Criminal Defences PDF

Criminal Defences 8 What You Should Know Selected Key Terms What types of defences are alibi duress available to an accused person automatism entrapment charged w...

Criminal Defences 8 What You Should Know Selected Key Terms What types of defences are alibi duress available to an accused person automatism entrapment charged with a crime? battered woman not criminally Can some defences lead to a syndrome responsible (NCR) full acquittal? defence provocation How are individuals who commit a crime while suffering double jeopardy self-defence from a mental disorder treated in the criminal justice system? Is ignorance of the law or intoxication a defence to a criminal act? Under what circumstances can provocation be used as an accepted legal defence? Chapter at a Glance 8.1 Introduction 8.2 The Alibi Defence 8.3 Automatism 8.4 Intoxication 8.5 Defences That Provide a Reason for the Offence 8.6 Other Defences There are numerous defences available to accused persons in Canada. Some defences are based on the accused stating he or she is innocent, while others provide a reason as to why the accused had no other choice but to commit the offence. A valid defence that is accepted by the court will often lead to an acquittal. 262 Unit 2 Criminal Law NEL 8.1 Introduction Did You Know? As you learned in Chapter 4, a person accused of committing a crime is Judges in Canada are presumed innocent. The accused is found guilty only if the Crown can prove absolutely immune from any civil or criminal that the crime was actually committed (actus reus) and that the accused had action for anything said the guilty mind (mens rea). The accused can respond and present a defence or done in performing to the charges. Accused persons can put forth three possible arguments: their duties. In other words, they cannot They can deny that they committed the act, disputing the actus reus. be sued or criminally They can argue that they lacked the necessary criminal intent or guilty charged for anything mind, disputing the mens rea. they do or say while performing their duties. They can argue that they have a valid excuse for what happened while committing the act. Some of these defences are defined within the Criminal Code (for example, the defence of mental disorder, which used to be called insanity). Other defences, like self-defence, are considered to be common law defences based on the British common law system. defence the accused’s response Various defences are used in criminal law to prove that the accused is not to criminal charges guilty of the offence charged, or perhaps guilty of a lesser one. Several of these alibi a defence that the accused defences and the case law that supports them will be discussed in this chapter. was not at the scene of the crime when it took place 8.2 The Alibi Defence The best possible defence is an acceptable alibi that places the accused some- where else at the time the offence occurred. For example, Roberto presents an alibi that he was with his friend Yanni at the time the crime took place. The Crown must try to disprove his defence (for example, that Yanni lied for his friend) in order to prove Roberto guilty of the crime. This is the only thing that the defence must disclose to the Crown prior to trial. An alibi is often presented by the accused upon arrest in a statement made to the police. A full alibi defence includes three parts: Digital rights not available. 1. a statement indicating that the accused was not present at the location of the crime when it was committed 2. an explanation of the accused’s whereabouts at that time 3. the names of any witnesses to the alibi These parts are necessary if the accused wishes to raise this defence. For example, Ryan is arrested by police for breaking and entering into a neighbourhood home. He tells police that he was at hockey practice on the night in question, and his The accused must give the name and address of coach and teammates will confirm this. In this case, Ryan has met all three parts any witness who can required by the alibi defence. However, if he were home alone that evening, support an alibi. Police his alibi would be incomplete, satisfying only the first two of the three parts. then investigate the alibi The alibi should be supplied early to allow the police and Crown to evidence to make sure investigate it properly. Otherwise, it may seem suspicious in court. While the that the alibi defence is believable. This involves accused is not required to testify in his or her own defence, courts (judges interviewing the alibi and jury) generally expect an accused to testify and be cross-examined about witnesses provided by the alibi. Of course, the Crown still maintains the burden of proving its case the accused. beyond a reasonable doubt. NEL Chapter 8 Criminal Defences 263  Case R. v. Maracle, 2006 CanLII 4152 (ON C.A.) For more information, Go to Nelson Social Studies November 2000, the trial judge found Maracle to be a dangerous offender. The judge ordered him detained for an indeterminate period. Maracle appealed his conviction and sentence to the Ontario Court of Appeal. The Crown’s case had three parts. First, the victim offered some limited identification evidence, even though she never saw her assailant’s face. Second, the Crown introduced evidence of a piece of duct tape with the appellant’s fingerprint on it. Third, the Digital rights not available. Crown had DNA evidence in the form of a semen stain on the girl’s T-shirt that matched Maracle’s DNA profile. The appellant’s main defence was an alibi. In his testimony, he denied that he had ever met or seen the complainant prior to the trial. He also denied attacking her. His alibi was that he was at home on the morning of May 26, 1997. His sister, mother, and brother all supported his alibi. Maracle further argued that the judge at trial had failed to instruct the jury properly about the “alibi defence” he had presented. He argued that the judge suggested the jury give less weight to the alibi since it was not disclosed to police and the Crown until April This is a courtroom sketch of David Maracle. 1999, some time after the charges were laid. Maracle tried to use the alibi defence to escape In February 2006, the Ontario Court of Appeal a dangerous offender conviction for sexually ruled unanimously that there were substantial errors assaulting a 14-year-old girl. in the trial that affected the appellant’s alibi defence. This made the trial unfair. They set aside the convic- In May 1997, the complainant, a 14-year-old girl, tion and ordered a new trial. was grabbed from behind by a man with a gun as she walked on a trail through a wooded park at For Discussion 7:30 a.m. on her way to school. A cloth was placed over her eyes, which was then replaced by duct 1. Identify the three parts of the alibi defence presented at trial. tape. She was brutally assaulted three times by her assailant. After the attack, the man duct-taped her 2. Why did the Ontario Court of Appeal order a wrists and drove off. The victim ripped the tape off new trial? her arms and eyes and sought help. She was taken to 3. The trial judge asked the jury to consider a hospital where she received medical attention. whether “the alibi was disclosed in sufficient In November 1999, David Maracle was convicted time for meaningful or effective of sexual assault causing bodily harm, kidnapping, investigation.” What did he mean? and carrying a gun for the purpose of committing 4. Do you agree with the decision in this case? the indictable offence of forcible confinement. In Explain. 264 Unit 2 Criminal Law NEL  Review Your Understanding 1. What is a defence? 2. What are three arguments for a valid defence to a crime? 3. Explain the alibi defence and how it works. 4. What three conditions are required for the alibi defence to be accepted? automatism involuntary action 5. Why must the alibi defence be disclosed to the Crown at the by someone who is in a state of earliest opportunity? impaired consciousness, without control over his or her actions; insane automatism is caused by a disease of the mind 8.3 Automatism The automatism defence is not mentioned in the Criminal Code. It has devel- oped over time through common law case precedent. Automatism is defined as automatic functioning without conscious effort or control. In other words, an individual has no control over his or her actions, but is still capable of committing an act (for example, breathing and blinking). At law, there are two types of automatism: non-insane (non-mental-disorder) automatism, and insane (mental disorder) automatism. Both rely upon expert psychiatric evidence. Insane automatism is caused by a “disease of the mind.” Non-insane automatism is linked to external factors like sleepwalking. With an automa- tism defence, the judge must first decide whether a condition exists that will likely present a recurring danger to the public. People with a mental health disability who hear voices telling them to do things against their will would be considered dangerous to others and to themselves. If the judge determines that there is no recurring danger, the case will proceed as a non-insane offence. Non-Insane Automatism Defence Non-insane automatism is sometimes called “temporary insanity.” Canadian courts have recognized that this state may be the result of the following: a physical blow, physical ailments such as a stroke, hypoglycemia (low blood sugar), sleepwalking (see the R. v. Parks case in Chapter 4, pages 124–125), intoxication, or severe psychological trauma. Based on expert testimony, if a In April 2002, R.E.M. guitarist Peter Buck judge accepts this defence, the result would be a complete acquittal. was cleared on This defence has been used in numerous cases throughout Canadian legal charges of attacking history. For example, in R. v. Bleta, 1965, the Supreme Court acquitted Karafil British Airways staff Bleta, who used non-insane automatism as a defence to a murder charge. In in an alleged air-rage this case, Bleta had suffered a serious blow to his head, and while still dazed incident. Buck’s lawyers successfully argued and confused, stabbed a man with a knife, killing him. Bleta’s defence was that a combination of supported by expert psychiatric evidence presented in court. taking a sleeping pill In R. v. Stone, 1999, the Supreme Court felt it needed to clarify when and drinking “small this defence could be used. The court was concerned that automatism could amounts” of wine had easily be faked. In R. v. Stone, the accused admitted stabbing his wife 47 caused Buck to enter a state of non-insane times. However, he claimed to have done it while in an “automatistic” state automatism. Buck brought on by his wife’s insulting words. The Supreme Court rejected this had not intended to defence. It indicated that the burden of proof rests entirely on the accused. commit an offence. The evidence presented to support the defence must be significant. NEL Chapter 8 Criminal Defences 265  Case R. v. Luedecke, 2008 ONCA 716 (CanLII) For more information, Go to Nelson Social Studies At trial, Luedecke argued the non-insane automa- tism defence, asserting that his conduct was not the exercise of his conscious will. An expert on sleep disorders testified that Luedecke was acting without logic or reason when he committed the offence. He gave evidence that Luedecke was sleep- walking (somnambulism). The expert concluded that Luedecke was suffering from “sexsomnia” at the time of the offence. This is a term used to describe the occurrence of sexual behaviour during sleepwalking. There had also been other similar incidents in the past with girlfriends. The defence attorney argued that Luedecke should be found not criminally responsible (NCR) as a result of a mental disorder (see page 267 for an explana- tion of NCR). However, in November 2005, the trial Jan Luedecke claimed he was suffering from judge stated that while this was a rare case, he was “sexsomnia” when he sexually assaulted a woman at a Toronto party such as this one. satisfied that at the time of the incident, the defendant was in a state of non-insane automatism and that his conduct was not voluntary. He concluded that In July 2003, the victim was attending a party in the evidence did not fit the definition of a disease Toronto with a few of her friends. She arrived at of the mind. Luedecke was therefore acquitted. The about 7:00 p.m., and there were approximately Crown appealed, and the Ontario Court of Appeal 50 to 60 people present. Over the course of the eve- heard the appeal in February 2008. In a 3–0 judg- ning, she had several drinks. At about 2:00 a.m. the ment in October 2008, the appellate court over- following morning, feeling tired, she sat down on a turned Luedecke’s acquittal and ordered a new trial. couch and fell asleep, but was abruptly awakened However, the new trial should focus only on whether to find a man on top of her having sexual relations he is not guilty or “not criminally responsible” on with her. Her underwear had been removed and account of having a mental disorder that requires her skirt had been lifted up. She pushed the man treatment in the mental health system. onto the floor and proceeded to Women’s College Hospital, where she was treated. For Discussion Luedecke had spent the evening before the party 1. Why did Luedecke present the defence of drinking alcohol and consuming magic mushrooms non-insane automatism in this case? at a friend’s cottage. The next day he drove back to Toronto, arriving at the party around 7:30 p.m. 2. Summarize the sleep expert’s evidence in During the evening he drank 8 to 12 beers and this case. several other alcoholic drinks. After having been 3. Why do you think the Crown attorney awake for over 22 hours, he fell asleep at the oppo- argued that Luedecke should be found not site end of the same couch as the complainant. His criminally responsible as a result of a next recollection was being pushed by a woman off mental disorder? Explain. the couch onto the floor. He testified that he was 4. How could this defence be dangerous for completely dazed and in shock. women? Do you agree with the final decision in the case? Explain. 266 Unit 2 Criminal Law NEL Insane Automatism Defence More and more people with a mental health disability are ending up in the not criminally responsible criminal court system. This has forced the various players to reconsider how (NCR) not criminally responsible best to deal with individuals with mental disorders who commit crimes. because of a disease of the mind In 1992, Parliament made changes to the Criminal Code to deal with accused persons with mental disorders. It passed Bill C-30, which created a special section within the Criminal Code. Since then, several important cases have come before the courts. These judgments helped establish some clear guide- lines on how mental disorder defences should be handled. A mental disorder, or a disease of the mind, is defined in section 16 of the Criminal Code. It states that an individual is not criminally responsible (NCR) for a criminal offence providing the following: At the time that the act was committed, he or she was suffering from a mental disorder. The mental disorder made the indi- vidual incapable of appreciating the nature of the act or knowing that the The government has realized that offenders who suffer act was wrong. from mental disorders need to be treated fairly by the criminal system. The Canadian Mental Health Association For example, a person with paranoid (CMHA) Mental Health Court Support and Diversion schizophrenia may assault someone she or Program provides services to people diverted to the he incorrectly thinks is a threat. In this case, Mental Health Court. These services include helping court clients find the mental health and support services the person with this condition is incapable they need and offering information and support to of understanding that what she or he did them and their families and loved ones. Staff members was wrong. Under the law, such a person of the Court Diversion Program are shown here. would be considered NCR (not criminally responsible). The NCR defence can be raised by either the accused or the Crown, and whichever party raises the defence Did You Know? incurs the burden of proof. In other words, whoever claims an accused is The laws in Canada NCR must be able to prove it in a court. governing insane Prior to an NCR case moving forward, the courts must first determine if automatism date back to the accused is fit to stand trial. A fitness hearing can assess the answers to the 1843 decision of the the following three questions: British House of Lords in the M’Naghten’s Case. 1. Does the accused understand the nature of the proceedings? (Does the In that case, the accused accused understand that he or she is in court and being tried for having Daniel M’Naghten, was committed an offence?) found not guilty by 2. Does the accused understand the possible consequences of the proceed- reason of insanity (mental disorder) after having ings? (Is the accused aware that she or he can be sent to jail or to a murdered the prime psychiatric facility?) minister’s secretary. 3. Can the accused communicate with his or her lawyer? NEL Chapter 8 Criminal Defences 267  A trial cannot proceed until an accused is deemed to be fit. An accused found Did You Know? to be “unfit” will be sent back to jail or, more often, to a psychiatric hospital In the case of R. v. Newby, until she or he is found to be fit and can then be brought back to court. 1991, the accused unsuccess- Once a person proceeds to trial and is determined to have been suffering fully used the defence of from a “disease of the mind” at the time the offence was committed, they chronic fatigue syndrome are seen as NCR under the law. A trial judge or a provincial review board against charges of fraud will then decide the sentence. This board will have to determine whether or worth $870 000. The court rejected his defence, found not the accused continues to pose a significant threat to public safety. If the him guilty, and gave him a accused does not pose such a threat, he or she would be discharged back suspended sentence. into society. If the accused does pose a continued threat, she or he will be sent to a psychiatric facility to undergo medical and clinical treatment. The case will be reviewed annually to determine whether the accused continues to pose a “significant risk” (dangerous to society). You Be the Judge Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (S.C.C.) For more information, Go to Nelson Social Studies In July 1983, Joseph Winko was arrested for released from the hospital under certain conditions. attacking two pedestrians on the street with a He remained under a court order because the board knife and stabbing one of them behind the ear. thought that he was generally harmless. However, Prior to this incident, he had been hearing voices the board believed that Winko could become a urging him to harm passing pedestrians. Winko significant risk to public safety in “certain circum- was charged and taken to a psychiatric hospital stances.” The board suggested that a conditional for treatment. He was eventually charged with discharge would best ensure the safety of the public. aggravated assault, assault with a weapon, and In July 1996, a majority of the British Columbia possession of a weapon for purposes dangerous to Court of Appeal upheld the review board’s decision the public peace. In 1984, he was tried and found to grant Winko a conditional discharge. Winko fur- not criminally responsible (NCR). ther appealed to the Supreme Court. In June 1999, From the time of his NCR verdict until his release, in a unanimous 9–0 decision, the court dismissed Winko was held at a forensic hospital where he was the appeal. In its decision, the court made it clear considered institutionalized. In August 1990, he that the review board is required to determine was released into the Vancouver community with whether the NCR accused is a “significant threat a number of conditions. One of these conditions to the safety of the public.” In other words, is that included reporting to a doctor on a regular basis and person a real risk to do harm to members of the taking his medications. In September 1994, he missed public? If the accused does not pose such a threat, a medication injection for the second time. This led he or she would be absolutely discharged. In this to a recurrence of the voices he was hearing at the case, the board had decided that Winko continued time of the original offence. Despite occasional breaks to be a significant threat. from medication, he had never been physically aggres- Do you agree with the ruling in this case? sive to anyone since the original offences in 1983. Should the courts be able to decide how long an A three-member panel of the review board of NCR accused remains institutionalized, or should British Columbia considered Winko’s status in May there be a maximum amount of time put in place, 1995, granting him a conditional discharge. He was much like regular sentencing? Explain. 268 Unit 2 Criminal Law NEL  Agents of Change The Toronto Mental Health Court — Decriminalizing People with a Mental Health Disability During the mid-1990s, officials noticed a significant increase in the number of accused persons suffering from mental disorders who were appearing in court. Most were charged with relatively minor offences. It became clear that the regular criminal courts were not equipped to handle these cases. There were delays and inefficiencies in dealing with preliminary issues such as fitness hearings. For the most part, other options for people with a mental health dis- ability were not being fully explored. The accused would often spend several weeks (if not months) in jail waiting for a trial date to be set or for the matter to be resolved. As well, mentally disordered accused persons were returning to court at an alarming rate because of repeated trouble with the law. In August 1997, this growing problem was brought to the attention of the justice officials. It was proposed that a court be set Justice Edward Ormston (shown here) was instrumental in making changes to the court system in the area of up to specifically accommodate mentally disordered mental health. The Toronto Mental Health Court has accused persons. The Mental Health Court was a courtroom devoted to hearing mental health cases, opened in May 1998. It was the first in Canada and as well as a designated judge. On May 11, 2008, the one of the first in the world. It was the only one (to Mental Health Court in Toronto celebrated a decade of date) to address the complex issues involved in dealing working on behalf of the mentally disordered accused. with mentally disordered accused persons. The two primary objectives of the Mental Health The Mental Health Court assists with discharges Court are to do the following: of accused persons into the community. Staff try to 1. Deal with pre-trial issues of fitness hearings quickly ensure that when an accused leaves the court, he and efficiently. or she has a basic “survival kit.” This kit includes 2. Try to slow down the “revolving door” of patients identification, a place to live, community psychiatric with a mental health disability returning to court follow-up, social assistance, and clothing. for minor offences. The court has also taken on the broader mandate of For Discussion accommodating mentally disordered accused persons 1. Identify the reasons why the Toronto Mental during NCR hearings and disposition hearings. Health Court was established. The Mental Health Court is staffed by two perma- nent Assistant Crown attorneys for the prosecution 2. What are the objectives of the court? and two legal aid lawyers for the defence. There are 3. Do you think that more communities should nine social workers attached to the court. Every day, establish similar courts? Explain. a psychiatrist attends to perform assessments on any 4. Do you think mental health courts are a individuals appearing before the court. good idea? Why or why not? NEL Chapter 8 Criminal Defences 269  Review Your Understanding 1. What is the definition of automatism? 2. How are insane automatism and non-insane automatism different? 3. In 1992, Parliament amended the Criminal Code (passed Bill C-30). What was the significance of this change? 4. What are the conditions necessary for an NCR ruling? 5. What is the purpose of a “fitness to stand trial” hearing? 8.4 Intoxication In Chapter 4, you learned the importance of intention. If Christina killed Silvana in front of witnesses, then the act is an established fact. The next step is to ask why Christina did it. Did she intend to kill Silvana, or was it an acci- dent or something in between? Did Christina understand the consequences of her act? If not, she cannot be held criminally responsible. In another example, Janik strikes Fred out of anger. Janik has committed assault, a general intent offence. However, if Janik strikes Fred with the intention to kill him, but only injures him instead, that is aggravated assault. The difference lies in the fact that it is a specific intent offence because the assailant had another criminal purpose in mind (murder) when assaulting the person. To use intoxication as a defence, the accused must show that he or she did not have the required intent (mens rea) at the time that the offence was committed. Any intoxicated person who was unable to form specific intent before striking someone cannot be found guilty of aggravated assault, a specific intent offence. 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 (the actus reus). Similarly, a person charged with murder can use the defence of intoxication. If successful, this will lower the conviction from murder (a specific intent offence) to manslaughter (a general intent The defence of intoxication argues that the accused did not offence). A judge or jury must have the necessary mens rea to be guilty of the crime. decide whether or not the accused understood the consequences of 270 Unit 2 Criminal Law NEL  his or her action. In other words, did the accused lack the intent or mens rea? If the judge and jury decide that the accused could not foresee the consequences Did You Know? of his or her action, then the accused cannot be found guilty of a specific RIDE (Reduce Impaired intent offence. Driving Everywhere) involves The role of intoxication in assault and sexual assault cases was discussed police spot checks. Vehicles in Chapter 7. The law addressing whether intoxication can be a defence are stopped and drivers are was clarified in R. v. Daviault, 1994, below. The Supreme Court held that checked for impairment. In 2007, police in Ontario drunkenness could be a defence in a sexual assault case if there is reasonable checked 505 000 cars, boats, doubt that the accused could understand the consequences of his actions. In and snowmobiles, compared other words, Daviault was not responsible for his actions because he was with 616 000 checks in 2001. drunk. This controversial ruling outraged many Canadians. As a result, the Although the total number Criminal Code was changed in 1995 to clarify the issue. Under the new of spot checks in Ontario dropped, provincial funding section of the Criminal Code (section 33.1), drunkenness is no longer a for RIDE checks is on the defence for general intent offences. A drunken person is considered to be rise. It has doubled since criminally at fault if he or she, say, attacks another person, as in the case of 2001 to $2.4 million. an assault or sexual assault. Case R. v. Daviault, 1994 CanLII 61 (S.C.C.) For more information, Go to Nelson Social Studies Henri Daviault was a chronic alcoholic. Ruth Dumais, because there was a reasonable doubt as to whether the victim, was a 65-year-old woman who was the accused, because of his extreme intoxication, had partially paralyzed and confined to a wheelchair. In possessed the minimal intent necessary to commit the May 1989, Dumais asked Daviault to deliver some offence of sexual assault. When Daviault was found alcohol to her. He arrived at Dumais’s residence not guilty, the Crown appealed. The court of appeal with a 1.1 litre (40-ounce) bottle of brandy. Dumais did not allow the intoxication defence, and Daviault consumed half a glass of the brandy before falling was found guilty. He appealed to the Supreme Court asleep in her wheelchair. While she slept, Daviault of Canada. In September 1994 in a 6–3 decision, the consumed the rest of the bottle. During the night, court allowed the appeal and ordered a new trial. The Daviault wheeled Dumais into the bedroom, threw new trial never took place. her on the bed, and sexually assaulted her. Daviault was later charged with sexual assault. For Discussion At trial, Daviault testified that prior to being at the complainant’s residence, he had consumed seven 1. Why was Daviault found not guilty at trial? or eight bottles of beer at a bar. At trial, the defence 2. Summarize in your own words the evidence called a pharmacologist as an expert witness. He given at trial by the pharmacologist. suggested that by consuming seven or eight beers 3. Justice Sopinka of the Supreme Court said and more than a litre (35 ounces) of brandy, Daviault the following in his minority decision: may have experienced “l’amnesie-automatisme,” “Society is entitled to punish those who of otherwise known as a blackout. In such a state, their own free will render themselves so Daviault’s brain would not have functioned normally intoxicated as to pose a threat to other since he essentially had lost contact with reality. The members of the community.” What did he trial judge found that the accused had committed the mean by this statement? offence as described by the complainant. However, 4. Do you agree with the decision in the case? he then stated that Daviault should be acquitted Why or why not? NEL Chapter 8 Criminal Defences 271  The Carter Defence As you learned in Chapter 7, it is a criminal offence to drink and drive. Being impaired is defined as having a blood–alcohol level (BAC) above the legal limit. The limit is 80 milligrams of alcohol in 100 millimetres of blood. It is measured by having the driver take a Breathalyzer test, which is given by a licensed technician (most often a police officer). The courts have accepted evidence to the contrary a defence to drinking and driving based on the accused presenting evidence evidence that disputes the evidence to the contrary. This is dubbed the “Carter defence,” or the “two-beer put forth by the Crown defence.” It recognizes that machines, and the police officers who operate them, sometimes make mistakes. The Carter defence, also known as the “two-beer defence,” was used by persons who failed a Breathalyzer test but argued that the test was invalid. It is no longer an acceptable defence in Canada. In 1985, the Ontario Court of Appeal heard the case of R. v. Carter. Breathalyzer tests showed Carter’s blood–alcohol level to be at 200 milligrams in 100 millilitres of blood. That was well above the legal limit of 80. Carter provided evidence that he had consumed only two beers before being pulled over by police. Based on this information, an expert calculated that Carter’s blood–alcohol concentration should have been below the legal limit. This information represented evidence to the contrary. It disputed the results of the Breathalyzer. Carter was acquitted of his drinking and driving charge. On July 2, 2008, the Criminal Code was changed so that Breathalyzer results could not be questioned. The only exceptions are if there is evidence that the machine did not work properly. Another possibility is if the defence can raise doubt as to whether the machine was operated properly. 272 Unit 2 Criminal Law NEL  You Be the Judge R. v. Gibson, 2008 SCC 16 (CanLII) For more information, Go to Nelson Social Studies In April 2008, in a 7–2 judgment, the Supreme from person to person and from time to time. The Court upheld the conviction of Robin Gibson and testimony is based on how many drinks an accused Martin MacDonald. They had failed to convince the person claims to have consumed. As such, the court court that their charges should be dropped because concluded that the only reliable evidence in such they did not drink enough to be under the influence, cases is the Breathalyzer test. despite failing a Breathalyzer test. The Supreme What does this decision say about the future of Court concluded that allowing experts to estimate the Carter defence? Do you agree with this decision? blood–alcohol concentration is too unreliable. It Why or why not? further concluded that the effects of alcohol vary Today, breath analysis Did You Know? is the most common In roadside spot checks, method of testing for police stop random cars. blood–alcohol level. A They question drivers personal pocket-sized in order to determine breathalyzer is a reliable their sobriety. If the device that you blow into police feel that a driver to measure the level of has been drinking, the alcohol in your blood to officer may request a test for impairment. roadside Breathalyzer test. The roadside spot checks are usually set up on major roadways and off-ramps of highways. They normally occur more often during holidays. Review Your Understanding 1. What is the difference between general and specific intent offences? 2. How does the defence of intoxication work? What must be proved? 3. Explain the changes to the law as a result of the Daviault case. 4. How does the Carter defence work? 5. Recent case law and new legislation have made the Carter defence invalid. Why do you think these changes were made? Do you agree with the new rules? Explain. NEL Chapter 8 Criminal Defences 273  Activity 8.5 Defences That Provide a To learn more about Reason for the Offence battered woman syndrome, There are several ways accused persons can defend themselves. One is by Go to Nelson Social Studies providing a reason why the offence was committed. In these cases, the accused are not denying that an offence took place. Instead they are providing an explanation about why they felt they had no other option but to act as they did (commit the offence). Battered Woman Syndrome battered woman syndrome a The Supreme Court first recognized prolonged abuse as a defence in R. v. Lavallee, 1990, when it upheld a jury’s acquittal of Angelique Lavallee. psychological condition caused by severe domestic violence Lavallee shot her partner in the back of the head as he left a room one evening. He had told her that he was going to come back and kill her later that night, and she believed him. He had physically abused her for many years. The court found that it was “reasonable” for Lavallee to believe she had no other choice than to use lethal force to defend herself. This groundbreaking decision set a legal precedent, and battered woman syndrome became a legal defence. Before this, the danger had to be imminent to use the defence of self-defence (for example, a knife was coming at you). During the 1990s, the legal system recognized spousal and child abuse as a serious and widespread problem. Police now have clear guidelines on how to deal with and charge abusive spouses. In some communities, police officers Digital rights not available. themselves will charge the abuser if the abused spouse will not do so. This poster from Ernestine’s Women’s Shelter in Toronto is one of many efforts by the shelter to raise public awareness about the realities of violence against women and children. Ernestine’s Sharlene Tygesen said, “It’s important that we address this issue in the public realm. If we can’t address it in public, how can we end it in private?” 274 Unit 2 Criminal Law NEL  Spousal Abuse, 2004 30 Emotional or financial abuse Physical violence 25 20 18 17 17 Percentage 15 10 7 7 Emotional and financial 6 abuse is 2.5 times more 5 common in spousal relationships than physical violence. Research shows 0 that emotional abuse and/or Total Female Male controlling behaviour often Victims lead to physical violence. Case R. v. Graveline, 2006 SCC 16 (CanLII) For more information, Go to Nelson Social Studies In August 1999, at approximately 10:50 p.m., Rita For Discussion Graveline fatally shot her sleeping husband, Michael, with a rifle. At the time of the shooting, the couple 1. Why did Graveline argue that she had acted were both 51 years old. They had been married for in a state of non-insane automatism? 32 years and had two children. From the beginning 2. Summarize the evidence given at trial to of their marriage, Michael Graveline abused his support her defence of battered woman wife. This abuse included humiliating insults and syndrome. degrading behaviour. At times, the abuse became 3. The defence experts concluded that physical, with threats and attacks. Graveline had acted in a state of automatism Rita Graveline was charged with second-degree brought on shortly before the shooting by murder. Her defence at trial was that she had acted her traumatic relationship with her husband in a state of non-insane automatism, as she used the and the surrounding circumstances. The new Lavallee battered woman syndrome defence. Crown agreed that the appellant’s amnesia The jury acquitted her, but the Crown appealed. The was genuine but argued that it followed Québec Court of Appeal set aside the acquittal and rather than preceded the shooting. Why ordered a new trial. However, Graveline appealed would the Crown make such an argument? to the Supreme Court. On April 27, 2006, in a 6–1 4. How has this case furthered the rights of decision, the court allowed her appeal and restored abused women? Do you agree with the the acquittal verdict. decision in this case? Explain. NEL Chapter 8 Criminal Defences 275  Self-Defence At law, you are allowed to defend yourself and your property, but you can self-defence the legal use only use “necessary” and “reasonable” force. The Criminal Code tries to of reasonable force in order define every circumstance where self-defence might occur and the intent of to defend oneself those involved. The Alberta Court of Appeal gave a clear definition of self-defence in the case of R. v. Kong, 2005. Simply stated, a person sometimes has no choice but to use force (even deadly force) to defend himself or herself. When this happens, the person acting in self-defence is considered not criminally respon- sible. In other words, self-defence is justified for what would otherwise be an unlawful act of assault. The theory surrounding this defence is essentially Did You Know? that the accused is in the right, and the victim got what he or she deserved Under section 40 of in being reasonably repelled. the Criminal Code, you To be able to plead self-defence, an accused must feel that the threat was are justified in using as much force as is real. Also, the actions taken in self-defence were reasonable based on how necessary to prevent an ordinary person in the same circumstances would have reacted. This test someone from unlawfully is the most important part of trying to use self-defence successfully at trial. entering your home. Section 34(1) of the Criminal Code outlines when the use of force is jus- tified. An accused is justified in using force if it is no more than necessary to defend himself or herself. Also, the force used must not be intended to cause death or serious bodily harm. For example, Daniel is walking home from school when he is unexpectedly thrown to the ground by Harmeet. In this case, Daniel is allowed to use reasonable force to defend himself from Harmeet’s attack. Section 34(2) of the Criminal Code also states that killing an assailant You and the Law is justified if a person reasonably believes that his or her life is endangered. In a 6–3 decision in For example, Daniel notices the assailant has a knife. In the act of defending February 2007, the himself, Daniel stabs his assailant, and the assailant dies. In this case, Daniel Supreme Court of Canada would be able to use self-defence to justify his actions. ruled that the 30-year-old practice of using evidence obtained from hypnotized witnesses is unrealiable and should not be used in criminal trials. Do you agree? Explain. A person acting in self- defence, such as using pepper spray against an attacker, is not criminally responsible for his or her actions, as long as the force used is reasonable and necessary. 276 Unit 2 Criminal Law NEL  You Be the Judge R. v. Smith, 2007 ONCJ 47 (CanLII) For more information, Go to Nelson Social Studies Robert Smith, aged 52, and Walburga Schaller, aged Schaller, knocking her into a wall, and swatting her 74, were walking toward each other on a Toronto with his cane as he passed. He claimed she threatened sidewalk on June 4, 2005. Both were using canes for to break his glasses and had rammed her cane into medical reasons. Neither would yield the right of way his stomach. Smith was charged with assault with a to the other, and there was a face off. Eventually, weapon. He claimed self-defence for his actions. they began to swear at each other and to hit one What do you think the trial judge decided? another with their canes. Smith forced his way past What would you have decided in this case? Explain. Case R. v. Paice, 2005 SCC 22 (CanLII) For more information, Go to Nelson Social Studies In May 2001, Christiano Paice and the scope of section 34(1) of the some friends went to a bar in Moose Criminal Code. The Saskatchewan Jaw, Saskatchewan, to celebrate a Court of Appeal set aside the birthday. One of Paice’s friends and acquittal and ordered a new trial. another person began to argue over Paice appealed to the Supreme Court a game of pool. Paice left his seat at of Canada. On April 22, 2005, in a the bar and intervened, separating unanimous 7–0 decision, the court the combatants. dismissed the appeal and confirmed According to Paice, as he returned the order for a new trial. to his seat, he was approached by Clinton Bauck, whose friend was For Discussion involved in the scuffle that Paice had intervened in. Bauck asked Paice, 1. Why was Paice charged with “Do you want to go outside to fight?” manslaughter and not murder? Paice agreed. Once outside, Paice A person who agrees to fight 2. Explain the defence of self- and Bauck squared off, exchanging cannot use the self-defence defence as it was applied in threats, and Bauck pushed Paice argument if the other fighter this case. several times. Paice eventually swung gets seriously injured or killed. 3. In her decision, Justice hard and struck Bauck on the left Charron stated that “self- side of his jaw. Bauck fell backwards, hitting his defence under section 34(1) is not available head on the pavement. While Bauck was down and to either combatant in a consensual fistfight unconscious, Paice struck him two more times. Some because neither could be heard to say that time later, Bauck died as a result of his injuries, and he has been the innocent victim of an Paice was charged with manslaughter. unprovoked assault when he has consented The trial judge acquitted Paice. The judge said to the fight.” Do you agree? Explain. that, following the deceased’s pushing (an unlawful 4. What do you think the result will be if a new assault), the accused had acted in self-defence within trial is held? Explain your answer. NEL Chapter 8 Criminal Defences 277  Necessity Did You Know? The defence of necessity can be used as an excuse for a criminal act committed In the 1884 British case due to immediate and urgent circumstances. In such cases, accused persons R. v. Dudley and Stephens, claim that they did not truly act voluntarily. They were forced to act because of the defence of necessity was used. Tom Dudley certain danger. In other words, they had no other choice. For example, Leslie and Edwin Stephens were arrives home to find her mother on the ground having difficulty breathing. charged with murder She has suffered a heart attack. Leslie picks her up, carries her to the car and after they killed and ate speeds off to the hospital for medical attention. If Leslie were to be stopped Richard Parker when they by a police officer and charged with dangerous driving, she could plead the were lost at sea without food. The men were found defence of necessity as a legal excuse to the charges. guilty, and their defence failed. The judge had to find them guilty to maintain the precedent Almost half of all fatal that this act was murder. collisions involve speeding. However, the judge gave Statistics show that drivers them only six months or so who go 30 kilometres per in prison, which was the hour over the speed limit “political” way to deal with on city streets are almost this problem. They were six times more likely to pardoned by the monarch. kill or injure someone. Those who go more than 50 kilometres per hour above the limit on highways are nearly 10 times more likely to kill or injure someone. Canadian courts have reluctantly recognized the defence of necessity. There are several case law examples that clarify the defence. The leading precedent case is that of Perka v. The Queen, 1984. There, the Supreme Court stated that the defence applies only in circumstances of imminent risk. The action must have been taken to avoid a direct and immediate danger. Regardless, necessity can generally be used as a defence to all offences in the Criminal Code. In R. v. Latimer, 2001 (see the Case feature in Chapter 7 on page 223), Robert Latimer tried to use the defence of necessity to argue against his second-degree murder charge. He was charged in the death of his 12-year-old severely handicapped daughter. The Supreme Court stated that the defence of necessity is narrow and of limited application in criminal law. The court rejected Latimer’s argument. The defence of necessity is rare in Canada. However, the case of R. v. Ungar, 2002, on the next page, provides an unusual example of an accused being acquitted on a defence of necessity. 278 Unit 2 Criminal Law NEL  Case R. v. Ungar, 2002, O.J. No. 2915 (Ont. C.J.) For more information, Go to Nelson Social Studies Bernard Ungar was a member of Hatzoloh Toronto, a non-profit volun- teer organization run by the Orthodox Jewish community of Toronto. The organization was launched in early 1998 to respond 24/7 to emergencies within the Toronto Jewish community. Hatzoloh volunteers are trained emer- gency medical technicians (EMTs). They provide basic services in a medical emergency until an ambu- lance arrives to transport the person to a hospital. Hatzoloh volunteers co-operate with the ambulance per- sonnel and assist in any way possible. Shortly after 12:45 p.m. on March 28, 1999, Ungar received a call that a woman had been hit by a motor vehicle; it was a general call from the dispatcher. Initially, Ungar did not answer the call because it was outside of his calling area. The dispatcher got The defence of necessity is extremely difficult to prove. Bernard Ungar back on the radio and asked who was was able to use it successfully to ward off reckless driving charges. closest to the area to assist the woman, at which time Unger responded. Under normal driving conditions, it would take not entitled to use the necessity defence. The trial Unger about five minutes to get to the location of judge dismissed the charges and accepted the defence the accident, but traffic was stopped. He informed of necessity. He stated that, given the circumstances the dispatcher, who told him to “use his imagination” that Ungar found himself in, every second could mean since the woman’s life was in danger. Unger put his the difference between life and death. In this case, flashing coloured lights on his roof and drove at there was no reasonable legal alternative. high speeds, weaved in and out of oncoming traffic to get to the scene of the accident. He was followed For Discussion by police the entire time. Ungar arrived at the scene 1. Why was Ungar charged with dangerous and immediately began providing medical assistance. driving? The ambulance arrived about six minutes later. Police charged Ungar with dangerous driving. 2. Explain the defence of necessity as it was At trial, Ungar argued the defence of necessity applied in this case. since he was faced with a situation that was not only 3. In his decision, Justice Lampkin stated that urgent but life threatening. The Crown argued that this case should never have come to trial. there was a reasonable legal alternative to Ungar’s Do you agree? Explain. driving. That was to not do anything and allow the 4. Do you agree with the decision in this case? ambulance to arrive when it did. Therefore, he was Why or why not? NEL Chapter 8 Criminal Defences 279  Duress duress threat or coercion to force The defence of duress is similar to that of necessity in that an accused com- someone to do something against mits a crime in response to some sort of external pressure. In this case, the his or her will defence of duress is brought on by a threat of harm by some other person, forcing the accused to act against his or her will. An example would be if Leanne participates in a crime when threatened at gunpoint. Recognizing that the threat is real, Leanne acts against her will to avoid being seri- ously harmed herself. The defence of duress is found in section 17 of the Criminal Code. It requires threats of death or bodily harm from a person present when the offence is being committed. The defence excludes a long list of offences, including murder. Like the defence of necessity, duress can only be consid- ered when the accused had no real- istic choice when deciding whether or not to commit the crime. The defence of duress can be used if someone is forced to commit a crime upon fear of immediate death or bodily harm. However, it is often difficult to establish. You Be the Judge R. v. Keller, 1998 ABCA 357 (CanLII) For more information, Go to Nelson Social Studies The appellant, Shane Keller, was convicted of traf- would be “nasty consequences” and that it would ficking in lysergic acid diethylamide (LSD). In a be “over” for him. The appellant interpreted this as written statement, he admitted to picking up at a threat of death or serious bodily harm if he did least 10 similar packages during the preceding four not do what he was told. The trial judge denied his months. He claimed, however, that he was com- request that the jury be instructed on the common pelled to do so under a threat of death or serious law defence of duress. The Alberta Court of Appeal bodily harm made by a man he knew as “Shawn.” confirmed that the defence of duress did not apply He described Shawn as a big man, over 6 feet 7 in this case. inches tall, and a known drug dealer. Shawn threat- Why did the defence of duress fail in this case? ened that if the appellant did not co-operate, there Explain. 280 Unit 2 Criminal Law NEL  Review Your Understanding 1. Explain the battered woman syndrome defence. Why do you think this has been allowed as a valid defence in criminal cases where the accused has been a long-term victim of spousal abuse? 2. What is meant by “reasonable” when the courts are considering self-defence? 3. What is the difference between sections 34(1) and 34(2) of the Criminal Code? 4. Explain the defence of necessity. Why is it difficult to establish in court? 5. How is the defence of duress similar to the defence of necessity? 8.6 Other Defences There are a number of other defences outlined either in the Criminal Code or established through case law precedent. Ignorance of the Law and Mistake of Fact Pleading “ignorance of the law” is not an accepted defence. Persons who commit an offence cannot argue that they should not be found guilty because they did not know their actions were against the law. Often, individuals rely on their own knowledge of the law and even seek legal advice that may be incorrect. Regardless of a person’s honest (but mis- taken) intention, mistaken belief is not a defence. For example, assume that Jonathan goes hunting with an expired gun licence. He is aware that his licence has lapsed and has every intention of renewing it, but he thinks there is a six-month amnesty period. The grace policy is, in fact, only for three months, and Jonathan’s licence has already been expired for five months. Jonathan would be found guilty under the Firearms Act in this case, regardless of his honest but mistaken Ignorance of the law is no belief that he was not breaking the law. excuse. If you go hunting Sometimes, ignorance of the facts, however, can be accepted as a with an expired gun licence, defence in Canadian law. Mistake of fact is a valid defence if it prevents you are breaking the law, the accused from having the necessary mens rea required by law for the even if you think you are within an acceptable grace crime that was committed. There is a requirement in such a defence that period before having to the mistake was genuine and not the result of the accused neglecting to renew the licence. find out the facts. For example, suppose you receive counterfeit money while shopping. When you try to use this money later (for example, to pay a bill with it), you are arrested. You can use the defence of mistake of fact for not knowing that the money was counterfeit, as people do mistake of fact a defence that not usually check every bill they receive. As another example, suppose shows a lack of mens rea due to you buy a used bicycle that was advertised in a bulletin board notice. an honest mistake NEL Chapter 8 Criminal Defences 281  Later, you are arrested for possessing stolen goods. If you can prove that you did not know the goods were stolen, then your mistake of fact defence will succeed. Unless the brand-new $500 bicycle is offered to you for $40, your mistake of fact would be reasonable. Entrapment entrapment police action that Entrapment occurs when police coerce, or forcefully encourage, an individual induces a person to commit an to commit a crime. The fault lies in the fact that they have no reason to believe offence that person is already engaged in the particular criminal activity. Of course, double jeopardy being tried the accused has to establish the entrapment. For example, suppose police twice for the same offence officers set up an undercover drug operation in a certain neighbourhood, which has been identified as a problem area. Jimmy happens to live in that provocation the act of inciting neighbourhood, but he has never used or sold drugs. Over a period of three to commit a crime in the heat of weeks, however, he is harassed by an undercover officer to get him drugs. passion Jimmy eventually helps the officer purchase drugs and is arrested as a result. This is an example of entrapment, since there is no reasonable suspicion that Jimmy was engaged in the criminal activity of drug trafficking. In R. v. Mack, 1988, the Supreme Court recognized entrapment as a defence as well as an abuse of powers by the police. A judge who finds that entrapment has occurred should stay (stop) the proceedings rather than order Activity an acquittal. To learn more about double jeopardy, Double Jeopardy Go to Nelson Double jeopardy means to be tried twice for the same offence. Section 11 of Social Studies the Charter of Rights and Freedoms states that anyone charged and acquitted of an offence cannot be tried for it again. Similarly, someone convicted of an offence cannot be tried again on the same evidence. In a case of double jeopardy, a pre-trial motion can be made using one of two pleas: 1. In a plea of autrefois acquit, the accused states that he or she has already been acquitted of the charge. 2. 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 Digital rights not available. will dismiss the case. Provocation Provocation is defined in section 232 of the Criminal Code. It is an accepted legal defence that can reduce a charge of murder to manslaughter. Provocation is a wrongful act or insult that is so significant in nature that it can deprive an ordinary person of the power of self-control. For example, a parent comes home to find that his or her child is being assaulted and attacks and kills the assailant. This person could plead provocation. The The principle of double offensive act (killing of a person) must be done in the “heat of passion,” jeopardy is fundamental to Canadian criminal law. and the act must occur immediately after the provocation so that there is no cooling-off period. 282 Unit 2 Criminal Law NEL  You Be the Judge R. v. Humaid, 2006 CanLII 12287 (ON C.A.) For more information, Go to Nelson Social Studies Abi Abdel Humaid and the deceased, Aysar Abbas, decided if you were the judge presiding over this were married in 1979. Both were engineers, but case? Give reasons for your decision. Aysar was much more successful than her husband, the appellant. She earned over $500 000 a year. In 1996, Humaid had an affair with the family maid. When Aysar found out, she transferred funds from a joint bank account to one in her name only. Aysar and the accused separated for a short time in February 1997. Then, Aysar decided to give the marriage a second chance. Humaid moved back into the family home in April 1997. By the fall of 1999, the marriage had soured. On October 14, 1999, while out for a walk, Aysar made some comments to Humaid, leading him to believe that she had been unfaithful to him. On hearing this, Humaid testified that he blacked out. He claimed to have no recollection of chasing Aysar along the road and stabbing her 19 times. Humaid was charged with first-degree murder. At trial, he raised the defence of provocation. Humaid was a devout Muslim. He argued that his wife’s statements had greater significance because of his Muslim faith. Abi Abdel Humaid, a devout Muslim, argued that he He claimed that it raised the level of insult beyond killed his wife for religious beliefs. Ramandeep K. Grewal (pictured here) is active in women’s issues in the Asian what an ordinary person in the same situation could community. She argues that some Asian cultures are tolerate. Humaid argued that he lost self-control and very male dominated and chauvinistic in many ways. killed his wife in the “heat of passion.” According to Grewal, “It’s not a religious conflict; it’s a Were the required elements of the provoca- cultural conflict.” tion defence met in this case? How would you have Review Your Understanding 1. Explain the difference between ignorance of the law and mistake of fact. In your own words, create an example for each. 2. Police have often been accused of entrapment. Explain how this is possible. 3. What is double jeopardy? 4. Explain the difference between autrefois acquit and autrefois convict. 5. What does section 232 of the Criminal Code say about the defence of provocation? NEL Chapter 8 Criminal Defences 283