FRSC 2100 Criminal Code Class 3 Ptbo Defenses PDF

FRSC 2100 Criminal Code Class 3 Ptbo Defences Today… We will: ⚫ Go through defences focusing on: ⚫ What the defence is ⚫ The key ingredients of the defence ⚫ When it would be best to use it as a defence ⚫ When it is not likely to work as a defence ⚫ Other important th...

FRSC 2100 Criminal Code Class 3 Ptbo Defences Today… We will: ⚫ Go through defences focusing on: ⚫ What the defence is ⚫ The key ingredients of the defence ⚫ When it would be best to use it as a defence ⚫ When it is not likely to work as a defence ⚫ Other important things to know about defences When, and in what circumstances, does an accused raise a defence? Defences… Are ways the accused can: ⚫ Raise doubt on whether they did the act &/or had the mens rea; ⚫ Raise doubt on whether they are the right accused (mistaken identity) e.g. by providing an alibi e.g. ‘I wasn’t there’; ⚫ Supply a justification for what they did, e.g. ‘the conduct was not wrong in the context’; or, ⚫ Provide an excuse for what they did e.g. ‘conduct wrong but b/c certain circumstances exist D is excused of criminal liability How are defences created?  Defences ⚫ Common Law (s.8) & Statutory Defences Abandonment Entrapment Abuse of Process Mistake of Fact Accident Necessity Alibi Non-insane automatism Duress s. 25 Acting under s. 17 Compulsion by Authority Threats s. 34 Defence of Person Intoxication (per s.8) & s. 35 Defence of Ppty s. 33.1 s. 43 Correction of s. 16 NCR Child by Force Copyright Rhonda L. Smith  Common Law Defence ⚫ Abandonment ⚫ Used as a defence when charged with aiding or abetting ⚫ To show that D tried to pull out/abandon the activity before crime took place ⚫ To use the defence, D must show: 1. Intent to withdraw from unlawful activity; 2. D communicated intent to withdraw, in a timely way, to others involved; 3. D’s communication was unequivocal = clear; and, 4. D took steps to cancel out the effects of D’s participation You be the Judge R. v. Gauthier https://www.canlii.org/en/ca/scc/doc/2013/2013scc32/2013scc32.html? searchUrlHash=AAAAAQAOci4gdi4gZ2F1dGhpZXIAAAAAAQ&resultIn dex=2  Common Law Defences ⚫ Abuse of process ⚫ Where existence of ulterior purpose/motive underlying the use of legal process; or, ⚫ Some act, in the use of the legal process, is not proper in regular prosecution e.g. police misconduct ⚫ Could be bc of po misconduct, P misuse of discretion, delay, etc. ⚫ D - onus, on bop, to show continuing case violates fair play & decency; implicates fairness of trial ⚫ Test: Would the continuation of the matter in the circumstances bring the admin of justice into disrepute? ⚫ Remedy = stay of proceedings You be the Judge See R. v. Zarinchang  Common Law Defences ⚫ Accident ⚫ Unintended act (actus reus) ⚫ Unintended consequences (mens rea) ⚫ Bc criminal responsibility requires ‘voluntary’ conduct which an accident is not (Primeau c. R. p. 43) ⚫ Once D establishes an ‘air of reality’ to the defence, onus shifts to P to disprove ⚫ Alibi ⚫ D’s alleges in some other place at the time of the crime so no “window of opportunity’ to commit offence (R. v. Allen) ⚫ Goes to element of proving identity ⚫ Notice must be given to P if this will be used ⚫ If disproved, may be an ‘adverse inference’ drawn by crt  Common Law Defences ⚫ Duress (an excuse) ⚫ Where D commits actus reus & argues did not have mens rea because ‘I was forced to do it’ ⚫ Requires: 1. Close temporal connection between threat and harm threatened 2. No safe avenue to escape 3. D showed reasonable fortitude in resisting threat 4. Objective assessment that threat could be carried out 5. Proportionality between harm avoided and harm caused 6. May include threat of future harm to 3rd party but must be temporal ▪ E.g. ‘do it or I will kill your child’ and child is there ⚫ If D successful in raising some evidence to support defence, onus shifts to P to disprove based on bop ⚫ Not completely superseded by s. 17 Compulsion by Threat – apply in different circumstances R v Ruzic  Statutory Defences s. 17 – Compulsion by Threats (Duress) ⚫ Where threat of immediate death/bh from someone present ⚫ At time offence committed ⚫ Excused from offence if: ⚫ D believes threat will be carried out, and ⚫ D not party to conspiracy/association subject to compulsion ⚫ s.17 restricts the use of defence for some offences (CL defence of duress may still be available) ⚫ But R. v. Ruzik - s. 17 offends the Charter and not saved by s. 1? So where are we left? ⚫ Therefore left with CL defence of duress without restricting when it can be used Common Law Defences ⚫ Entrapment ⚫ Where po provides a person with an opportunity to commit a crime without reasonable suspicion that person already engaging in crim behavior (R. v. Mack), or ⚫ Where po does more than create an opportunity e.g. induce (because leaves no room for forming mental intent) ⚫ Mere solicitation by po is not enough to make out defence ⚫ Burden of proof – P must make out offence then D may bring defence of entrapment and prove on balance of probability ⚫ Remedy = stay of proceedings R. v. Ahmad https://www.canlii.org/en/ca/scc/doc/2020/2020scc11/2020scc11.html?searchUrlHas h=AAAAAQAQci4gdi4gUiB2LiBBaG1hZAAAAAAB&resultIndex=1 Common Law Defences ⚫ Mistake of Fact ⚫ Also known as ‘honest belief’ ⚫ Requires existence of facts or circumstances that, if true, would make act innocent ⚫ Need reasonable grounds for belief ⚫ Necessity (doing something illegal in emergency) Where D alleges they had no choice but to do the act ⚫ 3 elements must be established ▪ Imminent peril or danger ▪ No reasonable legal alternative to course of action D undertook ▪ Proportional between harm inflicted and harm avoided ⚫ Requires compliance with the law be demonstrably impossible You be the Judge ⚫ A ship was loaded with illegal drugs headed to Alaska ⚫ Had to land in Canada bc of bad weather ⚫ D charged with smuggling drugs into Canada Would the defence of necessity work here? ⚫ D argued they did not intend to land in Canada but had to bc of weather emergency to save lives or would have sunk ⚫ P said they offloaded which showed intent to stay ⚫ Crt – did not buy necessity defence and it can only be used in rare exceptions where true involuntariness Perka v. The Queen  Common Law Defences ⚫ Intoxication ⚫ 3 legally relevant degrees of intox (R. v. Daley) ⚫ Mild drunkenness ▪ Not relevant at law – not a defence ⚫ Advanced intoxication ▪ Not a defence to general intent offences ▪ D lacks specific intent to commit offence so a partial defence ▪ B/c impairs D’s foresight of consequences of actions ▪ Excuse only for specific intent offences ⚫ Extreme intoxication akin to automatism ▪ Negates voluntariness and may be a complete defence – to general and specific intent offences ??? What???? ▪ Extremely rare & limited to non-violent offences ⚫ D must prove extent of intox on bal of prob  Common Law Defences ⚫ Intoxication s.33.1 ⚫ Law changed in 2022 as a result of s.33.1 being struck down by the SCC for violating the Charter especially presumption of innocence per s.11(d) ⚫ New s.33.1 refers to CL defence of self-induced extreme intoxication ⚫ Now extreme intox can be a full defence where a reasonable person could not have foreseen the risk that they could violently lose control when they consumed intoxicant and did not take steps to prevent the risk ⚫ SCC says alcohol alone will almost never lead to that level of intox ⚫ R. v. Brown, 2022 SCC 18 (CanLII), Common Law Defences ⚫ Automatism (non-mental disorder automatism; for mental disorder automatism see s. 16) ⚫ Is there evidence in which a properly instructed jury would find on bop that D acted involuntarily? ⚫ If so, Judge can consider putting the defence to the jury ⚫ Lack of memory of relevant event not enough ⚫ Must be existence of some condition or physical state that is capable of causing involuntary automatic behavior ⚫ State of automatism cannot be self-induced ⚫ Not equal to normal stresses and disappointments of life – R. v. Rabey  Statutory Defences s. 16 – Defence of mental disorder ⚫ Aka not criminal responsible (NCR) defence ⚫ Available as a defence if: ⚫ At time of the act or omission ⚫ The person was suffering from mental disorder ⚫ Sufficiently severe that it rendered them incapable of: ▪ Appreciating the nature and quality of act, or ▪ Knowing that it was wrong ⚫ Legal presumption – everyone is not mentally disordered – rebuttable presumption ⚫ Burden of proof whoever raises it to show on bop ⚫ P or D may raise it – see R. v. Faire re: timing  Statutory Defences s. 25 – Protection of persons acting under authority ⚫ If authorized to do anything by law ⚫ As a private person, peace or public officer ⚫ In aid of above or ⚫ Because of office, and, ⚫ Acts on reasonable grounds ⚫ Then justified to do what is required/authorized and in using as much force as necessary to do it ⚫ BUT not justified to use force that is intended or likely to cause death or gbh unless believe on reasonable grounds necessary for self-preservation or dependent others ⚫ CAN use force that might cause death or gbh if… ss(4)&(5)  Statutory Defences s. 34 – Self-defence/Defence of Person (Justification) ⚫ A person (who) ⚫ Is not guilty of an offence (legal defence to illegal action) ⚫ If believes (mental element) ⚫ on reasonable grounds (objective) ⚫ That force is being used or threatened ⚫ Against them or another person, and ⚫ What they, D, does is done to defend or protect from that force or threat, and ⚫ What they do is reasonable in the circumstances (proportional response to force or threat) ⚫ ss.(2) factors to determine if reasonable  Statutory Defences s. 35 – Defence of Property ⚫ A person ⚫ Is not guilty (legal defence) ⚫ If they believe (mental state) ⚫ On reasonable grounds (objectively not defined) ⚫ They are in peaceable possession; or ⚫ Are acting under the authority of; or ⚫ Are lawfully assisting some who has peaceable possesseion; and ⚫ Believe that: ⚫ another is about to, is, or has entered property ⚫ With out lawful entitlement, or ⚫ Is about to take ppty, is doing or about to, or ⚫ Is about to damage ppty and ⚫ Their act is for the purpose of preventing entry or taking adv of, or damaging ppty, and ⚫ Their act is reasonable in the circumstances  Statutory Defences s. 43 – Correction of Child by force ⚫ Every school teacher, parent or person standing in the place of a parent ⚫ Is justified (legal defence) ⚫ In using force (action) ⚫ By way of correction (purpose of the force) ⚫ Toward a pupil or child and ⚫ The force does not exceed what is reasonable (proportional response) Next… ⚫ Seminars this week ⚫ Quiz at start of class next week – can cover readings, lectures & seminar content ⚫ 15 min at start of class ⚫ 12 questions – T/F, MC, Fill in blanks ⚫ Bring pen and pencil ⚫ Your crime journals should be underway ⚫ Today 9:00am was deadline for signing up for Crime File Video groups. Sarah will post final groups & CC section assigned by end of day today.