Defences work period

The right to a criminal defence is a fundamental right in our justice system. There are two general types of defences:

The right to a criminal defence is a fundamental right in our justice system. There are two general types of defences: 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 an affirmative defence, which is a defence that justifies or excuses an accuseds criminal conduct.

Mistake of Fact
R. v. Pappajohn

depends on the accused not having the mens rea or guilty mind the accused must show that the mistake was an honest one and that no offence would have been committed had the accused known the true facts. In R. v. Pappajohn the accused was acquitted of sexual assault when the Supreme Court of Canada determined that he had an honestly held (although incorrect) belief that his victim consented to his actions. This controversial decision resulted in amendments to the Criminal Code with respect to sexual assaults and the definition of the term consent.

Mistake of Law
R. v. MacLean

According to the Criminal Code ignorance of the law is not an excuse, but because of the enormity of the law, the defence of mistake of law is allowed in certain circumstances. For

example, if the accused relied on incorrect legal advice from a government official. This defence is rarely successful, as allowing an accused to simply say that he did not know of the existence of a law would make ignorance a valuable commodity. In R. v. MacLean the accused had lost his drivers 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 drivers 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.

Automatism
A condition in which the accused has no control over his actions, and which therefore negates the actus reus of the offence, as the guilty act must be voluntary. Non-insane automatism can be the result of medication, hypnotism, sleepwalking, brain tumour, epilepsy, or major traumatic/psychological event, and is a temporary condition Insane automatism is considered a mental disorder, therefore the accused will not be released into the community even if acquitted. In R. v. Parks the accused was acquitted of murder and attempted murder because he committed his crimes while he was sleepwalking.

Self-Defence
R. v. Lavallee

 Provides justification for reasonable use of force in some cases. Provides the right to defend oneself, property, and others. The accused must believe that he would be physically harmed and use only the force necessary to repel the attack. Using more force than necessary makes a person criminally responsible. Distinctions between using self-defence in provoked and unprovoked incidents. In R. v. Lavallee the accused killed her common-law husband. This action was the culmination of a severely abusive relationship. This case is important as it accepts battered womens syndrome not as a defence in itself, but as evidence to justify self-defence.

Compulsion / Duress
R. v. Ruzic

Section 17 of the Criminal Code states that the duress occurs when someone commits a criminal act under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed and believes that the threats will be carried out.

The common-law defence of duress excludes no offences and does not require that the person making the threats be present, or that the threats are made against the accused himself. There are certain offences for which the defence is unavailable, i.e. treason, murder, sexual assault, abduction, robbery, assault with a weapon, and arson, to list just a few offences.

In R. v. Ruzic the accused was acquitted on a charge of importing heroin, which she did after a person threatened to kill her mother who lived in a foreign country.

Intoxication
R. v. Daviault

 A person who commits a crime while intoxicated by alcohol or drugs may not be able to form the required criminal intent or mens rea. This is a controversial defence as the public, while accepting that behaviour is changed when intoxicated, does not excuse the individual for committing offences. To address this issue and clarify the defence, the law classifies crimes into two categories: those requiring general intent, i.e. accused intended to commit a crime with no other criminal purpose, e.g. assault; and those requiring specific intent i.e. the accused intended to commit a crime with deliberate aim to commit another particular criminal act, e.g. murder, theft, or robbery.

 In R. v. Daviault the accused was charged with sexual assault against a partially-paralyzed 65-year-old woman, after having consumed a bottle of brandy and several beers. The court acquitted the accused because there was a reasonable doubt that he could form the required intent because of his extreme intoxication, even though sexual assault is an offence that requires only general intent. Following this decision the Criminal Code was amended to deny this defence for all offences involving assault or interference with the bodily integrity of the victim.

Mental Disorder
R. v. Chaulk

According to s.16 of the Criminal Code the accused must be incapable of appreciating the

nature and quality of the act and incapable of knowing that it is wrong. An accused is presumed to be sane. The burden of proof lies with the defence to demonstrate that the accused is suffering from a mental disorder and is unable to appreciate the nature and quality of the act. The Crown is not allowed to introduce evidence that the accused suffers from a mental disorder unless actus reusand mens rea is already in evidence.

Focus on whether treatment is needed and whether the accuseds freedom needs to be restricted for public safety must be considered.

One who is found not guilty by reason of a mental disorder will be held in custody until the court or a review board determines that the accused is no longer a threat. The defence of mental disorder is generally only used in very serious offences as the time spent in custody can very often be longer than the custodial sentence would be in less serious offences.

 In R. v. Chaulk the court determined that the test for determining whether the defence of mental disorder could be used was whether the accused had the ability of knowing that his act was morally wrong rather than legally wrong. This test is not personal to the offender, that is, it is not a test as to whether something offends the morals of the accused, but whether the accused is capable of knowing that his act would offend the morals of society.