16-02-02

1

Forms of Defence

•  legislated forms of defence

•  legislated non-defences

Legislated Forms of Defence Under the Criminal Code

Child under twelve, S. 13 Obedience to de facto law, S. 15 Defence of mental disorder, S. 16 Compulsion by threats, S. 17 Self-defence, S. 34 Provocation, S. 232

Child under twelve (Section 13) No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years.

Obedience to de facto law (Section 15) No person shall be convicted of an offence in respect of an act or omission in obedience to the laws for the time being made and enforced by persons in de facto possession of the sovereign power in and over the place where the act or omission occurs.

Defence of mental disorder (Section 16) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. (2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities. (3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

'Shania Twain' defence works in drunk driver's favour Last Updated Tue, 28 Mar 2006 08:47:03 EST CBC News One 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.

16-02-02

2

Greyhound bus killer found not criminally responsible Last Updated: Thursday, March 5, 2009 | 10:56 AM CT Comments1528Recommend593 CBC News

Tim McLean, 22, was on his way home to

Winnipeg when he was slain on a Greyhound bus last July 30. (Family photo) Vince Li has been found not criminally responsible for the unprovoked killing and beheading of fellow passenger Timothy McLean on a Greyhound bus last summer. Manitoba Court of Queen's Bench Judge John Scurfield said Thursday that Li, 40, could not be found guilty of murder and is not criminally responsible for the crime because he was mentally ill at the time of the killing. "These grotesque acts are appalling... but are suggestive of a mental disorder," the judge said. "He did not appreciate the act he committed was wrong." Li had pleaded not guilty to a charge of second-degree murder. Psychiatric evidence at his trial suggested he is a schizophrenic who suffered a major psychotic episode last July 30 when he fatally stabbed McLean, 22, ate some of the body parts, and cut off McLean's head. For five hours after the killing, Li wandered around on the bus, defiling the body while an RCMP tactical team waited to subdue him. Rather than go to prison, Li will be kept in a secure psychiatric facility, most likely in Selkirk, Man. McLean, a carnival worker, was returning home to Winnipeg on the bus from Edmonton. Listening to his iPod while sitting in the back row of Greyhound bus 1170, he gave Li a friendly greeting as the stranger sat down beside him. Then, around 8:30 p.m. CT, when the bus was near Portage La Prairie, Man., Li pulled a buck knife from his side and began stabbing McLean — for no apparent reason, witnesses said. After passengers fled the bus, by then on the side of the Trans-Canada Highway, Li was barricaded inside the vehicle. During the stabbing, Li was heard to say, "get emergency." During the five-hour standoff, he walked around the bus carrying the severed head in one hand, the knife in the other. At one point, he threw McLean's head into the bus's stairwell. When police finally subdued him, Li repeatedly said he was sorry but could not say what he was sorry for, officers said. He told police he had changed his name to Vince Day. And he said, "I'm guilty, please kill me." Psychiatrists testified Li was schizophrenic and suffering a major psychotic episode at the time of the killing. Li heard voices from God telling him that McLean was an evil threat that needed to be eliminated, the psychiatrists said. Even after the killing, Li believed McLean might come back to life and threaten him. The psychiatrists testified Li fit the criteria for someone who was not criminally responsible for their actions due to mental illness. That means he will be sent to a provincial psychiatric facility rather than to prison. He comes under the jurisdiction of Manitoba's provincial review board, which will decide whether he poses a risk to the public. The review board has the power to keep Li locked up indefinitely or, if he is no longer considered a risk, discharge him. In his written ruling, the judge said those who are profoundly ill do not have the mental capacity to intentionally commit a crime. "It is clear that since the 19th century the law has distinguished between those persons who commit criminal acts because of a mental disorder and sane persons," Scurfield said. McLean's family had been lobbying for a change in the Criminal Code to prevent mentally ill killers from eventually being returned to the community. His mother, Carol de Delley, said after the ruling that she would do everything in her power to ensure Li is never released from secure custody. "I think it's ridiculous that we've not only had to endure this procedure but we get to endure it every year again for the rest of Mr. Li's natural life," de Delley said, describing Li as dangerous. She urged Canadians to lobby politicians for changes to the Criminal Code. "Bear in mind, this isn't going to be saving any of us, we've already had our loss," she said. "It's to save everybody else. And that's been put on us now. And we sure as hell didn't volunteer for that job, but it is ours now." Li's lawyer, Gordon Bates, said after the ruling that his client has felt remorse and understands what has occurred. He said Li had no message for the McLean family on Thursday but that he has in the past expressed a wish to make amends and is looking forward to treatment of his illness.

Morrissette says, “The rate for violent crime is about 0.5 per cent. Less than half a per cent of offenders use that route are found not criminally responsible.” According to recent studies, recidivism rates for people found NCR is relatively low. Three years after an NCR verdict, about 7 to 10 per cent of those people had reoffended, compared to about 34 per cent from the general penal system. For mentally-ill inmates in the mainstream prison system, recidivism rates are 69%.

“Not Criminally Responsible” (NCR) Legal Reform

Montreal psychiatrist Louis Morissette calls these changes a sad reaction that ignores the facts and research around mentally ill people who commit crimes. According to mental health experts, only a handful of those accused of violent crimes in Canada avoid time in prison with a not criminally responsible verdict.

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.

Compulsion by threats (Section 17) A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is:

high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons)

Defence of Person (aka Self-defence) (Section 34) 34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if:

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

Provocation (Section 232) (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. What is provocation? (2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.

16-02-02

3

Provocation continued (3) For the purposes of this section, the questions:

(a) whether the conduct of the victim amounted to provocation under subsection (2), and

(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,

are questions of fact (i.e. decided by the judge or jury), but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

Legislated Non-Defences Under the Criminal Code

Consent to death, S. 14 Compulsion of spouse, S. 18 Ignorance of the law, S. 19 Self-Induced Intoxication, S. 33

Consent to death (Section 14) No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

Compulsion of spouse (Section 18) No presumption arises that a married person who commits an offence does so under compulsion by reason only that the offence is committed in the presence of the spouse of that married person.

Ignorance of the law (Section 19) Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.

Self-induced intoxication (Section 33) 33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2). (2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person. (3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.

16-02-02

4

'Stoned defence' thrown out by court Last Updated Wed, 14 Mar 2001 12:10:14 EST CBC News

YELLOWKNIFE, N.W.T. - The N.W.T. Court of Appeal has overturned a sexual assault acquittal that outraged women's groups in the territory.

James Kenneth Brenton was acquitted in 1999 because he said he was 'too stoned' to know what he was doing. Brenton's lawyer argued that it was unconstitutional for his client not to be able to use that argument as defence.

The Criminal Code forbids people from arguing they had no intent to commit a crime because of extreme intoxication.

The trial judge found Brenton guilty, but an appeal court agreed with the arguments, and acquitted him.

Now the Court of Appeal of the Northwest Territories has ruled constitutional arguments are irrelevant in this case. Brenton's convictions now stand.

Brenton was originally sentenced to 14 months in jail. He can still appeal the length of his sentence, but there's no word if that will happen. Copyright ©2005 Canadian Broadcasting Corporation - All Rights Reserved

Role Plays Group Forms of Defence

A

• automatism, • mental disorder, and • intoxication

B

• mistake of law:

• colour of right • officially induced mistake of law

• mistake of fact

C

• self-defence, • compulsion (duress).