Help
Add this page to your collection
Show collection (0 pages)
Suggest pagesCanadian Criminal Law/Defences
Contents |
[edit] Mental Disorder
See Canadian Criminal Procedure and Practice/Mental Illness
[edit] Drunkeness
Self-induced Intoxication
When defence not available
33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).Criminal fault by reason of intoxication
(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.Application
(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.
[edit] Automatism
[edit] Provocation
[edit] Necessity
[edit] Duress
Compulsion by threats
17. A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).
At common law, duress is an available defence to any offences short of murder. It must be shown that the accused's will was overborne by threreats of death or serious person injury such that accused is not acting voluntarily.[1]
It must be established that:
- following the law is impossible
- on an objective standard, no safe avenue of escape existed. [2]
The threat need not be of immediate death or bodily harm. [3]
The defence will not be available through the common law where the accused puts themselves in a position where they are likely to recieve threats.[4]
[edit] Self-Defence and Defence of Another
[edit] Defence of property
[edit] Reflex
It is permissible to argue that the action of accused was not voluntary as it was a reflexive act.[5]
[edit] Officially Induced Error
Officially induced error is available as a defence to prevent morally blameless individuals, who believe they are acting in a lawful manner, from being convicted.[6]
[edit] De Minimus
In general, the least touching of another person without their consent constitutes an assault.[7] The strength of the force is immaterial to consideration of guilt. [8]
Non-consensual touching that amounts to an assault that it was trivial is subject to the legal maxim de minimus non curat lex.[9]
[edit] Consensual fight
A assault that occurs during a consensual fight between two parties is not criminally liable unless bodily harm occurs.[10]
[edit] Entrapment
A defence of entrapment is available when:[11]
- the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to bona fide inquiries;
- although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.
"An exception to [the rule establishing entrapment] arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. When such a location is defined with sufficient precision, the police may present any person associated with the area with the opportunity to commit the particular offence. Such randomness is permissible within the scope of a bona fide inquiry."[12]
[edit] References
- ↑ R. v. T.L.C., 2004 ABPC 79 [http://www.canlii.org/en/ab/abpc/doc/2004/2004abpc79/2004abpc79.html
- ↑ R. v. Hibbert, [1995] 2 SCR 973 [1]
R. v. Keller, 1998 ABCA 357 (CanLII)[2] - ↑ R. v. Ruzic, 2001 SCC 24, [2001] 1 SCR 687 [3]
- ↑ R. v. Li, 2002 CanLII 18077 (ON CA) [4]
- ↑ R. v. Pirozzi (1987), 34 C.C.C. (3d) 376 (Ont. C.A.); R. v. Mullin (1990), 56 C.C.C. (3d) 476 (P.E.I.C.A.)
- ↑ R. v. Jorgensen 1995 CanLII 85 (S.C.C.), (1995), 4 S.C.R. 55
R. v. Halloran, 2010 ONSC 4321 - ↑ see R. v. Dawydiuk (2010), 253 C.C.C. (3d) 493, 2010 BCCA 162[5]
- ↑ see R. v. Palombi (2007), 222 C.C.C. (3d) 528 (Ont. C.A.)
- ↑ R. v. Juneja, 2009 ONCJ 572 [6]
R v Hinchey (1996) 111 CCC 3d 353 (SCC) at P 380-81 - ↑ R. v. Jobidon, [1991] 2 S.C.R. 714 [7]
- ↑ R.v.Mack 1988 CanLII 24 (S.C.C.), (1988) 44 C.C.C. (3d) 513 (S.C.C.) at p.559
- ↑ R.v.Barnes 1991 CanLII 84 (S.C.C.), (1991) 63 C.C.C. (3d) 1 (S.C.C.) at pp.10-11
