![R. v. Van der Peet (1996) The right must involve an activity that was a "practice, tradition, or custom [that] was a central and significant part of the [Aboriginal] society's distinctive nature The activity must have existed prior to contact with European settlers The activity, even if evolved into modern forms, must be one that continued to exist after 1982, when the Constitution Act was passed.](https://image.slidesharecdn.com/defencestocrime-120207135708-phpapp02/85/Defences-to-crime-33-320.jpg)
Defences to crime
- 1. DEFENCES TO CRIME WHAT IS A DEFENCE? Definition : a denial of, or a justification for, criminal behaviour. BRAINSTORMING: how many defences can you think of off the top of your head? (there are more than 15!!!)
- 2. First, we'll look at mental states. THREE CATEGORIES MENTAL STATES JUSTIFICATIONS OTHER DEFENCES
- 3. AUTOMATISM A condition in which a person acts without being aware of what he or she is doing. This, by definition, negates mens rea . The actus reus is not voluntary.
- 4. TWO CATEGORIES INSANE AUTOMATISM Caused by a mental disorder, such as: Bipolar Disorder Schizophrenia Delusional Disorder Post-traumatic Stress Disorder NON-INSANE AUTOMATISM Caused by: Sleepwalking Epilepsy Concussion Diabetes Attack by a swarm of bees
- 5. R. v. Parks (1992) Kenneth Parks was acquitted of first degree murder in 1992 Charged with killing his mother-in-law with a kitchen knife, he was able to prove to the courts that he was sleepwalking at the time.
- 6. MENTAL DISORDER Defined in the Criminal Code (s. 16) as a " disease of the mind ." In order for this defence to succeed, the defendant must prove that at the time the offence was committed, s/he was suffering from a mental disorder A person is presumed not to suffer from a mental disorder, unless and until the contrary is proven The burden of proof is based on a "balance of probabilities," and whichever side raises the issue (usually the defendant) carries the burden
- 7. The defence of mental disorder will succeed if either ONE of the following requirements is met: The mental disorder left the accused incapable of appreciating the nature and quality of the act. The mental disorder left the accused incapable of knowing that the act or omission was wrong.
- 8. So what happens next? If the court finds that the accused is not criminally responsible (NCR), they can "make an order," or refer the case to the Criminal Code Review board
- 9. There are only three options: An absolute discharge : if the judge finds that the person is not a threat to society, they may be released A conditional discharge : the accused is released, but with conditions A term in a psychiatric hospital : the judge may commit someone for up to 90 days; after that, the Criminal Code Review Board reviews the case. (In order to release a patient, the Board must be convinced that the person has been cured. Some people are confined for years.)
- 10. March 2009: Greyhound bus killer found not criminally responsible " Manitoba Court of Queen's Bench Judge John Scurfield said Thursday that Li, 40, could not be found guilty of murder and is not criminally responsible for the crime because he was mentally ill at the time of the killing. "These grotesque acts are appalling... but are suggestive of a mental disorder," the judge said. "He did not appreciate the act he committed was wrong." Li had pleaded not guilty to a charge of second-degree murder. Psychiatric evidence at his trial suggested he is a schizophrenic who suffered a major psychotic episode last July 30 when he fatally stabbed McLean, 22, ate some of the body parts, and cut off McLean's head. For five hours after the killing, Li wandered around on the bus, defiling the body while an RCMP tactical team waited to subdue him. Rather than go to prison, Li will be kept in a secure psychiatric facility, most likely in Selkirk, Man." http://www.cbc.ca/canada/manitoba/story/2009/03/05/mb-li-verdict.html#ixzz0lvh7l5UZ
- 11. INTOXICATION The condition of being overpowered by alcohol or drugs to the point of losing self-control Generally, intoxication is not a valid defence to a crime. When it is raised, it is generally done so in the hopes of decreasing the charge
- 12. INTOXICATION CAN BE RAISED AS A DEFENCE TO CRIMES OF SPECIFIC, BUT NOT GENRAL INTENT. SPECIFIC INTENT Occurs when a person commits one wrongful act for the sake of accomplishing another (i.e. assault + theft = robbery) GENERAL INTENT Occurs when a person commits a wrongful act for its own sake, with no ulterior motive (theft for the sake of theft)
- 13. A defence of intoxication does not usually result in acquittal Instead, the charge may be dropped from a specific intent offence to a general intent offence (i.e. robbery assault or 2 nd degree murder manslaughter) A jury may decide to acquit on the specific intent offence, but convict on the general intent offence Obviously, intoxication is never a defence to DUI
- 14. R. v. Daviault (1994) Charged with sexual assault, the accused argued that his intoxication was so extreme that it amounted to a mental disorder; that he was incapable of forming even the most basic intent to commit the crime The Supreme Court agreed (!) and found that convicting the accused would violate the principles of fundamental justice. Although the accused was at fault for voluntarily becoming intoxicated, the judges reasoned that the fault could not be directly linked to the offence
- 15. PUBLIC REACTION A huge public outcry followed the decision; feminist groups in particular were very concerned about the message this kind of precedent would send (i.e., just get drunk enough and you can go ahead and sexually assault) Protests were held; lots of discussion in the media
- 16. GOVERNMENT RESPONSE In response to the public reaction, Parliament moved quickly to close the loophole created by the decision The CCC now says that intoxication is NOT a defence to any general intent offences that "interfere with the bodily integrity of another person"
- 17. Battered Women's Syndrome Self-Defence Aboriginal or Treaty Rights Compulsion/ Duress Provocation Necessity Defence of Dwelling JUSTIFICATIONS
- 18. SELF-DEFENCE This defence is set out in S. 34 of the Criminal Code "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."
- 19. So…the force used to repel the attack must be "reasonable." In each case, the judge or the jury will have to look at the facts and decide whether the force used what appropriate given the circumstances.
- 20. Can you kill someone in self-defence? According to s. 34 (2) of the CCC, yes. But only if you are under a "reasonable apprehension of death or grievous bodily harm" and you believe that you "cannot otherwise preserve" yourself, then yes.
- 21. BATTERED WOMAN SYNDROME Strictly speaking, it is not a defence, but rather a psychiatric explanation of an abused woman's state of mind that can be used to advance the justification of self-defence
- 22. R. v. Lavallee (1990) The accused shot her common-law husband in the back of the head She had been hospitalized several times for injuries On the night of the attack, her husband had threatened to kill her Much of the case relied on expert testimony
- 23. DEFENCE OF DWELLING According to s. 40 and 41 of the CCC, A person is allowed to defend his or her dwelling from any unlawful entry and to remove a trespasser if he or she has entered. Of course, the force used must be "reasonable."
- 24. NECESSITY Used when the accused had no reasonable alternative to committing an illegal act (i.e. running a red light) In order for the defence to succeed, each of three conditions must be met
- 25. NECESSITY (cont'd) The accused must show that the act was done to avoid a greater harm There was no reasonable opportunity for an alternative course of action that did not involve a breach of the law The harm inflicted must be less than the harm avoided
- 26. COMPULSION (a.k.a. Duress) A person is under duress when he or she is prevented from acting according to his or her own free will by the threats or force of another Example: A taxi driver is forced at gunpoint to drive someone who has just robbed a bank
- 27. CASE LAW ON COMPULSION Two provisions of s. 17 of the CCC are controversial: 1) the threatener has to be physically present when the offence is committed 2) the threat has to be immediate These sections were struck down by the SCC in 2007 in the case R v. Ruzic
- 29. PROVOCATION Words or actions that are insulting enough to cause an ordinary person to lose self-control This defence only applies to the crime of murder; and can only be used to reduce the conviction from murder to manslaughter Some countries (i.e. New Zealand) have abolished this defence
- 30. HOWEVER… In order to succeed, defence counsel must prove all four elements listed below: A wrongful act or insult occurred This act or insult was sufficient to deprive an ordinary person of the power of self-control The person responded suddenly The person responded before there was time for passion to cool.
- 31. ABORIGINAL TREATY RIGHTS This defence applies only to hunting and fishing rights S. 35 of the Constitution Act guarantees Aboriginal treaty rights One of the purposes for this section is to recognize that Aboriginal peoples occupied Canada first and that this prior occupation grants them certain rights
- 32. R. v. Sparrow (1990) Sparrow was accused of fishing with a net that was longer than was allowed under the Federal Fisheries Act. He admitted the facts, but argued that he had an "Aboriginal right" to fish for food SCC set out conditions for using Aboriginal treaty rights, but the precedent didn't go far enough in defining the right
- 33. R. v. Van der Peet (1996) The right must involve an activity that was a "practice, tradition, or custom [that] was a central and significant part of the [Aboriginal] society's distinctive nature The activity must have existed prior to contact with European settlers The activity, even if evolved into modern forms, must be one that continued to exist after 1982, when the Constitution Act was passed.
- 34. OFFICIALLY INDUCED ERROR A defence that the accused relied on erroneous (incorrect) legal advice from an official responsible for enforcing a particular law "Hey, officer…can I (park / fish / hunt / drive) here?" "Sure!" 3 hours later… "Argh! Why do I have this ticket?"
- 35. MISTAKE OF FACT The accused made an honest mistake that led to the breaking of the law "I swear, I thought that was MY car!" This defence works only if the mistake was an honest one, and if the facts were as the accused believed them to be, no criminal offence would have occurred.
- 36. DOUBLE JEOPARDY The legal doctrine that an accused person cannot be tried for the same offence twice
- 37. ALIBI A defence raised by the accused claiming that he or she was somewhere else when the offence was committed The burden is on the Crown, not the accused If the Crown cannot prove that the accused was present, then the accused must be acquitted
- 38. ENTRAPMENT A defence against police conduct that illegally induces the defendant to commit an illegal act The burden is on the accused to prove entrapment, which is considered an abuse of power
- 39. UNDERCOVER WORK Many officers are involved in undercover investigations They may present a suspect with the opportunity to commit a crime, but they may not harass, bribe, or induce the person to break the law
- 40. HOMEWORK !!! Complete the Quick Quiz at the end of Chapter 10 in your textbook, as well as page 37 in your student package, "Defences—Applying the Law."
Editor's Notes
- #7: Prior to 1994, this was known as the insanity defence. The term was changed, however, and terms like "lunatic" and "insane asylum" which were thought to be degrading, were removed from the CCC Proving something on a balance of probabilities means proving that there is a greater likelihood. (50% +1, rather than 100%)
- #8: There is also the issue of fitness to stand trial. If an accused person is found to be suffering from a mental disorder at the time of the trial, the trial must be halted until they are deemed "fit." An accused person must be able to understand the nature of the trial proceedings, the consequences of the proceedings, and must be able to instruct counsel.
- #17: Intoxication also negates consent; if the victim in a sexual assault case was intoxicated at the time of the attack, any consent that was given is invalid.
- #20: Explain the concept of "force + one"
- #23: She was acquitted…since then, the courts have ruled that if this defense is raised, the jury must be instructed on three elements: Why an abused woman might remain in an abusive relationship; The nature and extent of the violence that may exist in a battering relationship and; The defendant's ability to perceive danger from her abuser.
- #28: However, Parliament has not amended s. 17 since that case.