LD

Defense Continued 

Infidelity and Provocation

  • Talking about a partial defense
  • Common type of provocation accepted by the court is adultery
  • it is a wrongful act that may lead a person to kill in a state of passion brought on by the provocation
  • The defense would only succeed if the murder was committed shortly after the offender learned of their spouse’s infidelity

Feminism, Infidelity, and Provocation Defense

  • often a defense used by men who kill their partners
  • He can testify that he was provoked by something she did but the victim is not around to gove evidence of the contrary
  • Accused is let off with relatively lenient sentences for murdering partner (women)

Battered Wife Syndrome - Self Defense

  • Successfully used in murder cases
  • Accused must establish that there is reasonable apprehension of death or grievous bodily harm and subjectively believes she cannot otherwise preserve herself

Preface - Intoxication

  • Established through precedent in 1920 and included in CCC in 1996
  • Historically, British courts treated intoxication as an aggravating factor (as opposed to mitigating factor)
  • Intoxication in now classified as a partial defense that will reduce severity in charges

Exception

  • Can not use this defense in cases of sexual assault
  • Can not be used for crimes of general intent, only specific intent
  • What is is the difference

Specific Intent

  • Commission of prohibited offense with an ulterior motive or purpose
  • Most indictable offences are specific intent offences
  • Element of premeditation
  • EX. Murder, robbery, theft, B and E

General intent

  • Whether the only intent involved relates to the performance of the act with no further ulterior motives or purpose
  • EX. manslaughter, assault, assault causing bodily harm, sexual assault, impaired driving
  • The defense of intoxication can not be used for these offences
  • What is the purpose and function of the limitation?

Defense of Intoxication

  • Knowingly consuming alcohol/drugs is reckless with possibility of losing control
  • part over foreseeability of consequences principle
  • For defense to be successful, the accused must be able to raise a reasonable doubt that they were unable to form specific intent (unless loss control is premeditated)
  • Sentenced lowered from murder to manslaughter

Purpose and Function of General Intent Exception of Intoxication

  • People consume alcohol voluntarily and a liberal use of drunkenness as a s defense would oen the ‘flood gates’
  • The courts do not wish to encourage people to get drunk before they commit a crime in the hope they will get off more leniently

Part 2: Mistake of Fact the Doctrine of Willful Blindness

  • Can you be plead ignorance of the law? No!
  • You can plead mistake of fact as grounds for acquittal
  • EX. if you think you are divorced and remarry again, you can be acquitted of bigamy
  • Key to the defense - Reasonable grounds for the belief of certainty will help establish credibility

Rejection of Defense - Onus on the Crown

  • If the crown can prove that the accused acted in a manner that was reckless or willfully blind, then MOF denied
  • Willful Blindness: when someone deliberately closes eyes to the obvious

Controversy around this Defense

  • In what types of circumstances would the defense of MOF be controversial?
  • cases of sexual assault, drug trafficking, theft, pornography
  • EX. self-induced intoxication not a valid defense in the cases where the accused argued that because he was drunk, he didn’t realize that the victim didn’t give consent
  • Codified in the Criminal Code Section 273. 1 (a)
  • Must take reasonable steps, exercise due diligence to ensure consent
  • Law is written like this to allow for judicial interpretation

Part 3: Mental Disorder - NCRMD Designation

-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

Automatism Vs. Mental Disorder

-defined as state of impaired consciousness in which an individual though capable of action, has no voluntary control over that action

-Unlike mental disorder, you can be acquitted of a crime if you can prove automatism

Presumption/ Burden of Proof

-Presumption

-(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

-Burden of proof

Applicability of NCRMD

-use of the defense requires the accused person admits to the act but did not have the requisite mental capacity to form criminal intent (mens rea)

-when defense is raised, expert testimony is provided by psychiatrists or clinical psychologist

-references to DSM IV