The Criminal Code Permits You to Defend Yourself, Those Under Your Protection, Your Movable
Defences
Various defences are used to prove that the accused is not guilty of the offence charged or guilty of a lesser offence. The best possible defence is an alibi, a defence that places the accused somewhere else at the time the offence occurred. It is important that the accused disclose any alibi to the Crown at the earliest opportunity. Failing to do so may erode the credibility of both the accused and the alibi.
Self-Defence
The Criminal Code permits you to defend yourself, those under your protection, your movable property, and your dwelling and real property. However, you can only use force that is ‘necessary’ and ‘reasonable’ according to the circumstances.
The Criminal Code allows you to stop a thief from taking your personal property or to take it back, as long as you do not strike the thief or cause bodily harm. You can do more to defend your dwelling. Under section 40, you are ‘justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering your dwelling-house without lawful authority.’
Legal Duty
Legal Duty allows certain people to commit acts that would otherwise be offences. For example, a police officer can drive above the speed limit when chasing a suspected criminal. In recent years, however, several innocent bystanders have been killed in police chases. An officer may also use as much force as necessary to make an arrest. Section 43 of the Criminal Code is very controversial because it allows a parent, schoolteacher, or person standing in place of a parent to use ‘reasonable force’ to correct a child.
Excusable Conduct
Provocation may be used as a partial defence for a charge of murder. Excusable conduct also includes duress, which is a threat or use of violence. In R. v. Morgentaler (1988) the Supreme Court stated that the defence would be successful only in ‘urgent situations of clear and imminent peril where compliance with the law is demonstrably impossible.’
Honest mistake may also be accepted as a defence under excusable conduct. It means the offender truthfully did not know he or she had committed a crime. This defence is most commonly used by people who are found in possession of unpaid items while shopping. The onus is on the Crown to prove that the person accused of shoplifting did it intentionally. The accused’s credibility will largely determine whether this defence succeeds.
Mental Disorder
The use of mental disorder as a defence has been debated by members of the legal profession for many years. The terms ‘mental disorder’ and ‘unfit to stand trial’ are defined in the Criminal Code as follows:
- mental disorder means disease of the mind
- unfit to stand trial means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to:
- understand the nature of the proceedings
- understand the possible consequences of the proceedings
- communicate with counsel
Mental Fitness to Stand Trial
An accused can be remanded for up to 60 days to evaluate his or her fitness to stand trial. This may include an assessment of his or her mental status at the time of the offence. A provincial or territorial review board determines if the accused is fit to stand trial; the accused is sent back to court. If he or she is fit to stand trial, the case is heard. Usually, evidence given during a court-ordered psychiatric assessment is not admitted without the accused’s consent.
If the accused is unfit, the court can order treatment to make him or her fit to stand trial. An inquiry is held every two years, until the accused is tried, to make sure there is still enough evidence to bring him or her to trial.
Mental Fitness at the Time of the Offence
There is a presumption of sanity, just as there is a presumption of innocence. The Supreme Court has ruled that the Crown may not introduce evidence of mental disorder unless it had already proved actus reus and mens rea in a case. The defence can independently decide whether to introduce the defence of mental disorder.
If the accused is found not guilty by reason of insanity, the verdict must state that ‘the accused committed the act or omission but is not criminally responsible on account of mental disorder.’ The court then holds a hearing to determine what to do with the accused, or the review board determines the future of the offender.
The Court and the review board must protect the public. They consider ‘the mental condition of the accused, the reintegration of the accused into society, and other needs of the accused.’ The mental state of the accused at the time of the hearing, not at the time of the offence, is the main concern. If considered not to be a threat, the accused may be discharged absolutely. Otherwise, the discharge will have conditions, or the accused will be held in custody in a hospital. Treatment, however, must not be a condition of release.
Necessity
The defence of necessity means that the accused had no reasonable alternative to committing an illegal act. For example, Luke severs his hand with a band saw. Bo puts the hand on ice and drives Luke to the hospital running a red light on the way. After Luke is taken into emergency, a police officer hands Bo a summons for dangerous operation of a motor vehicle. Bo uses the defence of necessity because he believed his conduct was absolutely necessary to keep Luke from bleeding to death.
For the defence of necessity to succeed, all of the following conditions must be met:
- 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.
Intoxication
It is important to remember how specific and general intent offences work to understand the intoxication defence. A general intent offence is on in which the intent relates solely to committing the act (Fred hits Barney out of anger). If Fred hit Barney with the intent to kill he has committed aggravated assault and is a specific intent offence.
Any intoxicated person who was unable to form intent before striking someone cannot be found guilty of aggravated assault. He or she can, however, be found guilty of assault, a general intent offence. All that needs to be proved is that the intoxicated person did strike someone. Similarly, a person charged with murder can use the defence of intoxication. If successful, this will lower the conviction of murder (a specific intent offence) to manslaughter (a general intent offence).
There are situations where self-induced intoxication is not a defence to a criminal act.
Automatism
Automatism has been described as ‘unconscious, involuntary behaviour – the state of the person who, though capable of action, is not conscious of what he is doing.’ Sleepwalking, convulsions, and behaviour caused by psychological stress are some examples. To be acquitted on this defence, the accused must prove that he or she was in a state of automatism when committing the offence.
Automatism caused by a disease of the mind is called ‘insane automatism.’ Here the source of the malfunction is rooted in the psychological or emotional makeup of the person. If this state is proved, the accused is entitled to a verdict of ‘not criminally responsible on account of a mental disorder.’ The offender would then be subject to the procedures outlined under mental disorder.
Consent
Consent can be used as a valid defence, but only if the party injured by the accused could and did consent to the action. For example, many hockey and football players have been accused of assaulting opponents during a game. The defence usually is that by playing the game, the injured party consented, or agreed to the game’s rough physical contact.
The defence of consent can never be used in cases involving firearms, murder or for various sexual offences committed under the age of 14.
Entrapment
Entrapment is a police action that encourages or aids a person to commit an offence. It is not recognized as a defence, but rather as an abuse by the police. A judge who finds that entrapment has occurred should stay the proceedings.
Mistake of Fact
Ignorance of the law is generally not accepted as a defence. Ignorance of the facts, however, will be accepted as a defence, but only under two conditions:
- The mistake was genuine and not the result of the accused neglecting to find out the facts.
- The law accepts ignorance of the facts as a defence.
For example, you receive counterfeit money while shopping. When you try to pay a bill with it, you are arrested. You cannot be considered negligent for not finding out that the money was counterfeit – people do not usually check every bill they receive. In another example, you buy a used bicycle that was advertised in a bulletin board notice. Later, you are arrested under the Criminal Code, which states that it is an offence to “knowingly” possess stolen goods. If you can prove that you did not know the goods were stolen, then your mistake-of-fact defence will succeed.
Double Jeopardy
Double jeopardy means to be tried twice for the same offence. Under section 11 of the Charter, it is prohibited: “Any person charged with an offence has the right…if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.”
In a case of double jeopardy, a pre-trial motion can be made using one of two pleas:
- In a plea of autrefois acquit, the accused states that he or she has already been acquitted of the charge.
- In a plea of autrefois convict, the accused states that he or she has already been convicted on the charge.
The judge then investigates the matter and rules on whether the current charge is based on the same facts as the previous charge that was tried. If so, the judge will dismiss the case.