QUICK TAKEAWAY
Defences: You can either represent yourself as a self-represented litigant (SLR) or have a lawyer represent you in court. Regardless of your choice, you will have an opportunity at trial to present a defence in an attempt to convince the court you are not guilty of the charge you are facing. The best defence always depends on the circumstances that led to the charge and the evidence the Crown is relying on, which you see in the disclosure.
Table of Contents:
Building a Defence
A defence lawyer can provide you with legal expertise and competent representation in court, which can be useful in navigating the justice system. Their legal knowledge and skills can be invaluable in helping you achieve a successful outcome.
A good defence starts by examining the Crown’s disclosureRelevant information that the Crown haa concerning your case, or the evidence they have compiled to establish your guilt. Decide what will hurt you the most and what can be turned to your advantage.
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 standard that must be exceeded to find someone guilty. If the Crown prosecutorLawyers who prosecutes charges on behalf of the Crown 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 representing yourself as a self-represented litigant (SLR) or have a lawyer. This includes following court regulations and processes, such as the Browne and Dunn rule.
What is the Browne and Dunn rule?
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.
Possible Defences
The best defence always depends 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 defence.
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." With charges like assault, provocation does not act as a complete defence but it can mitigate damages or culpability.
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 states that if you commit an offence because you are being threatened with death or body harm by another person you can be excused for 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 person
Self-defence
Section 34 of the Code states you cannot be convicted of an offence if you believe "on reasonable grounds" that force is about to be used against you or another person and you have to take action to defend yourself or others.
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.
Ignorance of the Law is Not a Defence
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.
Glossary of Legal Terms
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Disclosure
An accused person has the right to the disclosure of all relevant information in the possession of the Crown, with the exception of privileged information. This typically occurs before the accused has to decide whether to enter a plea of either guilty or not guilty.
Reasonable doubt
The Supreme Court of Canada has said that reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” and “that something less than absolute certainty is required, and that something more than probable guilt is required."
