Pleading Not Guilty and Criminal Trials (1:VII): Difference between revisions
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Pleading Not Guilty and Criminal Trials (1:VII) (view source)
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==== a) Common defences ==== | ==== a) Common defences ==== | ||
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. | 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. | ||
Self Defence: sections 34-42 of the ''Criminal Code'' | |||
:::There are conditions where self-defence can be raised when the charge is assault. This can occur in a situation where the accused perceived force or a threat of force, his or her state of mind was to act in a defensive manner, and the actions taken by the accused were reasonable in the circumstances. This defence can take into account various factors, such as whether the accused had an alternative, the proportionality of the force used by the accused, as well as any history that may exist between the parties. | |||
Consent: | |||
:::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. In ''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". | |||
Lack of ''Mens Rea'': | |||
:::''Mens Rea'' deals with the mindset of the accused at the time of the incident and means "guilty mind." ''Mens Rea'' of the offence must be proven by the Crown beyond a reasonable doubt. If the accused person did not intend to commit the offence, he or she can raise a reasonable doubt as to whether he or she had the proper ''Mens Rea'' to commit the offence. | |||
:::Examples: | |||
:::The main ''Mens Rea'' components to the charge of theft are that the action was without color of right and the individual had intent to steal. Color of right refers to an individual's belief that they had entitlement to the property they are accused of fraudulently obtaining. If it can be proved that the individual had no intent to steal, or had an honest belief of the right to the property, theft has not occurred. The main ''Mens Rea'' components of the charge of Personal possession of a Controlled Drug or Substance includes knowledge of the substance. The possessor must know the nature of the item. An accused has a ''Mens Rea'' defence to possession if: | |||
:::1) the accused did not know he or she had the item on him or her, or | |||
:::2) the accused did not know the nature of the item (for example, the accused thinks the substance is baking soda and not cocaine), | |||
=== 7. Accused testifying === | |||
The accused cannot be compelled to testify (see s 11(c), Charter). If the accused chooses not to testify, no adverse inference may be drawn. A decision to call the accused should be made on the particular facts of each case, taking into account the strength of the Crown's evidence and the risks of exposing the accused to cross-examination. Prior convictions for crimes of dishonesty (e.g. theft, fraud, etc.) are admissible for the purpose of assessing credibility only. | |||
If your client has a criminal record and he can testify in his own defence, then the clinician should be prepared to argue a Corbett application [See. ''R v. Corbett'' [1988] 1 S.C.R. 670] at the end of Crown counsel's case and before a final decision is made to have the accused testify, particularly if the client has convictions for crimes that are similar to the crime alleged. | |||
If the accused testifies, the judge must consider the instructions set out in ''R v.W(D)'' (1991), 3 CR (4th) 302 (SCC): | |||
*If the judge believes the accused, he must acquit, | |||
*If the judge does not believe the accused, but is still left with a reasonable doubt from the testimony, he must acquit, and | |||
*Even if the judge does not believe the accused and is not left with a reasonable doubt from the testimony, the Crown must still prove its case beyond a reasonable doubt. | |||
=== 8. Presence of the accused === | |||
As a general rule, the accused must be present and remain in the courtroom throughout the trial. In very unusual circumstances, the case may proceed ''ex parte'' (i.e. in the accused's absence). | |||
=== 9. Witnesses === | |||
==== a) Privilege and compelling attendance of a witness ==== | |||
Both sides may contact any and all witnesses who will be called at trial, including police officers. However witnesses are not required to speak to Crown or defence counsel prior to the trial. | |||
A witness may be compelled to attend at trial to give evidence and to bring documents by means of a subpoena processed through the court registry that is personally served on them (ss 699 and 700 of the ''Criminal Code''). An arrest warrant may be issued for non-compliance (s 705). Unless the witness is served with a subpoena, he or she is under no legal obligation to attend court proceedings. Crown Counsel will often agree to subpoena witnesses who have provided a police statement and Crown Counsel does not intend to call in its case but defence counsel wants to have called. Other defence witnesses are typically known to the client (such as alibi witnesses) and attend voluntarily. Defence counsel should obtain subpoenas for witnesses if they are important, not under Crown subpoena and not likely to attend voluntarily. | |||
Witnesses must answer all questions put to them unless it is considered privileged. Privileged information includes: | |||
*i) discussions between a client and his or her lawyer in situations when the lawyer was acting in a professional capacity, | |||
*ii) any information tending to reveal the identity of a confidential police informant, unless disclosure is the only way to establish the innocence of the accused, and | |||
*iii) communication between spouses. | |||
