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Intoxication

Patrick Ducharme
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.
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Proof of Consent: Assault

Patrick Ducharme
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.
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Consent: Section 273.1 of the Criminal Code

Patrick Ducharme
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:
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Consent

Patrick Ducharme
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.
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An Unintended Consequence

Patrick J Ducharme
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.
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Provocation May Be Relevant

Patrick Ducharme
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.
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Accident

Patrick J Ducharme
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:
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