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Understanding the Abandonment Defence in Criminal Cases

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If you are facing criminal charges for a crime that you believe was never completed, or that you otherwise ceased involvement with, you may be able to mount what’s known as an abandonment defence. While this criminal defence strategy is rarely used, it has been raised enough times in criminal trials that Canadian appeals courts and the Supreme Court of Canada have established clear legal precedents that guide its applicability in criminal law.

Because the Greater Toronto Area criminal defence lawyers at Mass Tsang enjoy educating their clients about all elements of the law, we periodically addresses various legal issues on this blog. This helps our readers better understand nuances of the law and what they might be facing in court if they are arrested for a criminal offence.

Note that none of the information in our blogs should be construed as “legal advice,” as it is strictly for educational purposes. Anyone charged with a criminal offence should always seek the services of a skilled criminal lawyer to ensure the best possible outcome. Mass Tsang lawyers have successfully defended thousands of Ontario residents from criminal charges and stand ready to help you with your criminal defence.

Abandonment Defence is a Component of Common Law

Most criminal charges in Canada are based on precedents set by Common Law and codified by Canada’s Criminal Code or other legislation such as the Firearms Act and Controlled Drugs and Substances Act. The application of criminal law is further modified over time by precedents established during court cases.

Common Law principles and the Criminal Code dictate that guilt and intent must be proven beyond a reasonable doubt. In court, the Crown has to prove—” actus reus”—that the offender was responsible for the criminal conduct, and then prove—“mens rea”—that the offender intentionally and/or knowingly committed the crime. Note that the Criminal Code specifically prevents mens rea from being used to mount an “ignorance of the law” defence.

The abandonment defence falls in part under the purview of both actus reus and mens rea and is used to assert that the defendant failed to complete, or was not involved in, a criminal act because they abandoned participation prior to the actual commission of the crime. The abandonment defence arose in Common Law in part to protect those who might be morally innocent and in modern law to encourage withdrawal from, and reporting of, criminal activity. Abandonment is considered an “affirmative defence” because a defendant has to prove that they met all of the parameters for successful withdrawal from the criminal activity.

Supreme Court of Canada Modified Abandonment Parameters

While the first-known Canadian high court ruling in an abandonment defence case was delivered in 1941 by the British Columbia Court of Appeal in Rex v. Whitehouse [1941] 1 D.L.R., the Supreme Court of Canada established the current guiding parameters for this particular defence in the 2013 case R. v. Gauthier, 2013 SCC 32, [2013] 2 S.C.R. 403. In that ruling, the high court determined that a defendant may raise the defence of abandonment if the evidence can show that:

  1. “that there was an intention to abandon or withdraw from the unlawful purpose;
  2. “that there was timely communication of this abandonment or withdrawal from the person in question to those who wished to continue;
  3. “that the communication served unequivocal notice upon those who wished to continue; and
  4. “that the accused took, in a manner proportional to his or her participation in the commission of the planned offence, reasonable steps in the circumstances either to neutralize or otherwise cancel out the effects of this or her participation or to prevent the commission of the offence.”

According to the lone dissenting justice in this case, these parameters represented a significant expansion of the legal requirements needed to raise an abandonment defence. In particular, the dissenting judge objected to points (3) and (4) serving as new precedents for establishing abandonment. Before this case, jurors could consider abandonment as a defense solely based on points (1) and (2).

In the original case that was appealed to the Supreme Court, the trial judge had denied the defense counsel’s request to allow the jury to consider the defendant’s abandonment defense based on points (1) and (2). The trial judge’s denial of the abandonment defence was based on ruling that the defence was putting forth an alternative defence—abandonment—that was incompatible with the defendant’s initial mens rea defence that there was never any intent to commit the crime.

The appeals court upheld the initial trial judge’s ruling, but the affirming Supreme Court justices found that “there is no cardinal rule against putting to the jury an alternative defence that is at first glance incompatible with the primary defence.” However, the high court took the opportunity to examine the principle governing whether a defence—abandonment in this case—“meets the air of reality test,” in which there is “evidence upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true.”

In this case, they found that the alternative abandonment defence failed to meet the air of reality test based on further interpretation of the ruling. This interpretation found that “the accused must show that he or she took reasonable steps to neutralize the effects of his or her participation.” This was further articulated as new precedents in points (3) and (4) for establishing an abandonment defence.

While the dissenting justice’s opinion carries little weight with the new abandonment defence precedents, he suggested that the affirming justices may have overstepped their bounds. The dissenting justice noted that neither the trial judge nor the Court of Appeal found that the proposed abandonment defence, in this case, lacked an air of reality. He added that, based on the original abandonment defence precedents, a jury would have been allowed to take on its “traditional function as arbiter of fact.”

Consult with Mass Tsang for your Criminal Defence Needs

While the abandonment defence is rarely raised in Ontario criminal cases, the lawyers of Mass Tsang would undoubtedly consider it if deemed viable. Mass Tsang lawyers examine all facets of every criminal case when strategizing a robust defence for our Greater Toronto Area clients. If you or a loved one is facing criminal charges in the Toronto area, contact the highly experienced lawyers at Mass Tsang to secure an effective defence designed to give you the most favorable outcome.



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