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