Lesson 1: Introduction to Criminal Law

Topic 3: Criminal Offences and Defences

Criminal Offences

Robbery

Physical force or threats of violence to steal property from someone. The penalty is up to life imprisonment.

Assault

Physical force directly or indirectly without permission on another person or attempting or threatening by act or gesture to apply force to another person. The penalty is up to five years imprisonment.

Possession of Drugs

Having illegal or prohibited drugs in your possession. The penalty is up to six months imprisonment and/or a $1000 fine if prosecuted by summary conviction; penalty depends on what substance it is and how much is in possession; if prosecuted as an indictable offence it could be up to seven years.

Trespassing by Night

Being on someone else’s property at night without permission or lawful excuse. The penalty up to six months imprisonment and/or a $2000 fine.

Breaking and Entering

Definition gaining entry into someone’s house or commercial premises and committing or intending to commit another offence. The penalty is up to life imprisonment if the property is a house; up to seven years if the property is a commercial property.

Failing to Stop

Not stopping at a "Stop" sign. The penalty is fines and driver’s licence suspension.

Causing a Disturbance

Disturbing the peace and quiet of the occupants of a dwelling house (Note: it could also be making noise at night contrary to a city bylaw.). The penalty is up to six months imprisonment and/or a $2000 fine.

Parking in a "No-Parking" Zone

Leaving your car in a place where parking is not allowed. The penalty is having your car towed away and fines.

Dog off Leash

Walking your dog without a leash. The penalty is having your dog impounded and fines.

Mischief

Causing willful damage to someone else’s property. The penalty is up to two years on summary conviction but if over $500.00 in value then up to ten years by indictment.

Theft

Taking something that doesn’t belong to you without the owner’s permission. The penalty is up to ten years if property stolen over $5000.00 in value; up to two years where property value is less than $5000.00.

Criminal Defences

Automatism

Involuntary conduct may allow an accused to raise the defence of automatism, meaning that a person has no conscious control over his or her body movements. If the defence of automatism is successful, the accused will be lacking the necessary mens rea for a conviction. There are two kinds of automatism, mental disorder and non-mental disorder. Automatism that derives from a state of temporary insanity is classified as mental disorder automatism. If a physical blow to the body or existing medical condition triggers a state of automatism it is classified as a non-mental disorder.

Consent

In very limited situations an accused may claim that the victim consented to the accused’s act (for example, if two parties agree to fist fight). Even in a consensual fight, consent is vitiated (i.e. is no longer a defence) if the accused intended to and actually caused serious bodily harm to the victim. Consent is never a defence to murder. Consent to borrow property is a defence to theft because if the Crown wants to successfully prosecute an accused, it would need to show that there was an absence of consent from the property owner.

Duress/Compulsion

This defence is also quite limited because the duress must occur at the moment the crime occurs. To establish duress, the evidence must show that an accused has been compelled to act by threats of immediate bodily harm and that he or she believes at the time of committing the offence that the threats will be carried out. It does not apply to persons that form a conspiracy or are parties to an offence. The defence is limited in that it cannot be used in cases of treason, murder, piracy, attempted murder, sexual assault, forcible abduction, arson or robbery, The person delivering the threat must be present at the time the offence was committed.

Entrapment

This defence applies if an accused has been ‘set up’ or trapped into committing a crime by the police. Common areas for this defence are in narcotics crimes and prostitution offences. In essence, the defence is one that recognizes the abuse of process by the police. Two basic guidelines that the police must follow to avoid an entrapment defence are that the investigation must target someone already engaged in crime and they must be carrying on a bona fide (genuine) investigation.

Intoxication

As a general rule, intoxication is not a defence to a criminal charge though it can alter the appropriate charge in a given set of circumstances. However, it can be used as a partial defence to what are known as specific intent crimes. If an accused was too intoxicated to form the necessary intent to knowingly carry out a specific crime then intoxication may successfully be uses as a defence. Robbery would be an example of a specific intent crime that might be mitigated by an extreme state of intoxication. The Supreme Court of Canada stated in R. v. Perrault that the degree of drunkenness must render a person “so stupid by drink that he does not know what he is doing” (Barnhorst, 1992, p.69). It is also possible to use the defence of intoxication if it leads to a state of automatism or temporary insanity (R. v. Bernard, SCC 1988).

Insanity

The test of insanity allows for three elements: natural imbecility, a disease of the mind or an inability to appreciate the nature and quality of an act. One of these conditions must exist at the time of an offence to secure the defence of insanity.

Natural imbecility means that the person’s mental development is not complete and that the condition has been caused at birth or by natural decay. A disease of the mind is a more complicated element to determine and is left to a judge to decide based upon evidence provided in court. Some recognized disorders are schizophrenia, dementia, paranoia and some types of epilepsy. The accused must suffer from the impairment at the time of the crime, though they need not have a permanent condition.

The burden of proving one’s state of insanity rests with the accused and not with the Crown. Although this is a clear violation of the right to be presumed innocent, under the Charter, the Supreme Court of Canada has ruled that it would be unreasonable for the Crown to disprove insanity in every case.

Mistake of Fact/Mistake of Law

Mistake of fact occurs when an accused believes that his or her actions are not criminal by virtue of the circumstances. The mistake must be a) an honest one and b) such that no offence would have been committed if the circumstances had been as the accused believed them. If Harold takes Emma’s lighter, believing it to be his, a mistake of fact has occurred and no crime has been committed. The mistake relates to the mens rea because the accused, if the facts are as they believe them to be, is not acting with a guilty mind. A mistake of law is not mere ignorance of the law as this is not an excuse to commit crimes.

Mistake of law is a limited defence but it can be used with many regulatory offences made to protect public safety or health. If an official provides consent or permission to act, but the act is found in violation of the law, then one may use the defence of mistake of law. In some cases mistake of law and mistake of fact coexist. For example if a tow truck driver is asked to remove a vehicle from private property, by colour of right he is not committing a theft. Colour of right refers to an honest mistake of fact or law that causes a person to believe they have a legal right to possess property.

Necessity

Duress is one type of the general defence of necessity. The broader defence of necessity is rarely used in our system. The defence essentially comes to play when an ordinary person is compelled to break the law in an emergency situation. If one has to illegally enter a building to save a child from fire, the defence would be applicable.

Self-Defence/Provocation

Self defence is another specific type of the defence of necessity. Provocation is not a defence in itself but a condition relevant to the use of self-defence of one’s property or personal safety. Self defence occurs under two strict conditions a) the accused must be under reasonable fear of death or serious bodily harm and b) the accused must believe there was no other way to save himself or herself.

It is possible to use self-defence even if the victim initiated theassault by verbal threats or a physical act. One may also act in defence of others but one cannot use more force than is necessary to prevent the assault or its repetition. We also have the right to defend personal property either fixed or moveable, but very specific rules apply to each type and to the various circumstances that create the trespass. Provocation can also, if established by the evidence, reduce murder to manslaughter.

More information is available at Canadian Department of Justice or at www.JusticeBC.ca. You can also read the Criminal Code.