Defences

Mistake of Fact

1. Introduction

  • The accused must honestly but mistakenly believe in facts that, if true, would not constitute a crime.
  • This defense relates mainly to the mens rea (mental state) aspect of the crime.
    • Example statement: "I may have committed the prohibited act, but I was mistaken as to the actual facts."
  • The mistake must concern a material fact that is relevant to the crime.
    • Example: Believing that another person consented to view an indecent act (as stated in the Criminal Code Section 173(1)).

2. Types of Mistake of Fact

a. Mistaken Belief About Consent in Sexual Activity
  • Consent is a crucial fact in sexual offences, including sexual assault.
  • A mistaken belief in consent negates mens rea necessary for the offence since sexual assault requires intentional application of force knowing the lack of consent.
    • Example: If an accused believes that consent exists when it does not, they cannot be guilty of sexual assault.
b. Other Examples
  • Mistaken belief regarding stolen property: If a person truly believes the property is not stolen, they may not have the necessary mens rea for theft.

3. Relevant Factors of Reasonableness

  • Generally, the reasonableness of the mistake is not considered relevant to the defence.
    • Focus is on what the accused subjectively believed.
  • However, evaluating the reasonableness of the mistake affects the credibility of the accused's claim.
    • Example: A mistake regarding age in sexual offences is often scrutinized.

4. Recklessness and Willful Blindness

  • Recklessness: If the accused knows of the risk that a fact may exist but acts anyway, the mistake cannot be considered honest.
  • Willful blindness: Deliberate failure to investigate or recognize a risk negates the honest mistake defence.
    • Example case reference: R v Sansregret (SCC)(1985).

5. Element of Honesty

  • Mistakes cannot be acknowledged if the belief was not innocent.
  • Courts assess whether the accused knew they were committing an offence but were mistaken regarding the details (like which exact offence).
    • Example cases: R v Futa (BCCA)(1976) and R v Ladue (Yukon CA)(1965).

6. Mistake of Fact and Sexual Assault

  • This defence is complex in sexual assault cases where consent is disputed.
  • Amendments to the law have made reasonableness a factor in assessing consent claims (1983 amendments).
    • The judge instructs the jury to consider both the honesty of the accused's belief and the existence of reasonable grounds for it.
  • The 1993 amendments limited the defence scope and placed the burden on the accused to reasonably ascertain consent.

Self-Defence (Defence of the Person)

1. General Overview

  • A common defence used against assault or homicide charges, established under Criminal Code section 34.
    • Conditions for establishing self-defence include:
    • Belief in force being used against self or others.
    • Action taken must be for the purpose of self-protection.
    • The act must be reasonable in the circumstances.

2. Reasonable Grounds for Belief

  • Courts analyze both subjective (personal beliefs) and objective (reasonable grounds) perspectives.
    • Example: R v Foster (2019)(ONCA).
  • An accused can be mistaken but still satisfy reasonable grounds requirement as stated in case R v Cunha (2016)(ONCA).

3. Reasonableness of Action Taken

  • The action should be reasonable considering the nature and threat level of the force involved.
    • Factors influencing reasonableness:
    • Nature of Force: Greater threat allows for greater defensive force.
    • Imminence of Threat: If there were alternatives to using force (e.g., retreating).
    • Role of the Accused in the Incident: Instigators of violence may have limited ability to claim self-defence.
    • Examples: R v Petel (SCC)(1994) and R v Lavallee (SCC)(1990).

4. Impact of Misunderstanding of Lawful Force

  • Accused cannot claim self-defence against lawful enforcement actions unless they reasonably believe unlawful action is taking place (section 34(3)).

Defence of Property

1. Overview

  • Legal provisions allow for force to protect property under Criminal Code section 35.
    • Essential elements include peaceable possession, belief of unlawful action against the property, reasonable grounds for that belief, and reasonable action in defense.

2. Definitions of Possession

  • Peaceable possession: No credible challenge to the accused's possession of property (e.g., registered ownership).

3. Unlawful Actions Related to Property

  • Encroachment or damage to property may warrant defensive actions.

4. Use of Reasonable Force

  • Actions taken must not be disproportionate to the perceived threat or unlawful acts being committed (e.g., in cases involving disinvited guests).

Provocation

1. Basic Concept

  • Limited defense where the accused claims to have been provoked into committing an offence (usually murder).
    • Provocation needs to be significant enough to deprive an ordinary person of self-control.

2. Statutory Basis: Criminal Code section 232

  • Allows for murder charges to be reduced to manslaughter based on specific provocation criteria (e.g., victim's conduct constitutes an indictable offence).

3. Requirements for Provocation

  • Needs to be immediate (heat of passion) and cannot be based on lawful actions by the victim.
  • Characteristics such as age, disability can be considered but must relate directly to the provocation incident (e.g., R v Thibert).

Intoxication

1. General Overview

  • Represents a partial defence based on the ability to form intent due to intoxication.
    • Refers to the Beard rules and amendments post-Daviault (SCC 1994) and CCC s 33.1.

2. Rules on Intoxication

  • Specific vs. General Intent:
    • Specific intent requires a purposeful intent beyond the act.
    • General intent focuses solely on the act itself.
  • Threshold level: Intoxication must be sufficient to impair foresight of consequences.

3. Distinction of Intent Offences

  • Courts examine whether accused's actions align with either specific or general intent criteria under intoxication rules, ensuring they were unable to form necessary intent due to intoxication.
  • Example case: R v Bernard (SCC)(1988).