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Criminal Defences
Right to a Defence
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In a criminal case, the Crown must prove
beyond a reasonable doubt that the accused
had the actus reus and mens rea to commit a
crime.
In response, the accused has a basic legal
right to present a90defence.
There are 3 main arguments that an accused
may use in his or her defence:
1. Deny committing the act; disputing the actus reus
2. Argue they lacked the intent; disputing the mens rea
3. Attempt to justify why they committed the act
Common Defences
• There are several different legal defences that
are available to a criminally accused person.
• Some of the most common ones are:
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Alibi
Automatism
Intoxication
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Self-defence
Battered woman syndrome
Necessity & duress
Mistake of fact
Entrapment
Double jeopardy
Provocation
The Alibi Defence
Definition: arguing that the accused was not at the
scene of the crime when it took place and
therefore could not have committed the crime.
• A complete alibi must include three
components:
90accused claiming they were not
1. A statement by the
present at the crime scene when the crime was
committed.
2. An explanation of where they were.
3. Names of any witnesses who can confirm the alibi.
Alibis – Strengths & Weaknesses
Strengths:
• In order for an alibi to be considered strong, all three
components must exist.
• If a full and reliable alibi can be presented, this is the
strongest defence an accused person can use and it will
likely lead to an acquittal.
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Weaknesses:
• Alibis generally become weak when there are no
witnesses to verify the claims made by the accused.
• If one or more of the three basic components is missing, it
becomes easier for the Crown to raise doubts about the
alibi's credibility.
Automatism
Definition: an involuntary action by a person who
cannot control his or her actions and who is in a
state of impaired consciousness.
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Automatism can be divided into two types:
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– insane and non-insane
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Various factors can influence “automatistic”
behaviour, from sleepwalking, the
consumption of drugs and alcohol, to a
disease of the mind.
Insane Automatism
• This type of automatism is linked to a
disease of the mind.
• If it can be proven that an accused
person suffered from a mental disorder
and as a result was incapable of knowing
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that what he or she
was doing was
wrong, the accused may be declared not
criminally responsible (NCR).
Example: a person with paranoid schizophrenia
murders someone he or she (wrongly) believes is a
threat. Due to this person’s mental condition, he or
she cannot truly appreciate that his or her action was
wrong and can be found NCR; he or she may be
referred for treatment instead of prison.
Not Criminally Responsible (NCR)
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The NCR defence may be raised by the
Crown or defence, but whoever raises it must
prove it in court.
Before an NCR case can be brought to court,
the accused must be deemed fit to stand trial.
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A “fitness hearing”
1. Does the accused understand the nature of the
proceedings? In other words, does the accused
understand that he or she is on trial?
2. Does the accused understand the possible
consequences of a trial? (prison, psychiatric care)
3. Is the accused able to communicate with his or her
lawyers?
NCR cont’d…
• If an accused person is deemed “unfit” to stand
trial, he or she may be sent back to prison, or
more likely a psychiatric facility until he or she is
deemed fit for trial.
• If a trial proceeds and the accused is declared
NCR for the crime,90a provincial review board
decides on the sentence.
• If the review board decides the accused is no
longer a threat to the public, he or she may be
discharged back into society.
• If the accused is still considered a threat, he or
she is referred for treatment and the case is
reviewed annually.
Non-Insane Automatism
• This type of Automatism is often referred to as
“temporary insanity.”
• An accused person who uses this defence argues that he
or she committed a crime while in a temporary state of
impaired consciousness.
• Canadian courts have recognized that a person may enter
such an impaired state90as the result of any of the following:
a physical blow, sleepwalking, consuming drugs, a stroke,
severe psychological trauma, and other physical ailments
(e.g. hypoglycemia).
• Example: While sleepwalking, a man murders his wife.
After he wakes up, he has no recollection of doing so.
Even though he was walking and blinking, he was not
aware of what he was doing when he committed the
murder.
Intoxication
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Definition: the accused demonstrates that he or she
did not have a guilty mind at the time of the crime because
he or she was intoxicated (most commonly drugs and/or
alcohol).
Intoxication may be used as a partial defence.
Generally, an intoxicated person cannot form specific
90 guilty of a general intent offence.
intent but may be found
If successful, this defence can lower a conviction or
reduce a criminal sentence.
Example: If an intoxicated person severely assaults
someone, he or she avoids being charged with aggravated
assault because he or she did not endanger the person’s
life knowingly (specific intent), but the accused may still be
convicted of a lesser assault charge (general intent).
The Carter Defence
Definition: More formally known as evidence to
the contrary, this defence aimed to dispute the
evidence put forth by the Crown in drinking and
driving cases.
• In 1985, a breathalyzer test appeared to
malfunction while recording
Carter’s blood90
alcohol content. Carter presented evidence that
he only had two beers to drink that night, which
should not have put him over the legal limit.
• An amendment to the Criminal Code in 2008 no
longer allows breathalyzer results to be
questioned, thereby overruling the Carter
defence.
Self-Defence
Definition: the legal use of reasonable force in
order to defend yourself and your property.
• The Criminal Code allows people to use force if
they have to defend themselves, but the amount
of force should not be excessive; no more than
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necessary.
• The use or exchange of force must be
reasonable.
Example: A person being attacked with a
weapon may use a weapon to defend him- or
herself.
Battered Woman Syndrome
Definition: a psychological condition caused by
severe and usually prolonged domestic violence.
• The Supreme Court first recognized this defence
in the precedent-setting case R. v. Lavalee,
1990, as an extension of self-defence.
90 between battered woman
• The main difference
syndrome (BWS) and the traditional definition
of self-defence is the issue of imminent danger.
• In a typical self-defence case, the danger is
immediate.
• With BWS, the danger may not be immediate
but instead is constant.
R. v. Lavallee
• This case established the BWS defence in
Canada.
• Angelique Lavallee was in an abusive
relationship. One night she shot her partner in
the back of the head as he was leaving a room.
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• She testified that he
back and kill her later that evening. She
believed him and was also able to prove that he
had physically abused her for many years.
• The Supreme Court found that it was
reasonable for Lavallee to use lethal force in
this situation, even though her partner was
leaving the room.
Necessity
Definition: accused persons claim they were
forced to commit a criminal act because they
were in danger themselves.
• The Supreme Court has ruled that this defence
may only be used in situations where there
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appears to be “imminent
risk.”
• Example: A man speeds to get his wife to a
hospital because she is in labour. If he is pulled
over by a police officer for dangerous driving, he
can try to argue that he is speeding out of
necessity.
Duress
Definition: when someone is threatened or
coerced to do something against his or her will.
• Duress is similar to the necessity defence; in
both defences the accused claims to have been
forced to commit a crime as the result of being in
imminent danger. 90
• The main difference is that with duress the
accused is forced to act as the result of a threat.
Example: Doug shoots someone and tells Eric
that he must help him dump the body. When Eric
refuses, Doug points his gun at him, which
compels Eric to cooperate.
Mistake of Fact
Definition: this defence shows a lack of mens rea
due to an honest mistake.
• Ignorance of the law, or not knowing a
particular offence was illegal, is not a valid
defence.
• Ignorance of the facts,
or not understanding all
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of the details of a situation, can be used as a
defence.
Example: Someone receives counterfeit money
as change. Unknowingly, he or she attempts to
use the fake money somewhere else and is
caught. The accused knows that counterfeit
money is illegal, but truly did not know he or she
possessed fake money.
Entrapment
Definition: police action induces a person to
commit a crime.
• If a police officer coerces or forces a person to
commit a crime, the officer is guilty of
entrapment.
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prove the police led him or
her to participate in a crime, the court can
dismiss the charges immediately.
Example: Jimmy is continually harassed by an
undercover police officer to purchase illegal drugs.
If Jimmy can convince the court that he would
not have purchased drugs without the undercover
officer's forceful encouragement, he can claim the officer
“entrapped” him.
Double Jeopardy
Defence: being tried twice for the same offence,
which is generally not allowed in Canada.
• Section 11 of the Charter states that anyone
charged with or acquitted of an offence cannot
be tried for it again.
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• This defence is usually
presented as a pretrial motion:
1. Autrefois acquit – accused claims he or she was
already acquitted (found not guilty) of the charge(s)
2. Autrefois convict – accused claims he or she was
already convicted (found guilty) of the charge(s)
Provocation
Definition: a person is “provoked” to lose their selfControl, and as a result commits a crime.
• Provocation can be used as a partial defence to
justify the accused’s actions.
Example: Andy is at a bar with his wife one night
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when another man insults his wife. Andy then
assaults the man in a rage and causes significant
bodily harm. Andy can use provocation as a
defence and claim that if the man had not insulted
his wife, he in turn would not have committed an
assault that evening.