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