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| Patrick Ducharme |
This defence effectively places the prosecution on its requirement to prove each element of every criminal offence charged beyond a reasonable doubt. The accused is saying to the prosecutor “prove it.” All issues are in dispute. Without any admissions by the accused, the prosecution must proceed on the basis that it is required to prove all elements of the mens rea and the actus reus of each crime alleged. Continue reading “Denial of Conduct Claimed by the Prosecution”
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| Patrick J Ducharme |
Section 34 of the Criminal Code codifies the defence of self defence or the defence of another person. Under this section the accused is justified in acting in defence of himself, or, another person, if three conditions are presented in evidence. They are:
Continue reading “Self Defence”
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| Patrick Ducharme |
This defence is rarely used in Canada. It only arises in circumstances where an accused is alleged to have committed a crime, and, he does not deny the actions that support the inference of a crime. Instead, he claims that he has a lawful excuse for his actions.
Continue reading “Defence of Necessity”
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| Patrick Ducharme |
Mental disorder is defined in the Criminal Code as a disease of the mind. Section 16 of the Criminal Code provides that no person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that renders that person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
Section 16 also provides that every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of a mental disorder until the contrary is proved on a balance of probabilities. The burden of proof that an accused was suffering from a mental disorder to be exempt from criminal responsibility is on the party that raises the issue. Normally, that party will be the accused.
Continue reading “Mental Disorder”
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| Patrick J Ducharme |
In Canada, if a crime is determined to be a general intent crime, intoxication is not a defence to the commission of it. Significantly, one will not find the designations or descriptions of “specific” or “specific intent” or “general” or “general intent” in any Canadian legislation related to crime. There is no reference to any criminal offence as requiring “specific” or “general” intent in over one thousand pages of Criminal Code.
Continue reading “Specific Intent versus General Intent Crimes”
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| Patrick Ducharme |
When the defence of intoxication is raised as a defence, it is generally not a valid legal excuse for committing an offence unless the court is satisfied that the state of mind required to commit the offence has not been proven beyond a reasonable doubt by the Crown. The burden of proving beyond a reasonable doubt the constituent elements of every offence remain with the prosecution. Intoxication is a valid defence only to the extent that it may convince the trier of fact that the required state of mind to commit the offence has not been proven.
Continue reading “Intoxication”
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| Patrick Ducharme |
It is the Crown’s responsibility to prove beyond a reasonable doubt that the person complaining of having been assaulted did not consent to the conduct that forms the basis of the alleged assault. But that requirement of proof beyond a reasonable doubt is obviously aided significantly by sections 265 and 273.1. The Crown’s requirement to prove any form of assault beyond a reasonable doubt is also made easier by the judgment of Jobidon in the Supreme Court of Canada.
Continue reading “Proof of Consent: Assault”
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| Patrick J Ducharme |
It is the Crown’s responsibility to prove beyond a reasonable doubt that the person complaining of having been assaulted did not consent to the conduct that forms the basis of the alleged assault.
Continue reading “Proof of Consent: Sexual Assault”
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| Patrick Ducharme |
Continued from part 1: Consent.
Section 273.1 of the Criminal Code elaborates on the meaning of consent. This definition applies to any form of assault including, sexual assault (271), sexual assault with a weapon, threats to a third party or causing bodily harm (272) and aggravated sexual assault (273).
Section 273.1 provides specifically the consent must be present at the time the sexual activity in question takes place. It provides that the question of whether no consent is obtained is a question of law. And, it specifically provides that no consent is obtained if any of the following circumstances apply:
Continue reading “Consent: Section 273.1 of the Criminal Code”
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| Patrick Ducharme |
Although another person’s consent to any act or activity may, in some instances, amount to a defence based upon his consent, there are many instances where our law has either determined or statutorily barred the defence of consent. Generally, we think of consent as either a noun or a verb. As a noun we consider it as a prior approval or permission or agreement. As a verb we think of consent as the acts or words of another providing us with permission or agreement to do something.
Continue reading “Consent”
