Brian Pfefferle, Saskatoon Criminal Lawyer - Saskatoon

Every person, even someone arrested in very suspicious circumstances, is entitled to present a defence at trial. A defence may be defined broadly as any denial or answer to the charge against the accused person. This definition includes defences that cancel part of the prosecution’s case, such as the first defence listed below, “no criminal state of mind”.

Occasionally the defence lawyer thinks the Crown Prosecutor’s case is so weak that the defence lawyer chooses not to present any evidence. The defence lawyer can still argue that the Crown Prosecutor has not proven the facts or the required criminal state of mind, even when the defence calls no evidence. To convict, the Crown Prosecutor must prove the facts and the required state of mind in every case.

In a more narrow sense, a defence is a legally recognized excuse or justification for criminal conduct. To raise such a defence, the accused person must be able to point to evidence that supports the defence. For example, in an assault case, the Crown Prosecutor may have proved that the accused person hit someone and that the accused person intended to hit that person. Unless they raise a defence, the accused person will be convicted. However, the defence may present evidence that the accused person was acting in self-defence. “Self-defence” may then justify what would otherwise have been criminal conduct.

A defence lawyer may use one or more of the following defences at a trial. The defence lawyer may present evidence such as witnesses, physical evidence or the testimony of the accused in order to prove a defence.

No criminal state of mind: Where the accused person did not have a guilty mind when committing the crime, they may be found not guilty. For example, suppose that a person accidentally backed their car over a neighbour’s lawn ornament. As a result, the ornament was destroyed. The driver may be liable in civil court for causing damage to the ornament. However, because it was an accident, there likely was no guilty mind, so the driver should not be convicted of a criminal offence.

However, suppose that the driver drove over the lawn ornament on purpose, thinking that it was too ugly to exist. In that case they may be guilty of the crime of mischief. The crime of mischief includes wilfully destroying another person’s property.

Behaviour not voluntary: The accused person must have acted consciously. The criminal behaviour – what the person did – must be voluntary. A person who does something while sleepwalking, for example, may not be acting consciously. Similarly, a person’s actions, brought on by an epileptic seizure or by a blow to the head, are not truly voluntary.

Crimes committed in an unconscious state are rare, but if the actions were not voluntary the accused person will be acquitted. This is called the defence of “automatism” because the person moves about automatically, without consciously controlling their actions.

Alibi: An alibi is when an accused person claims that they were not present at the time of the offence. Independent evidence supporting this claim strengthens an alibi defence.

Self-defence: A person who is attacked may use force to resist the attack. The person may use only the amount of force necessary to defend against the attack. This is called “reasonable force”. A person charged with assault, murder or manslaughter may use this defence.

Defence of property: Defence of property is similar to self-defence. A person may use reasonable force to prevent someone from entering their home or property. A person defending their property may not use excessive force. This defence cannot justify shooting, stabbing or setting traps that would injure a trespasser.

Duress: A person who commits an offence because they were threatened may claim the defence of duress. Generally speaking, courts will consider how immediate and serious the threat was, whether there was a reasonable legal alternative, and the degree of harm avoided by way of comparison to the offence itself. Duress may not be a defence to violent crimes such as sexual assault, aggravated assault or murder.

An innocent bystander, forced at gunpoint to drive the getaway car after a bank robbery, might use this defence.

Provocation: Provocation is something that causes another person to lose their self-control. It can be an act or an insult. Provocation can reduce a charge of murder to manslaughter. This is the only time a person may use provocation as a defence. An accused person who acts on provocation before “cooling off” may be acquitted of murder and convicted of manslaughter. If too much time passes between the provocation and the offence, the defence of provocation may not be available. Even so, evidence of provocation can lessen the punishment the accused person receives for the offence if the person is convicted.

Mistake of fact: A person whose behaviour would otherwise be criminal may have a defence if they made a mistake about the facts. Someone who leaves a bicycle in a bike stand, returns and rides off on another bicycle the same colour and make could use this defence. The rider was mistaken about which bike belonged to him or her, not about whether it was illegal to take someone else’s bike. The person must be mistaken about the facts, not the law. The mistaken belief must be an honest one.

Mistake of fact, where it occurs, cancels any “criminal state of mind”. It is related to the first type of defence discussed earlier.

Mistake of law: Ignorance of the law is no excuse. Not knowing that something is a criminal offence does not mean it is all right to commit the offence. But when an accused person can show that a government official misled him or her about the law, an exception called “officially induced error” may apply and mistake of law may provide a defence.

Mental disorders: An accused person who suffered from a mental disorder at the time they committed the offence may not be criminally responsible. The person must not have understood the nature and quality of what they did or that it was wrong. This defence was formerly called the defence of insanity.

The judge may order an assessment of the accused person’s mental condition. The assessment may be done to see whether the accused person is unfit to stand trial, to see whether the accused person was suffering from a mental disorder at the time of the offence, or for several other reasons. A psychiatrist or other medical practitioner assesses the person and reports back to the judge, the defence lawyer and the Crown Prosecutor.

If an accused person is found not criminally responsible, the judge has a choice. The judge may make an order concerning the person or may choose instead to refer the case to a review board. If the judge makes an order, there are three choices available: an absolute discharge, a conditional discharge or a term in a psychiatric hospital. The judge may grant an absolute discharge if the mentally ill person is not a threat to the public. Where the judge orders that the person be kept in a psychiatric hospital, the judge’s order lasts for a maximum of 90 days. After that, the review board reviews the person’s case.

If the judge does not make an order and refers the case to the review board, the board holds a hearing and decides. The board has the same choices of absolute discharge, conditional discharge or a term in a psychiatric hospital.

Necessity: A person who does an illegal act to prevent a more serious result may raise the defence of necessity. There are several conditions. The accused must show that the act was done to avoid a greater evil; that there was no alternative; and that the illegal act was not more than necessary to avoid the evil.

Intoxication: Ordinarily intoxication by alcohol or drugs is no excuse. For example, in criminal law, a person who gets drunk and does a criminal act is usually still responsible for his or her actions when drunk. There are two possible exceptions. One possible exception is when a specific intent is required for the crime and the other is where intoxication is so extreme that it is clear the person did not know what they were doing.

Intoxication may be a defence for a narrow range of offences, such as murder or theft. These offences require the accused person to form a specific intent. A specific intent means the accused thinks about and intends a particular result, such as the intent to kill in murder cases. A person may be so intoxicated that they are unable to form this intent to kill. In this example, the accused person may not be convicted of murder but could be convicted of manslaughter.

Even if the offence does not require a specific intention a person who was extremely intoxicated could still argue that they could not even form the general intent required for the crime or that their actions were not voluntary. However, the Criminal Code states that no amount of intoxication can be used to show that an accused could not form a general intent, or that an accused’s actions were not voluntary, if the crime involves violence or threatened violence to a person. This means that a defence of extreme intoxication would only be possibly available for crimes that do not involve violence to a person.

Long term drunkenness or abuse of drugs may cause a person’s health to deteriorate so that a mental disorder results. In that case, the accused person may not be criminally responsible for their actions and could argue a defence of mental disorder.

Special pleas: A person who has been tried for an offence cannot be tried again for a similar offence arising out of the same facts. That person may plead a special plea that they have already been acquitted, convicted or discharged. The Canadian Charter of Rights and Freedoms also gives this right.

Entrapment and Abuse of Process: The police may carry out undercover activities to detect crime. In doing so, legally they may present a person with the opportunity to commit a crime, but they may not harass, bribe or otherwise induce the person to break the law. Police conduct that induces criminal behaviour is called entrapment. The accused person must prove entrapment.

Entrapment is an abuse of process. It is so unfair and shocking to our sense of justice that it would be an abuse to force the accused person to stand trial in these circumstances. After accepting that there was an abuse of process, the judge “stays” or stops the trial.

How the Charter Affects Criminal Law: The Canadian Charter of Rights and Freedoms (the Charter) is part of the Constitution of Canada. It is designed to protect people against abuses of power by governments. For example, if the provincial government refuses to give someone social assistance because of their religion, the Charter applies. A judge could overturn the government’s discriminatory decision. The Charter applies to all Canadians, young and old. It applies to all laws, government policies and decisions made by the federal or provincial governments or a government agency, like the police. The Charter only comes into play when government is involved. It has no effect when individuals are involved in a dispute over private matters. The Saskatchewan Human Rights Code may provide a remedy in a private matter.

The Charter outlines fundamental rights and freedoms that all Canadians may claim as protection against laws or other forms of government action. Fundamental freedoms protected by the Charter include freedom of religion, expression and association.

The Charter has a great impact on criminal law because of the rights it guarantees to all persons charged with an offence. These include the right to a fair trial within a reasonable time, freedom from unreasonable search and seizure, and the right to seek legal advice when arrested. The Charter also protects against unlawful arrest, detention and imprisonment.

The Charter says that the police must inform a person they arrest of their right to seek a lawyer’s advice and assistance. The police must tell the arrested person of this right without delay.

If the police or other government officials do not respect a person’s Charter rights, a judge can decide not to allow the use of any evidence that the police obtained while violating those rights. The judge’s decision to exclude evidence may affect the outcome of the trial. The judge has the power to exclude evidence if allowing it would decrease respect for the courts and our system of justice.