Legal Studies 3080

Defences to Criminal Charges

As mentioned previously, various defences may be used in court:



  • Alibi - The best possible defence is an acceptable alibi, a defence that places the accused somewhere else at the time the offence occurred. It is important that the accused disclose any alibi to the Crown at the earliest opportunity. Failing to do so may erode the credibility of both the accused and the alibi.


  • Self-Defence - The Criminal Code permits you to defend yourself, those under your protection, your movable property, and your dwelling and real property. However, you can only use force that is "necessary" and "reasonable", "according to the circumstances".

    Section 38 of the Criminal Code allows you to stop a thief from taking your personal property, or to take it back, as long as you do not strike the thief or cause bodily harm. You can do more to defend your dwelling. Under section 40, you are "justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the [your] dwelling - house without lawful authority."


  • Legal Duty - Legal duty allows certain people to commit acts that would otherwise be offences. For example, a police officer can drive above the speed limit when chasing a suspected criminal.


  • Excusable Conduct - Provocation may be used as a partial defence for a charge of murder. Excusable conduct also includes:
    1. Duress - which is the threat or use of violence.
    2. Honest Mistake - may also be accepted as a defence under excusable conduct. It means the offender truthfully did not know he or she had committed a crime . This defence is most commonly used by people who are found in possession of unpaid items while shopping. The onus is on the Crown to prove that the person accused of shoplifting did it intentionally. The accused 's credibility will largely determine whether this defence succeeds.

  • Mental Disorder - The use of mental disorder defence has been debated among members of the legal profession for many years. The terms "mental disorder" and "unfit to stand trial" are defined in section 2 of the Criminal Code : In this Act-"mental disorder" means a disease of the mind; - "unfit to stand trial" means unable, on account of mental disorder, to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to
    1. understand the nature - of the proceedings,
    2. understand the possible consequences of the proceedings, or
    3. communicate with counsel.

    Mental Fitness to Stand Trial
    An accused can be remanded (placed in custody) for up to 60 days to evaluate his or her fitness to stand trial. This may include an assessment of his or her mental status at the time of the offence. A provincial or territorial review board determines if the accused is fit to stand trial; the accused is then sent back to court. If he or she is fit to stand trial, the case is heard. Usually, evidence given during a court-ordered psychiatric assessment is not admitted without the accused 's consent.

    If the accused is unfit, the court can order treatment to make him or her fit to stand trial. An inquiry is held every two years, until the accused is tried, to make sure that there is still enough evidence to bring him or her to trial.


  • Intoxication - Any intoxicated person who was unable to form intent before striking someone cannot be found guilty of aggravated assault. He or she can, however, be found guilty of assault, a general intent offence. All that needs to be proved is that the intoxicated person did strike someone. Similarly, a person charged with murder can use the defence of intoxication. If successful, this will lower the conviction from murder (a specific intent offence) to manslaughter (a general intent offence).


  • Automatism - has been described as "unconscious, involuntary behavior - the state of a person who, though capable of action, is not conscious of what he is doing." Sleepwalking, convulsions, and behavior caused by psychological stress are some examples. To be acquitted on this defence, the accused must prove that he or she was in a state of automatism when committing the offence.

    Automatism caused by a disease of the mind is called "insane automatism." Here the source of the malfunction is rooted in the psychological or emotional makeup of the person. If this state is proved, the accused is entitled to a verdict of "not criminally responsible on account of a mental disorder." The offender would then be subject to the procedures outlined under the mental disorder defence.


  • Consent - can be used as a valid defence, but only if the party injured by the accused could and did consent to the action. For example, many hockey and football players have been charged with assaulting opponents during a game. The defence is usually that by playing the game, the injured party consented, or agreed, to the game's rough physical contact.

    The defence of consent can never be used in cases involving firearms, murder, or for various sexual offences committed against persons under the age of 14.
  • Entrapment  - is a police action that encourages or aids a person to commit an offence. It is not recognized as a defence, but rather as an abuse by the police. A judge who finds that entrapment has occurred should stay the proceedings.


  • Mistake of Fact - will be accepted as a defence, but only under two conditions:
  1. The mistake was genuine and not the result of the accused neglecting to find out the facts.
  2. The law accepts the ignorance of the facts as a defence.

For example, you receive counterfeit money while shopping. When you try to pay a bill with it, you are arrested. You cannot be considered negligent for not finding out that the money was counterfeit - people do not usually check every bill they receive. In another example, you buy a used bicycle that was advertised in a bulletin board notice. Later, you are arrested under the Criminal Code, which states that it is an offence to "knowingly" possess stolen goods. If you can prove that you did not know the goods were stolen, then your mistake of fact defence will succeed.