7.3 - Criminal Defenses

Actus Reus & Mens Rea

The previous section, 7.2, describes the process undertaken during a criminal trial.  If the accused person pleads not guilty, then the trial is intended for the Crown counsel to prove guilt beyond a reasonable doubt, and for the defense counsel to create doubt as to guilt.  To create such doubt during the criminal trial, the defense counsel must try to disprove the existence of actus reus (the guilty act) and/or mens rea (the guilty mind).  The remainder of this discussion will outline some of the key defenses used in criminal trials.

Defenses

Defense counsel will use specific defences to try to disprove the existence of actus reus or mens rea for the accused.  Defenses are when there is a denial of, or a justification for, criminal behaviour.  Although there are many potential defenses that may be used, this section will discuss the following three main categories of criminal defenses:  mental states, justifications, and miscellaneous defenses.

Mental States

When a person is accused of a criminal offense, it is assumed that they are mentally fit for trial, unless they prove otherwise.  The mental states defenses of mental disorder, automatism, and intoxication are those used to try to disprove the existence of mens rea.

Consider first the defense of mental disorder, which is defined in the CCC as being a “disease of the mind”.  This ‘insanity defense’ sets out to disprove mens rea in one of two ways.  The first way is to prove that the accused was not capable of fully appreciating the nature and quality of the act committed at the time that they committed the act.  That is, the accused did not know how serious the act was at the time.  The second application of the defense of mental disorder is an attempt to prove that the accused is not capable of knowing that the act they committed was wrong.  Proving either of these two may result in a successful use of the mental disorder defense.

The second mental states defense to consider is automatism.  Automatism is a condition where a person acts without being aware of what he or she is doing at the time.  There are two types of automatism.  The first one is insane automatism, and it is a form of automatism that is caused by a mental disorder.  The other type is non-insane automatism, and this type is caused by some type of external factor (such as sleep walking).  Proving the existence of either form of automatism may be sufficient to prove that the accused did not have mens rea at the time the offense was committed.

It is important to note that automatism is used only in the most serious of cases.  This is because it comes with a mandatory period of confinement in a psychiatric facility that may be longer than the alternative prison sentence.

The third mental states defense to be discussed is intoxication.  Intoxication is the condition where a person loses control because of being overpowered by alcohol or drugs.  This type of defense may be used in certain situations, but is not typically available for people that commit crimes while under the influence.  For example, intoxication is not available as a defense in crimes of specific intent (ex. robbery); but may be available as a defense for crimes of general intent (ex. assault).  If successfully used, the intoxication defense will prove that the accused did not have mens rea at the time of committing the offense.

Justifications

The second category of defenses to consider is justifications.  The defenses in this category also try to prove the absence of mens rea, but these are focused on proving that the accused had some kind of good reason why they committed the illegal act.  The following seven types of justifications will be discussed:  self-defense, battered woman syndrome, defense of a dwelling, necessity, compulsion or duress, provocation, and Aboriginal or treaty rights.

First, the defense of self-defense involves the use of reasonable force to defend against an attack.  The amount of force used must be ‘reasonable’ in relation to the threat at hand.  Also, self-defense includes the defense of self, others, and property.  The second justification defense is related to self-defense, and it is called battered woman syndrome.  This defense is a specific self-defense justification used by women who are victims of prolonged spousal abuse, and who then physically harm their partner.  This defense can be very effective, but the defense team must prove that the abuse suffered by the woman had continued for years prior to attacking her partner.  The third justification defense is also related to self-defense, and is called defense of a dwelling.  Similar to self-defense, this defense allows for reasonable force to defend a dwelling from intruders, as well as to remove them from the dwelling.

The fourth justification defense is necessity.  The defense of necessity states that the accused had no reasonable alternative to committing the illegal act.  In order for this defense to be successful, the accused must prove that the act committed was done to avoid even greater harm, and that there was no other reasonable alternative.  Fifth, compulsion or duress is the defense which argues that the accused was forced to commit the illegal act against their will, and under threat of violence.  The sixth justification defense is provocation, which argues that words or actions were insulting enough to cause a reasonable person to lose control.  And finally, the seventh justification defense to be considered here is Aboriginal and treaty rights.  This defense is used by Aboriginal peoples when CCC violations contradict constitutional rights afforded to Aboriginal peoples.

Miscellaneous Defenses

Besides the mental states and justifications defenses, there are also several other miscellaneous defenses commonly used in criminal trials.  These include mistake of fact, mistake of law, alibi, double jeopardy, and entrapment.

First, mistake of fact is the defense stating that the accused made an honest mistake that led to breaking the law.  For example, a man leaves his bike outside the library, and goes inside.  Later, when he comes out, he gets on a bike that he thinks is his and rides off.  Second is the mistake of law.  This is essentially ignorance of the law.  It is not a valid defense to state that one didn’t know that something was illegal, but a mistake of law can be used when the accused thinks that they have permission to commit an illegal act.  For example, a woman with an expired license is a passenger in a car that is parked illegally.  A police officer comes over and tells the woman to move the car.  When she does, and the officer finds out that she doesn’t have a valid license, she is cited for driving without a valid license.  The woman believed that the officer was giving her permission to commit an illegal act (drive without a license).

The third miscellaneous defense to consider is an alibi.  Alibi is a defense claiming that the accused person was not in the same location of the crime at the time it was committed.  Fourth, double-jeopardy is a defense based on the legal premise that an accused person cannot be tried for the same offense twice.  The fifth and final miscellaneous defense to discuss is entrapment.  This defense is used against police conduct that illegally induces the defendant to commit an illegal act.

Summary

Each of the defenses discussed above are intended to disprove the actus reus or mens rea, or at least to cause enough doubt as to guilt to result in a not guilty verdict.  Although these defenses are commonly used in criminal trials, the defense may use any number of other methods to accomplish the same goal.