Criminal Defences

Acceptable defences to a charge in Canada

Introduction

0 Accused person can put forth three possible arguments against their charge:

a. They can deny that they committed the act, dispute actus reus

b.They can argue that they lacked the necessary intent or guilty mind

c. They can argue that they have a valid excuse for what happened while committing the act

Alibi Defence

0The best possible defence is the alibi- the accused is somewhere else when the offence occurred

0Generally if this is a defence the accused is expected to testify in court and be cross examined about their whereabouts

Automatism0Not mentioned in the criminal code but has developed

through precedent and case law

0Automatic functioning without conscious effort or control- non-insane and insane

0 Insane is connected to a disease of the mind and non-insane is connected to external factors, such as sleepwalking or health ailments

Intoxication

0The accused must show that they did not have the required intent (mens rea) at the time the offence was committed

0Any bodily harm caused will not allow for an intoxication defence, however it could lessen the charge (from murder to manslaughter)

Battered Woman Syndrome

0Psychological condition caused by severe domestic abuse/violence

0Previously only self defence was allowed but this can only be used in an immediate danger situation

Self Defence0The legal use of reasonable force in order to defend

oneself

0Sometimes people can be in situations where they have no choice- when the accused is in the right

0The defence must not be more than what is necessary to defend at the time

Necessity

0Defence for a criminal act committed due to immediate and urgent circumstances

0Forced to act due to certain danger, therefore no mens rea

0Example?

Duress

0Accused commits a crime in response to some sort of external pressure

0Brought on by the threat of harm by some other person, forcing the accused to act against his or her will

Entrapment- Double Jeopardy

0Police action that induces a person to commit an offence

0Tried twice for the same offence (charges based on the same offences)

Provocation

0Reduces murder charges to Manslaughter

0A wrongful act or insult that is so significant in nature that it can deprive an ordinary person of the power of self control- the act must be done in the ‘heat of passion’ after the provocation

0Examples?