THE TRIAL IN CANADIAN COURTS Pt4 DEFENCESx

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14 Νοε 2013 (πριν από 3 χρόνια και 10 μήνες)

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Law 12

MUNDY


2009

What are defences used for?


Two purposes:


1. to prove that accused is not guilty of
offence being tried


2. to prove that accused is guilty of a
lesser offence than one accused of



Alibi


Best Defence


An alibi proves that the accused was not
at the scene of the crime at the time it
was committed



Result is that accused will be considered
not guilty if evidence is strong and
supportive of alibi

Self
-
defence


Self
-
defence, used in assault cases or
similar violent offences



Includes actions defending one’s person,
property, dwelling



Result is that accused will be found not
guilty

Self
-
defence


Allowed only if reasonable force,
determined by strict guidelines, is used:



Accused did not provoke or initiate the
conflict involving force


Not intending to cause grievous bodily
harm or death (but may use if no choice)


Attacker is perceived to intend grievous
bodily harm or death


Force is no more than necessary to defend
oneself


Attempted to leave before self
-
defence


Battered Woman Syndrome


Used as defence when prolonged abuse
creates psychological condition in which
accused strikes out violently against
abuser


Criminal act does not have to have been
result of “imminent danger” (as in self
-
defence)


Results in acquittal

Legal Duty


Used by officers to justify use of force or
seizure of items


ex.
-

being arrested does not allow accused to
charge officer with kidnapping



Also used by parents, teachers, etc. to
justify reasonable force and measures for
corrective means


ex.
-

given a grounding or detention does not allow
child to charge parent/teacher with kidnapping


Result is that accused will be found not
guilty

Excusable
Conduct:Provocation


Used for charges of murder



Must prove that action taken leading to
death occurred immediately in response to
provoking act


Action needs to be seen as due to loss of
self
-
control that ordinary person would
have committed in same situation


Result is that accused will have charges
lowered to that of manslaughter

Excusable
Conduct:Necessity


Criminal action is justified if accused is in
“urgent situations of clear and imminent
peril when compliance with the law is
demonstrably impossible”



Ex.


Accused breaks and enters to save
child from burning building



Result is accused will be found not guilty

Excusable
Conduct: Duress


Occurs when accused has committed
crime that another has forced them to
commit


Person forcing accused must be
immediately present at time of offence
and gave threats of immediate grievous
harm and/or death



Result is that accused will be found not
guilty

Excusable
Conduct:Honest

Mistake


Where accused honestly did not know that
a criminal act had been committed


Not same as “ignorance of law”



Ex.


person leaves store paying for all
items but pen that is now in pocket



Result is accused will be found not guilty

Automatism


Defined as: automatic functioning without
conscious effort or control



Two categories of automatism are =


Insane Automatism


Non
-
Insane Automatism

Insane Automatism


Known as “mental disorder” defence


Crown must have already proved
actus

reus

and
mens

rea



Result is accused found not guilty, with
review board determining offender’s
future


Verdict: “accused committed the act or
omission
but is
not criminally
responsible
on account of mental
disorder


Insane Automatism


Not Criminally Responsible requires proof
of:


suffering from mental disorder during commission
of offence


mental disorder made individual incapable of
appreciating the nature of the act or knowing that
the act was wrong

Insane Automatism


Provincial Review Board determines
mental fitness of offender at time of
hearing (during sentencing)


They consider:


Mental condition of accused


Reintegration of accused into society


Other needs of accused


Whether accused is a threat to society



Can be released, either with conditions or
not IF NOT THREAT TO PUBLIC SAFETY

Mental Fitness to Stand Trial


“Unfit to stand trial” = unable on account
of mental disorder to conduct a defence at
any stage of a trial



1. Does the accused understand the
nature of the proceedings?


2. Does the accused understand the
possible consequences of the
proceedings?


3. Can the accused communicate with
their lawyer?

Mental Fitness to Stand Trial


If suspected to have mental disorder,
accused is remanded for up to 60 days to
evaluate condition



Final determination of mental fitness is up
to provincial review board



If accused is unfit, court can order
treatment to make accused fit to stand
trial

Non
-
Insane Automatism


Known as “temporary insanity”



Burden of proof on accused for defence



Result is complete acquittal



Non
-
insane automatism includes
sleepwalking, stroke, physical blow,
hypoglycemia

or severe psychological
trauma

Intoxication


As intoxication (by alcohol or drugs) can
cause loss of self control, allowed as
defence



However, it is difficult to use
self
-
intoxication

as defence (where accused
knowingly ingests alcohol or drugs to
excess)


Intoxication


Result is that charge is reduced from
specific intent to that of general intent



Ex.


From murder (specific


intended to
kill) to manslaughter (general


intended
to strike, yet resulted in death)



Specific intent


intended to cause further
harm of criminal nature;


General intent


intended only
actus

reus

Carter Defence


Used to show that
breathalyzer

tests used
to determine blood alcohol concentration
(BAC) can be faulty and show incorrect
results


Although in 2008 Criminal Code revised so
that these tests cannot be questioned,


in 2010 case showed that test results are
inaccurate by +/
-
.01


Consent


Used as defence when victim has agreed
to the action taken


Used mainly for sports (i.e.
-

players
consent to rough physical contact)


Used for assault cases (either physical or
sexual)


Cannot be used for murder, firearms or
sexual assault against persons under 14


Result is accused will be found not guilty

Entrapment


Action taken by police officers that
forcefully encourage or aids person in
committing offence



Not technically a defence, but result is
that motion for stay of proceedings takes
place

Mistake of Fact


Unlike “ignorance of law”, ignorance of
facts can lead to commission of offence
unknowingly



Ex.
-

person gets change at store that
includes counterfeit money, then uses it
later and is arrested


Mistake of Fact


Conditions of this defence:


Mistake was not due to wilful blindness


The particular law allows for mistake of fact



Result is accused will be found not guilty


Double Jeopardy


Section 11 of Charter


no one shall be
tried twice for same offence



Pre
-
trial motion is made to determine if
double jeopardy is about to take place,
based on one of two possible pleas:


Artefois

acquit


accused has already been
acquitted of charge


Artefois

convict


accused has already
been convicted of charge

Double Jeopardy


Judge must determine if facts of case are
similar to previous trial



Result is judge
will dismiss the trial