DEFENCES

Types of defences: JUSTIFICATIONS Self-defence

- Criminal Code allows one to defend oneself, those under one’s protection, and one’s property

Requirements:- necessary and reasonable force- in cases of assault: must fear death or

bodily harm - no other alternative to stop harm or death-(can provoke the assault)

Battered Woman Syndrome – the effects of prolonged spousal abuse

Not a defence, but a psychiatric explanation of an abused woman’s state of mind that can be used to help the justification of self-defence

( jury must consider: why an abuse woman might remain in relationship, natture and extent of violence, ability to perceive danger from abuser)

Defence of a Dwelling – rules for self-defence extended to “dwelling” house

Person is allowed to defend his or her dwelling from unlawful entry or to remove a trespasser – reasonable and necessary force

Necessity – defence stating that the accused had no reasonable alternative to committing an illegal act

Requirements:- Accused must show that act was done to avoid

a greater harm- No reasonable opportunity for an alternative

course of action- Harm inflicted must be less than harm avoided

Compulsion or Duress – a defence in which the accused person is forced by the threat of violence to commit a criminal act against his or her will

Compulsion is not a defence in violent crimes such as murder, sexual assault, robbery

Requirements for compulsion: ( declared unconstitutional- see R.v. Ruzic p.261)– Threatener has to be physically present– Threat has to be immediate

Provocation – any action or words that may cause a person to lose self control

Used to reduce a murder charge to manslaughter

1. A wrongful act or insult occurred

2. Act/insult must be of a nature to cause loss of self-control ( for an ordinary person)

3. Person responds immediately after provocation

( before time for passion to cool)

Aboriginal or Treaty Rights Agoriginals may argue that they have

Treaty right to act in way that would be illegal for others

Eg. hunting and fishing rights S 35 of Constitution Act

MENTAL STATES

Mental Disorder – “disease of the mind’ Defence must show accused most likely

suffers from mental disorder Requirements:

– Could not understand the nature and quality of the act

– Incapable of knowing that the act or omission was wrong

Not criminally responsible on account of mental disorder ( not able to form the mens rea)

Judge or Criminal Code Review board may discharge or order time in Psychiatric unit

Accused person must also be mentally fit at time of trial

Automatism – a person acts without being aware of what he or she is doing (unconscious, involuntary behaviour )

Insane automatism ( caused by mental disorder) Non-insane automatism (caused by an external factor such

as sleepwalking, effects of prescribed drugs)

Example R. v Parks (1992)

Intoxication: the condition of being overpowered by alcohol or drugs to the point of losing self-control

Generally not a defence to crimes Exceptions: Intox. may be a defence to crimes of specific

intent, but not general intent If a person’s intox. is so extreme it almost

amounts to a mental disorder ( but not for offences that interfered with the “bodily integrity” of others( assault, sexual assault)

OTHER DEFENCES

Alibi- a defence that places the accused in a different place than the scene of the crime

Entrapment – inducing a person into commiting an offence

Not a defence, but abuse of process Judge will stay the proceedings

Double Jeopardy- cannot be tried for the same crime twice

If current charge is founded on same facts as the previous charge.

Mistake of Fact