Defences in Criminal Law: Denial, Mental States, Automatism, Intoxication

1. Chapter 10.1 Defences

2. The most common defence to a criminal charge is denial. Some situations the accused may admit to the crime, but may still advance a defence to excuse or justify their actions. If this defence is accepted, the court may acquit the accused, or find the accused guilty of a less serious offence. For a defence to succeed, the accused must provide evidence to support it. A defence is a denial or, or a justification for, criminal behaviour.

3. Mental States The mental state of the accused at the crime the offence was committed has an impact on whether the accused can be held criminally responsible for the offence. Before the trial begins, the court has to determine if the accused is mentally fit to understand the proceedings and to participate in their defence.

4. Mental Disorder Formerly called the insanity offence, mental disorder is defined in the CCC as a disease of the mind. If the accused suffered from a mental disorder at the time of the offence, they cannot be held criminally responsible because they could not form the mens rea required for the offence. The CCC states a person is presumed not to suffer from a mental disorder until the contrary is proven. The burden of proof is on the party that first raises the issue, which is usually the defence. The defence would have to prove that there is a greater likelihood that the accused did suffer from a mental disorder than that they did not.

5. The defence of mental disorder can be used by fulfilling one of the following two requirements: • The mental disorder left the accused incapable of appreciating the nature and quality of the act. E.g. the accused did not have the mental capacity to understand stabbing somebody would lead to injury or death. • The mental disorder left the accused incapable of knowing that the act or omission was wrong. E.g. Frankie believed Sam was an evil alien who was going to destroy the world. Killing Sam would save the world.

6. If the court finds the accused not criminally responsible, the judge may make either make and order, or refer the case to a criminal code review board. If a judge makes an order, they will either choose: an absolute discharge (assuming the accused is not a harm to society), a conditional discharge, or a term in a psychiatric hospital (max of 90 days, after which the criminal code review board reviews the case).

7. Criminal code review board If the judge refers the case to thecriminal code review board, they have the same three choices as the judge. If they commit the accused to a psychiatric hospital, it will be for an indefinite period of time. If the board is convinced by qualified professions that the accused is cured, they will be released.

8. Fitness to Stand Trial The accused is presumed fit to stand trial unless the court is convinced they are suffering from a mental disorder at the time of trial. Such a disorder means the accused is unable to understand the nature of the trial proceedings, to understand the consequences of the proceedings, or to instruct council. At any time during the trial, if there are reasonable grounds to believe the accused is mentally unfit, the judge may issue an assessment order, deciding on an appropriate action depending on the findings of the assessment report.

9. Automatism Automatism has been described as ‘unconscious, involuntary behaviour – the state of the person who, though capable of action, is not conscious of what he is doing.’ Sleepwalking, convulsions, suffering a severe concussion, taking the wrong medicine and behaviour caused by psychological stress are some examples. To be acquitted on this defence, the accused must prove that he or she was in a state of automatism when committing the offence.

10. Automatism caused by a disease of the mind is called ‘insane automatism.’ Here the source of the malfunction is rooted in the psychological or emotional makeup of the person. If this state is proved, the accused is entitled to a verdict of ‘not criminally responsible on account of a mental disorder.’ The offender would then be subject to the procedures outlined under mental disorder. Non-insane automatism is caused not by a mental disorder, but by an external factor, such as a concussion or medication. If proven, the accused will be acquitted.

11. Intoxication It is important to remember how specific and general intent offences work to understand the intoxication defence. A general intent offence is on in which the intent relates solely to committing the act (Fred hits Barney out of anger). If Fred hit Barney with the intent to kill he has committed aggravated assault and is a specific intent offence.

12. Intoxication is the condition of being overpowered by alcohol or drugs to the point of losing control. Generally intoxication is not a defence to a crime. A person who gets drunk and commits a criminal offence is still responsible for their actions. Any intoxicated person who was unable to form intent before striking someone cannot be found guilty of aggravated assault. He or she can, however, be found guilty of assault, a general intent offence. All that needs to be proved is that the intoxicated person did strike someone. Similarly, a person charged with murder can use the defence of intoxication. If successful, this will lower the conviction of murder (a specific intent offence) to manslaughter (a general intent offence).