Friday, April 26thFriday, April 26th

1.1. AnnouncementsAnnouncements

2.2. Current Events: Vincent LiCurrent Events: Vincent Li

3.3. Defenses NoteDefenses Note

4.4. Mock Trial Work PeriodMock Trial Work Period

Criminal DefencesCriminal Defences

CLU3MCLU3M

Vince Li not criminally responsible for beheading

DefencesDefences Every person is entitled to present a Every person is entitled to present a

defence at trialdefence at trial A defence may be defined A defence may be defined broadlybroadly as any as any

denial or answer to the charge against the denial or answer to the charge against the accused personaccused person

If the Crown's case is very weak, a defence If the Crown's case is very weak, a defence lawyer may choose not to present any lawyer may choose not to present any evidenceevidence

To convict, the Crown must prove the facts To convict, the Crown must prove the facts and the required state of mindand the required state of mind

In a more In a more narrow sensenarrow sense, a defence may , a defence may be defined as a legally recognised excuse be defined as a legally recognised excuse or justification for criminal conductor justification for criminal conduct

AlibiAlibi

When an accused person claims that When an accused person claims that he or she was not present at the time he or she was not present at the time of the offence. of the offence.

Independent evidence supporting Independent evidence supporting this claim strengthens an alibi this claim strengthens an alibi defence.defence.

Self-DefenceSelf-Defence

The right to defend oneself of one's family The right to defend oneself of one's family from death or serious injuryfrom death or serious injury

A person must not have provoked the A person must not have provoked the assaultassault

Reasonable ForceReasonable Force: A person who is : A person who is attacked may use only the amount of force attacked may use only the amount of force necessary to defend against the attack.necessary to defend against the attack.

Has been extended to include "battered Has been extended to include "battered woman syndrome", such as in woman syndrome", such as in R. v. R. v. LavalleeLavallee [1990]. (page 48) [1990]. (page 48)

Defence of PropertyDefence of Property

Similar to self-defenceSimilar to self-defence A person may use reasonable force A person may use reasonable force

to prevent someone from entering to prevent someone from entering his or her home or coming onto that his or her home or coming onto that person's propertyperson's property

No excessive forceNo excessive force Does not justify shooting, stabbing, Does not justify shooting, stabbing,

or setting traps that would injure a or setting traps that would injure a trespassertrespasser

ProvocationProvocation

Something that causes another Something that causes another person to lose his or her self-controlperson to lose his or her self-control

Can be an act or an insultCan be an act or an insult Can reduce a charge to Can reduce a charge to

manslaughter - only time a person manslaughter - only time a person may use provocation as a defencemay use provocation as a defence

Duress (or Compulsion)Duress (or Compulsion)

A person who commits an offence A person who commits an offence because he or she was threatened because he or she was threatened with immediate death or serious with immediate death or serious injuryinjury

Not a defence to violent crimes such Not a defence to violent crimes such as sexual assault, aggravated as sexual assault, aggravated assault, or murderassault, or murder

NecessityNecessity

A person who does an illegal act to A person who does an illegal act to prevent a more serious result may prevent a more serious result may raise the defence of necessityraise the defence of necessity

There are several conditions:There are several conditions: The accused must show that the act was The accused must show that the act was

done to avoid a greater evildone to avoid a greater evil There must have been no alternativeThere must have been no alternative The illegal act must not have been more The illegal act must not have been more

than necessary to avoid the evilthan necessary to avoid the evil

AutomatismAutomatism

Criminal behaviour Criminal behaviour mustmust be be voluntaryvoluntary

Crimes committed in an unconscious Crimes committed in an unconscious state are rare, however require an state are rare, however require an acquittal if proven, ex. sleepwalking, acquittal if proven, ex. sleepwalking, epileptic seizure, blow to the head...epileptic seizure, blow to the head...

Precedent is Precedent is R. v. Parks R. v. Parks [1992][1992]

Mistake of FactMistake of Fact

A person whose behaviour would A person whose behaviour would otherwise be criminal may have a otherwise be criminal may have a defence if he or she made a mistake defence if he or she made a mistake about the facts, not the lawabout the facts, not the law

Must be an honest mistakeMust be an honest mistake Mistake of fact, when it occurs, Mistake of fact, when it occurs,

cancels any "Criminal State of Mind"cancels any "Criminal State of Mind" Can not be used as a defence to Can not be used as a defence to

absolute liability offencesabsolute liability offences

Mistake of LawMistake of Law

Ignorance of the law is no excuse; Ignorance of the law is no excuse; not knowing that something is a not knowing that something is a criminal offence does not mean it is criminal offence does not mean it is all right to commit the offenceall right to commit the offence

ButBut, when an accused person can , when an accused person can show that a government official show that a government official misled him or her about the law, an misled him or her about the law, an exception called "Officially induced exception called "Officially induced error" applieserror" applies

Mental DisordersMental Disorders

Formerly known as "Defence of Insanity"Formerly known as "Defence of Insanity" An accused that suffered from a mental An accused that suffered from a mental

disorder disorder at the timeat the time of the offence may of the offence may not be criminally responsible.not be criminally responsible.

Law assumes all persons are sane - Law assumes all persons are sane - burden of proof of mental illness falls to burden of proof of mental illness falls to the defencethe defence

The person must not have known what The person must not have known what he or she did, or that it was wronghe or she did, or that it was wrong

Mental DisordersMental Disorders The judge may order an assessment of the The judge may order an assessment of the

accused person's mental condition. The accused person's mental condition. The assessment may be done:assessment may be done: To see whether the accused person if fit to stand trial.To see whether the accused person if fit to stand trial. To see whether the accused person was suffering from a To see whether the accused person was suffering from a

mental disorder at the time the offence was committedmental disorder at the time the offence was committed Several other reasonsSeveral other reasons

The psychiatrist or other medical practitioner The psychiatrist or other medical practitioner assesses the person and reports back to the assesses the person and reports back to the judge, the defence lawyer, and the crown judge, the defence lawyer, and the crown prosecutorprosecutor

Mental DisordersMental Disorders

If an accused is found not guilty by mental If an accused is found not guilty by mental disorder, the judge has a choice: make an disorder, the judge has a choice: make an order concerning the person or refer the order concerning the person or refer the case to a review board.case to a review board.

If the judge makes an order, there are If the judge makes an order, there are three choices available:three choices available: An absolute dischargeAn absolute discharge Done if the mentally ill person is not a threat to Done if the mentally ill person is not a threat to

the public.the public. A conditional dischargeA conditional discharge A term in a psychiatric hospitalA term in a psychiatric hospital

Mental DisordersMental Disorders

When the judge orders that the person be When the judge orders that the person be kept in a psychiatric hospital, the judge's kept in a psychiatric hospital, the judge's order last for a MAXIMUM of 90 days. After order last for a MAXIMUM of 90 days. After that, the review board reviews the person's that, the review board reviews the person's case.case.

If the judge does not make an order and If the judge does not make an order and refers the case to the review board, the refers the case to the review board, the board has a hearing and makes a decision.board has a hearing and makes a decision.

The review board has the same three The review board has the same three choices as the judge: absolute discharge, choices as the judge: absolute discharge, conditional discharge, term in psychiatric conditional discharge, term in psychiatric hospital.hospital.

IntoxicationIntoxication Ordinarily, intoxication by alcohol or drugs Ordinarily, intoxication by alcohol or drugs

is no excuseis no excuse Ex: In criminal law, a person who gets drunk Ex: In criminal law, a person who gets drunk

and commits a criminal act is usually still and commits a criminal act is usually still responsible for his or her actions when drunkresponsible for his or her actions when drunk

Intoxication may be a defence for a narrow Intoxication may be a defence for a narrow range of offences, such as murder or theft; range of offences, such as murder or theft; these offences require the accused person these offences require the accused person to form a specific intent.to form a specific intent.

A A specific intent specific intent means the accused means the accused thinks about and intends a particular thinks about and intends a particular result, such as the intent to kill in murder result, such as the intent to kill in murder casescases

IntoxicationIntoxication A person may be so intoxicated that he/she was A person may be so intoxicated that he/she was

unable to form this intent to kill. In this example, unable to form this intent to kill. In this example, the accused person may not be convicted of the accused person may not be convicted of murder, but could be convicted of manslaughtermurder, but could be convicted of manslaughter

Long-term drunkenness or abuse of drugs may Long-term drunkenness or abuse of drugs may cause a person's health to deteriorate so that a cause a person's health to deteriorate so that a mental disorder results. In that case, the accused mental disorder results. In that case, the accused person may not be criminally responsible for person may not be criminally responsible for his/her actions and could use a defence of mental his/her actions and could use a defence of mental disorder.disorder.

See explanation of See explanation of R. v. DaviaultR. v. Daviault (1994) on page (1994) on page 333333

Entrapment and Abuse of ProcessEntrapment and Abuse of Process

The police may carry out undercover The police may carry out undercover activities to detect crimeactivities to detect crime

In doing so, they may legally present a In doing so, they may legally present a person with the opportunity to commit a person with the opportunity to commit a crime, but they may not harass, bribe, or crime, but they may not harass, bribe, or otherwise induce the person to break the otherwise induce the person to break the law.law.

Police conduct that induces criminal Police conduct that induces criminal behaviour is called "entrapment"behaviour is called "entrapment"

The accused person must prove entrapmentThe accused person must prove entrapment Precedent setting case is Precedent setting case is R. v. MackR. v. Mack [1988] [1988]