Category: articles

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”

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”

Patrick Ducharme

In this defence the evidence needs to focus on the conduct of the person charged. Did, for example, the actions of the accused appear to be conscious and voluntary? Or, in contrast, were the actions of the accused immediate, reflexive, occurring on the sudden, accidental, and/or unintended?
Continue reading “An Unintended Act”

Patrick J Ducharme

The word “accident” is derived from the Latin verb “accidere” meaning to fall upon or happen by chance. It describes an event that occurs in circumstances that are unusual or unexpected, even to the person to whom it happens, and, as such, the happening is unusual and the result of an occurrence that is a mishap based on sudden and unexpected events taking place without expectation or intention. It can often be broken down into two parts:
Continue reading “Accident”

Patrick Ducharme

Here are some of the most common defences used at trials in Canada.

1. Accident
2. Consent
3. Intoxication
4. Mental Disorder
5. Mistake
6. Necessity
7. Self Defence
8. Denial of Conduct Alleged.
Continue reading “The Most Common Defences Used at Trials”

Patrick Ducharme

That focus should be on what occurred (if anything) what involvement there is on the part of the accused (if any), and, if the accused did play some part in the events, was he intending to commit the crime, cause the hurt, cause the damage or effect the result.
Continue reading “The Intentional Part”

Patrick J Ducharme

Described in the broadest of terms, and in a non-legalistic fashion, there are only three defences available to any accused person in Canada. They are:

1. The alleged crime(s) did not occur.

2. If the alleged crime(s) did occur, the accused did not commit it (them).

3. If the alleged crime(s) did occur, and the accused performed at least some of the actions alleged to form the basis of committing the crime(s), the accused did not intend or mean to commit it (them).

Continue reading “Defences”

Patrick Ducharme

Recently, there have been significant changes in our laws related to bail, both in case law and legislatively. The upshot of these changes emphasizes that the bail system is intended to ensure the persons charged with criminal offenses will attend court when necessary to answer to the charge(s). The emphasis is on their release from custody prior to having to answer to the charge unless it is established by the prosecution that the accused poses a risk to the public safety on bail.
Continue reading “Summary of Bail”

Patrick Ducharme

In R. v. Antic1 the accused was charged with several drug and firearms offences. He was detained at his original bail hearing and sought release on a bail review. The bail review Judge declined to vacate the detention order but indicated that he would have released the accused if he could have imposed both a surety and a cash deposit as release conditions. The Judge on review felt constrained by subsection 515(2) because the subsection only applies if the accused is from out of the province or does not ordinarily reside within two hundred km of his incarceration.
Continue reading “R. v. Antic: The Right Not to be Denied Reasonable Bail”

Patrick J Ducharme

Any bail order may be altered by: the trial Judge at any time or by the preliminary inquiry Judge at the completion of the preliminary inquiry; or, by any Justice at any time with the consent of the prosecutor and the accused; or, by any Judge of the Superior Court of Justice with the consent of the accused and the prosecutor, or, by any Judge of the court before which the accused is being tried with the consent of the accused and the prosecutor.
Continue reading “Alternate Ways to Review”