1. Defences for the Accused
Law 120 – C Denton

2. What is a Defence?
The most common defence to a criminal charge is denial.
If accepted, this defence represents the absence of mens rea, and the accused will be acquitted.
In some situations, however the accused may admit to the crime in question but may still use a defence to excuse or justify his/her actions.
If such a defence is accepted, the court may acquit the accused or, in some cases, find the accused guilty of a less serious offence.
A defence therefore is either a denial of having committed a wrongful offence or a justification for what would otherwise be regarded as criminal behaviour.

3. Justifications as a Defence
For a defence to succeed, the accused must produce evidence that supports it.
i.e. Ron is charged with assault when he hits Harry with a two-by-four.
The Crown proves Ron did it intentionally
Without a defence, Ron will be convicted.
Ron’s lawyer presents eye-witness evidence that Ron was defending himself.
If jury accepts self-defence and finds him not guilty Ron succeeded in justifying behaviour that normally would be considered criminal conduct.

4. Mental States
The mental state of the accused at the time the alleged offence was committed has an impact on whether the accused can be held criminally responsible for the offence.
Before a trial can proceed, the court has to determine whether the accused is mentally fit to understand the proceedings and to participate in his/her defence.

5. Mental Disorder
Mental Disorder (formerly called the insanity defence) is defined in the Criminal Code as a “disease of the mind”.
An accused person who suffers from a mental disorder at the time the offence was committed cannot be held criminally responsible because he/she would have been unable to form the mens rea of the offence.

6. Balance of Probabilities
a person is presumed not to suffer from a mental disorder until the contrary is proven ‘on the balance of probabilities’ (a greater likelihood).
The balance of probabilities is somewhat less than ‘beyond a reasonable doubt.’
The burden of proof is on the party that first raises the issue, which is usually the defence.
The defence would have to prove that there is a greater likelihood that the accused did suffer from a mental disorder than that he/she did not.

7. Requirements for Mental Disorder Defence
Mental disorder left accused incapable of appreciating the nature and quality of the act.
accused repeatedly stabbed another person, not realizing that this act could lead to severe injury or death. Due to a mental disorder, the accused would not have been able to foresee the consequences of the act.
The mental disorder left the accused incapable of knowing that the act or omission was wrong.
Phillip had mental disorder leading him to believe that Terrance was a dictator bend on destroying democracy. A psychiatrist testified that Phillip thought that by killing Terrance he was protecting his country. The court concluded Phillip did not know that his actions were wrong.

8. Judge’s Decisions
If the court finds that the accused is not criminally responsible, the judge may either ‘make an order’ concerning the accused, or refer the case to a provincially appointed Criminal Code Review Board.
If the judge makes an order, there are three choices available:
absolute discharge
conditional discharge
a term in a psychiatric hospital.
The judge may grant an absolute discharge if the mentally ill person is not a threat to society. If the judge orders that the person be kept in a psychiatric unit, the judge’s order lasts for a maximum of 90 days. After 90 days, the provincially appointed Criminal Code Review Board reviews the case.

9. Review Board’s Decisions
If the judge does not make an order and refers the case to the Review Board, the Board holds a hearing and decides on the course of action for the accused.
Board has same three choices available to the judge.
if the Board commits accused to a psychiatric hospital, it will be for an indefinite period of time, with regular reviews of the person’s status. If the Board is convinced, on evidence provided by qualified professionals, that the accused has been cured, then the Board will order the accused be released.
The defence of mental disorder is only used for the most serious offences because the period of confinement in a mental institution could last longer that a prison sentence for a less serious offence.

10. Fitness to Stand Trial
An accused person is presumed fit to stand trial unless the court is convinced that the accused is suffering from a mental disorder at the time the trial is scheduled to take place.
Such a disorder may mean that the accused is unable to understand the nature of the trial proceedings, to understand the consequences of the proceedings, or to instruct counsel.
If at any time during the trial there are reasonable grounds to suspect that the accused is mentally unfit, the judge can issue an assessment order and then decide on an appropriate course of action based on the assessment report.

11. Automatism
Automatism refers to a condition in which a person acts without being aware of what he/she is doing.
For example, a sleepwalker gets out of bed, goes to the kitchen and makes a sandwich. The sleepwalker eats the sandwich but does not remember what happened. This person is in a state of automatism because his/her actions were not guided by a conscious state of mind.
Examples of other situations that may result in automatism include suffering a severe concussion or taking the wrong medication. Automatism negates the actus reus of the crime because someone in such a state does not act voluntarily.

12. Automatism (cont)
Current case law recognizes two types of automatism: insane automatism and non-insane automatism.
Insane automatism is caused by a mental disorder. A person suffering from insane automatism will be found not criminally responsible due to a mental disorder. The Criminal Code allows for a range of results, including sending the individual to a psychiatric hospital.
Non-insane automatism is caused not by a mental disorder, but by an external factor, such as a concussion or medication. If proven, the accused will be acquitted.

13. Intoxication
Intoxication is the condition of being overpowered by alcohol or drugs at the point of losing self-control. Generally, intoxication is not a defence to a crime. A person who gets drunk and commits a criminal offence is still responsible for his/her actions.
However, there are exceptions. First, according to case law, intoxication may be a defence to crimes of specific intent, but not to those of general intent. A general intent offence occurs when a person commits a wrongful act for its own sake, with no ulterior motive. A specific intent offence occurs when a person commits one wrongful act for the sake of accomplishing another.
If a person lacks the ability to form the specific intent to commit the offence because of intoxication, then the mental element cannot be proven, and the accused person cannot be found guilty of the specific intent offence. In such a case, however, the accused person may still be found guilty of a general intent offence.

14. Intoxication (cont)
The second exception to the rule is if a person’s intoxication is so extreme that it almost amounts to a mental disorder. This defence, sometimes used for general intent offences, was established by the Supreme Court of Canada’s 1994 decision in the case of R v. Daviault.
The defendant consumed a large amount of alcohol and then sexually assaulted a 65 year old woman. The Court ruled that Daviault’s intoxication was so severe that he was incapable of forming even the most basic or simple intent to commit the wrongful act.
The Court said that in such cases of extreme intoxication, convicting the accused would violate the principles of fundamental justice. The accused may be at fault for voluntarily becoming intoxicated, but that fault cannot be directly linked to the offence.

15. Intoxication (cont)
Even though the Supreme Court of Canada warned that this defence could only be used in the rarest of cases, a public outcry followed the decision. Some people were afraid that the ruling invited offenders to get extremely drunk and then sexually assault their victims.
Parliament quickly amended the Criminal Code to make self-induced intoxication an invalid defence to general intent offences that interfered with ‘the bodily integrity of another person.’ This meant that the defence could no longer be sued against the charge of assault or sexual assault.

16. JUSTIFICATIONS
In some situations, an accused is exonerated from committing an apparently criminal act because the circumstances justified or excused his/her conduct. One of these situations is self-defence, which includes defending oneself or others as well as one’s property.
The law also excuses certain actions that occur out of necessity and compulsion, or duress. Another defence – the defence of provocation – can be used to reduce a charge of murder to manslaughter but cannot be used to win and acquittal.
Note, too, that in some cases if an Aboriginal person is charged with a Criminal Code or regulatory offence, the accused can argue that an Aboriginal or ‘treaty right’ justifies the act in question.

17. Self-Defence
Self-Defence is set forth in s.34 of the Criminal Code. Section 34 (1) states that a person may use force to defend against an unprovoked assault where there is no intent to kill or to cause bodily harm to the attacker.

18. Self-Defence (cont)
A person who is assaulted, without provocation, may only use the amount of force necessary to defend against the attack (reasonable force).
What is considered to be reasonable force depends on the circumstances of each situation.
Suppose Mike is walking home late after a party. Unexpectedly, he is approached by Ike, who grabs him by the collar and threatens to beat him up. Mike is allowed to use reasonable force to defend himself.

19. Self-Defence (cont)
However, suppose the circumstances are slightly different. Ike threatens to stab Mike with a knife he is holding. In this case, Mike may seriously injure or kill Ike if he believes that he will suffer serious injury or death and cannot save himself in any other way.

20. Battered Woman’s Syndrome (cont)
Violence against women has become an issue of great concern in Canadian society. The courts have tired a number of cases in which women in abusive relationships reacted by killing their spouses.
R. v. Lavallee, [1990], marked the first time that battered woman syndrome – the effects of prolonged spousal abuse – was used to advance the justification of self-defence. Lavallee shot her common-law husband in the back of the head with a rifle as he left her room late one night after a violent argument.

21. Battered Woman’s Syndrome (cont)
Testimony showed that over the course of their relationship the couple often argued violently. As a result, Lavallee had been treated in hospital for several serious injuries.
On the night of the shooting, her husband slapped her on the face and told her he would come back later to kill her.

22. Battered Woman’s Syndrome (cont)
A psychiatrist called by the defence testified that Lavallee was terrorized by her husband, that she found herself unable to escape the relationship despite the ongoing violence, and that the continued pattern of violence had put her life in danger. He characterized the shooting as a final, desperate act of a woman who sincerely believed she would be killed that night.
The jury acquitted Lavallee, but the Manitoba Court of Appeal overturned the acquittal. Lavallee appealed to the Supreme Court of Canada, which restored her acquittal

23. Battered Woman’s Syndrome (cont)
In its decision, the Supreme Court stated that in cases involving battered woman syndrome, the jury should be instructed on the following three elements:
why an abused woman might remain in an abusive relationship
the nature and extent of the violence that may exist in a battering relationship
the defendant’s ability to perceive danger from her abuser

24. Battered Woman’s Syndrome (cont)
Since R. v. Lavallee, the Supreme Court has taken pains to note that battered woman’s syndrome is not, strictly speaking, a defence in itself. Rather, it is a psychiatric explanation of an abused woman’s state of mind that can be used to help advance the justification of self-defence.
In other words, merely establishing that a woman suffers from battered woman’s syndrome does not necessarily justify an act of violence against the abuser.

25. Defence of a Dwelling
Sections 40 and 4 of the Criminal Coe extend the rules for self-defence to the defence of a ‘dwelling house.’ Section 2 of the Code defines a dwelling house as the whole or any part of a building or structure that is occupied on a permanent or temporary basis.

26. Defence of a Dwelling (cont)
A person is allowed to defend his/her dwelling from any unlawful entry and to remove a trespasser if he/she has entered. The force used to defend one’s dwelling must be reasonable under the circumstances.

27. Defence of a Dwelling (cont)
If the trespasser resists the owner’s attempts to protect the dwelling, the trespasser is considered under the law to be committing an assault. The self-defence provisions of the Code would then apply, allowing the owner to use whatever force might be necessary.

28. Necessity
The defence of necessity means that the accused had no reasonable alternative to committing an illegal act.
Luke severs his finger with a band saw. Han puts the finger on ice and drives Luke to the hospital, running a red light on the way. After Luke is taken into emergency, a police officer hands Han a summons for dangerous operation of a motor vehicle. Han could use the defence of necessity because he believed his conduct was absolutely necessary to keep Luke from losing his finger.

29. Necessity (cont)
For the defence of necessity to succeed, all of the following conditions must be met:
The accused must show that the act was done to avoid a greater harm.
There was no reasonable opportunity for an alternative course of action that did not involve the breach of the law.
The harm inflicted must be less than the harm avoided.

30. Compulsion or Duress
Section 17 of the Criminal Code says that a person will be excused from having committed an offence if the accused did so under compulsion, which means that the person was forced by threats of death or bodily harm.
Duress (almost synonymous with the term ‘compulsion’) is also used in case law but it offers a slighter broader defence. Section 17 states that 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 from committing the offence if the person believes that the threats will be carried out.

31. Compulsion or Duress (cont)
Suppose a taxi driver is forced at gunpoint to drive someone who has just robbed a bank to a certain location in the city. The driver is charged with being an accessory after the fact but pleads not guilty by reason of compulsion and is acquitted.
Compulsion, however, is not a defence in violent crimes such as murder, sexual assault, robbery, and assault with a weapon.
Two provisions of s.17 are highly controversial: the threatener has to be physically present when the offence is committed, and the threat has to be ‘immediate,’ that is, on the point of being carried out.

32. Compulsion or Duress (cont)
In the appeal of R. v. Carker, the accused raised the defence of compulsion to a charge of willful damage to the plumbing of his prison cell. Several inmates had threatened to knife Carker, kick him in the head, and break his arm if he did not destroy the plumbing.
The Supreme Court dismissed Carker’s appeal, stating that although the threats were made just before the offence was committed, the threateners were all locked in their respective cells, so the threats were not ‘immediate’ and the persons making them were not ‘present.’

33. Compulsion or Duress (cont)
In 2001, in its decision in R. v. Ruzic, the Supreme Court declared the immediacy and presence provisions of s.17 unconstitutional. Once a section of the Criminal Code has been declared unconstitutional, the usual step is for Parliament to amend that section.

34. Provocation
Provocation is any act or insult that causes a reasonable person to lose self-control.
The defence of provocation applies only to the crime of murder.
Once the court is convinced beyond a reasonable doubt that the accused has committed murder, provocation may be considered as a partial defence to reduce the conviction from murder to manslaughter.

35. Provocation (cont)
For the defence of provocation to succeed, defence counsel must prove all four elements listed below. If any of these elements cannot be proven, then provocation cannot be used as a defence.
A wrongful act or insult occurred
This act or insult was sufficient to deprive an ordinary person of the power of self-control
The person responded suddenly
The person responded before there was time for the passion to cool