Difference between revisions of "Pleading Not Guilty and Criminal Trials (1:VII)"

For the defences below to be raised, they must have an air of reality. This means that all of the elements of the defence would exist if the defendant were believed on the stand. The defendant is responsible for raising this air of reality. Once that is completed, in order to obtain a conviction, the Crown must then prove beyond a reasonable doubt that the defence was not applicable in the circumstance. If that is not achieved, the defendant is acquitted.  

:::If an accused is charged with assault, Crown must prove beyond a reasonable doubt that the other person did not consent to the assault. A consensual fight is not an assault as the parties are consenting to the physical contact. Consent can be negated or vitiated where the force causes bodily harm ''and'' was intended to be caused or the force was applied recklessly and the risk of the bodily harm was objectively foreseeable [''[https://www.canlii.org/en/ca/scc/doc/2005/2005scc22/2005scc22.html?searchUrlHash=AAAAAQAJciB2IHBhaWNlAAAAAAE&resultIndex=1 R v Paice]'', 2005 SCC 22]. In ''[https://www.canlii.org/en/ca/scc/doc/1991/1991canlii77/1991canlii77.html?searchUrlHash=AAAAAQALciB2IGpvYmlkb24AAAAAAQ&resultIndex=1 R v Jobidon]'', [1991] 2 SCR 714 the Court held that consent cannot be used as a defence for a criminal act such as assault which may cause “serious hurt or non-trivial bodily harm”.  

:::One commonly occurring offence is a Breach of a Court order.  Until recently there was some uncertainty about whether or not a Breach of a court order had to be established subjectively (the accused knew or was reckless about whether or not they were breaching) as opposed to objectively (a reasonable person in the position of the accused would have known that they were breaching)  The Supreme Court of Canada resolved this issue finding that Breaches require proof of subjective ''Mens Rea'', (''[https://www.canlii.org/en/ca/scc/doc/2020/2020scc14/2020scc14.html?autocompleteStr=r%20v%20zora&autocompletePos=1 R v Zora]'', 2020 SCC 14).

:::Examples:

:::2) the accused did not know the nature of the item or was not reckless or wilfully blind as to the nature of the item (for example, the accused reasonably thinks the substance is baking soda and not cocaine).

:::When considering the defence of intoxication, it is important to note that there are two types of offences divided by the requisite mental fault. General intent offences merely require the accused to carry out the act or omission while specific intent offences require the accused to carry out the act or omission and intend for the consequence to come about.

:::There are only two levels of intoxication that are considered to be legally relevant: advanced intoxication and extreme intoxication (a level akin to automatism). Note that these are both very high levels of intoxication, and mild intoxication does not qualify an accused for this defence.

:::For general intent offences, advanced intoxication is not a defence. Extreme intoxication can negate general intent or physical voluntariness of ''Actus Reus'' for some offences if the accused can show that they did not commit the act with conscious mind and controlled body. However, the defence may be denied under s 33.1 of the ''Criminal Code'' if the intoxication is self-induced, the accused made a marked departure from the standard of care, and it is a violent offence. General intent offences include assault causing bodily harm, manslaughter, sexual assault, and arson.

:::For specific intent offences, advanced intoxication can negate subjective mental fault (''Mens Rea''), and extreme intoxication can negate physical voluntariness (''Actus Reus'') for the offence. Specific intent offences include murder, robbery, assault with intent to resist arrest, and possession of stolen property.