Defenses And Defenses And SentencingSentencing

Criminal DefensesCriminal Defenses

►Right to criminal defense is one of our Right to criminal defense is one of our fundamental rightsfundamental rights

►The Criminal Code defines The Criminal Code defines some some defenses available defenses available

Mistake of FactMistake of Fact►Depends on the accused not having mens Depends on the accused not having mens

rea (guilty mind)rea (guilty mind)►A mistake of fact defense assumes that A mistake of fact defense assumes that

the mistake was honest and reasonablethe mistake was honest and reasonable►Example:Example:

Serving alcohol to a minor who provided fake IDServing alcohol to a minor who provided fake ID

►Acid Test:Acid Test: Would the person have not Would the person have not committed the offence if they had known the committed the offence if they had known the true fact.true fact.

Mistake Of FactMistake Of Fact

►Mistake of age►150 (4) It is not a defence to a charge under section 150 (4) It is not a defence to a charge under section

151 or 152, subsection 160(3) or 173(2), or section 151 or 152, subsection 160(3) or 173(2), or section 271, 272 or 273 that the accused believed that the 271, 272 or 273 that the accused believed that the complainant was fourteen years of age or more at complainant was fourteen years of age or more at the time the offence is alleged to have been the time the offence is alleged to have been committed unless the accused took all reasonable committed unless the accused took all reasonable steps to ascertain the age of the complainant. steps to ascertain the age of the complainant.

Mistake of LawMistake of Law►A defence based on a claim that one A defence based on a claim that one

committed the offence because they did not committed the offence because they did not know that their action was against the law. know that their action was against the law. This is an exception to Section 19 of the This is an exception to Section 19 of the Criminal Code (Ignorance of the law is not Criminal Code (Ignorance of the law is not an excuse).an excuse). Colour of Right: Colour of Right: An honestly held belief in An honestly held belief in

entitlement to property. entitlement to property. (Generally a defence to (Generally a defence to a charge of theft.)a charge of theft.)

Entering a family property without knowing that Entering a family property without knowing that it had been sold to another family. it had been sold to another family.

IntoxicationIntoxication

► It can be argued logically that a person who It can be argued logically that a person who committed a crime while intoxicated from alcohol or committed a crime while intoxicated from alcohol or drugs may not have been able to form mens readrugs may not have been able to form mens rea

► Difficult to accept that an accused who commits a Difficult to accept that an accused who commits a crime while intoxicated is morally innocentcrime while intoxicated is morally innocent

► Courts have attempted to limit defense of intoxication Courts have attempted to limit defense of intoxication by classifying crimes into general or specific intentby classifying crimes into general or specific intent General intent- requires that accused intended to General intent- requires that accused intended to

commit a crime, but the prosecution need not prove the commit a crime, but the prosecution need not prove the accused intended all the harm that resulted from an actaccused intended all the harm that resulted from an act

Specific intent- means that having a deliberate aim to Specific intent- means that having a deliberate aim to commit a particular offensecommit a particular offense

Mental DisorderMental Disorder► Laws dealing with mental disorder are derived from Laws dealing with mental disorder are derived from

M’Naghten’s lawsM’Naghten’s laws 1843- M’Naghten found not guilty by reason of insanity of 1843- M’Naghten found not guilty by reason of insanity of

the Secretary to the British Prime Ministerthe Secretary to the British Prime Minister► House of Lords established the insanity defense arguing House of Lords established the insanity defense arguing

an accused could be found not guilty “by reason of an accused could be found not guilty “by reason of insanity” if a was clearly proved insanity” if a was clearly proved

““at the time of committing the act that the party accused at the time of committing the act that the party accused was labouring under such a defect of reason, from disease was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the of the mind, as not to know the nature and quality of the act he was doing”act he was doing”

► Incorporated into Canada’s own criminal code in Section Incorporated into Canada’s own criminal code in Section 16 (1) and amended in 1992 and renamed “mental 16 (1) and amended in 1992 and renamed “mental disorder defense”disorder defense” Verdict of “not guilty by reason of insanity” changed to Verdict of “not guilty by reason of insanity” changed to

“not criminally responsible by reason of mental disorder“not criminally responsible by reason of mental disorder

'Shania Twain' defence works in drunk driver's favourLast Updated Tue, 28 Mar 2006 08:47:03 EST CBC NewsOne of the most notorious drunk drivers in the Ottawa area has been found not criminally responsible on his latest impaired driving charges because of a mental disorder that makes him believe female celebrities are controlling his actions. Matt Brownlee was arrested last October after police spotted a pickup truck speeding along a busy street in downtown Ottawa.

Matt Brownlee believed singer Shania Twain was helping him

drive. (AP file Photo)

The 33-year-old man told psychiatrists that he knew the legal repercussions of his actions, but believed singer Shania Twain was helping him drive. Brownlee pleaded not guilty to four charges, including impaired operation of a motor vehicle and driving while disqualified. On Monday, the judge drew on several psychiatric assessments in ruling that Brownlee was not criminally responsible for his actions because he suffers from delusions that celebrities such as Twain are communicating with him telepathically.

Ten years ago, Brownlee was given a seven-year prison sentence and banned from driving for the rest of his life after he killed an Ottawa woman, Linda Lebreton-Holmes, and her 12-year-old son while driving with a blood alcohol level three times the legal limit. Earlier in March, a psychiatrist told the court that Brownlee suffers from psychosis and mood disorders resulting from a brain injury caused by the 1996 car crash. Brownlee has been undergoing a series of assessments at the Brockville Psychiatric Hospital since last fall. Another assessment of how much risk he poses to the community could see Brownlee being detained in hospital, released under supervision in the community, or given an absolute discharge.

Father showed no signs of mental disorder: doctor Last Updated: Sep 19 2003 07:36 AM

PDT CAMPBELL RIVER, B.C. - The family doctor who treated a Quatsino man says he was distressed but not psychotic, after he killed his six children last March. That's contrary to Jay Handel's defence. The 46-year-old dad says he is not guilty of six counts of murder because he was mentally ill.

The Crown is trying to prove the killings were an act of revenge, while the defence lawyer maintains client is legally insane.

Dr. Marlene Smith was the Handel family physician. She delivered several of the children – and she took care of both Jay Handel and his estranged wife Sonya right after the killings. Dr. Smith testified she received a letter from Jay Handel that he'd written just hours after he killed his three boys and three girls – who ranged in age from two to 11. In it, Handel tells her the children died peacefully.

Smith followed up with a phone call to Handel who was in a psychiatric ward at the time. "I asked him what he did to the children," she says. "He told me he gave them codeine. I said that wouldn't have killed them. And he replied that it didn't matter what he'd done. They're dead now."

Smith also asked him why he killed his children. She says he told her Sonya wanted to be alone, and now she was. She said he became distressed only after she told him that Sonya's estranged family had rallied around her in the aftermath of the deaths, and that they were planning a memorial. Smith said she believed Handel was upset because he thought he should be at the service, and that he didn't intend for Sonya's family to come together over the tragedy.