Defences
Legal Defences
Criminal Defences
Not Criminally Responsible Due To Mental Disorder
The verdict of not criminally responsible on account of mental disorder (NCRMD) is a final decision reached when a judge or jury finds that an accused was suffering from a mental disorder while committing the criminal act and as a result is exempt from criminal responsibility (Criminal Code, R.S.C. 1985, s. 672.34).
Mistake of Fact
A mistake of fact defense assumes that the mistake was honest and reasonable
Example:
Serving alcohol to a minor who provided fake ID
Acid Test: Would the person have not committed the offence if they had known the true fact
Mistake Of Fact
Mistake of Law
Colour of Right: An honestly held belief in entitlement to property. (Generally a defence to a charge of theft.)
Entering a family property without knowing that it had been sold to another family.
Intoxication
(General intent- requires that accused intended to commit a crime, but the prosecution need not prove the accused intended all the harm that resulted from an act
Specific intent- means that having a deliberate aim to commit a particular offense)
Intoxication and Sexual Assault
Specific vs. General
Intoxication and determination of intent
(R. v. Leary, 1977: voluntary intoxication cannot be a defence for a general intent crime and sexual assault is a general intent crime)
“Allowance of “Voluntary Intoxication” as a defence comes under constitutional scrutiny
(In R. v Daviault, 1994, SCC rules extreme intoxication can be a defence for sexual assault)
Intoxication and Sexual Assault
If Voluntary intoxication is used as a defence it must meet the following criteria:
This outraged the public and especially feminists, so ...
Intoxication and Sexual Assault
Parliament seeks to rectify the problem.
Section 33.1 becomes part of the Canadian Criminal Code.
s. 33.1 basically states self-induced intoxication not a defence for sexual assault. (Judges don’t apply this law to situations because the law would fail under Constitutional Scrutiny at the SCC level)
Intoxication and Sexual Assault
M'Naghten Rule
Laws dealing with mental disorder are derived from M’Naghten’s laws
House of Lords established the insanity defense arguing an accused could be found not guilty “by reason of insanity” if it was clearly proved
“at the time of committing the act that the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing”
Mental Disorder
Mental disorder: incorporated into Canada’s own criminal code in Section 16 (1) and amended in 1992 and renamed “mental disorder defense”
Verdict of “not guilty by reason of insanity” changed to “not criminally responsible by reason of mental disorder
'Shania Twain' defence works in drunk driver's favour
Last Updated Tue, 28 Mar 2006 08:47:03 EST
CBC News
One of the most notorious drunk drivers in the Ottawa area has been found not
criminally responsible on his latest impaired driving charges because of a mental
disorder that makes him believe female celebrities are controlling his actions.
Matt Brownlee was arrested last October after police spotted a pickup truck speeding
along a busy street in downtown Ottawa.
The 33-year-old man told psychiatrists that he knew the legal repercussions of
his actions, but believed singer Shania Twain was helping him drive. Brownlee
pleaded not guilty to four charges, including impaired operation of a motor vehicle
and driving while disqualified. On Monday, the judge drew on several psychiatric
assessments in ruling that Brownlee was not criminally responsible for his actions
because he suffers from delusions that celebrities such as twain are
communicating with him telepathically.
Ten years ago, Brownlee was given a seven-year prison sentence and banned from driving for the rest of his life
after he killed an Ottawa woman, Linda Lebreton-Holmes, and her 12-year-old son while driving with a blood alcohol
level three times the legal limit. Earlier in March, a psychiatrist told the court that Brownlee suffers from psychosis and mood
disorders resulting from a brain injury caused by the 1996 car crash.
Brownlee has been undergoing a series of assessments at the Brockville Psychiatric Hospital since last fall. Another
assessment of how much risk he poses to the community could see Brownlee being detained in hospital, released under
supervision in the community, or given an absolute discharge.
"Father showed no signs of mental disorder"
Last Updated: Sep 19 2003 07:36 AM
PDT CAMPBELL RIVER, B.C. - The family doctor who treated a Quatsino man says he was distressed but not psychotic, after he killed his six children last March.
That's contrary to Jay Handel's defence. The 46-year-old dad says he is not guilty of six counts of murder because he was mentally ill.
The Crown is trying to prove the killings were an act of revenge, while the defence lawyer maintains client is legally insane.
Dr. Marlene Smith was the Handel family physician. She delivered several of the children – and she took care of both Jay Handel and his estranged wife Sonya right after the killings. Dr. Smith testified she received a letter from Jay Handel that he'd written just hours after he killed his three boys and three girls – who ranged in age from two to 11. In it, Handel tells her the children died peacefully.
Smith followed up with a phone call to Handel who was in a psychiatric ward at the time. "I asked him what he did to the children," she says. "He told me he gave them codeine. I said that wouldn't have killed them. And he replied that it didn't matter what he'd done. They're dead now."
Smith also asked him why he killed his children. She says he told her Sonya wanted to be alone, and now she was. She said he became distressed only after she told him that Sonya's estranged family had rallied around her in the aftermath of the deaths, and that they were planning a memorial. Smith said she believed Handel was upset because he thought he should be at the service, and that he didn't intend for Sonya's family to come together over the tragedy.
Automatism
Refers to the state in which a person has no conscious control over his or her actions
Applies to persons who commit criminal acts but who cannot be found criminally responsible because they were mentally impaired when defense took place
Delay in Lees decision
Last Updated Fri, 28 May 1999 16:59:39 EDT CBC News
Delay in Lees decision Last Updated Fri, 28 May 1999 16:59:39 EDT CBC News
VANCOUVER - A ruling by Canada's Supreme Court has caused a delay in the case against Victoria realtor Patrick Lees. A judge was to rule on the second-degree murder case today but she now says that a ruling by Canada's top court this week means she wants to re-consider her decision.
Patrick Lees had pleaded not guilty to the murder of his wife Laurie. She was found strangled in her Saanich home in January 1998. One of the key arguments in Lees defense was that he was in a state of automatism when attacking his wife. He said his wife had threatened to accuse him of molesting their daughter if he did not give her what she wanted in a divorce.
Lees's lawyer argued that his clients body and mind were somehow disconnected at the time of the attack and the slaying was involuntary.
The circumstances are similar to the case of Bert Stone. He's a B.C. man who also used the automatism defense in the stabbing death of his wife. His lawyer had argued Stone entered the disassociated state after his wife had berated him.
Earlier this week the Supreme Court of Canada upheld Stone's seven-year sentence. The court said there needed to be more evidence of the disassociated state before it could be considered a defense.
Now the B.C. Supreme Court will hear more arguments on the Lees case in light of the Stone ruling. The case will be back in court next Tuesday.
Copyright ©2005 Canadian Broadcasting Corporation - All Rights Reserved
Patrick Lees found guilty
Last Updated Tue, 01 Jun 1999 20:52:56 EDT CBC News
Last Updated Tue, 01 Jun 1999 20:52:56 EDT CBC News
VANCOUVER - There were tears of joy in a Victoria courtroom today as Patrick Lees was found guilty of murdering his wife, Laurie. The well known realtor from Saanich was sentenced to life in prison with no chance of parole for 10 years.
In finding Lees guilty of second degree murder, Madam Justice Geena Keeano referred to last week's ruling by the Supreme Court of Canada on the so-called "automatism defense." Lees had argued he was provoked into killing his wife after she threatened to accuse him of molesting their four-year-old daughter. Lees said he couldn't remember strangling her with his belt. He testified his mind didn't know what his body was doing.
The judge said Lees failed to meet the new rigid guidelines for the automatism defense, established by the high court. Laurie's mother, Barb, says a huge burden has been lifted from her family. With the trial over, Laurie Lee's family will begin to focus on raising her two children, a five year old girl and a three year old boy, who've already been told their mother was murdered and now, that their father will spend at least the next ten years in jail for killing her.
Copyright ©2005 Canadian Broadcasting Corporation - All Rights Reserved
Self Defence
Self defense does not argue a lack of criminal intent. It argues a justification for the criminal act and alleges that actions are justified on the grounds that people have a right to defend themselves
Elements of self defense
Provocation
Partial defence that reduces the crime of murder to manslaughter providing the accused can show he/she/they was provoked into killing.
Entrapment
Defense of entrapment is used to show that the accused was set up or trapped by lawful authorities into doing something they would not otherwise have done.
Necessity
Duress
Battered Woman (Spouse) Syndrome
Based on judicial decisions, many defences are found in case law. R v. Lavallee (1990) established the battered spouse syndrome to be accepted as reasons for why someone is not legally responsible for actions. In the case referenced Lavallee truly believed her husband was going to kill her, so she shot him first. Evidence was brought into trial to support her claims of serious domestic abuse prior to the event in question. It was decided her defence of her person with deadly force was reasonable.