Defences
Legal Defences
BY TH END OF THIS LESSON
“I WILL BE ABLE TO IDENTIFY LEGALLY
ACCEPTED DEFENCES IN THE CRIMINAL
CODE”
Criminal Defences
● A right to a criminal defense is one of our
fundamental rights
● The Criminal Code defines some defenses
available
Mistake of Fact
Depends on the accused not having mens
rea (guilty mind)
A mistake of fact defense assumes that the
mistake was honest and reasonable
Example:
Serving alcohol to a minor who provided fake
ID
Acid Test: Would the person have not
committed the offence if they had known the
true fact
●
Mistake Of Fact
●
●
Mistake of age (Consent)
150 (4) It is not a defence to a charge under
section 151 or 152, subsection 160(3) or
173(2), or section 271, 272 or 273 that the
accused believed that the complainant was
fourteen years of age or more at the time the
offence is alleged to have been committed
unless the accused took all reasonable steps
to ascertain the age of the complainant.
Mistake of Law
● A defence based on a claim that one
committed the offence because they did not
know that their action was against the law.
This is an exception to Section 19 of the
Criminal Code (Ignorance of the law is not
an excuse).
Colour of Right: An honestly held belief in
entitlement to property. (Generally a defence to
a charge of theft.)
Entering a family property without knowing that
it had been sold to another family.
Intoxication
●
It can be argued logically that a person who committed
a crime while intoxicated from alcohol or drugs may not
have been able to form mens rea.
● It is difficult to accept that an accused who commits a
crime while intoxicated is morally innocent
● Courts have attempted to limit defense of intoxication by
classifying crimes into general or specific intent
(General intent- requires that accused intended to commit a
crime, but the prosecution need not prove the accused
intended all the harm that resulted from an act
Specific intent- means that having a deliberate aim to
commit a particular offense)
Mental Disorder
Laws dealing with mental disorder are derived from M’Naghten’s
laws
●
1843- M’Naghten found not guilty by reason of insanity of the
Secretary to the British Prime Minister
House of Lords established the insanity defense arguing an
accused could be found not guilty “by reason of insanity” if it was
clearly proved
“at the time of committing the act that the party accused
was labouring under such a defect of reason, from disease of the
mind, as not to know the nature and quality of the act he was
doing”
Incorporated into Canada’s own criminal code in Section 16 (1)
and amended in 1992 and renamed “mental disorder defense”
Verdict of “not guilty by reason of insanity” changed to “not
criminally responsible by reason of mental disorder
'Shania Twain' defence works in drunk driver's favour
Last Updated Tue, 28 Mar 2006 08:47:03 EST
CBC News
One of the most notorious drunk drivers in the Ottawa area has been found not
criminally responsible on his latest impaired driving charges because of a mental
disorder that makes him believe female celebrities are controlling his actions.
Matt Brownlee was arrested last October after police spotted a pickup truck speeding
along a busy street in downtown Ottawa.
The 33-year-old man told psychiatrists that he knew the legal repercussions of
his actions, but believed singer Shania Twain was helping him drive. Brownlee
pleaded not guilty to four charges, including impaired operation of a motor vehicle
and driving while disqualified. On Monday, the judge drew on several psychiatric
assessments in ruling that Brownlee was not criminally responsible for his actions
because he suffers from delusions that celebrities such as twain are
communicating with him telepathically.
Ten years ago, Brownlee was given a seven-year prison sentence and banned from driving for the rest of his life
after he killed an Ottawa woman, Linda Lebreton-Holmes, and her 12-year-old son while driving with a blood alcohol
level three times the legal limit. Earlier in March, a psychiatrist told the court that Brownlee suffers from psychosis and
mood
disorders resulting from a brain injury caused by the 1996 car crash.
Brownlee has been undergoing a series of assessments at the Brockville Psychiatric Hospital since last fall.
Another
assessment of how much risk he poses to the community could see Brownlee being detained in hospital, released
under
supervision in the community, or given an absolute discharge.
"Father showed no signs of mental disorder"
Last Updated: Sep 19 2003 07:36 AM
PDT CAMPBELL RIVER, B.C. - The family doctor who treated a Quatsino man says he was
distressed but not psychotic, after he killed his six children last March.
That's contrary to Jay Handel's defence. The 46-year-old dad says he is not guilty of six counts of
murder because he was mentally ill.
The Crown is trying to prove the killings were an act of revenge, while the defence lawyer maintains
client is legally insane.
Dr. Marlene Smith was the Handel family physician. She delivered several of the children – and she
took care of both Jay Handel and his estranged wife Sonya right after the killings. Dr. Smith testified
she received a letter from Jay Handel that he'd written just hours after he killed his three boys and
three girls – who ranged in age from two to 11. In it, Handel tells her the children died peacefully.
Smith followed up with a phone call to Handel who was in a psychiatric ward at the time. "I asked him
what he did to the children," she says. "He told me he gave them codeine. I said that wouldn't have
killed them. And he replied that it didn't matter what he'd done. They're dead now."
Smith also asked him why he killed his children. She says he told her Sonya wanted to be alone, and
now she was. She said he became distressed only after she told him that Sonya's estranged family
had rallied around her in the aftermath of the deaths, and that they were planning a memorial. Smith
said she believed Handel was upset because he thought he should be at the service, and that he
didn't intend for Sonya's family to come together over the tragedy.
Automatism
Refers to the state in which a person has no conscious
control over his or her actions
Applies to persons who commit criminal acts but who
cannot be found criminally responsible because they were
mentally impaired when defense took place
● Hypnotic state
● Sleepwalking
● Brain tumour
● Epilepsy
● Blow to the head
● Severe psychological shock
Delay in Lees decision
Last Updated Fri, 28 May 1999 16:59:39 EDT CBC News
Delay in Lees decision Last Updated Fri, 28 May 1999 16:59:39 EDT CBC News
VANCOUVER - A ruling by Canada's Supreme Court has caused a delay in the case against Victoria
realtor Patrick Lees. A judge was to rule on the second-degree murder case today but she now says
that a ruling by Canada's top court this week means she wants to re-consider her decision.
Patrick Lees had pleaded not guilty to the murder of his wife Laurie. She was found strangled in her
Saanich home in January 1998. One of the key arguments in Lees defense was that he was in a state
of automatism when attacking his wife. He said his wife had threatened to accuse him of molesting
their daughter if he did not give her what she wanted in a divorce.
Lees's lawyer argued that his clients body and mind were somehow disconnected at the time of the
attack and the slaying was involuntary.
The circumstances are similar to the case of Bert Stone. He's a B.C. man who also used the
automatism defense in the stabbing death of his wife. His lawyer had argued Stone entered the
disassociated state after his wife had berated him.
Earlier this week the Supreme Court of Canada upheld Stone's seven-year sentence. The court said
there needed to be more evidence of the disassociated state before it could be considered a defense.
Now the B.C. Supreme Court will hear more arguments on the Lees case in light of the Stone ruling.
The case will be back in court next Tuesday.
Copyright ©2005 Canadian Broadcasting Corporation - All Rights Reserved
Patrick Lees found guilty
Last Updated Tue, 01 Jun 1999 20:52:56 EDT CBC News
Last Updated Tue, 01 Jun 1999 20:52:56 EDT CBC News
VANCOUVER - There were tears of joy in a Victoria courtroom today as Patrick
Lees was found guilty of murdering his wife, Laurie. The well known realtor
from Saanich was sentenced to life in prison with no chance of parole for 10
years.
In finding Lees guilty of second degree murder, Madam Justice Geena Keeano
referred to last week's ruling by the Supreme Court of Canada on the so-called
"automatism defense." Lees had argued he was provoked into killing his wife
after she threatened to accuse him of molesting their four-year-old daughter.
Lees said he couldn't remember strangling her with his belt. He testified his
mind didn't know what his body was doing.
The judge said Lees failed to meet the new rigid guidelines for the automatism
defense, established by the high court. Laurie's mother, Barb, says a huge
burden has been lifted from her family. With the trial over, Laurie Lee's family
will begin to focus on raising her two children, a five year old girl and a three
year old boy, who've already been told their mother was murdered and now,
that their father will spend at least the next ten years in jail for killing her.
Copyright ©2005 Canadian Broadcasting Corporation - All Rights Reserved
Self Defence
Self defense does not argue a lack of criminal
intent. It argues a justification for the criminal
act
and alleges that actions are justified on the
grounds that people have a right to defend
themselves
Elements of self defense
● Accused believed he/she was to be harmed
● Accused used only enough force required to
avoid threatened harm
Provocation
Partial defence that reduces the crime of
murder to manslaughter providing the accused
can show he/she was provoked into killing.
Entrapment
Defense of entrapment is used to show that
the accused was set up or trapped by lawful
authorities into doing something they would not
otherwise have done.
Necessity
● Crime committed as a necessity
● Necessity could only be used as an excuse
in the face of immediate and urgent
circumstances.
http://www.cbc.ca/news/canada/nova-scotia/amherst-area-drunk-driveracquitted-on-necessity-defence-1.2449241
Duress
● Defence makes the argument that an
accused was forced to commit a criminal act
under the “threat of personal injury or death”
● Defense is excluded if crime causes serious
harm such as murder, abduction, or assault
with a weapon.
Battered Woman (Spouse)
Syndrome
Based on judicial decisions, many defences are
found in case law. R v. Lavallee (1990)
established the battered spouse syndrome to
be accepted as reasons for why someone is
not legally responsible for actions. In the case
referenced Lavallee truly believed her husband
was going to kill her, so she shot him first.
Evidence was brought into trial to support her
claims of serious domestic abuse prior to the
event in question. It was decided her defence
of her person with deadly force was