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| Patrick J Ducharme |
The defence is permitted to admit facts on any trial of an indictable matter (section 655) and on summary conviction trials (section 795) and the admission dispenses with the need for proof of those facts at trial.
Continue reading “Admissions of Fact”
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| Patrick Ducharme |
The trial Judge, even before a jury is selected, is able to hear pre-trial applications concerning any matter that would ordinarily or necessarily be dealt with in the absence of the jury.1 Subsection 645(5) provides the authority:
Continue reading “Pre-Trial Applications before Jury Selected”
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| Patrick Ducharme |
For non-jury trials, section 625.1 provides that either party or the trial court on its own motion may apply to hold a pre-trial conference. A pre-trial conference is required prior to a jury trial. It is not statutorily mandated for non-jury trials. Some courts have used section 482, which empowers the Superior Courts and the Courts of Appeal to make rules that apply to any prosecution or proceeding, to regulate pre-trial conferences.
Continue reading “Non-Jury Pre-Trial Conferences”
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| Patrick J Ducharme |
The Rules of Criminal Practice require notice, not less than fifteen days before the date on which the trial proceedings are scheduled to commence, where the accused is seeking relief under the Charter.
Continue reading “Applications and Charter Challenges”
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| Patrick Ducharme |
Pre-trials (referred to as “pre-hearings” in Section 625.1) are increasingly used by our courts to produce fair and expeditious trials or resolutions. Pre-trials, however, impose some added hazards for counsel.
Pre-trial discussions are “off the record” in the sense that what is discussed during a pre-trial is not to be used for or against a party during the trial.
Continue reading “Pre-trials”
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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”
