Transcript Defences For The Accused

Defences For The Accused
Adapted from Halifax Regional School Board
What is a Defence?
• A defence is a denial of, or a justification for,
criminal behavior.
• An accused may admit to the crime but has a
defence to excuse or justify his or her actions.
• The accused can either be acquitted or found
guilty of a less serious offence.
Mental Disorder
•
“disease of the mind”, it was formally referred to as the
insanity defence.
• Goes to mens rea, that is, the accused is unable to form
the elements of the “guilty mind”.
• The onus is on the defence to prove, on the balance of
probabilities, that the accused suffered from a mental
disorder and fulfilled one of these two requirements:
1. The accused is incapable of appreciating the nature and
quality of the act.
2. The accused is incapable of knowing that the act or
omission was wrong.
• If the accused is not criminally responsible the judge can
“make an order”, with three choices available: an
absolute discharge, a conditional discharge or a term in a
psychiatric hospital, 90 days
• The judge may also refer the case to the Criminal code
review board, who would hold a hearing to decide the
course of action for the accused.
• The board has the same three choices as the judge, with
one key difference. If they send the accused to a
psychiatric hospital, it will be for an indefinite period of
time, with regular reviews.
• If the board is convinced that the accused has been
cured, they can order a release. That is why this defence
is only used in serious cases, because the time spent in a
psychiatric hospital could be longer than a jail term.
• An accused is unfit to stand trial if they are unable to
understand the nature of the trial proceedings, the
consequences of the proceedings or are unable to give
adequate instructions to counsel.
Automatism
• Condition in which a person acts without being aware of
what he or she is doing.
• It negates the Actus Reus of a crime because the person
acts involuntarily.
• Automatism can be the result of sleepwalking,
medication, a concussion, a brain tumor or involuntary
ingestion of drugs.
• The law recognizes two types of automatism: insane
automatism, a form caused by a mental disorder,
resulting in an accused being not criminally responsible,
and non-insane automatism, a form caused by a
external factor. The accused would be acquitted.
Kenneth James Parks
• In 1987, Kenneth James Parks got into his car, drove to
the home of his wife's parents and brutally attacked the
couple, killing his mother-in-law with a tire iron and
severely injuring his father-in-law. He then got back in
his car and drove to the nearest police station to confess
his crime. He claimed he had been asleep throughout the
entire incident. Possible? Could a man not only commit
murder, but drive his car -- twice -- while asleep?
• He was acquitted of first and second degree murder by a
jury, using the defence of non-insane automatism.
Intoxication
• Intoxication is the condition of being overpowered by
drugs or alcohol to the point of losing self-control.
• It is not generally a defence to a crime but the exception
is a crime of specific intent. For example, a person may
be too intoxicated for the specific intent of murder, but
would still be guilty of manslaughter, a general intent
offence.
• This defence cannot be used in charges of assault or
sexual assault.
• This defence can never be used for drinking and driving.
Self-Defence
• Self-defence is the use of reasonable force to
defend against an attack, provided the attack
was unprovoked and the force used was no more
than is necessary to defend yourself.
• If you kill someone while defending yourself, it is
justified only if you reasonably feared that you
would be killed or seriously harmed.
Defence of a Dwelling
• This is the extension of self-defence to a dwelling
house. A dwelling house is any building or
other structure that is occupied on a permanent
or temporary basis.
• A person is allowed to defend his or her dwelling
from unlawful entry and to remove a trespasser
if he or she has entered.
• The force used must be reasonable under the
circumstances.
Necessity
•
Necessity is a defence used when the accused
had no reasonable alternative to committing an
illegal act.
• For this defence to succeed, all of the following
conditions must be met…….
1. The accused must show that the act was done
to avoid a greater harm
2. There was no reasonable opportunity for an
alternative course of action
3. The harm inflicted must be less than the harm
avoided.
Compulsion or Duress
• An accused may be excused from committing an
offence if it was done under compulsion or
duress, that is, the accused person is forced by
the threat of violence to commit a criminal act
against his or her will.
• It is not a defence in violent crimes!
Provocation
•
Any act or insult that causes a reasonable person to
lose self-control.
•
This defence only applies to murder. To be successfully
used, the defence must prove all four of these
elements….
1. A wrongful act or insult occurred
2. This act or insult was sufficient to deprive an ordinary
person of the power of self-control
3. The person responded suddenly
4. The person responded before there was time for
passion to cool.
It is used to reduce murder to manslaughter.
Mistakes of Law and Fact
• A mistake of law is simply ignorance of the
law and generally cannot be used as a defence.
• The one exception is officially induced error,
a defence that the accused relied on erroneous
legal advice from an official responsible for
enforcing a particular law.
• A mistake of fact is a defence that the accused
made an honest mistake that led to the breaking
of the law. The accused would not have the mens
rea or guilty mind.
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 can’t prove that the accused was there
when the offence was committed, then the
accused must be acquitted.
Entrapment
• A defence against police conduct that illegally
induces the defendant to commit a criminal act.
• The burden is on the accused to prove
entrapment. Usually the result of police
undercover work. The police can present an
opportunity to commit a crime but cannot
harass, bribe or induce a person to break the
law.
• If the judge agrees to this defence, the judge will
“stay” the proceedings or stop the trial.