Criminal Law

By: Pat Knoll, Q.C., of the Alberta Bar, Professor Emeritus, Faculty of Law, University of Calgary and Kait Perrin, J.D.

I.2: Introduction - Defences

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I.2(a): Defence Defined

See Canadian Abridgment: CRM.V Criminal law — Defences

A defence is any answer which defeats the charge on the facts, or any means or argument on the law which has the same result.

I.2(b): General Defences and Particular Defences

See Canadian Abridgment: CRM.V Criminal law — Defences

Some defences, such as alibi, necessity, duress and mental disorder defences of general application, if raised, may provide a complete defence. Other defences, such as colour of right, provocation, intoxication, and infanticide, are available only for certain offences or provide only a partial defence to the offence charged.

I.2(c): Common Law Defences

See Canadian Abridgment: CRM.V Criminal law — Defences

Every rule and principle of the common law that renders any circumstances a justification or excuse for an act, or a defence to a charge, continues to be a justification, excuse or a defence under the Criminal Code or other law of Canada, except in so far as such a rule or principle is altered by or is inconsistent with the Criminal Code or other Act of Parliament. This provision has been interpreted in reference to such common law defences as duress, necessity and res judicata.

The Criminal Code does not restrict the courts to a static view of common law defences. New defences may be recognized as the common law evolves and develops. This common law development may occur independently in Canadian criminal law or by recognition of common law development in foreign jurisdictions.

The courts may consider pre-existing common law rules to give meaning to and explain the parameters of any existing defence.

I.2(d): Nature of Justification and Excuse

See Canadian Abridgment: CRM.V.13.a.ii Criminal law — Defences — Lawful authority — To administer or enforce law — Justification for use of force; CRM.V.21.e Criminal law — Defences — Self defence — Effect of provocation; CRM.V Criminal law — Defences

Under the common law, many defences were considered to be defences of either justification or excuse. A justification defence challenges the wrongfulness of an action that technically constitutes a crime, by showing that the circumstances made the action rightful and therefore justified; the actors are to be praised as having been motivated by some great or noble object. An excuse defence concedes the wrongfulness of the action, but asserts that the circumstances under which it was done were such that it ought not to be attributed to the actor.

I.2(e): Duty of Trial Judge

See Canadian Abridgment: CRM.I.4.b.ii Criminal law — General principles — Jurisdiction — Jurisdiction of court — Superior court; CRM.I.4.b.iv Criminal law — General principles — Jurisdiction — Jurisdiction of court — Provincial court judge

It is the duty of a trial judge to submit to the jury any defence available to the accused that is revealed by the evidence, whether or not counsel for the accused chose to advance that defence in his or her address to the jury. The fact that a defending counsel does not stress an alternative defence before the jury — which may be difficult to do without prejudicing the main defence — does not relieve the judge from the duty of directing the jury to consider the alternative defence, if there is evidence to justify its consideration. If there is enough evidence to pass the “air of reality test”, the defence should be left with the jury.

I.2(f): Presumption of Innocence

See Canadian Abridgment: CRM.III.12 Criminal law — Canadian Bill of Rights — Presumption of innocence; EVD.II.7.b Evidence — Proof — Presumptions — Of innocence

Under the Criminal Code an accused is deemed not guilty until convicted of the offence. At common law, one is presumed innocent until guilt is proven beyond a reasonable doubt.

I.2(g)(i): Persuasive and Evidential Burdens - General

See Canadian Abridgment: CRM.IV.19.c Criminal law — Charter of Rights and Freedoms — Presumption of innocence [s. 11(d)] — Evidentiary burdens; CRM.IV.19.d Criminal law — Charter of Rights and Freedoms — Presumption of innocence [s. 11(d)] — Persuasive burdens; EVD.II.5 Evidence — Proof — Persuasive burden; EVD.II.6 Evidence — Proof — Evidentiary burden

In judicial proceedings one or more burdens concerning evidence arise. A major burden or legal persuasive burden that never shifts requires the party with that burden to prove or disprove what the law and circumstances require. There can also be a minor burden, or evidential burden, which is not a burden of proof but a burden to introduce evidence of some matter sufficient to raise a triable issue.

I.2(g)(ii): Persuasive and Evidential Burdens – Burden on Crown

There is a burden of proof on the Crown that is a persuasive and permanent burden requiring the Crown to prove or establish ultimately its case beyond all reasonable doubt.

If at the end of, and on the whole of, the case there is reasonable doubt created by the evidence given by the prosecution or defence, or given in cross-examination, the prosecution has not made out its case and the accused is entitled to an acquittal.

Because the accused has the presumption of innocence, the prosecution normally bears both evidential and legal burden with respect to the essential elements of the offence. The evidential burden is to adduce sufficient evidence that the accused committed the act with the necessary intent, while the legal burden is to prove these matters beyond a reasonable doubt.

I.2(g)(iii): Persuasive and Evidential Burdens – Burden on Defence

Generally speaking, no onus lies upon an accused in criminal proceedings to prove or disprove any fact. It is sufficient for acquittal if any of the facts which, if they existed, would constitute the offence with which he or she is charged are not proved. This general rule is, however, subject to exceptions created by the common law and statutory enactments that may place evidentiary or persuasive burdens on the defence.

The law creates various rebuttable presumptions against an accused to be met under a variety of burdens. An accused may be required merely to raise a reasonable doubt as to the existence of the presumed fact. Secondly, he or she may have an evidentiary burden to adduce sufficient evidence to bring into question the truth of the presumed fact. Finally, he or she may have a legal or persuasive burden to prove on a balance of probabilities the non-existence of the presumed fact.

Where the law provides for a legal or persuasive burden on the accused, the burden of proof on the accused will be on a balance of probabilities.

Where an accused wishes to raise a defence that does not arise on the evidence in the case for the Crown, he or she has an evidential burden to introduce evidence to make the defence a triable issue. The test respecting the evidential burden is whether there is some evidence on the record upon which a properly instructed jury, acting reasonably, could acquit on the basis of that defence.

Where the offence charged is a public welfare offence of strict liability there is a burden on the defence to prove due diligence, or all reasonable care, on a balance of probabilities.

I.2(h)(i): Procedure – Right to be Present at Trial

See Canadian Abridgment: CRM.VIII.3.f Criminal law — Trial procedure — Rights of accused — Presence at trial

An accused has the right to be present during the whole of his or her trial. This right provides for the accused to be present and have direct knowledge of anything that transpires in the course of the trial which could involve his or her vital interests. The accused can be excused from trial with permission from the court.

Proceedings that involve the accused’s vital interests are the arraignment, plea, empanelling the jury, reception of evidence, voir dire proceedings, rulings on evidence, arguments of counsel, addresses and charges to the jury, reception of the verdict, and sentence proceedings where guilt is found. Also included are proceedings conducted by the judge during the trial for the purpose of investigating matters that have occurred outside the trial but which may affect its fairness. Events which, although in one sense part of the trial, have no bearing on the substantive conduct of the trial, or on the issue of guilt or innocence, are excluded.

I.2(h)(ii): Procedure – Right to Full Answer and Defence

See Canadian Abridgment: CRM.IV.12.c Criminal law — Charter of Rights and Freedoms — Life, liberty and security of person [s. 7] — Right to make full answer and defence; CRM.VIII.3.h Criminal law — Trial procedure — Rights of accused — Right to make full answer and defence

An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel. The right to make full answer and defence has constitutional dimensions. A violation of the right may entitle the accused to a stay of proceedings if it is one of those clearest of cases where a stay is the only appropriate remedy. An order for production or an adjournment is more often the appropriate remedy at trial, but is no longer available on an appeal from conviction. The accused is entitled to a remedy upon establishing an impairment of the right to make full answer and defence but the degree of impairment or prejudice to his or her rights must be assessed and considered in relation to the remedy sought. An accused who seeks a stay of proceedings must prove on a balance of probabilities an impairment of the right to make full answer and defence and irreparable prejudice to that right. If the accused seeks a new trial, he or she need only persuade the appellate court of the reasonable possibility that the breach affected the outcome at trial or the overall fairness of the trial process.

Full answer and defence is, firstly, the ability to probe the evidence of the Crown. Secondly, it is the right to adduce all evidence not known to be false that may raise a conviction of innocence or reasonable doubt of guilt. Finally, it is the right to make submissions to the trier of fact on the law and on the evidence.

The right to full answer and defence includes the right to full cross-examination of prosecution witnesses, the right to call witnesses and the accused to testify, the right not to be taken by surprise by newly discovered evidence or evidence not disclosed at the preliminary, the right to present argument and the right not to be unduly interfered with by the trial judge by excessive judicial cross-examination of witnesses. Disclosure of the contents of a sealed wiretap packet has also been found to be necessary for an accused to make full answer and defence.

Full answer and defence also includes the right to the assistance of able and effective counsel. The right to assistance of effective counsel has common law, statutory and constitutional roots.

I.2(h)(iii)A: Procedure – Pleas – Permitted Pleas

See Canadian Abridgment: CRM.VII.19 Criminal law — Pre-trial procedure — Pleas

An accused who is called upon to plead may plead guilty or not guilty, and may also make a special plea of autrefois acquit, autrefois convict or pardon. An accused who is charged with defamatory libel may plead, in writing, justification, i.e., that the matter was true and published for the public benefit. A plea of not guilty may also be pleaded with a justification plea to a charge of defamatory libel.

I.2(h)(iii)B: Procedure – Pleas – Plea of Not Guilty

See Canadian Abridgment: CRM.VII.19.c Criminal law — Pre-trial procedure — Pleas — Plea of not guilty

A plea of not guilty is a general denial and encompasses all defences or any ground of defence for which a special plea is not provided. This includes res judicata, issue estoppel and the rule against multiple convictions.

I.2(h)(iii)C: Procedure – Pleas – Plea of Guilty

See Canadian Abridgment: CRM.VII.19.b Criminal law — Pre-trial procedure — Pleas — Guilty plea

A plea of guilty is a complete admission of all essential facts or material averments of the offence charged. In itself, a guilty plea carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more.

I.2(h)(iii)D: Procedure – Pleas – Refusal to Plead

See Canadian Abridgment: CRM.VII.19.c Criminal law — Pre-trial procedure — Pleas — Plea of not guilty

Where an accused refuses to plead or does not answer directly, a plea of not guilty is entered on his or her behalf.

I.2(h)(iii)E: Procedure – Pleas – Plea of Guilty to Included or Other Offence

See Canadian Abridgment: CRM.VII.19.b.iv Criminal law — Pre-trial procedure — Pleas — Guilty plea — Guilty plea to lesser offence

An accused or defendant may plead not guilty to the charged offence but guilty to another offence arising out of the same transaction. Such a plea may be accepted by the court where the prosecution consents. Where there is no consent given by the prosecution, the trial must proceed on the charged offence.

Where a plea has been offered to a lesser offence but not accepted, the plea should be held in abeyance pending trial of the more serious offence. If the accused is acquitted, the guilty plea may then be recorded on the included offence. The contrary view is that if the plea is not accepted it should be considered a nullity.

I.2(h)(iii)F: Procedure – Pleas – Withdrawal of Guilty Plea

See Canadian Abridgment: CRM.VII.19.b.ii.C Criminal law — Pre-trial procedure — Pleas — Guilty plea — Duties of court — Permitting withdrawal of plea; CRM.XI.5.o.xi Criminal law — Post-trial procedure — Appeal from conviction or acquittal — Procedure on appeal — Permitting withdrawal or change of plea

A guilty plea may be withdrawn at the discretion of the trial judge before sentence. An accused may be permitted to do so if there are valid grounds raised in the application. When an accused has established that the plea was entered in error, under improper inducements or threats, or where the accused was intoxicated, the application will succeed.

Criminal Law

I.2: Introduction - Defences

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