Class Notes (808,754)
Canada (493,378)
Philosophy (1,284)

Class 17.docx

13 Pages
Unlock Document

Western University
Philosophy 2080
James Hildebrand

Class 17: DEFENCES Defences can be divided into 2 categories: 1. Negative defences: where the crown has failed to prove an important element of the offence beyond a reasonable doubt. 2. Positive defences: where the accused admits the intentional act, but argues the conduct was justified or excused. NEGATIVE DEFENCES: Mistake of Fact: The accused person may have an honestly held but mistaken belief in a set of circumstances that would make him lack mens rea. For example, the taking possession of a thing that the accused thought belonged to him would mean he did not have the necessary guilty mind for theft. We will see this defence arise in sexual assault cases where an accused person may raise the issue that he believed the complainant was consenting. Automatism: According to Justice LaForest in Parks, being an automaton means a person lacks the voluntariness requirement of the actus reus. The accused person is not acting voluntarily at the time of the offence, it can occur when an accused is sleepwalking, having an epileptic seizure, or suffering from a concussion. As you recall from Parks, these states are different from what is understood as a “disease” of the mind. Mental Disorder (disease of the mind): If the accused is suffering from a mental disorder, it must be such that the accused does not understand the nature or the consequence of his or her actions. This means the accused will lack mens rea. Since the Code presumes a person is sane, the party raising the issue must prove the mental disorder. Defence lawyers often were wary of this defence because the potential commitment to an institution was not time-limited as is a prison term. Recall in Parks the crown wanted to establish the accused had a mental disorder, arguably so that he could at least be placed in a hospital or see the law impose some consequence, even if not a prison term. Intoxication: This refers to self-induced intoxication – if it’s not self-induced, it would likely fall under the mental disorder category. The law in Canada is that self-induced intoxication is only to be used a defence in very specific situations. Some offences are called “specific intent” offences, and all the rest are just “general intent” offences. A specific intent offence requires a more complex intention or further purpose. For example, “break and enter” is a general intent offence. “Break and enter for the purpose of committing an indictable offence therein” is a specific intent offence because it requires a further intention to do something once the accused has broken into the place. The thinking is, I suppose, that intoxication could be raised as a defence because it may affect the accused’s ability to perform the more subtle mental tasks required of a further intention. I personally think the distinction between specific intent and general intent is artificial and confusing, but this is dealt with in some detail further on in the materials. Self-induced intoxication is permitted as a defence to “negative” intention only in specific intent offences. POSITIVE DEFENCES: Justification: Self-defence: The accused must have an honestly held belief, based on reasonable grounds, that he had no other legal means to preserve himself from grievous bodily harm or death, and that the force used to defend himself was no more than what was reasonably necessary. This defence is found in the Code. If established by the accused, this defence will result in acquittal. Excuse: Necessity: The accused must be in a situation of imminent peril, and there must be no other legal alternative except the act done by the accused. This is a full defence, if successful, the accused will be acquitted. Duress: The accused formed the requisite intent, but is excused from criminal sanction. The accused must have been compelled to act under threat of grievous bodily harm or death. There must be no opportunity to escape, and this defence will not be available for certain severe offences, like murder or treason. The philosophical justification for such limits: one may not justify the killing of an innocent to save ones own life. This is logical, as it the accused is in no better position morally than the person whose life he or she takes in the aim of self-preservation. If available, this is a complete defence, resulting in acquittal. Provocation: The accused must be the subject of a wrongful act or insult that would provoke an ordinary person to lose his self-control. The action must be more or less immediately following the insult. This defence will have the effect of reducing murder to manslaughter, it is only a partial defence. LEARY V THE QUEEN: NOTE: This case is arguably an example of a legal realist application of law. Both in Leary and the following cases, it appears that an intuitive sense of justice compels the court to dispense with any notion it is going by the rules. Issues - accused convicted of rape - appeal dismissed at BC court of appeal - accused gave evidence at trial that she consented - complainant gave evidence that she was raped at knife point - jury accepted her evidence - trial judge told the jury that drunkenness was no defence to this kind of charge - this is because rape is a crime of general intent - but - there are two views main points; p 87 - - distinction between specific and general intent - rape as general intent - evidence that accused was so drunk couldn’t form intent - whether there was a miscarriage of justice sometimes crimes require a further intent - an act for the purposes of doing something further - break and enter for the purpose of committing a crime therein murder needs specific intent to kill - beyond intent to harm - accused might be so drunk not form the requisite intent - reduce charge to manslaughter ( *** but this is not worded by statute to require specific intent) - some examples: if you lack the further intent due to drunkenness, acquittal of the offence (usually convicted of something lesser and general intent) Vandervoot case - Ont C.A. - rape a crime of specific intent - to have intercourse - for the purpose of doing so against the will of the complainant - specific intent - specific because accused has to intend to have sex (general intent) further intend to do so with a person not consenting --> this would be a further intention But --> this is wrong: cases cited were “assault with intent to commit a rape”, different charge, different wording Lord Russell in Majewski page 89 - passages do not indicate specific intent for rape - Beard does not establish rape as a crime of specific intent 89: agree with Boucher: rape is a crime of general intent, drunkenness not a defence - answered question of law against appellant, rape a crime of general intent, not specific - but even if court agreed it was specific - no miscarriage of justice because on the facts, no evidence of extreme intoxication, he told police what he did, knew what he did - nobody believed his story that she consented Tactics: - accused put theory before the jury, his best defence: she consented - couldn’t say on the one hand she in fact consented, then defend in the alternative that I was so drunk I don’t know what I was doing - the 2nd alternative undermines the first, how could he give evidence of what happened, and say in the alternative argue he was too drunk to know what happened - same problem for Morgan defendants - can’t say “we believed she consented even though she resisted” then say --> she didn’t resist at all Accused chose not to put forth a weak secondary defence that would prejudice his main defence R v Daviault: NOTE: I was always a bit uncomfortable with the decision in Leary, the majority decision in this case sets out the reason why I was so concerned. Facts: accused drank excessively, 26 ounce bottle of whiskey, then many beers, went to visit the complainant - she was disabled - in a wheel chair, he sexually assaulted her and then went home Defended on the basis that he was unaware of what he was doing Held: acquitted at trial, automatism, Q CA convicted @ SCC - Majority: Cory Issue: Can extreme drunkenness (automaton) be a defence where general intent offence 2 positions: Leary - no; O’Connor -yes Leary: says - drunkenness is no defence to charge of this sort - general intent crime, can’t use drunk defence - Majewski: unless specific intent crime, no drunkenness defence - self-induced drunkenness is not alllowed to prove lack of intent Those who like Leary say: 1. self induced intox’n should not be used to avoid liability for general intent offences 2. society can’t afford it, intoxication would always be basis for a defence, despite that accused drank with full knowledge of its aggravating effects 3. open the flood gates for unmeritorious defences Those Against: 1. illogically imputes liability (intention?) where accused is drunk 2. accused denied ability to prove was unaware while “committing” prohibited act 3. might be an automaton, not allowed to prove it 4. intention to drink is substituted for intention to commit prohibited act 5. floodgates not a concern, rare defence --> have to show drunkenness severe enough to raise a reasonable doubt as to accused’s awareness of his conduct O’Connnor: - Australian case - accused drank and took car sickness pills - stole a map holder and a knife -stabbed arresting officer - charged with theft, wounding with intent to commit grievous bodily harm - accused said had no memory - judge told jury, drunkenness a defence to theft and wounding with intent, --> specific intent - but not for unlawful wounding, lesser included offence, general intent offence - acquitted on specific intent charges, convicted on general intent charges On appeal: - Majewski no good, didn’t follow it, acquitted - High Court: drunkenness is available in all offences - it becomes a matter of degree, if not an automaton, no defence, this is a question of fact - if just drunk enough to make you lose inhibitions etc., no defence Alternatives: follow Leary, or follow O’Connor, or do something else - Wilson in Bernard - leave general and specific as they are - but where so drunk you are an automaton, accused can prove this, on the balance of probabilities, and be acquitted Implications of Leary: - accused convicted even where lacks intent - self-induced intoxication is substituted for mens rea of the crime - intent to get drunk = intent to commit sexual assault But: a) would be rare that drinking and sex assault are one continuous event b) mens rea for an offence can’t be inferred from actus reas, because even voluntariness may be at issue - some say blame in getting drunk is good enough, but: - voluntary intoxication is not a crime - don’t know someone will always commit a crime when drinking - drinking doesn’t cause the crime Beard doesn’t say what people think it says: 1. insanity, regardless of its cause, acquittal, 2. evidence of intoxication which makes accused incapable of forming specific intent for offence should be taken into acc
More Less

Related notes for Philosophy 2080

Log In


Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.