1. DEFENCES TO CRIMINAL OFFENCES IN CANADA


In every criminal prosecution there are potentially three types of defences.  First the Crown must prove the elements of elements of each criminal offence.  Failure to prove any element will result in a verdict of ‘not guilty’. For example, in any Assault prosecution (including Domestic Assault) the Crown must prove an intentional application of force.  Failure to prove intent results in an acquittal.  Second, the law provides for several types of positive defences, justifications and excuses. For example self defence is a complete defence to Murder and many other criminal offences.  Finally, in cases where the government has violated the Canadian Charter of Rights and Freedoms a defendant can apply to have the evidence excluded.


On this page you can read about positive defences, justifications and excuses, which include self defence, necessity, duress, provocation, and “the rolled-up defence”.  The availability of the defences in any given case depends on the particular facts of the case. 


Contact (416) 410-4184 or gorham@criminaltriallawyers.ca for a free to consultation and assessment of the defences that may be available in your case. 

NATHAN GORHAM 
CRIMINAL DEFENCE LAWYER
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  1. CONTACT


tel: 416.410.4814

fax: 416.598.3384

office: 416.598.1811

36 Lombard Street, Suite 100

Toronto, ON, M5C 2X3

gorham@criminaltriallawyers.ca

  1. DEFENCES


SELF DEFENCE

The Criminal Code includes the following sections concerning self defence:


  1. Defence of Person

  2. Self-defence against unprovoked assault

  3. 34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

  4. Extent of justification

  5. (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

  6. (a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

  7. (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.


  8. 35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if

  9. (a) he uses the force

  10. (i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and

  11. (ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;

  12. (b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and

  13. (c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.


Mr. Gorham’s has successfully mounted the defence of self defence to secure acquittals for client’s charged with Manslaughter, Attempted Murder, Aggravated, Domestic Assault and other charges.  For more information click the following links to view his experience defending Murder, and Assault cases. 


NECESSITY

The defence of “necessity” is a common law defence referred to as an “excuse” rather than a “justification”.  It is available for nearly all criminal offences including Murder, Impaired Driving, and Assault and applies to situations in circumstances of imminent risk or peril where action is taken to avoid direct an immediate peril.  There must be an objectively appropriate and normal resistance to pressure.  The Supreme Court of Canada in R. v. Latimer (2001) held that:


  1. 28           Perka outlined three elements that must be present for the defence of necessity.  First, there is the requirement of imminent peril or danger.  Second, the accused must have had no reasonable legal alternative to the course of action he or she undertook.  Third, there must be proportionality between the harm inflicted and the harm avoided.

DURESS

Section 17 of the Criminal Code provides an excuse for criminal offences which are are committed  under compulsion of threats of death or bodily harm where there is no safe avenue of escape from the threat.


PROVOCATION

The defence of provocation applies to murder, and may reduce murder to manslaughter.  Section 232 of the Criminal Code reads:


  1. (1)  MURDER REDUCED TO MANSLAUGHTER - Culpable Homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.


  2. (2)  WHAT IS PROVOCATION - A wrongful act or an insult that is a such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.


AUTOMATISM

Automatism means “unconscious” or “involuntary” behaviour.  It involves the negation of the voluntary act requirement of criminal liability.  Sleep walking is an example of a non-insane automatism defence.


ALIBI

Alibi is a defence that it is available to any criminal offence where presence at the scene of the crime is an essential component of the Crown’s case.  Alibi simply means “elsewhere” when the offence was committed.  For example, if the person was not at the scene of the murder when the murder was committed then they could not be guilty of the murder.  Alibi is one of the rare occasions in criminal law where a defendant must disclose his/her defence prior to trial.  There rationale is that the police should be given a fair opportunity to investigate the alibi.  As a result, early preparation is sometimes essential to the successful preparation of an alibi. 


Sometimes, however, there may be good and perfectly legitimate reasons why an alibi is not disclosed prior to trial.  Perhaps the Crown’s case against the defendant changed at the 11th  hour, or maybe there were no witnesses to the defendant’s presence at the relevant time and so there was nothing for the police to investigate. 


ENTRAPMENT

Entrapment is a defence that applies after a defendant has been found guilty of a criminal offence.  Put simply a judge has the authority to stay a proceeding where the police conduct made the defendant commit the crime.  The Supreme Court of Canada held in R. v. Mack (1988) that  it is entrapment for the police to offer people opportunities to commit crime unless: (a) they have a reasonable suspicion that such people are already engaged in criminal activity or such an offer is made in the course of bona fide investigation; or (b) having reasonable suspicion or acting in the course of a bona fide investigation, they go beyond providing an opportunity and induce the commission of an offence.



DOUBLE JEOPARDY, RES JUDICATA, ISSUE ESTOPPEL, and AUTRE FOIS ACQUIT

Put in in very simplistic terms, the Crown does not get a second kick at the can.  If a defendant has been acquitted he/she cannot be tried again.  If a defendant has been found guilty, he/she cannot be tried again for a more serious offence arising from the same subject matter. 



MISTAKE
Mistake or ignorance of the law is not a defence.  Mistake of fact(s) may, however, be a factual issue that negates the mens rea component of the Crown’s case.  For example, in Sexual Assault proceeding it is defence is the defendant honestly believed that he complainant was consenting even though he/she did not actually consent.  If the jury or judge accepts that the defendant had a mistaken belief in consent then he/she will be found “not guilty”.