Criminal Law INTRO TO DEFENCES

What is a defence?

Defences for an Accused Defence – either the denial of having committed a crime or a justification for the act If the accused acknowledges they committed the crime but have a good reason, they must offer proof.

Defences for an Accused – Mental States 1. Mental Disorder – “a disease of the mind”  Can’t be held responsible (no mens rea) Defence must show either: ◦They accused didn’t know what they were doing, or ◦The accused didn’t know the act was wrong If accepted, accused may be set free or sent to a psychiatric hospital

Defences for an Accused – Mental States 2. Automatism  The accused acts without being aware of what they are doing 2 types:  Insane automatism – caused by a mental disorder  Non-insane automatism – caused by an external factor (ex. medication, head injury, sleepwalking)  Actus reus is there but no mens rea

Defences for an Accused – Mental States 2. Automatism  The accused acts without being aware of what they are doing 2 types:  Insane automatism – caused by a mental disorder  Non-insane automatism – caused by an external factor (ex. medication, head injury, sleepwalking)  Actus reus is there but no mens rea

An extreme example is the 1987 case of Kenneth Parks, who slept through a 23-kilometre drive to his in-laws' Toronto- area home, where he fatally stabbed his mother-in-law and seriously injured his father-in-law. Parks said his family had a history of sleep disorders and he'd been under increased pressure after losing his job and running into debt. He was acquitted. World Science Festival – Curious case of Kenneth Parks

Defences for an Accused – Mental States 3. Intoxication  Condition of being overpowered by drugs or alcohol to the point of losing self-control **There is an exception:  Can only be used for crimes of specific intent, not general intent. Accused needs to prove they did not foresee their actions by being intoxicated beyond a reasonable doubt, therefore could not comprehend their actions. Ex. Cannot get drunk and then sexually assault someone and use this defence

Intoxication – R v. Daviault  On May 30, 1989, Henri Daviault, a chronic alcoholic, was asked to get some alcohol for a friend of his wife. The woman was 65-years-old, who was semi-paralyzed and required a wheelchair. Daviault brought a 40oz of brandy to the woman's house around 6pm. She drank half the bottle and then passed out. Daviault drank the rest while she slept. Some time in the evening she went to the washroom and was accosted by Daviault who took her into her the bedroom and sexually assaulted her. Daviault was arrested and charged for sexual assault.  Daviault testified that prior to the event he had drunk over seven beers at a bar, and after drinking some brandy at the woman's house he has no recollection of what had happened until he woke up naked in the woman's bed.  At trial, he argued that during his blackout he was in automatism-like state brought about by intoxication. An expert witness in pharmacology testified to the likelihood of the defence, and that having drank as much as he did there was little chance he could have functioned normally or been aware of his actions.  Based on the testimony of the phramacologist, the trial judge found that Daviault was unable to form a general intent to commit the crime and therefore could be acquitted.

Intoxication – R v. Daviault  The Quebec Court of Appeal overturned the acquital ruling that intoxication to the point of automatism cannot negate the mens rea requirement for a general intent offence (ie. offences where mens rea can be implied from the commission of the act).Quebec Court of Appeal  The issue before the Supreme Court was whether "a state of drunkenness which is so extreme that an accused is in a condition that closely resembles automatism or a disease of the mind as defined in s. 16 of the Criminal Code constitute a basis for defending a crime which requires not a specific but only a general intent?“  The Court held, 6 to 3, that the absence of a defence for a general intent offence on the basis of intoxication akin to insanity or automatism violated section 7 and 11(d) of the Charter, and could not be saved under section 1. They overturned the verdict and ordered a new trial.