Defences work

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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.