Defences to Criminal Charges

General Defence

Specific Defence

Alibi Defence

-lack of mens rea and actus reus

Mental Disorder

-lack of mens rea

-says the accused was not present at the time of the crime

-accused provides evidence (alibi) proving he/she was somewhere else

-says a person can be held criminally responsible because a mental disorder has diminished their ability to know the difference between right and wrong

-replaced defence of insanity (1991)

-person is assumed to be sane unless otherwise proven

-a person can have a mental disorder, but not necessarily a legal mental disorder

Results of a successful plea include: being set free (if not a threat to society), sent to a mental institution until either fit to return to society or completes max. time if given jail sentence for crime

Intoxication

-includes drug impairment

-partial lack of mens rea

-intoxication may only be used as defence for crimes requiring specific intent (planned and deliberate)

-cannot use this defence if you become intoxicated for "courage"

Results of a successful plea include: crime will be lowered to one requiring general intent (e.g. murder to manslaughter, aggravated assault)

Provocation

-partial lack of mens rea

-says you were provoked you didn't know what you were doing

-it can only be used if charged with murder

Results of a successful plea include: murder reduced to manslaughter

Necessity

-lack of mens rea

-occurs when a person is forced to act because he/she has no other choice

This defence cannot be used if: homeless (trespassing), hunger (steal food), human jettison (sacrifice one life to save another)

Results of a successful plea include: set free

Duress/Compulsion

-lack of mens rea

-forced to commit a crime because of threats of immediate death or serious injury to yourself or a member of your family

-threat must be immediate and present

-cannot use this defence if you are the principle offender in a violent act

Results of a successful plea include: set free

Double Jeopardy

-basic idea is that the Crown cannot make repeated attempts to convict a person

3 Basic Areas

1) Autrefois Acquit- previously acquitted of the crime, Autrefois Convict- previously convicted of the crime

2) Kienapple Principle- a person cannot be tried for more than one offence arising from the same cause or matter or a person cannot be charged with more than one offence if they are basically the same

3) Res Judicata- the evidence from one trial cannot be used at another if the evidence is basically the same

Results of a successful plea kienapple principle include: some charges will be dropped

Results of a successful plea of res judicata include: evidence disallowed

Mistake of Fact

Self Defence

Mistake of Law

Automatism

Entrapment

-lack of mens rea

-involves the police luring, inducing, persuading, harassing, or bribing a person to commit an offence what would not otherwise have been committed

Results of successful entrapment defence- set free or evidence disallowed

-in general "Ignorance of the law is no excuse"

-exception: officially-induced error, when someone is told by a legal official something is legal and is then charged for it

Results of successful mistake of law defence include: set free

-occurs when a person has an honest belief in the existence of circumstances which, if true, would have made a legal one

-colour of right occurs when a person takes something they honestly believe they had a right to

Results of successful mistake of fact defence include: set free

-missing neither actus reus nor mens rea

-issue is motive

-may be raised in cases of assault or homicide causing injury or death to another person

2 Important Rules

1) Amount of force cannot be greater than that which is "Reasonably Necessary"

2) No set amount of force - depends on if accused believed force was reasonably necessary

-property may be defended as long as the force used is reasonably necessary

Cannot use this defence if:

1) overreact

2) provoke the attack (blows, words, or gestures)

3) could have been avoided using force (could've walked away)

-dueling (agreeing to fight) is illegal

Results of self defence defence include: set free

-lack of actus rea

-results from a factor causing a body to react without conscious effort from the mind

Types:

1) Insane Automatism

-caused by internal factors

2) Non-Insane Automatism

Ex, hardening of the arteries, tumours, brain damage (from various diseases)

Results of insane automatism defence include: same as metal disorder

-cause by external factors

Ex, sleepwalking, stroke, pneumonia, emotional upset, CO poisoning, physical blow, psychological stress

Results of non-insane automatism defence includes: set free