Defences For The Accused

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Defences For The Accused

• Chapter 10

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What is a Defence?

• A defence is a denial of, or a justification for,
  criminal behavior.
• The most common defence is denial!
• In other situations an accused may admit to the
  crime but has a defence to excuse or justify his
  or her actions.
• The accused can either be acquitted or found
  guilty of a less serious offence.
• The following slides present some of the defences
  an accused can use.

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Mental Disorder

• Defined in the criminal code as a disease of the
  mind, it was formally referred to as the
  insanity defence.
• Goes to mens rea, that is, the accused is unable
  to form the elements of the guilty mind.
• The onus is on the defence to prove, on the
  balance of probabilities, that the accused
  suffered from a mental disorder and fulfilled one
  of these two requirements
• The accused is incapable of appreciating the
  nature and quality of the act.
• The accused is incapable of knowing that the act
  or omission was wrong.

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• If the accused is not criminally responsible the
  judge can make an order, with three choices
  available an absolute discharge, a conditional
  discharge or a term in a psychiatric hospital.
• The judge may also refer the case to the Criminal
  code review board, who would hold a hearing to
  decide the course of action for the accused.
• The board has the same three choices as the
  judge, with one key difference. If they send the
  accused to a psychiatric hospital, it will be for
  an indefinite period of time, with regular
  reviews.
• If the board is convinced that the accused has
  been cured, they can order a release. That is why
  this defence is only used in serious cases,
  because the time spent in a mental hospital could
  be longer than a jail term.
• An accused is unfit to stand trial if they are
  unable to understand the nature of the trial
  proceedings, the consequences of the proceedings
  or are unable to give adequate instructions to
  counsel.

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Automatism

• This is a condition in which a person acts
  without being aware of what he or she is doing.
• It negates the Actus Reus of a crime because the
  person acts involuntarily.
• Automatism can be the result of sleepwalking,
  medication, a concussion, a brain tumor or
  involuntary ingestion of drugs.
• The law recognizes two types of automatism
  insane automatism, a form caused by a mental
  disorder, resulting in an accused being not
  criminally responsible, and non-insane
  automatism, a form caused by a external factor.
  Here the accused would be acquitted.

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Kenneth James Parks

• In 1987, Kenneth James Parks got into his car,
  drove to the home of his wife's parents and
  brutally attacked the couple, killing his
  mother-in-law with a tire iron and severely
  injuring his father-in-law. He then got back in
  his car and drove to the nearest police station
  to confess his crime. He claimed he had been
  asleep throughout the entire incident. Possible?
  Could a man not only commit murder, but drive his
  car -- twice -- while asleep?
• He was acquitted of first and second degree
  murder by a jury, using the defence of non-insane
  automatism.

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Intoxication

• Intoxication is the condition of being
  overpowered by drugs or alcohol to the point of
  losing self-control.
• It is not generally a defence to a crime but the
  exception is a crime of specific intent. For
  example, a person may be too intoxicated for the
  specific intent of murder, but would still be
  guilty of manslaughter, a general intent offence.
• Another exception might be someone so intoxicated
  that it amounts to a mental disorder. However,
  this defence is rarely used and cannot be used in
  cases of assault or sexual assault.
• This defence can never be used for drinking and
  driving.

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Self-Defence

• Self-defence is the use of reasonable force to
  defend against an attack, provided the attack was
  unprovoked and the force used was no more than is
  necessary to defend yourself.
• If you kill someone while defending yourself, it
  is justified only if you reasonably feared that
  you would be killed or seriously harmed.

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Battered Woman Syndrome

• A type of self-defence where the prolonged
  effects of spousal abuse led to the abusive
  spouse being killed by the victim.
• The Supreme Court of Canada found that the jury
  should be instructed in such cases on three
  elements.
• Why an abused woman might stay in an abusive
  relationship
• The nature and extent of the violence that may
  exist in the battering relationship
• The defendants ability to perceive danger from
  her abuser
• The syndrome is not a defence in itself. It is a
  psychiatric explanation for the state of mind of
  an abused woman, which can therefore be used to
  justify self-defence.

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Defence of a Dwelling

• This is the extension of self-defence to a
  dwelling house. A dwelling house is any building
  or other structure that is occupied on a
  permanent or temporary basis.
• A person is allowed to defend his or her dwelling
  from unlawful entry and to remove a trespasser if
  he or she has entered.
• The force used must be reasonable under the
  circumstances.

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Necessity

• Necessity is a defence used when the accused had
  no reasonable alternative to committing an
  illegal act.
• For this defence 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
• The harm inflicted must be less than the harm
  avoided.

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Compulsion or Duress

• An accused may be excused from committing an
  offence if it was done under compulsion or
  duress, that is, the accused person is forced by
  the threat of violence to commit a criminal act
  against his or her will.
• It is not a defence in violent crimes!

13
Provocation

• Any act or insult that causes a reasonable person
  to lose self-control.
• This defence only applies to murder. To be
  successfully used, the defence must prove all
  four of these elements.
• 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
  passion to cool.
• It is used to reduce murder to manslaughter. (R
  vs. Stone)

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Mistakes of Law and Fact

• A mistake of law is simply ignorance of the law
  and generally can not be used as a defence.
• The one exception is officially induced error, a
  defence that the accused relied on erroneous
  legal advice from an official responsible for
  enforcing a particular law.
• A mistake of fact is a defence that the accused
  made an honest mistake that led to the breaking
  of the law. The accused would not have the mens
  rea or guilty mind.

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Double Jeopardy

• The legal doctrine that an accused person cannot
  be tried twice for the same offence.
• Holds true, whether the accused has been
  convicted or acquitted.
• The only exception is if the Crown appeals based
  on a mistake of law, and the appeals court orders
  a new trial or change in sentence.

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Alibi

• A defence raised by the accused claiming that he
  or she was somewhere else when the offence was
  committed.
• The burden is on the crown, not the accused! If
  the crown cant prove that the accused was there
  when the offence was committed, then the accused
  must be acquitted.

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Entrapment

• A defence against police conduct that illegally
  induces the defendant to commit a criminal act.
• The burden is on the accused to prove entrapment.
  Usually the result of police undercover work. The
  police can present an opportunity to commit a
  crime but cannot harass, bribe or induce a person
  to break the law.
• If the judge agrees to this defence, the judge
  will stay the proceedings or stop the trial.