Defences and Life Circumstances

Although there are exceptions, every crime includes at least three parts: a criminal act, criminal intent, and the coexistence of the two. There are criminal acts where the predetermined intent did not exist or cannot be proven. That is when “defences that involve life circumstances” come into play. 

Defences that involve life circumstances run the full gamut and include self-defence, which is one of the most misunderstood laws in the Criminal Code of Canada. Many believe that Canadians have no right to defend themselves. Yet, defending oneself and one’s property are entitlements that include everyone. Make no mistake, we have a natural right to defend ourselves and our loved ones.

Understanding how self-defence convictions are handled by the Criminal Code of Canada is important because although the odds of winning a self-defence case are on your side, there is still a process that must be followed.

1. The Criminal Code of Canada (Sections 34 and 35) allows self-defence and defence of property.
2. If the self-defence results in a fatality, you will be arrested and charged with a crime. You must go to trial regardless of the circumstances surrounding the situation.
3. Unless you have intentionally committed the crime, the odds of acquittal are good.

The use of force must be deemed reasonable in the eyes of the Crown. As such, the review includes the nature of the threat, the extent to which force was used, and the person’s role.

The Criminal Code of Canada – Section 34, explains it best:

 34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

Additional Life Circumstance Defences

Self-defence is a common defence as pertains to cases that include various degrees of violence.  However, there are reasonable defences that used for other criminal charges.

When a defence is brought up, it must be considered by the crown. If the crown can disprove at least one of the elements of the defence beyond a reasonable doubt, there will be an “air of reality” to the defence. The purpose of this is to prevent preposterous defences from going to trial by jury. Defences are generally classified as: 

 

• Justification: This is when the offence is justified by external circumstances, such as self-defence.

• Excuse: When a criminal act is excused due to the fact that the punishment would be inappropriate to the situation, such as mental illness or duress.

• Affirmative Defence: This defence is intended to remove all liability from the defendant even though all of the elements of an offence were present.

• Negating Defence: When the defence attorney is able to negate one or more of the essential elements needed to commit a crime, such as claiming there was no intent.

 

The following list includes circumstantial defences, however, each situation is unique. Defences must be carefully reviewed by your attorney before determining which will be the most successful.

• Intoxication: Mild, advanced, and extreme Intoxication are possible defences as pertains to non-violent offences.

• Automatism: A defence that claims involuntary behaviour, such as when the person is not conscious of what he is doing. 

• Provocation: When the accused was unreasonably provoked and suddenly acted on it.

• Necessity: These are emergency situations whereby normal human instincts, such as self-preservation, are overridden.

• Entrapment: When authorities induce an admission of guilt without acting on a reasonable suspicion that the person is engaged in criminal activity.

• Officially Induced Error: When the accused is given advice in error and believes they are acting in a lawful manner.

• Corrective Force: This pertains to parents, teachers, or other persons who are “acting as a parent” and use reasonable force to correct a pupil or child.

• Accident and Mistake: The meaning varies depending on the type of charge, however, the defence denies there was an intention to cause the outcome.

• De Minimus: The defence is based on the premise that the law should not concern itself with such trivial matters.

• Due Diligence: If the accused took all conceivable steps to avoid the harm that resulted, then this might be an appropriate defence.

• Abandonment: When the accused decides to change his intention and abandon the crime being committed.

 

Determining the right defence is critical; experienced criminal attorneys understand every aspect of the Criminal Code and how to work within the system.

Jaswal & Krueger

If you are facing criminal charges and do not know how to proceed, contact us immediately. Once our experienced criminal defence attorneys learn the details of your case they will be able to determine the appropriate defence(s).  We offer free consultations at our offices in

Surrey and Vancouver, BC, for your convenience. Contact us immediately for an initial consultation at 604-585-8898.