was , which means that the person was forced by threats of death or bodily harm. forced by threats of death or bodily harm.

DuressDuress (almost synonymous with the term (almost synonymous with the term ‘compulsion’) is also used in case law but it ‘compulsion’) is also used in case law but it offers a slighter broader defence. Section 17 offers a slighter broader defence. Section 17 states that a person who commits an offence states that a person who commits an offence under compulsion by threats of immediate death under compulsion by threats of immediate death or bodily harm from a person who is present or bodily harm from a person who is present when the offence is committed is excused from when the offence is committed is excused from committing the offence if the person believes committing the offence if the person believes that the threats will be carried out.that the threats will be carried out.

Compulsion or Duress Compulsion or Duress (cont)(cont)

Suppose a taxi driver is forced at gunpoint to Suppose a taxi driver is forced at gunpoint to drive someone who has just robbed a bank to a drive someone who has just robbed a bank to a certain location in the city. The driver is charged certain location in the city. The driver is charged with being an accessory after the fact but pleads with being an accessory after the fact but pleads not guilty by reason of compulsion and is not guilty by reason of compulsion and is acquitted. acquitted.

Compulsion, however, is not a defence in violent Compulsion, however, is not a defence in violent crimes such as murder, sexual assault, robbery, crimes such as murder, sexual assault, robbery, and assault with a weapon.and assault with a weapon.

Two provisions of s.17 are highly controversial: Two provisions of s.17 are highly controversial: the threatener has to be physically present when the threatener has to be physically present when the offence is committed, and the threat has to the offence is committed, and the threat has to be ‘immediate,’ that is, on the point of being be ‘immediate,’ that is, on the point of being carried out.carried out.

Compulsion or Duress Compulsion or Duress (cont)(cont) In the appeal of R. v. Carker, the accused In the appeal of R. v. Carker, the accused

raised the defence of compulsion to a charge raised the defence of compulsion to a charge of willful damage to the plumbing of his prison of willful damage to the plumbing of his prison cell. Several inmates had threatened to knife cell. Several inmates had threatened to knife Carker, kick him in the head, and break his Carker, kick him in the head, and break his arm if he did not destroy the plumbing. arm if he did not destroy the plumbing.

The Supreme Court dismissed Carker’s The Supreme Court dismissed Carker’s appeal, stating that although the threats were appeal, stating that although the threats were made just before the offence was committed, made just before the offence was committed, the threateners were all locked in their the threateners were all locked in their respective cells, so the threats were not respective cells, so the threats were not ‘immediate’ and the persons making them ‘immediate’ and the persons making them were not ‘present.’were not ‘present.’

Compulsion or Duress Compulsion or Duress (cont)(cont)

In 2001, in its decision in R. v. In 2001, in its decision in R. v. Ruzic, the Supreme Court declared Ruzic, the Supreme Court declared the immediacy and presence the immediacy and presence provisions of s.17 unconstitutional. provisions of s.17 unconstitutional. Once a section of the Criminal Once a section of the Criminal Code has been declared Code has been declared unconstitutional, the usual step is unconstitutional, the usual step is for Parliament to amend that for Parliament to amend that section.section.

ProvocationProvocation ProvocationProvocation is any act or insult that causes is any act or insult that causes

a reasonable person to lose self-control. a reasonable person to lose self-control.

The defence of provocation applies only to The defence of provocation applies only to the crime of murder. the crime of murder.

Once the court is convinced beyond a Once the court is convinced beyond a reasonable doubt that the accused has reasonable doubt that the accused has committed murder, provocation may be committed murder, provocation may be considered as a partial defence to reduce considered as a partial defence to reduce the conviction from murder to the conviction from murder to manslaughter. manslaughter.

Provocation Provocation (cont)(cont) For the defence of provocation to succeed, For the defence of provocation to succeed,

defence counsel must prove all four defence counsel must prove all four elements listed below. If any of these elements listed below. If any of these elements cannot be proven, then elements cannot be proven, then provocation cannot be used as a defence.provocation cannot be used as a defence. A wrongful act or insult occurredA wrongful act or insult occurred This act or insult was sufficient to deprive an This act or insult was sufficient to deprive an

ordinary person of the power of self-controlordinary person of the power of self-control The person responded suddenlyThe person responded suddenly The person responded before there was time The person responded before there was time

for the passion to coolfor the passion to cool

defences for the accused

Education