DEFENCES

For an accused to be found guilty of

committing a criminal offence
 The Crown must prove every element of the offence BEYOND A
REASONABLE DOUBT

 Most criminal trials involve a dispute between the parties about

whether the Crown has proven every element of an offence.
 This is not really a “defence” but simply requiring the Crown to
discharge its burden

 Unless ALL elements of the offence charged are proved BRD, the
accused must be acquitted of the particular offence
 Doubt only about the element of causation can lead to a conviction
for an included offence (ie “assault” on a charge of “assault causing
bodily harm”)

 Doubt only about whether an offence is completed can lead to a

Defences

Different defences have different objectives

1. Accused is not guilty of offence (a complete defence

results in an acquittal) e.g., self defence
or
2. Accused is guilty of a lesser offence (a partial defence)
e.g., provocation reducing murder to manslaughter,
intoxication reducing a specific intent offence to a general
intent offence

General rule (is that the Crown has to disprove the

availability of a defence beyond a reasonable doubt.
 This requires proving the absence of (only) one element
 Classifications of defences
1.Justification – defences that seek to show
that accused’s behaviour was lawful (e.g.,
self defence)

2.Excuses – defences that acknowledge that

accused’s behaviour was unlawful but should
be excused (e.g., automatism, duress)

These are conceptual, moral distinctions that

do not impact the effect of the defence.
Before a judge or jury must consider whether a defence is
potentially available, it must have an “air of reality”

 “air of reality test” is whether a properly instructed jury acting

reasonably could acquit on the basis of the evidence

 It’s a relatively low threshold

 But it does require evidence on each necessary element of the defence

 It can be based on evidence the Crown has led (i.e. it does not require
an accused to testify) or it can be based on defence evidence

 When determining air of reality, trial judge does not make findings of
facts but assumes all evidence is true

 Once TJ determines a defence has an air of reality, there is no

additional burden placed on the accused (defence is considered)
 Mistake of Fact
Ignorance of the law is not an excuse but mistake of fact may
be a defence (i.e., no intent to commit crime due to lack of
knowledge or because accused believes in a set of facts that
would make conduct lawful)

In some cases, the mistake of fact need only be subjectively

honest; in others, if specifically provided for by statute, it has to
be objectively reasonable, e.g. mistake of age:

150.1(4) It is not a defence to a charge under [charges of

sexual offences) that the accused believed that the
complainant was 16 years of age or more at the time the
offence is alleged to have been committed unless the accused
took all reasonable steps to ascertain the age of the
complainant. (See, R. v. Chapman 2016 ONCA 310 –
reasonableness of steps will depend on the circumstances)
 Consent
A conviction for sexual assault under s. 271(1) of
the Criminal Code requires proof beyond a reasonable
doubt of the actus reus and the mens rea of the
offence.

A person commits the actus reus if s/he touches

another person in a sexual way without
his/her consent.

Consent for this purpose is the actual

subjective consent in the mind of the complainant at the
time of the sexual activity in question. (R. v.
Ewanchuk).
 Consent and sexual assault and mistake of fact
A person has the required mental state, or mens rea of the offence,
when he or she knew that the complainant was not consenting to the
sexual act in question, or was reckless or wilfully blind to the
absence of consent.

So, elements of a sexual assault:

1. touching of a sexual nature;
2. 2. without consent;
3. 3. knowing there is no consent or reckless as to whether there is
consent

 The accused may raise the defence of honest but mistaken belief in
consent if s/he believed that the complainant
communicated consent to engage in the sexual activity. However,
the accused cannot argue that s/he misinterpreted the complainant
 CONSENT
The defence of honest but mistaken belief in consent was recognized
and limited by Parliament

273.2 It is not a defence to a charge under section 271, 272 or 273 that
the accused believed that the complainant consented to the activity that
forms the subject-matter of the charge, where
(a) the accused’s belief arose from the accused’s (i) self-induced
intoxication*, or (ii) recklessness or wilful blindness; or

(b) the accused did not take reasonable steps, in the circumstances
known to the accused at the time, to ascertain that the complainant
was consenting.

*Note: the SCC found s. 33.1 of the Code, (“ 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”) to be
unconstitutional in R. v. Sullivan. Section 33.1 relates to the actus reus, not the mens
rea, which is what s. 273.2 relates to. Mark will discuss this in another class.
 Consent for sexual offences

Provisions specifically define consent for the purpose of sexual

assault.
273.1 (1) “consent” means, …, the voluntary agreement of the
complainant to engage in the sexual activity in question.

(2) No consent is obtained,… where

(a) the agreement is expressed by the words or conduct of a
person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the
activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of
agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual
activity, expresses, by words or conduct, a lack of agreement to
continue to engage in the activity.
SPECIFIC DEFENCES
 Provocation (has an objective component)

232 (1) Culpable homicide that otherwise would be murder may

be reduced to manslaughter if the person who committed it did so
in the heat of passion caused by sudden provocation.

(2) Conduct of the victim that would constitute an indictable

offence under this Act that is punishable by five or more years of
imprisonment and that is of such a nature as to be sufficient to
deprive an ordinary person of the power of self-control is
provocation for the purposes of this section, if the accused acted
on it on the sudden and before there was time for their passion to
cool.

Prior to 2015 amendments, the section only required “a wrongful

act or insult” sufficient to deprive an ordinary person of self
control (historical roots were often patriarchal or homophobic).
 Provocation
Four required elements:
(1) Victim has committed an indictable offence punishable
by at least 5 years

(2) sufficient to deprive an ordinary person of self control;

(3) which in fact caused the accused to lose self control

(4) And act before having recovered his or her normal

control ...
 provocation

R. v Tran 2010 SCC 58: “ordinary person” standard has

to reflect current social norms and Charter values

See also R. v. Mayuran 2012 SCC 31: defence is

assessed on a modified objective standard but court
should not overemphasize personal characteristics of
the accused

R .v Parent 2001 SCC 30: There is no defence of anger

negating the mens rea for murder apart from
provocation
self defence
 Self Defence – three elements
s. 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 (See R. v. Cunha 2016 ONCA 491)
 Self defence
34 (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;
 s. 34(2) cont.
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.

Modified objective standard applies: R. v. Lavellee [1990] 1

S.C.R. 852
 Defence of property
DEFENCE OF PROPERTY
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

is about to enter, is entering or has entered the property without being entitled
by law to do so,
is about to take the property, is doing so or has just done so, or
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
preventing the other person from entering the property, or removing that person
from the property, or
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.
 Citizen’s arrest
Arrest by owner, etc., of property
494(2) The owner or a person in lawful possession of
property, or a person authorized by the owner or by a
person in lawful possession of property, may arrest a
person without a warrant if they find them committing
a criminal offence on or in relation to that property and

(a) they make the arrest at that time; or

(b) they make the arrest within a reasonable time after

the offence is committed and they believe on
reasonable grounds that it is not feasible in the
circumstances for a peace officer to make the arrest.
necessity
 Necessity
R. v.Latimer [2001] 1 S.C.R. 3 set out three requirements for the
defence:

1) There must be an urgent situation of clear and imminent peril;

2) There must be no reasonable legal alternative to disobeying the
law;
3) There must be proportionality between the harm inflicted and the
harm avoided

#1 and #2 are tested against a modified objective standard (an

objective evaluation that takes into account the situation and
characteristics of a particular accused)

#3 is tested against an objective standard

R. v. Perka [1984] 2 S.C.R. 232 held that at Canadian law it should be

duress
 Duress
• Excuse from criminal liability
• Must make an initial determination of whether s. 17 of Code applies
(this is a statutory defence that supplants the common law for
specifically enumerated offences, Charter compliance unclear)
• 17. A person who commits an offence (note: PRINCIPAL) 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) .
• The red underling denotes “reading out” after a Charter challenge, the green likely
 Duress
• Common law defence of duress is broader.

• The defence has six elements to be met:

1)The accused reasonably believes someone has made threats of

death or bodily harm to the accused or someone known to the
accused
2)The accused reasonably believes the threats could be carried out
3)The accused reasonably believed he or she had no safe means of
escape
4)There was a close temporal connection between the threat and the
threatened harm
5)The crime committed by the accused is proportional to the
threatened harm
6)The threats weren’t made in the context of the accused’s
participation in a conspiracy or association that the accused knew
 Duress
• Leading case is R. v. Ruzic 2001 SCC 24 – words
“immediate” and “from a person who is present when
the offence is committed” are unconstitutional and
read out of s. 17 of the Code

• Defence was restated in R. v. Ryan 2013 SCC 3

(battered wife hired and paid a hitman to kill husband;
hitman was actually an U/C officer, court finds no air of
reality because no compulsion to commit offence
under threat of death or bodily harm)

• Common law duress defence applies to parties to

murder: R. v. Aravena 2015 ONCA 250 (recall that s.
17 on its face is limited to principals)
ENTRAPMENT
 entrapment
Entrapment is a common law defence that applies even
where the accused has committed a crime with the
required fault.

It results in a stay of proceedings in cases where a state

agent has provided the accused with an opportunity to
commit a crime without either a reasonable suspicion that
the accused was involved in crime or a bona fide inquiry
into a particular type of crime in a high crime area (this
includes virtual spaces).

Alternatively even if there is a reasonable suspicion or a

bona fide inquiry, entrapment will apply and result in a
stay of proceedings if the state agent induces the
 Entrapment
Two possible routes to entrapment:

1) the authorities provide a person with an opportunity to commit an

offence without acting on a reasonable suspicion that this person is
already engaged in criminal activity or pursuant to a bona fide inquiry;

 fact of prior criminal history is insufficient on its own to amount to

reasonable suspicion

 “Reasonable suspicion” – something more than mere suspicion and

less than reasonable and probable grounds
(R. v. Mack, 1988)
 This means no “random” virtue testing

See also R. v. Imoro 2010 SCC 50 and 2010 ONCA 122, R. v. Nuttall
2015 BCSC 2079
 Entrapment (cont.)
2) although having such a reasonable suspicion or acting in the course of
a bona fide inquiry, they go beyond providing an opportunity and induce the
commission of an offence

Defence must show the offence wouldn’t have taken place without police
involvement, and that the police behaved improperly.

Some factors to consider are whether police engaged in:

 persistent badgering of someone who initially refuses to commit the offence

 Inducing someone recovering from addiction into committing offences
involving the substance they were addicted to
 Appealing to someone’s compassion and sympathy (see, marijuana
offences where undercover officers make a big medical sympathy pitch)
 taking advantage of someone with an intellectual disability
 Police involvement that’s disproportionate to the offence eventually
committed