Defences

A number of different defences exist that excuse or justify what would otherwise be illegal behaviour. For example, the fact that something was an accident can excuse what would otherwise be illegal behaviour because there was no intent to commit the offence. Illegal behaviour, such as an assault, can be justified in self-defence.

There are also defences that are procedural. These defences say that the charge should be thrown out because of some wrong committed against the accused. For example, everyone has the right to be tried for an offence within a reasonable time. If they are not, then their charge could be thrown out.

Many of these defences apply to both criminal and provincial offences. Some apply only to one or the other. Certain defences may also only apply to certain offences. Some defences are not a complete defence and will only reduce the type of charge against an accused to a lesser offence. Some defences may only result in a reduced sentence or some other remedy.

A person may use force to resist an unlawful use of force against themselves or another person. The person may use only the amount of force necessary to defend against the attack. Another way to put this is that they may only use reasonable force. A person charged with crimes like assault or murder may use this defence to justify their actions. Using excessive force, however, is not justified. It cannot be used as a defence in response to a lawful threat against a person. This could be, for example, a police officer legally arresting someone.

In deciding whether reasonable force was used, the court will look at factors like:

• the nature of the threat
• whether the threat was imminent
• physical capabilities of the parties
• how proportional the response was to the threat
• the accused’s role in the incident, such as whether they provoked or “set up” the assault on themselves so that they could respond with force

Defence of property is similar to self-defence. A person may use reasonable force to prevent someone from entering their home or stealing their property. A person defending their property may not use excessive force. This defence cannot justify killing someone merely to protect property.

Force can be used against another person without their consent when authorized by law. For example, police officers are allowed to use as much force as is needed to make lawful arrests. Likewise, a person making a lawful citizen’s arrest can use the force needed to make the arrest. In these cases, what would otherwise be unlawful acts can be justified.

Using excessive force may result in criminal charges. This is because excessive force is not authorized by law. Only using as much force as is reasonably necessary is authorized by law.

The Criminal Code provides protection for a caregiver when they use physical force to correct a child under their care. The caregiver can be a parent, teacher or anyone who acts in the place of a parent. This section of the Criminal Code has been the subject of much debate over the years and has been considered by the Supreme Court of Canada.

In considering this section, the court placed limits on when and how force can be used. They decided that this section does not justify:

• spanking teenagers or children under the age of two
• hitting a child in the head
• hitting children with objects like belts or rulers
• outbursts of violence against a child from anger or frustration

The court did recognize that the protection under this section was necessary for certain actions that could otherwise be an unlawful assault. For example, placing an unwilling child in a chair for a five-minute time-out.

Many crimes require an intentional act. In other words, the accused person intended to do what they did. These crimes cannot be committed by doing something by accident. This is because there is no criminal intent. Accidentally throwing a baseball through a window during a game of catch is not a crime. Intentionally throwing that same baseball through a window, however, would be a crime.

The defence of due diligence applies where an accused can show that they took all due care to avoid committing the offence. This only applies to regulatory offences where the prosecutor does not have to prove that the accused intended to commit the offence. The accused must show that they took every reasonable step to avoid doing the illegal act.

A person who commits an offence because they were threatened may claim the defence of duress. For example, an innocent bystander forced at gunpoint to drive the getaway car after a bank robbery might use the defence of duress. Generally speaking, courts will consider:

• how immediate and serious the threat was
• whether there was a reasonable legal alternative or opportunity to escape
• the degree of harm avoided by way of comparison to the offence itself

Duress is not a defence to certain violent crimes such as sexual assault, aggravated assault or murder.

Some crimes require more than just the intent to perform the act in question. For example, the crime of murder can only be committed if the person intended to kill their victim. Intoxication as a defence can reduce a crime of murder to manslaughter. This is because the person could not form the intent to kill someone because they were intoxicated.

For a person to be found guilty of a crime, they must have acted voluntarily. Crimes committed involuntarily are rare. If the actions of the accused were not voluntary, however, they can raise the defence of automatism. Automatism means the person acts automatically without consciously controlling their actions. One such example is sleepwalking.

A person who has a mental disorder may not be capable of forming criminal intent. This will be the case if they did not understand the nature and quality of what they did or that it was wrong. In these cases, they may not be found guilty or convicted of the offence. They may, however, receive an absolute or conditional discharge. They may also be placed in a psychiatric hospital until they are determined to no longer present a danger to the public.

A mistake of fact defence involves asking if the accused honestly believed in a mistaken set of facts which, if true, would have rendered the act or omission an innocent one. The accused’s belief must also be based on reasonable grounds. Someone who leaves a bicycle in a bike stand, returns and rides off on another bicycle the same colour and model may be able to use this defence. The rider was mistaken about which bike belonged to them, not about whether it was illegal to take someone else's bike.

Ignorance of the law is not an excuse. Not knowing that something is an offence does not mean it is all right to commit the offence. An honest mistake in believing that your actions were lawful can, however, reduce a sentence that is imposed.

When an accused person can show that they were misled about the law, however, an exception called "officially induced error" may apply. This defence requires that the person who gave the advice was an appropriate official in the circumstances. The advice must have been reasonable even though it was wrong. For example, a hunter could be charged with hunting when they were not allowed to. If a game warden had told them that they were allowed to hunt, the accused may be able to argue that their mistake of law was officially induced.

A person who does an illegal act to prevent a more serious result may raise the defence of necessity. There are several conditions that must be met. The accused must show that:

• there was an urgent situation of clear and imminent peril
• there was no reasonable legal alternative to disobeying the law
• the illegal act was not disproportionate to the harm the accused was trying to avoid

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 sentence if the person is convicted.

The defence of reflex action is based on the idea that people sometimes do things quickly in response to something else. It is an action that they have little to no control over. In other words, it is something done reflexively. This defence can be similar to the accident and involuntary action defences.

For example, a person may reflexively strike out at something coming towards their face. If this reflexive action were to injure someone, what technically could be an assault may be excused because it was a reflex action.

An alibi is when an accused person claims that they were not present at the time of the offence. Independent evidence supporting this claim, such as witnesses, strengthens an alibi defence. Disclosing the alibi to the police or prosecutor in a timely manner also strengthens the defence. The defence is one that says the person charged with the offence is not the one who committed the offence.

De Minimis Non Curat Lex is a Latin term which means “the law does not concern itself with trifles.” In some cases, while something may technically be illegal, it is so minor that a court could find that it is not worthy of its time.

For example, in one case, a person was charged with assault after he angrily pushed by someone to get out of his office. However, the court decided that even if an assault occurred, it was of such a minor, insignificant nature that it did not need to be dealt with in court. In this case, the accused person was acquitted.

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 people this right.

Abuse of process happens where the accused’s right to a fair trial is violated. For example, if the prosecutor promises to drop charges in exchange for information, it may be an abuse of process if they do not drop the charges. This can result in a stay of proceedings which ends the trial. This only happens in the clearest of cases, however. In other cases, it may result in a lower sentence or some other remedy.

The police may carry out undercover activities to detect crime. In doing so, they may present a person with the opportunity to commit a crime. Police can only do this in the following situations:

• as part of a proper, good faith investigation
• if they have a reasonable suspicion that the people they are presenting the opportunity to are engaged in criminal activity

However, they may not harass, bribe or otherwise induce the person to break the law. Police conduct that induces criminal behaviour is called entrapment. Entrapment is a form of abuse of process.

An accused person who raises the defence of entrapment must prove it. If the judge finds the defence to be valid, they will enter a stay of proceedings. A stay ends the trial process. This is only done in the clearest of cases.

Everyone has the right to be tried within a reasonable amount of time. The Supreme Court of Canada has set a limit for people charged with criminal offences to be tried. If the trial takes longer than the limit, the judge may stay the charge which ends the trial. The limits are:

• 18 months for trials in provincial courts
• 30 months for trials in superior courts which is the Court of King’s Bench in Saskatchewan

The clock starts from the date that the accused is charged with an offence. An accused is charged when an information is sworn. The information is a document that sets out details like what the offence was, when it happened and who the accused is. The clock ends on the date that the trial ends or is expected to end.

Any delay that is caused by the accused is subtracted from the time limit calculation. If the total time is above the limit after any of the accused’s delay is subtracted, the delay is unreasonable. The prosecutor then has a chance to show that there were exceptional circumstances outside their control that made the trial take longer. If they cannot show this, then the accused is entitled to a stay of proceedings which ends the trial.