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Automatism

Automatism is a defence that relates to the mental state of the defendant. The defence of automatism may be used if an act is done by the body without control of the mind or the person is not conscious of what they are doing. To use this defence, the defendant must have a complete loss of control over their actions and therefore, cannot be held liable for their actions because it was not voluntary. If the defendant had impaired, reduced or partial control of their actions, this defence will not be available.

The defence of automatism caused by intoxication is limited by section 33.1 of the Criminal Code. under this section, self-induced intoxication that results in automatism is not a defence to violent offences. Under section 33.1, automatism alone is not a defence; the accused must also lack voluntariness or prior intent to commit the crime.

Intoxication

Intoxication may be voluntary or involuntary and can be brought about by the use of drugs or drinking. Intoxication as a defence may be used depending on whether it was voluntary or involuntary and the level of intent required by the criminal charge. Voluntary intoxication is when the defendant got themselves intoxicated whereas involuntary intoxication is where the defendant was not responsible for becoming intoxicated such as when someone is forced or tricked into consuming drugs or alcohol. The distinction is important in order to establish whether the accused knew what they were doing.

Mistake

Raising the defence of mistake means that the accused made a mistake about the circumstances or consequences of an act which in turn, suggests that there was no criminal intention behind the act. The subjective test is whether the accused’s belief was honest and genuine. 

Mistake of fact is when the accused misunderstood some fact that negates the element of intent in the crime. The mistake of fact must be honest and reasonable. The mistake must also be reasonable as in a reasonable person in a similar situation would make the same mistake. 

Mistake of law on the other hand, is a defence in that the accused misunderstood or was ignorant of the law at that time. The accused individual bears the onus to be aware of the laws, therefore, this defence only applies to limited circumstances.

Insanity

As defined in section 2 of the Criminal Code, a mental disorder is a “disease of the mind”. To establish a defence of insanity, it must be clear that the person responsible for an act committed or an omission made was suffering from a mental disorder that rendered them incapable of appreciating the nature and quality of the act or omission or of knowing it was wrong. 

If the accused, because of their mental state, was not aware that their actions were wrong or did not understand what they did was wrong, there may be a finding that they were not criminally responsible on account of mental disorder (NCRMD). With this defence, the accused is still found to have committed the crime but because of a mental disorder, they are not responsible in the same way as other offenders. The accused may still be at risk to the public, so the mental health of the accused and the safety of the public is taken into consideration.

Duress and Necessity

Duress is a defence of excuse. The accused committed a crime but did so involuntarily because they were under duress induced by threats depending on the circumstances of the case. 

Duress is a defence to a charge of any offence other than murder, attempted murder or treason. The principle of “no safe avenue of escape” is the underlying factor in the defence of duress. If a reasonable person in a similar situation would think that there was a safe avenue of escape, the requirements of duress would not be met, and the acts of the accused cannot be excused using this defence because it would not be considered morally involuntary. The court will consider the reasonableness of the defendant’s reaction in the context of the circumstances and whether the response was proportionate. 

Necessity differs from duress because it is not a defence of excuse. Rather, it is a choice that was viewed as necessary in order to prevent a greater evil than that resulted from the violation of the law. The defence is restricted to urgent situations of clear and imminent danger where compliance with the law is shown to be impossible. 

Self Defence 

Self defence can be used for offences where there is a legal justification for the use of force to repel an attack or assault. The Crown will consider whether you reasonably believed that the force was being used against you or another person. The Crown will also look at whether your actions were for the purpose of defending yourself or another person from an attack. Your actions must also be reasonable and proportional in the circumstances in order to claim self defence. However, the defence of self defence is justified only if the use of force was in response to an immediate threat. 

For a consultation on your case, contact Brace Law at 905-815-6555 today to meet with our criminal lawyer to discuss a defence for your case.

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