week 7-12

• Defences


  Conditions, which if present in a certain case, lead to the acquittal of a defendant, even though the actus reus and mens rea requirements of a crime are met
• Defences are typically distinguished between excuses and justifications
• Justifications


  Justify actions. What did the defendant do? Was that allowed by law? Justifications, once accepted, change the law (e.g. self-defence, necessity, order of law)
• Excuses


  Excuse actors. The actor does not deserve to be blamed, e.g. due to mental state. Case-specific application (e.g. mistake of law/fact, insanity/diminished capacity, intoxication)
• Complete defence


  By virtue of the application of this defence, the accused is acquitted of the crime charged
• Partial defence


  By virtue of the application of this defence, the accused is convicted of a lesser offence
• Prosecutor has the burden to prove guilt beyond reasonable doubt
• Defence has the burden to prove a defence on a balance of probabilities</b>
• Balance of probabilities


  A fact is more likely than not to be proven as occurred
• Intoxication


  An excuse. To have an impaired consciousness of one's actions due to the use of alcohol or drugs
• Involuntary intoxication


  'Spiked drink', no mens rea
• Voluntary intoxication


  Drinking or using narcotics voluntarily
• General intent offences


  The intoxication defence is normally not available (e.g. DUI, manslaughter, sexual assault)
• Specific intent offences


  The intoxication defence is only available (e.g. forgery, murder, breaking and entering)
• Intoxication does not apply to offences of negligence, because the mens rea in negligence requires an evaluation of the 'reasonable person'
• Mental disorder (formerly insanity)


  No criminal responsibility if the person was incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong
• Automatism: actions in a state of impaired consciousness (sleepwalking)
• Provocation


  A defence only in charge of murder, reduces it to manslaughter. The accused was so inflamed that he could not control his violent impulse and killed someone on the spot
• Mistake of fact


  The accused honestly believes in certain circumstances that do not exist but that would mean that he had not committed an offence if the circumstances did exist
• Mistake of law/ignorance of the law is not a defence
• Duress


  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
• Duress is not available to persons who are part of a criminal conspiracy or organization
• Necessity


  A common law defence. Avoidance of harm or pursuit of some greater good
• Self-defence


  A person is justified in using force if they have a reasonable apprehension of death or grievous bodily harm and believe on reasonable grounds that they cannot otherwise preserve themselves from death or grievous bodily harm
• Fair Trial Rights


  Procedural requirements and guarantees that are inherent in the due process of a criminal justice system
• Fair Trial


  The right to a fair trial entails observance of, and compliance with, various procedural requirements and guarantees that are inherent in the due process of a criminal justice system
• Arbitrary Detention or Imprisonment


  Detention requires some form of physical or psychological restraint by the state. It has been defined as "a suspension of the individual's liberty interest by a significant physical or psychological restraint"
• Psychological Detention


  Occurs where the subject is legally required to comply with a direction or demand or where, in the absence of such a direction, state conduct would lead a reasonable person to conclude that he or she had no choice but to comply
• Arbitrary Detention or Imprisonment


  An unlawful detention (i.e., detention or imprisonment that is not authorized by statute or common law) is always arbitrary and unjustifiably limits section 9 of the Charter
• Lawful Detention


  Is not arbitrary within the meaning of section 9, "unless the law authorizing the detention is itself arbitrary"
• Reasonable and Probable Grounds

  The standard has both a subjective and an objective aspect: "It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest"
• Reasonable Grounds to Detain


  The standard "reasonable grounds to detain" requires reasonable suspicion
• Informed of Reasons for Arrest or Detention

  The question is whether what the individual was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him or her to make a reasonable decision with respect to whether to submit to arrest and to be able to instruct counsel under section 10(b) of the Charter
• Promptly


  Providing this information immediately upon arrest or detention, interpreted in light of the surrounding circumstances
• Right to Retain and Instruct Counsel Without Delay


  This has been interpreted to mean "immediately"
• Duties Under Section 10(b)

  (i) the duty to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; (ii) if a detainee has indicated a desire to exercise this right, the duty to provide the detainee with a reasonable opportunity to exercise this right (except in urgent and dangerous circumstances); and (iii) the duty to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases or urgency or danger)
• Consequences of 10(b) Violation

  Any evidence that was obtained in a manner that violated paragraph 10(b) may be found to be inadmissible in subsequent proceedings if its admission would bring the administration of justice into disrepute pursuant to subsection 24(2) of the Charter
• Right to Habeas Corpus

  Section 10(c) of the Charter protects a "right to prompt review" of detention
• Requirement to Bring Before a Judge

  Under the Criminal Code, a person who is arrested with or without a warrant is to be brought before a judge within 24 hours, or as soon as possible
• Informed of Specific Offence

  The right to be informed of the "specific offence" means the right to be informed of "the substance of the offence and of the details of the circumstances surrounding the commission of that offence"