DEFENCES

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DEFENCES
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Types of defences

• JUSTIFICATIONS
• Self-defence
• - Criminal Code allows one to defend oneself,
  those under ones protection, and ones property
• Requirements
• - necessary and reasonable force
• - in cases of assault must fear death or
  bodily harm
• - no other alternative to stop harm or death
• -(can provoke the assault)

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• Battered Woman Syndrome the effects of
  prolonged spousal abuse
• Not a defence, but a psychiatric explanation of
  an abused womans state of mind that can be used
  to help the justification of self-defence
• ( jury must consider why an abuse woman might
  remain in relationship, natture and extent of
  violence, ability to perceive danger from abuser)

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• Defence of a Dwelling rules for self-defence
  extended to dwelling house
• Person is allowed to defend his or her dwelling
  from unlawful entry or to remove a trespasser
  reasonable and necessary force

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• Necessity defence stating that the accused had
  no reasonable alternative to committing an
  illegal act
• Requirements
• Accused must show that act was done to avoid a
  greater harm
• No reasonable opportunity for an alternative
  course of action
• Harm inflicted must be less than harm avoided

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• Compulsion or Duress a defence in which the
  accused person is forced by the threat of
  violence to commit a criminal act against his or
  her will
• Compulsion is not a defence in violent crimes
  such as murder, sexual assault, robbery
• Requirements for compulsion ( declared
  unconstitutional- see R.v. Ruzic p.261)
• Threatener has to be physically present
• Threat has to be immediate

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• Provocation any action or words that may cause
  a person to lose self control
• Used to reduce a murder charge to manslaughter
• 1. A wrongful act or insult occurred
• 2. Act/insult must be of a nature to cause loss
  of self-control ( for an ordinary person)
• 3. Person responds immediately after provocation
• ( before time for passion to cool)

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• Aboriginal or Treaty Rights
• Agoriginals may argue that they have Treaty right
  to act in way that would be illegal for others
• Eg. hunting and fishing rights
• S 35 of Constitution Act

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MENTAL STATES

• Mental Disorder disease of the mind
• Defence must show accused most likely suffers
  from mental disorder
• Requirements
• Could not understand the nature and quality of
  the act
• Incapable of knowing that the act or omission was
  wrong

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• Not criminally responsible on account of mental
  disorder ( not able to form the mens rea)
• Judge or Criminal Code Review board may discharge
  or order time in Psychiatric unit
• Accused person must also be mentally fit at time
  of trial

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• Automatism a person acts without being aware of
  what he or she is doing (unconscious, involuntary
  behaviour )
• Insane automatism ( caused by mental disorder)
• Non-insane automatism (caused by an external
  factor such as sleepwalking, effects of
  prescribed drugs)
• Example R. v Parks (1992)

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• Intoxication the condition of being overpowered
  by alcohol or drugs to the point of losing
  self-control
• Generally not a defence to crimes
• Exceptions
• Intox. may be a defence to crimes of specific
  intent, but not general intent
• If a persons intox. is so extreme it almost
  amounts to a mental disorder ( but not for
  offences that interfered with the bodily
  integrity of others
• ( assault, sexual assault)

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OTHER DEFENCES

• Alibi- a defence that places the accused in a
  different place than the scene of the crime
• Entrapment inducing a person into commiting an
  offence
• Not a defence, but abuse of process
• Judge will stay the proceedings

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• Double Jeopardy- cannot be tried for the same
  crime twice
• If current charge is founded on same facts as the
  previous charge.
• Mistake of Fact