View source for Defences

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{{HeaderDefences}}
==General Principles==
An accused person can escape criminal liability for an offence that they could otherwise be convicted for by sufficiently proving the existence of one or more established defences. 

Defences are often categorized as follows:
* '''Justification''': a justifiable act is one that makes out the offence but is justified by the external circumstances in which the act was committed. (e.g. self-defence)
* '''Excuse''': a criminal act is excused where the accused would have committed an undesirable criminal offence, the punishment for the offence would be morally inappropriate due to the extenuating circumstances. (eg. offences due to mental infirmities, duress). Defence such as necessity and duress are excuses since they are founded in their moral involuntariness.<ref>
''R v Ryan'', [http://canlii.ca/t/fvp4h 2013 SCC 3] (CanLII){{perSCC|LeBel and Cromwell JJ}}{{atL|fvp4h|23}}</ref>
* '''Affirmative Defence''': a defence that, if proven, will eliminate liability despite all the elements of the offence having been made out
* '''Negating Defence''': a defence that negates one or more of the essential elements of the prosecution's case.

An affirmative defence is generally considered a type of justification defence.<ref>
''R v Keegstra'', [http://canlii.ca/t/1p6ks 1994 ABCA 293] (CanLII){{perABCA|Harradence JA}}{{atL|1p6ks|18}} appealed to [1996] 1 SCR 458<br>
</ref>

; Appellate Review
Whether the judge correctly put a defence to a jury is a question of law and reviewable on a standard of correctness.<ref>
''R v Tran'', [http://canlii.ca/t/2dk6j 2010 SCC 58] (CanLII), [2010] 3 SCR 350{{perSCC|Charron J}} at 40</ref>

{{reflist|2}}
===Common Law===
Section 8(3) of the Criminal Code addresses the common law authority to define available defences:
{{quotation|
8...<br>
; Common law principles continued
(3) Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.

{{LegHistory|R.S., {{LegHistory80s|1985, c. C-46}}, s. 8; 1993, c. 28, s. 78; 2002, c. 7, s. 138.}}
|[{{CCCSec|8}} CCC]
}}

Section 8(3) does not restrict the power of the court to "enlarge" the common law by recognizing new defences.<Ref>
''Kirzner v R'', [1978] 2 SCR 487 [http://canlii.ca/t/1tx4n 1977 CanLII] 38 (SCC){{NeedsWork}}("I do not think that s. 7(3) should be regarded as having frozen the power of the Courts to enlarge the content of the common law by way of recognizing new defences, as they may think proper according to circumstances that they consider may call for further control of prosecutorial behaviour or of judicial proceedings.")
<br>
''R v Jobidon'', [1991] 2 SCR 714, [http://canlii.ca/t/1fskj 1991 CanLII 77] (SCC){{NeedsWork}}
("[s. 8(3)] ...authorizes the courts to look to preexisting common law rules and principles to give meaning to, and explain the outlines and boundaries of an existing defence or justification, indicating where they will not be recognized as legally effective -- provided of course that there is no clear language in the Code which indicates that the Code has displaced the common law.")<br>
</ref>

{{reflist|2}}

===Excuse===

Excuses and justifications do not "negative the ''mens rea'' rather they operate by justifying or excusing what would otherwise be criminal conduct".<ref>
''R v Hibbert'', [http://canlii.ca/t/1frjf 1995 CanLII 110] (SCC), [1995] 2 SCR 973 (SCC){{perSCC|Lamer CJ}}{{atL|1frjf|47}}<br>
''R v Ryan'', [http://canlii.ca/t/fvp4h 2013 SCC 3] (CanLII){{perSCC|LeBel and Cromwell JJ}}{{atL|fvp4h|23}} - An excuse does not negate the wrongfulness of the act.</ref> 
It is a "concessions of human frailty" when face with an untenable choice.<ref>
{{ibid1|Ryan}}{{atL|fvp4h|23}} citing ''R v Ruzic'', [http://canlii.ca/t/520x 2001 SCC 24] (CanLII){{perSCC|Lebel J}}</ref> 
Such conduct is not always morally blameless, however.<ref>
{{ibid1|Ryan}}{{atL|fvp4h|23}}</ref>

Provisions of the Code can specify an offence as being made out "without reasonable excuse".<ref>
e.g. [[Impaired Driving, Over 80 and Refusal (Offence)|Refusal (Offence)]]<br>
</ref>
This part of the Codes lies "outside of the elements of the offence".<ref>
''R v Greenshields'', [http://canlii.ca/t/g2x2p 2014 ONCJ 35] (CanLII){{perONCJ|Duncan J}}{{atL|g2x2p|16}}<br>
''R v Taraschuk'', [http://canlii.ca/t/1tx1z 1975 CanLII 37] (SCC), [1977] 1 SCR 385{{perSCC|Laskin CJ}}<br>
see also [[Intention]]
</ref>

{{reflist|2}}

====Burden to Prove Excuse ====
{{seealso|Burden of Proof}}
Under s. 794, the Code states that the burden is on the defendant to prove an exception or excuse:
{{quotation|
; No need to negative exception, etc.
794 (1) No exception, exemption, proviso, excuse or qualification prescribed by law is required to be set out or negatived, as the case may be, in an information.

(2) [Repealed, 2018, c. 29, s. 68]

R.S., {{LegHistory80s|1985, c. C-46}}, s. 794; 2018, c. 29, s. 68.<br>
R.S., c. C-34, s. 730.
|[{{CCCSec|794}} CCC]
}}

The shifted burden found in s. 794(2)--as it existed before December 13, 2018--has been interpreted as applying only to the "narrow circumstances, usually regulatory offences, where a status in law has been conferred upon the accused who would otherwise be culpable".<ref>
''R v PH'', [http://canlii.ca/t/1cx5n 2000 CanLII 5063] (ON CA){{perONCA|Finlayson JA}}{{atL|1cx5n|14}}<br>
</ref>
This section has no application to offences in s. 335(1.1)<ref>
{{ibid1|PH}}{{atL|1cx5n|14}}</ref> 
It has been applied in charges of refusal to give a breath sample under s. 254(5).<ref>
''R v Goleski'', [http://canlii.ca/t/gg8ls 2015 SCC 6] (CanLII){{TheCourtSCC}}<br>
</ref>
As well as s. 145(3) breaches of conditions.<ref>
''R v AMY'', [http://canlii.ca/t/h3f2t 2017 NSSC 99] (CanLII){{perNSSC|Rosinski J}}<br>
cf. ''R v Truong'', [http://canlii.ca/t/20hf3 2008 BCSC 1151] (CanLII){{perBCSC|Smart J}}{{atL|20hf3|24}}<br>
</ref>

The section has been found to apply in regulatory provincial offences.<ref>
e.g. ''R v DMH'', [http://canlii.ca/t/1z9n6 1991 CanLII 4553] (NS CA), (1991) 109 NSR (2d) 322 (CA){{perNSCA|Hart JA}}<br>
''R v TG'', (1998), 165 NSR (2d) 265 (CA), [http://canlii.ca/t/1gmrb 1998 CanLII 11] (NS CA){{perNSCA| Chipman JA}}{{atsL|1gmrb|15| to 19}}<br>
</ref>

{{reflist|2}}

==Raising a Defence==
*[[Air of Reality Test]]

==Rejected or Prohibited Defences==

; Ignorance of the Law
By s. 19, the ignorance of the law is no defence. However, there are limited exceptions where the underlying belief is due to officially induced error or mistake of fact.
{{quotation|
; Ignorance of the law
19 Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.
<br>
R.S., c. C-34, s. 19.
|[{{CCCSec|19}} CCC]
}}

An accused commits a "mistake in law" where he "erroneously believes that his voluntary action does not contravene a legal order or who is mistaken about the application of a legal order".<ref>
''R v Allaby'', [http://canlii.ca/t/h306h 2017 SKCA 25] (CanLII){{perSKCA|Ottenbreit JA}} (3:0) {{atL|h306h|42}}
</ref>

; Suicide Pact
There is no defence in the common law that can reduce murder to manslaughter where the unlawful death was pursuant to a suicide pact.<ref>
''R v Dobson'', [http://canlii.ca/t/hsqm1 2018 ONCA 589] (CanLII){{perONCA|Doherty JA}}
</ref>The existence of a suicide pact would only be relevant towards a defence "not criminally responsible due to mental disorder defence".<ref>
{{ibid1|Dobson}}{{atL|hsqm1|42}}<br>
</ref>

{{reflist|2}}

==Types of Defences==
* [[Intoxication]] 
* [[Automatism]] 
* [[Provocation]] 
* [[Necessity]] 
* [[Duress]] 
* [[Entrapment]] 
* [[Reasonable Excuse]]
* [[Self-Defence and Defence of Another]]
* [[Defence of Property]]
* [[Acting in Authority]]
* [[Officially Induced Error]]
* [[Corrective Force]]
* [[Alibi]]
* [[De Minimus Non Curat Lex]]
* [[Due Diligence]] 
* [[Consent]]
* [[Alternative Suspect Evidence|Alternative Suspect Defence]]
* [[Abandonment (Defence)|Abandonment]]
* [[Innocent Possession]]
* [[Mistaken Belief of Age]]

<!--
* '''Exemptions'''
* [[De Minimus Non Curat Lex]]
* [[Accident and Mistake]] 

* '''Excuses'''
* [[Provocation]] 
* [[Necessity]] 
* [[Duress]] 
* [[Intoxication]] 
* [[Automatism]] 
* [[Entrapment]] 

* '''Justification'''
* [[Acting in Authority]]
* [[Officially Induced Error]]
* [[Corrective Force]]
* [[Mistaken Belief of Age]]
* [[Innocent Possession]]
* [[Self-Defence and Defence of Another]]
* [[Defence of Property]]
* [[Consent]]
* [[Alibi]]

Comment made:
I would like to sort the defences by sorting them based on their category:
Justifications
self defence
defence of property
Excuses
necessity
Provocation
duress
intoxication

-->

==Case Digests==
* [[Defences (Cases)]]

==See Also==
* [[Mental Illness]]

[[Category:Defences|*]]
[[Category:Provisions Enacted or Amended in 1985]]
[[Category:Provisions Enacted or Amended in 1993]]
[[Category:Provisions Enacted or Amended in 2002]]