1. Criminal Defences Chapter 11

2. Luka Magnotta http://www.cbc.ca/news/canada/montreal/luka-magnotta-guilty-of-1st-degree-murder-in- jun-lin-s-slaying-1.2875989 http://www.cbc.ca/news/canada/montreal/luka-magnotta-guilty-of-1st-degree-murder-in- jun-lin-s-slaying-1.2875989 Found guilty of first-degree murder in the May 2012 slaying and dismemberment of Lin Magnotta was seeking to be found not criminally responsible by way of mental disorder Also found guilty of four other charges: criminally harassing Prime Minister Stephen Harper and other members of Parliament; mailing obscene and indecent material; committing an indignity to a body; and publishing obscene materials

3. Criminal Defences Right to criminal defence is one of our fundamental rights The Criminal Code defines some defences available There are two general types of defences: i)A defence that negates a necessary element of the offence, that is, a defence that raises a reasonable doubt about whether the accused committed the actus reus of the offence, or had the required mental element (mens rea) for the offence; and ii)an affirmative defence, which is a defence that justifies or excuses an accused’s criminal conduct.

4. 1. Mistake of Fact Depends on the accused not having mens rea (guilty mind) A mistake of fact defence assumes that the mistake was honest and reasonable Example: Serving alcohol to a minor who provided fake ID Read cases R. v. Burgress and R v. Pappajohn (pg 332)

5. 2. Mistake of Law A defence based on a claim that one committed the offence because they did not know that their action was against the law. This is an exception to Section 19 of the Criminal Code (Ignorance of the law is not an excuse). Example: Colour of Right: An honestly held belief in entitlement to property. (Generally a defence to a charge of theft.) Entering a family property without knowing that it had been sold to another family. R v. Baum and Baum (pg 332)

6. Mistake of Law- R v. MacLean In R. v. MacLean the accused had lost his driver’s licence. He worked at the Halifax International Airport and part of his duties required him to drive airport vehicles on property owned by the federal government. He sought the advice of the Nova Scotia Department of Transport as to whether he required a standard driver’s licence in order to drive on airport property, and received the advice that he did not; but simply required the consent of his employers, which he had. The court acquitted him on a charge of driving without a valid licence. The court held that the defence of mistake of law could apply since the accused made a bona fide effort to determine the true state of the law, using appropriate sources, and relied on the results of his efforts in good faith.

7. 3. Intoxication It can be argued logically that a person who committed a crime while intoxicated from alcohol or drugs may not have been able to form mens rea Difficult to accept that an accused who commits a crime while intoxicated is morally innocent Courts have attempted to limit defence of intoxication by classifying crimes into general or specific intent Reminder: General intent- requires that accused intended to commit a crime, but the prosecution need not prove the accused intended all the harm that resulted from an act Specific intent- means that having a deliberate aim to commit a particular offense Read R. v. Daviault (pg 333)

8. 4. Mental Disorder Laws dealing with mental disorder are derived from M’Naghten’s laws 1843- M’Naghten found not guilty by reason of insanity of the Secretary to the British Prime Minister House of Lords established the insanity defense arguing an accused could be found not guilty “by reason of insanity” if it was clearly proved “at the time of committing the act that the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing” Incorporated into Canada’s own criminal code in Section 16 (1) and amended in 1992 and renamed “mental disorder defense” Verdict of “not guilty by reason of insanity” changed to “not criminally responsible by reason of mental disorder

9. '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.

10. 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.

11. 5. Automatism Refers to the state in which a person has no conscious control over his or her actions Applies to persons who commit criminal acts but who cannot be found criminally responsible because they were mentally impaired when defence took place Hypnotic state Sleepwalking Brain tumour Epilepsy Blow to the head Severe psychological shock

12. Delay in Lees decision Last Updated Fri, 28 May 1999 16:59:39 EDT CBC NewsCBC News VANCOUVER - A ruling by Canada's Supreme Court has caused a delay in the case against Victoria realtor Patrick Lees. A judge was to rule on the second-degree murder case today but she now says that a ruling by Canada's top court this week means she wants to re-consider her decision. Patrick Lees had pleaded not guilty to the murder of his wife Laurie. She was found strangled in her Saanich home in January 1998. One of the key arguments in Lees defense was that he was in a state of automatism when attacking his wife. He said his wife had threatened to accuse him of molesting their daughter if he did not give her what she wanted in a divorce. Lees's lawyer argued that his clients body and mind were somehow disconnected at the time of the attack and the slaying was involuntary. The circumstances are similar to the case of Bert Stone. He's a B.C. man who also used the automatism defense in the stabbing death of his wife. His lawyer had argued Stone entered the disassociated state after his wife had berated him. Earlier this week the Supreme Court of Canada upheld Stone's seven-year sentence. The court said there needed to be more evidence of the disassociated state before it could be considered a defense. Now the B.C. Supreme Court will hear more arguments on the Lees case in light of the Stone ruling. The case will be back in court next Tuesday. CopyrightCopyright ©2005 Canadian Broadcasting Corporation - All Rights Reserved

13. Patrick Lees found guilty Last Updated Tue, 01 Jun 1999 20:52:56 EDT CBC NewsCBC News VANCOUVER - There were tears of joy in a Victoria courtroom today as Patrick Lees was found guilty of murdering his wife, Laurie. The well known realtor from Saanich was sentenced to life in prison with no chance of parole for 10 years. In finding Lees guilty of second degree murder, Madam Justice Geena Keeano referred to last week's ruling by the Supreme Court of Canada on the so-called "automatism defense." Lees had argued he was provoked into killing his wife after she threatened to accuse him of molesting their four-year-old daughter. Lees said he couldn't remember strangling her with his belt. He testified his mind didn't know what his body was doing. The judge said Lees failed to meet the new rigid guidelines for the automatism defense, established by the high court. Laurie's mother, Barb, says a huge burden has been lifted from her family. With the trial over, Laurie Lee's family will begin to focus on raising her two children, a five year old girl and a three year old boy, who've already been told their mother was murdered and now, that their father will spend at least the next ten years in jail for killing her. CopyrightCopyright ©2005 Canadian Broadcasting Corporation - All Rights Reserved

14. 5. Self Defence Self defence does not argue a lack of criminal intent It argues a justification for the criminal act Alleges that actions are justified on the grounds that people have a right to defend themselves Elements of self defence Accused believed he/she was to be harmed Accused used on the force required to avoid threatened harm Read R v. Cinous pg 339

15. 6. Provocation Partial defence that reduces the crime of murder to manslaughter providing the accused can show he/she was provoked into killing

16. 7. Entrapment Defence of entrapment is used to show that the accused was set up or trapped by lawful authorities into doing something they would not otherwise have done Example R. v. Mack [1988] – over 6 months, an undercover cop asked Mack numerous times to sell him drugs. Mack continuously said no. It was only when the undercover cop threatened Mack that he sold him drugs

17. 8. Necessity Crime committed as a necessity Necessity could only be used as an excuse in the face of immediate and urgent circumstances R. v. Dudley and Stevens [1884] – cased of necessity was argued when two men resorted to cannibalism of their cabin boy when lost at sea Dr. Henry Morgentaler used this defense when he challenged Canada’s abortion law by arguing that necessity compelled him to provide abortions for women, despite the laws in place

18. 9. Duress Defence makes the argument that an accused was forced to commit a criminal act under the “threat of personal injury or death” Defence is excluded if crime causes serious harm such as murder, abduction, or assault with a weapon