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Criminal Code > Defences, Offences, Conveyances- Lecture 4 > Flashcards

Defences, Offences, Conveyances- Lecture 4 Flashcards

1
Q

defences are ways the accused can do what

A
  • raise doubt on whether they did the act and/or had the mens rea
  • raise doubt on whether they are the right accused
  • supply a justification for what they did
  • provide an excuse for what they did
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2
Q

how many elements of the offence must the defence raise a reasonable doubt on

A

one or more

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3
Q

where are statutory defences found

A

in CC

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4
Q

when can abandonment be used as a defence

A

when charged with aiding or abetting

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5
Q

what is abandonment used to show

A

that D tried to pull out/ abandon the activity

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6
Q

to use the defence of abandonment, what must be shown

A
  • intent to withdraw from unlawful activity
  • D communicated intent to withdraw, in a timely way, to other involved
  • D’d communication was unequivocal
  • D took steps to cancel out the effects of D’s participation
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7
Q

Is abandonment a common law defence or statutory defence?

A

common law

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8
Q

Is abuse of process a common law defence or statutory defence?

A

common law

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9
Q

Is accident a common law defence or statutory defence?

A

common law

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10
Q

Is alibi a common law defence or statutory defence?

A

common law

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11
Q

Is due diligencea common law defence or statutory defence?

A

common law
- R V SSM

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12
Q

Is duress a common law defence or statutory defence?

A

common law

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13
Q

Is entrapment a common law defence or statutory defence?

A

common law

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14
Q

Is honest belief a common law defence or statutory defence?

A

common law

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15
Q

Is mistake of fact a common law defence or statutory defence?

A

common law

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16
Q

Is necessity a common law defence or statutory defence?

A

common law

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17
Q

Is non-insane automatism a common law defence or statutory defence?

A

common law

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18
Q

Is defence of mental disorder a common law defence or statutory defence?

A

statutory

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19
Q

Is compulsion by threats a common law defence or statutory defence?

A

statutory

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20
Q

Is protection of persons acting under authority a common law defence or statutory defence?

A

statutory

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21
Q

Is self defence/ defence of a person a common law defence or statutory defence?

A

statutory

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22
Q

Is defence of property a common law defence or statutory defence?

A

statutory

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23
Q

Is correction of a child by force a common law defence or statutory defence?

A

statutory

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24
Q

Is self-induced intoxication a common law defence or statutory defence?

A

statutory

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25
Q

where can abuse of process be used

A

where existence of ulterior purpose or motive underlying the use of process or some act in the use of the legal process is not proper in regular prosecution

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26
Q

who has the onus to prove abuse of process

A
  • defence
  • balance of probabilities
  • to show that to allow the case to continue would violate fair play and decency
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27
Q

what is the remedy for abuse of process

A

stay of proceedings

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28
Q

what conditions must be met for stay of proceedings to be used for abuse of process

A
  • the prejudice caused by the abuse will be manifested, perpetuated or aggravated through the conduct or outcome of the trial
  • The prejudice is not something that occurred in the past
  • No other remedy is reasonably capable of removing the prejudice
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29
Q

who has the onus to prove accident

A
  • D must establish air of reality
  • then onus shifts to P to disprove
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30
Q

why can accidents be used as a defence

A

because criminal activity requires voluntary conduct, which an accident is not

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31
Q

what element of a crime does alibi go to

A

proving identity (everyone, a person)

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32
Q

what is the concept behind alibit

A

D alleges to be someplace elsewhere at the time of the crime, where there is no window of opportunity to commit offence

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33
Q

for which defence does notice must be given to P for

A

alibi

34
Q

for which defence is there most likely to be an adverse inference drawn by court if disproven

A

alibi

35
Q

to which cases can due diligence be used as a defence

A
  • strict liability offences
  • not for CC offences
36
Q

what is required to prove due dilligence

A
  • honest but mistaken belief in facts that if true would render act innocent
  • exercised all reasonable care to avoid committing offence
37
Q

what are true criminal offences

A

those found in the CC

38
Q

strict liability offence

A

one where due diligence is a defence

39
Q

absolutely liability offence

A

absolutely no defence for it

40
Q

what are the three categories of offences

A
  • true criminal offences
  • strict liability offences
  • absolutely liability offences
41
Q

one where due diligence is a defence

A

strict liability offence

42
Q

absolutely no defence for it

A

absolutely liability offence

43
Q

describe the concept of Duress

A

D commits actus reus but didn’t have mens rea because they were forced to commit act

44
Q

what is required to prove duress

A
  • Close temporal connection between threat and harm threatened
  • Application of the objective/subjective safe avenue to escape
  • D must show reasonable fortitude in resisting threat
  • Objective assessment as to whether threat will be carried out
  • Proportionality between harm avoided and harm causes
  • May include threat of future harm to 3rd party but must be temporal
45
Q

who has onus to prove duress

A
  • D must raise evidence to support defence
  • onus shifts to P to disprove based on BOP
46
Q

does duress supersede compulsion by threat

A
  • no
  • they apply in different circumstances
47
Q

describe the general idea behind entrapment

A

PO provides a person w an opportunity (or more than creates an opportunity) to commit a crime without acting on reasonable suspicion that person is already engaging in criminal behaviour

48
Q

what is the remedy to entrapment

A

stay of proceedings

49
Q

what is the burden of proof and onus for entrapment

A
  • D must bring defence and prove on BOP
50
Q

what is the other term for mistake of fact

A

honest belief

51
Q

what is required for mistake of fact

A
  • existence of facts or circumstances that, if true, would make act innocent
  • need reasonable ground for belief
52
Q

describe the basic situation needed for necessity

A
  • D alleges they have no choice but to do the act
  • requires compliance with the law be demonstrably impossible
53
Q

what 3 elements must be established for necessity

A
  • imminent peril or danger
  • no reasonable legal alternative to course of action D undertook
  • proportional between harm inflicted and harm avoided
54
Q

is lack of memory of relevant event enough to prove non-insane automatism

A

no

55
Q

must there be existence of some condition or physical state that is capable of causing involuntary automatic behaviour to prove non-insane automatism

A

yes

56
Q

what does mild drunkenness mean at the law level

A

nothing

57
Q

what does advanced intoxication mean at the law level

A
  • D lacks specific intent to commit offence
58
Q

why does advanced intoxication mean D lacks specific intent

A
  • impairs D’s foresight of consequences of actions
  • therefore excuse ONLY for specific intent
59
Q

what does extreme intoxication akin to automatism mean at the law level

A

negates voluntariness and may be a complete defence

60
Q

what does NCR stand for

A

not criminally responsible

61
Q

what is the not criminally responsible defence

A

defence of mental disorder

62
Q

when is the defence of mental disorder available

A
  • if at time of act or omission
  • while suffering from mental disorder that renders incapable of (appreciating the nature and quality of the act OR)(knowing that it was wrong)
63
Q

what is a relevant legal presumption for defence of mental disorder

A

everyone is not mentally disables

64
Q

who has the onus for defence of mental disorder

A

D to show NCR on a balance of proabilities

65
Q

does defence of mental disorder mean they are unfit to stand trial

A

no

66
Q

what is the duress of statutory law

A

compulsion by threats

67
Q

what must be proven for compulsion of threat

A
  • D must be in immediate threat of death or bodily harm
  • Threat must come from person who is present when offence is committed
  • D must believe threat will be carried out
68
Q

what are the restrictions of using compulsion by threats as a defence

A
  • restricts the use of this defence for some offences (sexual assault, high treason etc)
  • cannot be used when D is a party
69
Q

what are the elements of protection of persons acting under authority

A
  • if he acts on reasonable grounds,
  • justified in doing what he is required or authorized to do and
  • in using as much force as is necessary for that purpose
70
Q

does duress supersede compulsion by threats? explain

A
  • not completely
  • duress is available to parties to an offence
71
Q

what are the elements of self defence

A
  • not guilty to offence
  • if they believe on reasonable grounds
  • that force is being used or threatened against them or another person AND
  • what they do is being done to defend or protect from that force or threat AND
  • what they do is do is reasonable in the circumstances
72
Q

describe the elements of defence of property

A
  • A person is not guilty (legal defence)
  • If they believe on reasonable grounds
  • They are in peaceable possession, or acting under the authority of, or are lawfully assisting some who has peaceable possession and
  • Believe that: another is about to, is or has entered property With out lawful entitlement, or Is about to take property, is doing or about to, or Is about to damage property, and
  • Their act is for the purpose of preventing entry or taking adv of, or damaging property, and
  • Their act is reasonable in the circumstances
73
Q

describe the elements of correction of child by force

A
  • Every school teacher, parent or person standing in the place of a parent
  • Is justified
  • In using force
  • By way of correction
  • Toward a pupil or child and
  • The force does not exceed what is reasonable
74
Q

keywords like “with intent” and “knowingly” point to what kind of mens rea

A

specific intent

75
Q

what is a conveyance

A

a motor vehicle, vessel, aircraft, or railway equipment

76
Q

does vessel include hovercraft

A

yes

77
Q

what does operate mean in terms of a motor vehicle

A

to drive it or to have care or control of it

78
Q

what does operate mean in respect of a vessel or aircraft

A
  • to navigate it
  • to assist in its navigation
    or
  • to have care or control of it
79
Q

what does operate mean in respect to railway equipment

A
  • to participate in the direct control of its motion
  • or to have care or control of it as a member of the equipment’s crew, as a person who acts in lieu of a member of the equipment’s crew by remote control, or otherwise.
80
Q

what does care and control mean

A
  • need not have intent to set vehicle in motion
  • just need risk to put vehicle in motion by virtue of D’s position or action
  • doesn’t matter if D establishes they did not have intention to operate
81
Q

what does a sequential offence mean

A

different punishments if its your 1st attempt, 2nd, 3rd …

82
Q
A

Criminal Code (12 decks)

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