Defences

A defence lawyer can help you understand the charge, review the evidence, and navigate the court process. Legal advice can be important because every defence depends on the facts, the evidence, and the exact offence charged.

Assessing a defence often starts with examining the Crown's disclosureRelevant, non-privileged case information the Crown must provide to the defence., or the evidence they have compiled to establish your guilt. That review looks at what may hurt the accused's case, what may weaken the Crown case, and what evidence may help the defence.

At trial, you will be given the opportunity to present your side of the story about the events that led to the charge. Remember that the Crown must prove the case against you beyond a reasonable doubtThe high standard the Crown must meet to prove guilt.. If the Crown prosecutorA lawyer who conducts a criminal prosecution on behalf of the public. fails to establish their case, you need not prove anything. You are not obligated to present a defence.

You can raise questions about the Crown's evidence and attempt to establish reasonable doubt in your defence. However, you must still follow the rules of the court, regardless of whether you are a self-represented accused (SRL) or have a lawyer. This includes following court regulations and processes, such as the rule in Browne v. Dunn.

If you plan to cross-examine a Crown witness either as an SLR or through your lawyer, it is crucial to understand the Browne and Dunn rule. Based on a 1893 British House of Lords decision, it essentially means that where someone is advancing a theory that contradicts the testimony of a particular witness being questioned, the counter-version must be put to the witness. Specifically, the witness should have an opportunity to address or explain the point upon which credibility is attacked, preventing them from being ambushed at trial.

The defences that may apply depend on the circumstances of the crime and the evidence against you. Here are some common defences that can be used.

Justification

Where you admit what you did could be viewed as a criminal act but that it was justified by external circumstances, such as Self-defenceA defence involving force used to protect against force or threat..

Provocation

Section 232(1) of the Criminal Code states that a culpable homicide that would ordinarily be considered a murder may be reduced to manslaughter "if the person who committed it did so in the heat of passion caused by sudden provocation." However, provocation is narrowly defined by law. Under s. 232(2), the conduct that constitutes provocation must itself be an act by the victim that is an indictable offenceA more serious type of Canadian criminal offence. under the Criminal Code punishable by five or more years in prison, ordinary insults or minor wrongdoing do not qualify. With charges like assault, provocation does not act as a complete defence but it can generally reduce culpability or sentence.

Necessity

This defence is rooted in common law and has been recognized in Canadian courts since 1984. This defence can be raised for actions committed when there is a clear danger and the accused has no safe avenue of escape or legal way out of the situation.

Duress

Section 17 of the Code deals with compulsion by threats, sometimes called statutory duress. It can excuse a person who commits an offence because of threats of death or bodily harm. The printed section refers to immediate threats from a person who is present, but the Supreme Court of Canada has held that those two limits are unconstitutional and of no force or effect (R. v. Ruzic, 2001 SCC 24). The defence can also involve threats directed at another person. It is not automatic: the court must consider whether the accused acted because of the threat and whether there was a safe way to avoid committing the offence. This defence does not apply if the offence is treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threatening to cause bodily harm, aggravated sexual assault, forcible abduction, hostage-taking, robbery, assault with a weapon, aggravated assault, unlawfully causing bodily harm, arson or any offence involving the abduction and detention of a young personA person dealt with under the youth criminal justice system.. Note: this statutory defence applies to people who personally committed the offence as a principal. If you helped someone else commit a crime (as an aider or abettor), a separate common law duress defence may be available with different rules, as confirmed by the Supreme Court of Canada in R. v. Ryan, 2013 SCC 3.

Self-defence

Section 34 of the Code states you cannot be convicted of an offence if you believe "on reasonable grounds" that force is being used against you or another person, or that a threat of force is being made against you or another person, you act to defend yourself or others, and the act you commit is reasonable in the circumstances. Section 34(2) lists factors the court considers, including the nature of the threat, whether other options were available, any weapons involved, the parties’ relationship and history, and whether the response was proportionate.

Mistake of fact

The defence refers to a misunderstanding of the situation that led you to unknowingly commit a crime. For example, if you are charged with theft, you could argue you honestly thought the property in question belonged to you.

Section 19 of the Code clearly states that ignorance of the law "is not an excuse for committing" any offence. This idea comes from the English common law, reflecting the belief that since laws are written down for all to see, you cannot claim you were unaware of the law in question.