Defences to Criminal Charges in British Columbia

There are a number of Defences to criminal charges in Canada.  Some of these defences have their roots in our common law history, others are based on the rights found in our Charter of Rights and Freedoms, while other defences are very technical and can only be considered on a case by case basis.  This article is not a complete list of the defences available to a person charged in Canada, but a skilled criminal defence lawyer will consider whether any of these may apply in your particular case.

No Reasonable Prospect of Conviction

One of the stages of a criminal case is the negotiation stage between your lawyer and the prosecutor.  Once your lawyer has reviewed your case, there may be a significant number of weaknesses in the prosecutor’s theory that are so substantial that it would be a waste of court time and resources to attempt to have a trial against you.

The standard required to charge someone with an offence is not particularly high – generally an officer needs reasonable grounds to lay a charge, and the extent of investigation that goes on before that charge is laid may be as limited as just taking a statement from a complainant or a witness.

The standard required to convict someone in common law countries is “Beyond a Reasonable Doubt.”  In Canada, this has been referred to by our Supreme Court as to a “near certainty.”  Some lawyers choose to emphasize problems with their client’s case to attempt to convince the prosecutor that there is “no reasonable prospect of conviction.”  Other lawyers strategically remain quiet and await their trial day knowing that the standard of proof required for conviction won’t be met.

The possibility of your lawyer succeeding in convincing a Crown of No Reasonable Prospect of conviction is rare.  The likelihood of this being a defence in your particular case is something to be discussed with your lawyer.

Mens Rea

The commission of a crime requires two separate components – the act itself and the mental intent formed to commit the act.  In law, the mental component of criminal liability is referred to as mens rea and to be guilty of most crimes, a defendant must have committed the criminal act with mens rea, or in that certain mental state required for that particular crime.

The mens rea for assault, for example is generally intent, meaning that if you didn’t intend to hit someone, you can’t be guilty of a crime.  The simplest example is a bad golfer.  It goes without saying that if you throw a golf ball at someone, you are likely looking at a charge of Assault with a Weapon.  A golf drive that hooks and hits someone in the parking lot, however, generally would lack the mental intent, or mens rea to find you guilty of a crime.

Similarly, the mens rea for possession requires knowledge of the thing possessed – meaning you need to know that you have it.  If someone leaves something illegal in your car or your bag, you may technically be guilty of one part of the two things that make up a crime – the actus reus, but if you can show that you didn’t know it was there, and therefore didn’t have the mens rea, there’s no crime made out.

Most crimes, other than those called “strict liability offences” have some form of required mens rea.  For assault, theft, and fraud, it’s usually the “intent”, for other crimes in certain jurisdictions, (such as manslaughter) recklessness can make up the mens rea.  Once you speak with your lawyer after you’ve been charged and explain your side of things in private, he or she may help you determine whether you had the required mens rea for your specific charge. 

Defences to Crimes of Violence – Assaults, Threats, Harassment

There are defences to certain crimes that place the burden on the defendant to tell their side of the story.  Self-defence, for example, is a defence under the Criminal Code of Canada that requires very specific elements to be made out by a defendant.

The defence includes a focus on the reasonableness of the threat and the reasonableness of the response, and if the defence to succeed in court it will usually require a defendant to testify so that the judge or jury could assess that person’s state of mind at the time of the incident and determine whether their reaction or conduct met the “reasonableness” requirement under the law.

Criminal harassment and Uttering Threats are two commonly charged violent offences in both a domestic and non-domestic context that have their own defences that are specific to the circumstances of the case and is something to discuss with your lawyer.

The Alibi Defence

Black’s Law Dictionary offers the following definition of Alibe: “Elsewhere; in another place. A term used to express that mode of defense to a criminal prosecution, where the party accused, in order to prove that he could not have committed the crime with which he is charged, offers evidence to show that he was in another place at the time; which is termed setting up an alibi.”  In many jurisdictions, if an accused person intends on raising an alibi defence, notice must be provided to the prosecutor to allow the police ample time to investigate the alibi in advance of the trial.  Notice requirements different among jurisdictions.

Charter Defences

The Canadian Charter of Rights & Freedoms contains a number of rights that come into play in criminal defence cases, the most common of which are:

  • Section 7: Right to Life, Liberty and Security of the Person
  • Section 8: Search and Seizure
  • Section 9: Arbitrary Detention
  • Section 10: Procedural Rights Upon Detention
  • Section 11: Rights regarding delay, trial within a reasonable time, self-incrimination and others.

Other Defences

There are a number of other defences under the Criminal Code and common law of Canada.  Once your lawyer discusses your situation with you, he or she should be able to determine whether you have any of these possible defences available to you in your particular case.  Some of these defences are very technical and may not be applicable to your case, while others may prove to make the difference between a guilty verdict and an acquittal.

  • Accident
  • Automatism
  • Causation
  • Compulsion
  • Consent
  • Defence of property
  • Did the event occur?
  • Diminished Capacity
  • Duress
  • Entrapment
  • “Evidence to the contrary”
  • Honest, but mistaken belief in consent
  • Identity
  • Intoxication by Drugs or Alcohol
  • Knowledge
  • Necessity
  • Not Criminally Responsible
  • Possession
  • Provocation
  • Self-Defence

Negotiation-Based Approach

As the opening to a well known television show states, the police lay charges and the prosecutors prosecute those offences.  When a charge is laid, officers will rarely, if ever, take the time to inquire about the personal circumstances of a person under investigation because, quite simply, it’s beyond the scope of their responsibilities.  Prosecutors, in prosecuting these cases on the other hand, have a number of opportunities to discuss matters with defence lawyers in a frank and off-the-record way.  These discussions are held in offices, in hallways, and even sometimes in elevators between experienced prosecutors who know their files, and defenders who know their clients.

It is not uncommon for a Crown to plainly ask “tell me about your client’s life.”  Even at a sentencing hearing a judge will want to know, even expect, a well-prepared defence lawyer to be familiar with his client, and all of the mitigating (and aggravating) circumstances in that person’s life as part of the lawyer’s submissions.

Taking the opportunity to get to know your client, and the context of his or her circumstances, can be an often overlooked thing for a litigator whose main focus is to (as traditionally has been the case) determine whether or not the prosecutor can prove the case at trial.  A negotiation and mediation based approach to criminal defence might have seemed a strange notion in our traditionally “adversarial” system of advocacy a few decades ago, but the opportunities given to prosecutors in Canada to determine whether prosecuting a case is even in the best interest of the public leaves a tremendous opportunity for a well-prepared negotiator, who is familiar with his client’s personal circumstances, to advocate outside of the courtroom.

Our office has achieved some remarkable results for clients in seemingly dire circumstances using a negotiation and dispute-resolution based approach to advocacy.  In other more serious matters where this approach is difficult, we are proud of our winning trial record.