PSSC 132 MIDTERM

• 2 categories of defences:

  1. Justification
  2. Excuse
• Justification defence: although harmful, it is not regarded as wrong. There is no criminal culpability. challenges wrongfulness.
• Excuse defence: regarded as wrong, but it is less so than normal. the defence concedes wrongfulness.
• In the mental disorder defence, mens rea is argued. if successful, accused is not Criminally Responsible Due To Mental Disorder (NCRMD)
• The prosecution can raise the defence of NCRMD but it is usually the defence/
• The court can hold a disposition hearing to protect the accused and the public. The disposition can lead to:

  1. Discharge
  2. Discharge with certain conditions
  3. Detention in mental hospital
• Mistake of fact defence is when the prohibited act is committed believing certain circumstances existed.
• in mistake of fact defence, no offence would have been committed if accused had known
• Mistake of law defence (s.19) is the ignorance of law
• Intoxication applies to specific intent and general intent offences.
• s.33.1 was enacted in response to R. V. Daviault. it removed intoxication as a defence for general intent offences (sex. assault)
• Parliament amended s.33.1 in 2022 to just general intent offences
• the compulsion defence can be used on any offence not listed in s.17. says the accused was not a member of the group that planned the offence
• in the compulsion defence (s. 17) the person threatening death or harm has to be present
• in the necessity defence, the accused had to do it because of forces of nature or human conduct
• Automatism is when accused has no conscious control over their bodily movements. the actus reus is absent.
• automatism can be used if the balance of probabilities accused acted involuntarily. the judge must determine if it is mental disorder or non- mental disorder. if accused is found guilty, they are immediately released from custody
• Common law defences are in s. 8
• Material fact is a fact that related to any matter in dispute between parties
• relevant fact is a fact that logically supports proof of material fact
• conditional relevance describes evidence that may not initially appear relevant but is admitted on condition that its relevance will be established/
• Evidence is not always given in chronological order
• probative value is the degree to which a potential piece of evidence helps prove a proposition
• the most important evidence, has the most probative value
• prejudicial value is the potential to be given undeserved weight by jury
• indirect evidence from which the trier of fact can infer the existence of a material fact. trier of fact must make inferences to put pieces together.
• evidence must pass materiality test and then must also be tested for relevancy
• post- offence conduct is the behaviour of accused after an alleged act
• the threshold test asks questions about relevancy and materiality for any evidence. evidence must be relevant and material to be committed.
• the oakes test is a 2 part test used by courts to determine whether a charter right can be limited by s.1. Asks:

  1. is it important?
  2. proportionality test
• The collins test is a test used by courts to determine whether a police search is reasonable:

  1. Is the search authorized by law
  2. is the law that authorizes search reasonable
  3. is the search conducted in a reasonable manner
• section 24 says that evidence shall be excluded if it would bring the administration of justice into disrepute
• section 33 permits governments in Canada to expressly declare any statute valid despite guarantees contained in s. 2 and s. 7- 15
• the plain view doctrine is a rule that an officer may act without a warrant if evidence is in plain view.
• s. 9 states everyone has the right to not be arbitrarily detained or imprisoned.
• competence is the legal ability to give oral evidence in a hearing
• incompetent means a witness is not permitted to give evidence
• If any witness, 14 or older, has their capacity challenged, the court must conduct an inquiry to determine:

  1. whether person understands nature of an oath
  2. Whether person is able to communicate evidence
• children, aged 14, are presumed to have the capacity to testify as long as they are capable of understanding questions
• Examination- in- chief is the questioning of a witness by the party who called the witness. the objective is to bring out information that establishes facts