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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”
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| Patrick J Ducharme |
In this form of the defence of accident the court is asked to focus upon the consequences of the accused’s actions. In one recent case thee men were experimenting in the backyard of a cottage just outside the city of Sarnia. They had a metal pipe into which they loaded gun powder. The metal pipe at one end had a “wick” that when lighted would allow the men to run to a safe place some distance away. When the gun powder was ignited it would send a projectile placed at the other end of the pipe to be propelled into the air. At least that was the plan.
They videotaped this foolish escapade. There were several misfires. Each time the wick was lit these playful gentlemen would laugh and run to safety. But their place of safety turned out to be not so safe.
Continue reading “An Unintended Consequence”
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| Patrick Ducharme |
The Court of Appeal for Ontario in R. v. Bouchard1 found that the statutory definition of provocation in section 232 has no relevance when considering the impact of an alleged victim’s conduct on the accused’s state of mind in determining whether the elements of murder is proven by the prosecutor. Just two years earlier, the Court of Appeal for Ontario had concluded that evidence relevant to a provocation defence under section 232 may also be relevant to proof of the fault element for murder. The court suggested that a careful examination of the state of mind of the accused in relation to intention or lack of intention was a good reason for a “rolled-up instruction” to the jury by the trial Judge.
Continue reading “Provocation May Be Relevant”
