Standard DefencesCriminal Trials

Mental Disorder

• not be held criminally responsible for breaking the law, as he or she was mentally ill at the time of their allegedly "criminal" actions.

• the defence MUST show that:• the person who committed the act was

suffering from a "disease of the mind”• they were either 1) unable to appreciate

the "nature and quality" of the act, or 2) did not know it was "wrong".

Mental Disorder

• Does this apply to the ACTUS REUS or MENS REA??

• the MENS REA!

• Admitting actus reus, but ….refuting the mens rea…the defendant lacked the MENS REA !

• Pages 251-252

Mental Disorder• HOW do you show it? • (experts – doctors, psychiatrists, psychologists,

behaviourist etc..)

• What happens if the judge accepts this as a defence, now what happens to the defendant? JUDGE decides:

• a. absolute discharge – free to go…???? Why??• (not a threat to society)• b. Conditional discharged – released with

certain conditions • c. Psychiatric hospital – 90 day assessment,

then reviewed• d. Provincial Criminal Review Board – same

options as a judge. BUT can order a psychiatric hospital can be ordered for an indefinite period of time with periodic reviews.

Mental Disorder

• must show on a balance of probabilities

• This standard is met if the proposition is more likely to be true than not true.

• Effectively, the standard is satisfied if there is greater than 50% chance that the proposition is true.

• Pages 251 - 252

Automatism

• The term " describes an unconscious, involuntary behaviour.

• Unaware!!• accused should be excused from liability

because these consequences resulted from movements that were not within the defendant's control

• Ie. Sleepwalker, epileptic seizures, concussion, wrong-side effects of medications.

• For example, some incidents of hypoglycaemia may cause erratic and uncontrolled movements for which the person would not be responsible.

• Pages 255 - 256

Automatism

• Does this apply to the ACTUS REUS or MENS REA??

• Negates the Actus Reus ! WHY?

• ACTUS REUS is supposed to be VOLUNTARY !

• Again the defence has the burden of proof!

Necessity

• committing a crime in an emergency situation to save yourself or someone else.

• the defendant must provide evidence that :– the act was done to avoid a greater harm;– had no reasonable legal alternative to the

course of action he or she undertook – the harm inflicted by the accused must

be proportional to the harm avoided by the accused.

Pages 259 - 260

Necessity

• Does this apply to the ACTUS REUS or MENS REA??

• challenges the MENS REA required for a specific offence !

Battered woman defence

• Used by a person accused of an assault or murder.

• constant and severe domestic violence usually involving physical abuse by a partner

• becomes depressed and unable to escape the abuse.

• More of a justification for “self-defence.”

• Pages 258-259

Battered woman defence

• Does this apply to the ACTUS REUS or MENS REA??

• the MENS REA!

• The defendant lacked the MENS REA !

Self Defence

• Defend against an unprovoked assault

• Using reasonable force!• the degree of violence used is

comparable or proportionate to the threat faced.

• Page 258.

Self Defence - Section 34:

• “Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.”

Duress

• Also referred to as compulsion.• the actions that broke the law were

only performed out of an immediate fear of injury.– Threat must be of serious bodily harm or

death – Threatener MUST be present when the

offence is committed.– Threat must be immediate and

inescapable

• Pages 261-262

Duress

• Does this apply to the ACTUS REUS or MENS REA??

• Negates the Actus Reus ! WHY?

• ACTUS REUS is supposed to be VOLUNTARY !

Provocation

• a sudden or temporary loss of control as a response to another's provocative conduct.

• generally the result of some conduct witnessed or experienced by the defendant.

• Page 262

Mistake of law and fact

• Mistake of LAW• "ignorance of the law is no

excuse".!• is not a recognized defense…• However in rare instances it may

be…• Called officially induced error…• READ page 266 para. 2 (example)

Mistake of law and fact

• Mistake of FACT• sometimes allowed as valid

defence.• the defendant may honestly believe

in a set of facts that lead him or her into breaking the law.

• READ page 266 para. 3 (example)

Mistake of law and fact – Another Example

• If a defendant goes into a supermarket and places eight items in a basket which is presented to the cashier for payment in the usual way.

• Both honestly believe that all eight items have been scanned, and the defendant pays the sum shown on the bill.

• A store detective, however, notices that a mistake was made by the cashier so that only seven items were actually priced.

• This detective arrests the defendant after leaving the store. Since the defendant honestly believes that he has become the owner of goods in a sale transaction, he cannot form the mens rea for theft (which is usually dishonesty) when he physically removes them from the store.

Defence of a dwelling

• Dwelling is any building or structure in which is occupied by a person.

• A person can use as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house.

• Page 259