DEFENCES TO CRIMEDEFENCES TO CRIME

WHAT IS A DEFENCE?WHAT IS A DEFENCE?

DefinitionDefinition: a denial of, or a : a denial of, or a justification for, criminal behaviour.justification for, criminal behaviour.

BRAINSTORMING: how many BRAINSTORMING: how many defences can you think of off the defences can you think of off the top of your head? (there are more top of your head? (there are more than 15!!!)than 15!!!)

First, we'll look at mental states.First, we'll look at mental states.

THREE CATEGORIES

MENTAL STATES JUSTIFICATIONS OTHER DEFENCES

AUTOMATISMAUTOMATISM

A condition in which a person acts A condition in which a person acts without being aware of what he or without being aware of what he or she is doing. she is doing.

This, by definition, negates This, by definition, negates mens mens rearea. The actus reus is not . The actus reus is not voluntary.voluntary.

TWO CATEGORIESTWO CATEGORIES

INSANE INSANE AUTOMATISMAUTOMATISMCaused by a mental Caused by a mental

disorder, such as:disorder, such as: Bipolar DisorderBipolar Disorder Schizophrenia Schizophrenia Delusional Delusional

DisorderDisorder Post-traumatic Post-traumatic

Stress DisorderStress Disorder

NON-INSANE NON-INSANE AUTOMATISMAUTOMATISM

Caused by: Caused by: SleepwalkingSleepwalking EpilepsyEpilepsy ConcussionConcussion DiabetesDiabetes Attack by a Attack by a

swarm of beesswarm of bees

R. v. Parks (1992)R. v. Parks (1992)

Kenneth Parks was Kenneth Parks was acquitted of first acquitted of first degree murder in degree murder in 19921992

Charged with killing Charged with killing his mother-in-law his mother-in-law with a kitchen knife, with a kitchen knife, he was able to prove he was able to prove to the courts that he to the courts that he was sleepwalking at was sleepwalking at the time.the time.

MENTAL DISORDERMENTAL DISORDER

Defined in the Criminal Code (s. 16) as a Defined in the Criminal Code (s. 16) as a ""disease of the minddisease of the mind." ."

In order for this defence to succeed, the In order for this defence to succeed, the defendant must prove that at the time the defendant must prove that at the time the offence was committed, s/he was suffering from offence was committed, s/he was suffering from a mental disordera mental disorder

A person is presumed A person is presumed notnot to suffer from a to suffer from a mental disorder, unless and until the contrary is mental disorder, unless and until the contrary is provenproven

The burden of proof is based on a "balance of The burden of proof is based on a "balance of probabilities," and whichever side raises the probabilities," and whichever side raises the issue (usually the defendant) carries the burdenissue (usually the defendant) carries the burden

The defence of mental disorder will The defence of mental disorder will succeed if either ONE of the succeed if either ONE of the

following requirements is met:following requirements is met:

The mental The mental disorder left the disorder left the accused accused incapable of incapable of appreciating the appreciating the nature and nature and quality of the act.quality of the act.

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

So what happens next?So what happens next?

If the court finds If the court finds that the accused that the accused is not criminally is not criminally responsible responsible (NCR), they can (NCR), they can "make an order," "make an order," or refer the case or refer the case to the Criminal to the Criminal Code Review Code Review boardboard

There are only three There are only three

options:options:

1.1. An absolute dischargeAn absolute discharge: if the judge finds : if the judge finds that the person is not a threat to society, that the person is not a threat to society, they may be releasedthey may be released

2.2. A conditional dischargeA conditional discharge: the accused is : the accused is released, but with conditionsreleased, but with conditions

3.3. A term in a psychiatric hospitalA term in a psychiatric hospital: the judge : the judge may commit someone for up to 90 days; may commit someone for up to 90 days; after that, the Criminal Code Review after that, the Criminal Code Review Board reviews the case. (In order to Board reviews the case. (In order to release a patient, the Board must be release a patient, the Board must be convinced that the person has been convinced that the person has been cured. Some people are confined for cured. Some people are confined for years.)years.)

March 2009: Greyhound March 2009: Greyhound bus killer found not bus killer found not criminally responsiblecriminally responsible

""Manitoba Court of Queen's Bench Judge Manitoba Court of Queen's Bench Judge John Scurfield said Thursday that Li, 40, John Scurfield said Thursday that Li, 40, could not be found guilty of murder and could not be found guilty of murder and is not criminally responsible for the crime is not criminally responsible for the crime because he was mentally ill at the time of because he was mentally ill at the time of the killing. "These grotesque acts are the killing. "These grotesque acts are appalling... but are suggestive of a appalling... but are suggestive of a mental disorder," the judge said. "He did mental disorder," the judge said. "He did not appreciate the act he committed was not appreciate the act he committed was wrong." Li had pleaded not guilty to a wrong." Li had pleaded not guilty to a charge of second-degree murder. charge of second-degree murder. Psychiatric evidence at his trial Psychiatric evidence at his trial suggested he is a schizophrenic who suggested he is a schizophrenic who suffered a major psychotic episode last suffered a major psychotic episode last July 30 when he fatally stabbed McLean, July 30 when he fatally stabbed McLean, 22, ate some of the body parts, and cut 22, ate some of the body parts, and cut off McLean's head. For five hours after off McLean's head. For five hours after the killing, Li wandered around on the the killing, Li wandered around on the bus, defiling the body while an RCMP bus, defiling the body while an RCMP tactical team waited to subdue him. tactical team waited to subdue him. Rather than go to prison, Li will be kept in Rather than go to prison, Li will be kept in a secure psychiatric facility, most likely in a secure psychiatric facility, most likely in Selkirk, Man."Selkirk, Man."

http://www.cbc.ca/canada/manitoba/story/2009/03/05/mb-li-verdict.html#ixzz0lvh7l5UZ

INTOXICATIONINTOXICATION

The condition of being overpowered by alcohol The condition of being overpowered by alcohol or or drugsdrugs to the point of losing self-control to the point of losing self-control

Generally, intoxication is not a valid defence to a Generally, intoxication is not a valid defence to a crime.crime.

When it is raised, it is generally done so in the When it is raised, it is generally done so in the hopes of decreasing the chargehopes of decreasing the charge

INTOXICATION CAN BE RAISED AS A INTOXICATION CAN BE RAISED AS A DEFENCE TO CRIMES OF SPECIFIC, BUT DEFENCE TO CRIMES OF SPECIFIC, BUT NOT GENRAL INTENT. NOT GENRAL INTENT.

SPECIFIC INTENTSPECIFIC INTENT

Occurs when a Occurs when a person commits person commits one wrongful act one wrongful act for the sake of for the sake of accomplishing accomplishing another (i.e. another (i.e. assault + theft = assault + theft = robbery) robbery)

GENERAL INTENTGENERAL INTENT

Occurs when a Occurs when a person commits person commits a wrongful act for a wrongful act for its own sake, its own sake, with no ulterior with no ulterior motive (theft for motive (theft for the sake of theft)the sake of theft)

A defence of intoxication A defence of intoxication does not usually result in does not usually result in acquittalacquittal Instead, the charge may be dropped from Instead, the charge may be dropped from

a specific intent offence to a general a specific intent offence to a general intent offence (i.e. robbery intent offence (i.e. robbery assault or assault or 22ndnd degree murder degree murder manslaughter) manslaughter)

A jury may decide to acquit on the A jury may decide to acquit on the specific intent offence, but convict on the specific intent offence, but convict on the general intent offencegeneral intent offence

Obviously, intoxication is never a defence Obviously, intoxication is never a defence to DUIto DUI

R. v. Daviault (1994)R. v. Daviault (1994)

Charged with sexual assault, the accused argued Charged with sexual assault, the accused argued that his intoxication was so extreme that it that his intoxication was so extreme that it amounted to a mental disorder; that he was amounted to a mental disorder; that he was incapable of forming even the most basic intent to incapable of forming even the most basic intent to commit the crimecommit the crime

The Supreme Court agreed (!) and found that The Supreme Court agreed (!) and found that convicting the accused would violate the convicting the accused would violate the principles of fundamental justice. principles of fundamental justice.

Although the accused was at fault for voluntarily Although the accused was at fault for voluntarily becoming intoxicated, the judges reasoned that becoming intoxicated, the judges reasoned that the fault could not be directly linked to the offencethe fault could not be directly linked to the offence

PUBLIC REACTIONPUBLIC REACTION

A huge public outcry A huge public outcry followed the decision; followed the decision; feminist groups in feminist groups in particular were very particular were very concerned about the concerned about the message this kind of message this kind of precedent would send precedent would send (i.e., just get drunk (i.e., just get drunk enough and you can go enough and you can go ahead and sexually ahead and sexually assault)assault)

Protests were held; lots Protests were held; lots of discussion in the of discussion in the mediamedia

GOVERNMENT GOVERNMENT RESPONSERESPONSE

In response to the In response to the public reaction, public reaction, Parliament moved Parliament moved quickly to close the quickly to close the loophole created by loophole created by the decisionthe decision

The CCC now says The CCC now says that intoxication is that intoxication is NOT a defence to NOT a defence to any general intent any general intent offences that offences that "interfere with the "interfere with the bodily integrity of bodily integrity of another person"another person"

Battered Women's Syndrome

Self-Defence

Aboriginal or Treaty Rights

Compulsion/Duress

Provocation

Necessity

Defence of Dwelling

JUSTIFICATIONS

SELF-DEFENCESELF-DEFENCE

This defence is set out in S. 34 of the This defence is set out in S. 34 of the Criminal CodeCriminal Code

"Everyone who is unlawfully assaulted "Everyone who is unlawfully assaulted without having provoked the assault is without having provoked the assault is justified in repelling force by force justified in repelling force by force ifif the force he uses is not intended to the force he uses is not intended to cause death or grievous bodily harm cause death or grievous bodily harm andand is no more than is necessary to is no more than is necessary to enable him to defend himself."enable him to defend himself."

So…the force used to repel So…the force used to repel the attack must be the attack must be "reasonable.""reasonable."

In each case, the judge or the jury will have In each case, the judge or the jury will have to look at the facts and decide whether the to look at the facts and decide whether the force used what appropriate given the force used what appropriate given the circumstances.circumstances.

Can you kill someone Can you kill someone in self-defence?in self-defence?

According to s. 34 (2) of the CCC, According to s. 34 (2) of the CCC, yes.yes.

But only if you are under a But only if you are under a "reasonable apprehension of death "reasonable apprehension of death or grievous bodily harm" and you or grievous bodily harm" and you believe that you "cannot otherwise believe that you "cannot otherwise preserve" yourself, then yes.preserve" yourself, then yes.

BATTERED WOMAN BATTERED WOMAN SYNDROMESYNDROME

Strictly speaking, it Strictly speaking, it is not a defence, is not a defence, but rather a but rather a psychiatric psychiatric explanation of an explanation of an abused woman's abused woman's state of mind that state of mind that can be used to can be used to advance the advance the justification of self-justification of self-defencedefence

R. v. Lavallee (1990)R. v. Lavallee (1990)

The accused shot her The accused shot her common-law common-law husband in the back husband in the back of the headof the head

She had been She had been hospitalized several hospitalized several times for injuriestimes for injuries

On the night of the On the night of the attack, her husband attack, her husband had threatened to kill had threatened to kill herher

Much of the case Much of the case relied on expert relied on expert testimonytestimony

DEFENCE OF DEFENCE OF DWELLINGDWELLING

According to s. 40 According to s. 40 and 41 of the CCC, A and 41 of the CCC, A person is allowed to person is allowed to defend his or her defend his or her dwelling from any dwelling from any unlawful entry and to unlawful entry and to remove a trespasser remove a trespasser if he or she has if he or she has entered. Of course, entered. Of course, the force used must the force used must be "reasonable."be "reasonable."

NECESSITYNECESSITY

Used when the accused had no Used when the accused had no reasonable alternative to reasonable alternative to committing an illegal act (i.e. committing an illegal act (i.e. running a red light)running a red light)

In order for the defence to In order for the defence to succeed, each of three conditions succeed, each of three conditions must be metmust be met

NECESSITY (cont'd)NECESSITY (cont'd)

The accused must show that the act The accused must show that the act was done to avoid a greater harmwas done to avoid a greater harm

There was no reasonable There was no reasonable opportunity for an alternative opportunity for an alternative course of action that did not involve course of action that did not involve a breach of the lawa breach of the law

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

COMPULSION COMPULSION (a.k.a. Duress)(a.k.a. Duress) A person is under duress when he A person is under duress when he

or she is prevented from acting or she is prevented from acting according to his or her own free according to his or her own free will by the threats or force of will by the threats or force of anotheranother

Example: A taxi driver is forced at Example: A taxi driver is forced at gunpoint to drive someone who gunpoint to drive someone who has just robbed a bankhas just robbed a bank

CASE LAW ON CASE LAW ON COMPULSIONCOMPULSION Two provisions of s. 17 of the CCC Two provisions of s. 17 of the CCC

are controversial:are controversial:1) the threatener has to be physically 1) the threatener has to be physically present when the offence is present when the offence is committedcommitted2) the threat has to be immediate2) the threat has to be immediate

These sections were struck down by These sections were struck down by the SCC in 2007 in the case R v. the SCC in 2007 in the case R v. RuzicRuzic

PROVOCATIONPROVOCATION

Words or actions that are insulting Words or actions that are insulting enough to cause an ordinary person to enough to cause an ordinary person to lose self-controllose self-control

This defence only applies to the crime This defence only applies to the crime of murder; and can only be used to of murder; and can only be used to reduce the conviction from murder to reduce the conviction from murder to manslaughtermanslaughter

Some countries (i.e. New Zealand) Some countries (i.e. New Zealand) have abolished this defencehave abolished this defence

HOWEVER…HOWEVER…

In order to succeed, defence counsel must In order to succeed, defence counsel must prove prove all fourall four elements listed below: elements listed below:

1.1. A wrongful act or insult occurredA wrongful act or insult occurred2.2. This act or insult was sufficient to deprive This act or insult was sufficient to deprive

an ordinary person of the power of self-an ordinary person of the power of self-controlcontrol

3.3. The person responded suddenlyThe person responded suddenly4.4. The person responded before there was The person responded before there was

time for passion to cool.time for passion to cool.

ABORIGINAL TREATY ABORIGINAL TREATY RIGHTSRIGHTS This defence applies only to hunting This defence applies only to hunting

and fishing rightsand fishing rights S. 35 of the Constitution Act S. 35 of the Constitution Act

guarantees Aboriginal treaty rightsguarantees Aboriginal treaty rights One of the purposes for this section is One of the purposes for this section is

to recognize that Aboriginal peoples to recognize that Aboriginal peoples occupied Canada first and that this occupied Canada first and that this prior occupation grants them certain prior occupation grants them certain rightsrights

R. v. Sparrow (1990)R. v. Sparrow (1990)

Sparrow was accused of fishing with a Sparrow was accused of fishing with a net that was longer than was allowed net that was longer than was allowed under the Federal Fisheries Act. He under the Federal Fisheries Act. He admitted the facts, but argued that he admitted the facts, but argued that he had an "Aboriginal right" to fish for foodhad an "Aboriginal right" to fish for food

SCC set out conditions for using SCC set out conditions for using Aboriginal treaty rights, but the Aboriginal treaty rights, but the precedent didn't go far enough in precedent didn't go far enough in defining the rightdefining the right

R. v. Van der Peet R. v. Van der Peet (1996)(1996)

The right must involve an activity that was a "practice, The right must involve an activity that was a "practice, tradition, or custom [that] was a central and significant part tradition, or custom [that] was a central and significant part of the [Aboriginal] society's distinctive natureof the [Aboriginal] society's distinctive nature

The activity must have existed prior to contact with European The activity must have existed prior to contact with European settlerssettlers

The activity, even if evolved into modern forms, must be one The activity, even if evolved into modern forms, must be one that continued to exist after 1982, when the Constitution Act that continued to exist after 1982, when the Constitution Act was passed.was passed.

OFFICIALLY INDUCED OFFICIALLY INDUCED ERRORERROR A defence that the accused relied on A defence that the accused relied on

erroneous (incorrect) legal advice from an erroneous (incorrect) legal advice from an official responsible for enforcing a official responsible for enforcing a particular lawparticular law

– "Hey, officer…can I (park / fish / hunt / "Hey, officer…can I (park / fish / hunt / drive) here?"drive) here?"

– "Sure!""Sure!"

3 hours later…3 hours later…– "Argh! Why do I have this ticket?""Argh! Why do I have this ticket?"

MISTAKE OF FACTMISTAKE OF FACT

The accused made an honest The accused made an honest mistake that led to the breaking of mistake that led to the breaking of the lawthe law– "I swear, I thought that was MY car!""I swear, I thought that was MY car!"

This defence works only if the This defence works only if the mistake was an honest one, and if mistake was an honest one, and if the facts were as the accused the facts were as the accused believed them to be, no criminal believed them to be, no criminal offence would have occurred.offence would have occurred.

DOUBLE JEOPARDYDOUBLE JEOPARDY

The legal The legal doctrine that doctrine that an accused an accused person cannot person cannot be tried for the be tried for the same offence same offence twicetwice

ALIBIALIBI

A defence raised by the accused A defence raised by the accused claiming that he or she was claiming that he or she was somewhere else when the offence was somewhere else when the offence was committedcommitted

The burden is on the Crown, not the The burden is on the Crown, not the accusedaccused

If the Crown cannot prove that the If the Crown cannot prove that the accused was present, then the accused was present, then the accused must be acquittedaccused must be acquitted

ENTRAPMENTENTRAPMENT

A defence against A defence against police conduct that police conduct that illegally induces the illegally induces the defendant to defendant to commit an illegal commit an illegal actact

The burden is on the The burden is on the accused to prove accused to prove entrapment, which entrapment, which is considered an is considered an abuse of powerabuse of power

UNDERCOVER WORKUNDERCOVER WORK

Many officers are Many officers are involved in involved in undercover undercover investigationsinvestigations

They may present a They may present a suspect with the suspect with the opportunity to commit opportunity to commit a crime, but they may a crime, but they may not harass, bribe, or not harass, bribe, or induce the person to induce the person to break the lawbreak the law

HOMEWORKHOMEWORK !!!!!!

Complete the Complete the Quick Quiz at the Quick Quiz at the end of Chapter 10 end of Chapter 10 in your textbook, in your textbook, as well as page as well as page 37 in your 37 in your student package, student package, "Defences—"Defences—Applying the Applying the Law."Law."