Introduction

Canadian criminal law developed from British common law, in which all the offences and
defences were based on case law. However, Canada has had a statute-based criminal law since
the late 19th century. Today, there are no common law offences in Canadian law with the
exception of criminal contempt of court. The only other offences for which a person may be
charged and convicted are proscribed by the Criminal Code (the Code) or another federal statute
that creates criminal law. However, section 8(3) of the Code specifically preserves existing
common law defences.1
This
means that some defences are based on the common law and others are specifically set out in the
Code or other federal legislation. We will now take a look at some of the major defences
available in Canadian crim-inal law. Mental Disorder mental disorder
a disease of the mind that legally makes a person
incapable of appreciating the nature or quality of his act, or of knowing it is wrong
When looking at this defence, it is important to remember that in Canadian law, we do not
impose criminal consequences or punishment on a person due to their acts alone. A crucial part
of any offence is the blameworthy or fault mental element of mens rea. If a person suffers from a
mental disorder or disease of the mind such that he was incapable of forming the requisite intent,
we do not attach criminal responsibil-ity and punish those who have no control over their mental
processes. The defence of mental disorder has replaced the old defence of insanity. Section 16
provides:
16(1) No person is criminally responsible for an act committed or an omission made while
suffering from a mental disorder that rendered the person incapable of appreciating the nature
and quality of the act or omission or of knowing that it was wrong. (2) Every person is presumed
not to suffer from a mental disorder so as to be
exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on
the balance of probabilities. (3) The burden of proof that an accused was suffering from a mental
disorder so as to be exempt from criminal responsibility is on the party that raises the issue.
Several elements must be proved in order to establish the defence. First, the court
must be satisfied that an accused is suffering from a recognized mental disorder. A mental
disorder is defined in section 2 of the Code as a “disease of the mind.” In determining what
constitutes a disease of the mind, courts must apply a legal test and not simply a factual medical
test. A psychiatrist or psychologist may give evidence as to the accused’s mental health, but it is
up to the judge to determine whether the legal definition has been met. Second, once the disease
of the mind has been established, one of two tests must
be met. It must be proved that due to the disease of the mind, the accused is 1. incapable of
appreciating the nature and quality of his act, or 2. incapable of knowing it is wrong. Courts have
drawn a distinction between “knowing” and “appreciating.” To
“know” means to merely be aware of one’s physical actions. To “appreciate” involves a higher
awareness and understanding of the consequences of one’s actions. The courts have interpreted
“wrong” to mean morally wrong, not simply legally wrong. Every person is presumed not to
suffer from a mental disorder exempting him of
criminal responsibility unless it is proved to the contrary on the balance of probabilities. The
party raising the defence bears the onus of proof. This defence is unusual in that either the Crown
or the defence may raise it; how-ever, the right of the Crown to raise the defence has been
constitutionally challenged and, as a result, has been limited by the Supreme Court. The court’s
concern was that the accused has a fundamental legal right to have control over the defence that
he wishes to raise. In the case of R v Swain,2 only raise the defence in two situations:
the Court ruled that the prosecution may
1. the accused has, in the opinion of the trial judge, already raised a defence that puts at issue the
question of his mental capacity to form the criminal intent of the offence charged, or
2. the accused has been found guilty of the offence by the trier of fact. In a case where the Crown
raises the defence of mental disorder after a finding of guilt
there will be a second part to the trial where it must be determined whether the accused should be
relieved of that criminal responsibility by virtue of her mental disorder. A person found not
criminally responsible by reason of a mental disorder is not
automatically set free into the community. There must be a disposition hearing at which the
accused faces court-ordered detention in a mental health facility for an indetermin-ate period of
time.
Intoxication
Before examining the issue of intoxication as a defence, we must first make a distinc-tion
between voluntary and involuntary intoxication. Involuntary intoxication would involve a
situation where a person had consumed an intoxicant without being aware she was doing so. This
might occur where a person’s non-alcoholic drink was spiked when she was not looking, she
unknowingly consumed baked goods that contained cannabis, or she had an adverse reaction to a
prescribed medication. In such circum-stances, the accused may be successful in raising
involuntary intoxication as a defence. She would argue that due to the intoxication, she was
unable to form the intent required to be found at fault or that she did not perform the actus reus
of the offence voluntarily. However, if the accused voluntarily became intoxicated, the situation
is quite differ-ent. Voluntary intoxication is often referred to as self-induced intoxication. In order
to examine the issue we must first recognize the difference between the common law concepts of
general intent and specific intent offences. In the vast majority of criminal offences, the Crown
need only prove that the
accused committed the actus reus intentionally, knowingly, or recklessly, etc., as the case may be.
These offences are general intent offences. A defence of intoxication is not normally available for
these offences.
2 [1991] 1 SCR 933. CHAPTER 10 MAJOR DEFENCES 101
intoxication to have an impaired consciousness of one’s actions due to the use of alcohol or drugs
general intent a basic level of mensrea in which the Crown must prove that the accused had the
intent to commit the actus reus of the offence
specific intent a mensrea that has two levels in that the Crown must prove that the accused had
the intent to perform the actusreus for a specific purpose or ulterior motive
know to be merely aware of one’s actions
appreciate to have an awareness and understanding of the consequences of one’s actionsSpecific
intent offences, on the other hand, are offences requiring a special or ulter-ior intent. There are
essentially two levels of intent to be proven. The Crown must prove not only that the accused
intentionally committed the actus reus, but that he also intended some further consequence.
Specific intent offences involve a more complex mental process in establishing the mens rea.
This concept can be difficult to understand without looking at examples. The offence of theft is a
specific intent offence, as out-lined in section 322 of the Code:
322(1) Every one commits theft who fraudulently and without colour of right takes, or
fraudulently and without colour of right converts to his use or to the use of another person,
anything, whether animate or inanimate, with intent (a) to deprive, temporarily or absolutely, the
owner of it, or a person who has a special property or interest in it, of the thing or of his property
or interest in it; ...
The offence requires that the Crown prove beyond a reasonable doubt not only that the accused
intended to take the other person’s property but that she did so with the additional intent to
deprive the rightful owner of that property on a temporary or permanent basis. A person can have
the intent to take something but there is no additional intent to deprive the rightful owner of it.
For example, I may pick up a copy of the Code that was left behind in the classroom. My
intention is to take the book. This can be inferred from the fact that I picked it up and carried it
out of the room, but unless the Crown can prove that I intended to keep it, sell it, or otherwise
deprive the rightful owner of it, I will not be convicted. I may raise a reasonable doubt by
arguing that my intention was to find the book’s owner and return it to him. Another type of
specific intent offence is breaking and entering. Section 348(1) says:
348(1) Every one who (a) breaks and enters a place with intent to commit an indictable offence
therein, ... The prosecution must prove not only that the accused intended to break and enter
the premises but also that he did so with the intention to commit an indictable offence within
those premises. A person who smashes a window to save a child in danger inside a house
certainly intends to break the window and enter the premises, but she doesn’t intend to commit
an indictable offence once she is inside. Other examples of specific intent offences are murder,
robbery, and assault with
intent to resist arrest. Up until the mid-1990s, the Code did not deal with the defence of
intoxication. It
was an entirely common law defence. The general common law principle was that intoxication
could not be used as a defence to a general intent offence, but it could be a partial defence to a
specific intent offence. It can be used to establish that the accused was too impaired to form the
necessary second level of intent required for a specific intent offence. In the 1994 case of R v
Daviault,3
the Supreme Court of Canada altered the long-standing common law in relation to the
availability of intoxication as a defence to a general intent offence. The court ruled that
intoxication could be a defence to a gen-eral intent offence if the level of intoxication was so
extreme that it produced a staten the accused akin to a mental disorder or automatism. This case
was widely criticized, particularly because it involved a violent sexual assault on a helpless
victim by the extremely drunk accused. In response to public outcry, the federal Parliament
added section 33.1 to the Code in 1995. Section 33.1 overrides the case law in Daviault and
precludes the use of self-induced, voluntary intoxication as a defence to a general intent offence
that involves any element of assault or interference with the bodily integrity of another:
33.1(1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason
of self-induced intoxication, lacked the general intent or the voluntariness required to commit the
offence, where the accused departed markedly from the standard of care as described in
subsection (2). (2) For the purposes of this section, a person departs markedly from the
standard of reasonable care generally recognized in Canadian society and is thereby criminally at
fault where the person, while in a state of self-induced intoxication that renders the person
unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily
interferes or threatens to interfere with the bodily integrity of another person. (3) This section
applies in respect of an offence under this Act or any other Act of Parliament that includes as an
element an assault or any other interference or threat of interference by a person with the bodily
integrity of another person.
The current application of the defence of voluntary or self-induced intoxication can be
summarized as follows:
1. Self-induced intoxication may be a defence to a specific intent offence if the accused was
intoxicated to the extent that he could not form the specific intent required as an element of that
offence (traditional common law rule).
2. Self-induced intoxication cannot be a defence to a general intent offence involving assault or
violence (section 33.1 of the Code).
3. Self-induced intoxication may be a defence to a general intent offence when a. the voluntary
intoxication is so severe that the accused is in a state similar to insanity or automatism and
thereby unable to form the intent to commit the offence
and b. the general intent offence does not involve assault or physical violence as part of the actus
reus of the offence (common law rule established in the Daviault case in 1994).
It should also be noted that the above application applies only to those offences requiring a
subjective mens rea. Self-induced intoxication is not a defence to an offence requiring an
objective mens rea, such as criminal negligence, because the objective test involves the
reasonable person test. The reasonable person can never be an intoxicated person. See Chapter 5
for more on the reasonable person test.4Automatism
Automatism is a common law defence and there is no governing provision in the Code. The term
refers to behaviour or actions that a person performs while in a state of impaired consciousness.
The issue when looking at this defence is whether the accused’s consciousness was sufficiently
impaired such that he could not form the mens rea of the offence. There are two types of
automatism: (1) automatism caused by a mental disorder or extreme self-induced intoxication,
often referred to as insane automatism; and (2) automatism caused by something other than a
mental disorder or extreme intoxication, often referred to as non-insane automatism.
Automatism Caused By Mental Disorder If the defence of insane automatism is established
because the accused was suffering from a mental disorder at the time the offence was committed,
the accused will be dealt with in the same manner as any other accused who meets the
requirements of the defence of mental disorder. She will be found not criminally responsible by
reason of a mental disorder and, following a disposition hearing, she will most often be detained
in a mental health facility, possibly indefinitely. A person suffering from such extreme self-
induced intoxication that she is in a state similar to mental disorder will also be treated as having
insane automatism.
Automatism Not Caused By Mental Disorder Automatism not caused by a mental disorder is
dealt with differently from a mental disorder. An accused who successfully raises this defence
will be acquitted and immediately released by the courts. In order to successfully raise this type
of automatism defence, it must be established
that the impaired consciousness was caused by something other than a mental disorder or self-
induced intoxication. Automatism may be caused by a physical condition that produces impaired
consciousness, a blow to the head, or even by involuntary intoxica-tion, such as unknowingly
drinking a spiked beverage. The most common example of a state of automatism is a person who
is sleepwalking. However, there are conflicting Supreme Court of Canada decisions as to
whether or not sleepwalking is a disease of the mind and whether it can be caused by various
factors other than mental illness.5 The defence is very difficult to establish. The Supreme Court
of Canada has ruled6
that an accused raising the non-mental disorder defence of automatism must prove on the balance
of probabilities that his state of consciousness was impaired to the degree that the actions were
not voluntary. Usually, much of the evidence of automatism would be medical, but other factors
that would be considered are the evidence of wit-nesses, a past history of impaired consciousness
in the accused, and the nature of the trigger of the automatism.
Provocation
Provocation can only be used as a defence to a charge of murder (see section 232 of the Code). It
is not applicable to any other offence. If the defence is established, the
conviction for murder will be reduced to manslaughter. It is therefore only a partial defence, not
a complete defence, because the accused is not acquitted but instead convicted of a lesser
offence. The concept is that the accused was so inflamed that he could not control his vio-lent
impulses and, in the throes of passionate feeling, he lashed out and killed some-one. Provocation
may involve blows, words, or gestures that cause a person to lose his self-control; the loss of
control must be sudden and the reaction of the accused must be immediate. The accused must not
have had any time at all to consider the conse-quences of his actions. Moreover, the conduct of
the victim must involve serious criminal behaviour that is punishable by at least five years’
imprisonment. The standard for establishing provocation is an objective one. The provocation
must
have been of such magnitude that it would have caused a reasonable person to lose control. If an
accused has little self-control and is liable to fly off the handle at minor slights, he will likely
have considerable difficulty establishing this defence because this standard is an objective rather
than a subjective one. In other words, a reasonable person is expected to exercise a reasonable
degree of self-control.
Duress
DURESS AND THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS R v Ruzic, 2001
SCC 24, [2001] 1 SCR 687 Facts
Marijana Ruzic was arrested and charged with a num-ber of very serious offences, including
importing nar-cotics. She was carrying over two kilograms of heroin when she arrived alone at
the airport in Toronto. At the time, she was 21 years old and lived in Belgrade, in the former
Yugoslavia, with her mother. She did not deny the charges against her but claimed that she was
forced to carry the drugs by a menacing man in Bel-grade who had threatened harm to her
mother if she did not carry the drugs to Canada. Believing that both she and her mother were in
grave danger, she complied with his demand. She did not report the threats to the police in her
home country because the police there were regarded as totally corrupt and she believed that they
would not help her.
Issue
On an appeal from the Ontario Court of Appeal, the Supreme Court of Canada was asked to
decide if section 17 of the Criminal Code was in violation of section 7 of
CASE in
POINT
the Canadian Charter of Rights and Freedoms to the extent that duress was only available as a
defence where the threat was immediate death or bodily harm from a person present at the
commission of the offence.
The Decision
The Supreme Court found that section 17 of the Code did violate section 7 of the Charter in that
it violated a principal of fundamental justice that only voluntary con-duct could result in criminal
consequences. A person could be acting under duress even in situations where the threat of harm
was not immediate and the person doing the threatening was not present at the time the offence
was committed. The court ruled that the por-tion of the section requiring the immediacy of the
threat and the presence of the threatening person during the commission of
the offence were struck down but
the remainder of the section was to remain in full force and effect.
The preceding Case in Point illustrates how duress is a very complicated defence with both
statutory and common law aspects. The statutory defence is only available to the principal
offender and the common law defence only available to parties to the offence. Section 17 of the
Code provides the statutory defence. It reads as follows:
17. A person who commits an offence under compulsion by threats of immediate death or bodily
harm from a person who is present when the offence is committed is excused for committing the
offence if the person believes that the threats will be carried out and if the person is not a party to
a conspiracy or association whereby the person is subject to compulsion, but this section does not
apply where the offence that is committed is high treason or treason, murder, piracy, attempted
murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily
harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a
weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an
offence under sections 280 to 283 (abduction and detention of young persons).
As written, the section requires that, first, in order for this defence to be estab-lished, the accused
must act under the threat of imminent bodily harm or death, to herself or members of her family.
Second, the person making the threats must be present when the offence is committed, and,
finally, the defence is not available for the offences excluded by section 17, which include most
of the serious offences such as murder, assault causing bodily harm, arson, and sexual assault.
The rationale for Parliament including these restrictions is, presumably, that if the accused has a
period of time when she is not under the direct watch of the person making the threats, then she
should go to the police. But, as we will see, the Supreme Court has significantly modified the
availability and applicability of the statutory defence. There is also a common law defence of
duress. It applies, by virtue of section 8(3),
as a defence in all those situations where the section 17 statutory defence might not apply but, as
noted, it applies only to a party to the offence and not to the principal offender. The common law
version of the defence does not include any requirement that the
person doing the threatening be present for the commission of the offence or that the threat be
immediate. It also does not exclude any offences. However, it does not apply to the principal
offender. Section 17 has been constitutionally challenged and modified by decisions of the
Supreme Court of Canada. For example, in the case of R v Ruzic,7
parts of it were
found to be a violation of section 7 of the Charter because it improperly applied criminal
sanctions to an individual who had acted involuntarily. As we have previously discussed, it is a
principle of criminal law that the actus reus must be performed vol-untarily. If a person is forced
to act by a threat to her own well-being or that of her loved ones, the required voluntary aspect of
her actions is removed. The section 7 Charter issue in Ruzic was the requirement that the person
issuing the
threat be present during the commission of the offence, coupled with the necessity of the threat
being immediate. The court found that there are circumstances where the
threat may not be immediate from a person present at the scene of the offence being committed,
and yet the act may still not be voluntary in the sense that the accused person had no realistic
choice other than to break the law to avoid the implementation of the threat. The court decided
that this was too restrictive, and it struck down the two requirements of “presence of the person
making the threat” and “immediacy of the threat,” but it did not strike down the entire section. In
the case of R v Ryan,8
the Supreme Court brought the elements of the statutory
and common law defences much closer. Although the statutory defence will remain applicable to
only the principal offender and the common law defence to only a party to the offence, the
elements of both defences are now the same and are as follows: 1. There must be an explicit or
implied threat of present or future death or bodily harm to the accused or a third party.
2. The accused must reasonably believe that the threat will be carried out. 3. There is no
reasonable safe avenue of escape. 4. There is a close connection in time between the threat and
the harm threatened.
5. There must be proportionality between the harm threatened and the harm that will result from
the commission of the offence.
6. Accused persons who are part of a criminal conspiracy or organization that would lead them to
believe that they would be threatened cannot use the defence.
In summary then, as a result of Ruzic, section 17 must be read without the require-ments that the
threat must be immediate and that the person making the threat be present during the commission
of the offence, and the elements of the offence, both in the statute and the common law, are the
same as set out in the case of Ryan.
Necessity
Necessity is a common law defence that traditionally has been very difficult to prove. It is similar
in its early roots to duress, but can be distinguished from that defence. In its most basic form, the
accused arguing the defence of necessity is claiming that she had no choice but to break the law
to prevent a greater harm and therefore her actions were not voluntary in any true sense. As we
have discussed previously, to establish the actus reus of an offence, it must be proved that the
accused acted voluntarily. The most-used example of necessity is driving in an unsafe manner in
an attempt to get an injured or ill person to the hospital. In the 1984 case of Perka,9
the Supreme Court of Canada clearly set out the specific
elements of the defence of necessity. In order for the defence to be successful, the following must
be established:
1. The accused must have been facing a situation of clear and imminent but not necessarily
immediate peril or danger. 2. There must have been no reasonable avenue of escape from the
danger or other reasonable legal way to avoid it.
3. The potential harm caused by committing the offence must be less than the harm that would
have been caused by doing nothing and allowing the dangerous situation to continue.
The third part of the test is a test of proportionality. This means that the harm of
committing the criminal offence and the harm caused by the danger the person is trying to avoid
or escape must be in proper relationship to one other. For instance, if the accused killed four
people while racing to the hospital, the issue would be whether his actions in trying to save one
person were proportional to the loss of four other lives. Necessity was raised as a defence in the
Latimer10
farmer killed his severely disabled 12-year-old daughter and argued in court that he did it to
prevent her from horrible suffering. The court did not accept the defence. In applying the test set
out in the Perka case, the court found that:
1. There was no imminent danger to the child. 2. There were many legal avenues open to Latimer
other than killing his daughter. He could have worked with doctors and other caregivers to help
alleviate her pain.
3. There was no proportionality of harm. The harm he inflicted on his daughter by ending her life
was far greater than the harm of her suffering because there was a possibility that different
medical treatments might have alleviated her suffering.
Self-Defence
The law permits a person to use reasonable force to protect herself or others from an unlawful
assault. In addition, in some limited circumstances, a person may also use a measure of force to
protect property. The basic principle involved in all self-defence is that an assault was taking
place or that the accused reasonably believed an assault was about to take place and used force to
either end the assault or stop it from taking place. Until March 2013, there were a number of
provisions in the Code that dealt with
self-defence and they tended to be fairly complex and complicated. However, these provisions
were replaced in the Code by one self-defence provision, a new section 34, which attempts to
clarify self-defence. Section 34 reads as follows:
34(1) A person is not guilty of an offence if (a) they believe on reasonable grounds that force is
being used against them or another person or that a threat of force is being made against them or
another person; (b) the act that constitutes the offence is committed for the purpose of defending
or protecting themselves or the other person from that use or threat of force; and (c) the act
committed is reasonable in the circumstances(2) In determining whether the act committed is
reasonable in the
circumstances, the court shall consider the relevant circumstances of the person, the other parties
and the act, including, but not limited to, the following factors: (a) the nature of the force or
threat; (b) the extent to which the use of force was imminent and whether there
were other means available to respond to the potential use of force; (c) the person’s role in the
incident; (d) whether any party to the incident used or threatened to use a weapon; (e) the size,
age, gender and physical capabilities of the parties to the
incident; (f) the nature, duration and history of any relationship between the parties to the
incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any
history of interaction or communication between the parties to the incident; (g) the nature and
proportionality of the person’s response to the use or
threat of force; and (h) whether the act committed was in response to a use or threat of force that
the person knew was lawful.
(3) Subsection (1) does not apply if the force is used or threatened by another person for the
purpose of doing something that they are required or authorized by law to do in the
administration or enforcement of the law, unless the person who commits the act that constitutes
the offence believes on reasonable grounds that the other person is acting unlawfully.
Under the new provision, a person may successfully raise self-defence to an offence, usually a
charge of assault, if he can establish that he has reasonable grounds for believing that force or a
threat of force is being used against him or another person, and the actions he takes are for the
purpose of defending or protecting himself or the other person against that force. However, any
actions taken to defend or protect must be reasonable in the circumstances. This test is both
subjective, in that the person claiming self-defence must believe that he is being assaulted or
being threatened with assault, and objective in that the belief must be reasonable. In addition, the
new section 34 sets out a list of factors the courts must take into
consideration in determining whether the actions taken by the person claiming self-defence are
reasonable in the circumstances. These factors are:
• the nature of the force or threat; • the extent to which the use of force was imminent and
whether there were other means available to respond to the potential use of force;
• the person’s role in the incident; • whether any party to the incident used or threatened to use a
weapon; • the size, age, gender, and physical capabilities of the parties to the incident; • the
nature, duration, and history of any relationship between the parties, including any prior use or
threat of force and the nature of that force or threat;
• any history of interaction or communication between the parties to the incident; • the nature and
proportionality of the person’s response to the use or threat of force; and
• whether the act committed was in response to a use or threat of force that the person knew was
lawful.
This list is non-exhaustive in that these are not the only factors that the court may consider. The
court may also look at other relevant circumstances in deciding the rea-sonableness of the
actions. The defence will not apply in cases involving claims of self-defence against police or
other law enforcement officials unless the person had reasonable grounds to believe that the law
enforcement officer was acting in an unlawful manner. While section 34 deals with defence of
the person, section 35 addresses defence of
property. Section 35 reads as follows:
35(1) A person is not guilty of an offence if (a) they either believe on reasonable grounds that
they are in peaceable possession of property or are acting under the authority of, or lawfully
assisting, a person whom they believe on reasonable grounds is in peaceable possession of
property; (b) they believe on reasonable grounds that another person (i) is about to enter, is
entering or has entered the property without being entitled by law to do so, (ii) is about to take
the property, is doing so or has just done so, or (iii) is about to damage or destroy the property, or
make it inoperative, or is doing so;
(c) the act that constitutes the offence is committed for the purpose of (i) preventing the other
person from entering the property, or
removing that person from the property, or (ii) preventing the other person from taking,
damaging or destroying
the property or from making it inoperative, or retaking the property from that person; and
(d) the act committed is reasonable in the circumstances. (2) Subsection (1) does not apply if the
person who believes on reasonable
grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of
the property does not have a claim of right to it and the other person is entitled to its possession
by law. (3) Subsection (1) does not apply if the other person is doing something that
they are required or authorized by law to do in the administration or enforcement of the law,
unless the person who commits the act that constitutes the offence believes on reasonable
grounds that the other person is acting unlawfully.
It is not necessary that a person actually own the personal property that is being
protected, only that she is in peaceable possession of it or lawfully assisting someone else she
reasonably believes is in peaceful possession of it. Therefore, someone renting a car would be
able to rely on this section to use reasonable actions to stop someone from taking itIn order to be
able to raise the defence, a person must be in peaceable possession
of the property. There is no definition of peaceable possession in the Code, but case law has
defined it to mean two things: • the person has actual possession of the property, and • the
possession is not seriously challenged by others.
The phrase “not seriously challenged” in this context means that any challenge to
the possession of the property that may arise would not likely lead to violence. In other words, if
a person’s possession of the property is likely to lead to a challenge that could result in a breach
of the peace, the person is not in peaceable possession of that property and may not use the
defence. For instance, a thief or a trespasser could not use the defence to try to stop the rightful
owner of the property from reclaiming it, but likewise, the rightful owner could not use violence
to take back his property because he is not in actual possession of it. Once it has been established
that the person is in peaceable possession of the
property, whether it is real or personal property, section 35 of the Code allows him to take
reasonable action, including force, to protect that property if he has reasonable grounds to
believe that it is about to be taken, damaged, or trespassed upon. As with self-defence, it is not
possible to take action to protect property from
someone administering or enforcing the law unless there are reasonable grounds for believing
that the law enforcement officials are acting unlawfully.
Consent
The defence of consent may be raised to some specific offences. In relying on this defence, the
accused is claiming that the alleged victim consented to the accused’s behaviour and therefore no
criminal offence was committed. One of the offences to which consent may apply is assault.
While a person is not
likely to agree to being hit, in some circumstances he is deemed to have consented to the
physical contact. For instance, a person who voluntarily engages in a physical fight with the
accused or who voluntarily plays a sport where physical contact is permitted by the rules of the
game is deemed to have consented to the physical conduct. It is important to note that when
playing a game the physical contact at issue must be permitted by the rules. A person playing
hockey may be checked into the boards, and that type of contact is anticipated in a hockey game,
but if a player starts hitting another player over the head with a hockey stick, that is not permitted
as part of the rules of the game and would likely constitute an assault. The consent also must be
freely given. If it is obtained through fraud, threats, or
trickery, it is not regarded as true consent and cannot be used as a defence. Consent is not an
allowable defence for some offences. For example, under section
14 a person may not consent to having death inflicted upon him. This would prohibit someone
who assisted in a suicide from using consent as a defence unless they fell within section 241.1,
which deals with medical assistance. There are also some sexual offences that do not allow the
use of consent as a defence, particularly when the sexual offence involves a child.
Mistake of Fact
A mistake of fact involves an accused honestly believing in certain circumstances that do not
exist but that would mean that he had not committed an offence if the circum-stances did exist. If
an accused believes that he is selling sugar instead of heroin, that would be a mistake of fact.11
be committing an offence. Another example would be if a student picked up a copy of the Code
after class
and put it in her bag, believing the book was hers, but it instead belonged to another student. If
the book actually belonged to the student who took it, there would be no offence committed. The
circumstance in which the accused believed must not involve the commission
of an offence. For example, if the accused was selling a white powder that she believed was
cocaine but which was actually heroin, mistake of fact could not be a defence because it is an
offence to sell either cocaine or heroin. There are some offences that specifically exclude mistake
of fact as a defence. For
the most part, these are sexual offences committed against young people. The accused may not
simply claim as a defence that he was not aware of the age of the young person. He must show
that he took reasonable steps to learn the actual age of the victim.
Mistake of Law
It is a general presumption that people know the law. Ignorance of the law is not usually viewed
as a defence. In fact, section 19 of the Code specifically excludes it as a defence. Section 19
says:
19. Ignorance of the law by a person who commits an offence is not an excuse for committing
that offence.
It is not always easy to tell the difference between a mistake of fact and a mistake
of law, but generally speaking, not realizing that something is against the law amounts to a
mistake of law and is not normally a defence. It is a mistake of fact to mistakenly think that the
white powder one is selling is sugar and not heroin, but it is a mistake of law to mistakenly
believe that selling heroin is not against the law.