Defences For the Accused

Defence: A denial of, or a justification for, criminal behaviour

Denial

I didn’t do it!

If accepted, this defence represents the absence of actus reus and the accused would be acquitted.

Mental States

Is the accused “fit to stand trial”? Will they understand the nature of the trial, the

consequences? Will they be able to instruct counsel?

Mental States

Can the accused be held criminally responsible for the offence?

Mental Disorder

Automatism

Intoxication

Defences

Mental State Defence: Mental Disorder

Mental Disorder: defined in the Criminal Code as a “disease of the mind”

An accused person suffering from a mental disorder at the time an offence is committed cannot be held criminally responsible because he or she is unable to form the mens rea of the offence

Mental State Defence: Mental Disorder

An accused is assumed NOT to have a mental disorder until the contrary is proven

The “burden of proof” is on whoever first raises the issue (usually the defence) – they must prove that there is a greater likelihood that the accused did suffer from a mental disorder than that he or she did not (different from reasonable doubt)

Mental State Defence: Mental Disorder

To use the defence of mental disorder, one of the following must be met:

A. Accused is incapable of appreciating the nature and quality of the act.

B. Accused in incapable of knowing that the act or omission was wrong.

Textbook Support: p.288 (N) or p.252 (O)

Not Criminally Responsible Due to Mental Disorder – Then What?

Absolute Discharge

Conditional Discharge

Term in a psychiatric hospital (reviewed after a max. of 90 days)

Mental State Defence: Automatism

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

Can happen during sleepwalking, after a severe concussion, or when misusing medication.

Negates the actus reus of the crime because the person was not acting voluntarily

Look it up on http://www.canlii.org/en/: R. v. Parks [1992]

Mental State Defence: Intoxication

Intoxication: The condition of being overpowered by alcohol or drugs to the point of losing self-control.

Generally a person who gets drunk and commits a criminal offence IS still RESPONSIBLE for their actions

There are some exceptions…

Mental State Defence: Intoxication

Intoxication may be a defence to crimes of specific intent, but not to those of general intent.

Example – murder is a specific intent offence, but manslaughter is a general intent offence.

Mental State Defence: Intoxication

In very rare cases intoxication can be used as a defence against specific intent offences if the intoxication was so extreme that is almost amounts to a mental disorder.

THINK ABOUT IT What offence would you never be able to

use the defence of intoxication for?

Justifications

In some situations an accused is exonerated from committing an apparently criminal act because the circumstances justified or excused his or her conduct.

Self-Defence

Aboriginal or TreatyRights

Compulsion/ Duress

Provocation

Necessity

Defence of a Dwelling

Battered Woman Syndrome

Justifications

Justifications

Self-Defence: the use of reasonable force to defend against an attackBattered Woman Syndrome: the effects of

prolonged spousal abuse (used to advance the justification of self-defence)

Justifications

Defence of a Dwelling: You are permitted to defend your dwelling against unlawful entry and to remove a trespasser using reasonable force under the circumstancesA trespasser who resists the owner’s

attempts to protect the dwelling is considered to be committing an assault and then self-defence provisions would apply.

Justifications

Necessity: a defence stating that the accused had no reasonable alternative to committing an illegal act

Textbook Support: p.296 (N) or p.259-260 (O)

Compulsion or Duress: A defence in which the accused person is forced by the threat of violence to commit a criminal act against his or her will

Justifications

Textbook Support: p.297 (N) or p.262 (O)

Provocation: words or actions that are insulting enough to cause an ordinary person to lose self-control

Applies ONLY to the crime of murder – reduces the conviction from murder to manslaughter

THINK ABOUT IT See p.299 (N) or p.262 (O) then decide if

manslaughter could have been an appropriate defence in the case of R. v. Beancounter

Justifications

Aboriginal or Treaty RightsThere are times when Aboriginal people

may argue that they have an Aboriginal or treaty right to act in a way that would be illegal for anyone else.

Most cases that use this justification deal with hunting and fishing rights.

Justifications

Other Defences

Mistakes of Fact and Law: see p.304 (N) or 265-266 (O)

Alibi: a defence raised by the accused claiming that he or she was somewhere else when the offence was committed (burden is on the Crown to prove otherwise)

Other Defences

Double Jeopardy: the legal doctrine that an accused person cannot be tried twice for the same offence (not the same as an appeal)

Entrapment: a defence against police conduct that illegally induces the defendant to commit a criminal act

Textbook Support: p.305 (N) or p.268 (O)

Look at Cases!