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What Are Some Criminal Defence Strategies in Canada?

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You might find this hard to believe, but sleep has been successfully used as a criminal defence in Canadian courts.

How, exactly, does that work, you ask?—“Your honour, I cannot be held responsible for the crime because I was asleep when I committed it.”

Well, kind of.

A Toronto man was acquitted of sexual assault in 2005 after claiming that sexsomnia (sleep sex) caused him to put on a condom and initiate sexual intercourse with a sleeping woman he did not know at a house party. Based on evidence produced during trial, the judge acquitted the man due to his apparent inability to form intent to commit the assault. That decision was overruled by the Ontario Court of Appeals, which determined that the man was not criminally responsible due to a mental disorder. Rather than order the man committed to a hospital or allowed release into the public with restrictions, a subsequent review board granted the man an absolute discharge.

In 1992, the Supreme Court of Canada upheld the acquittal of a Pickering, Ontario, man charged with murdering his mother-in-law and seriously injuring his father-in-law based on a defence that he committed the crime while sleepwalking. Known as the “automatism” defence, the high court determined that sleepwalking should be classified as a non-insane automatism resulting in acquittal rather than a disease of the mind subject to a verdict of guilty by reason of insanity.

With decades of experience in Greater Toronto Area courts, the criminal defence lawyers of Mass Tsang LLP will tell you that the use of sleep-related defence strategies is rare. Unlike other defence strategies we periodically profile on this blog, we’re not going to provide more details on this uncommon defence. Instead, we’re going to do a brief recap on defence strategies in general and profile a few defence strategies used in Canada. Please note that this blog should not be considered “legal advice” and is shared strictly for educational purposes. If you’re facing criminal charges, secure the services of an experienced criminal defence firm—such as Mass Tsang—to ensure the most favourable outcome.

Criminal Defence Basics

Under Canadian law, to secure a conviction, the Crown must prove that the defendant committed the guilty act—“actus reus”—and that the defendant intentionally or knowingly committed this act—“mens rea.” This proof must meet a legal threshold of being “beyond a reasonable doubt,” based on the “presumed innocent until proven guilty” concept of criminal law.

Precedents set by the Supreme Court of Canada make it clear that the Crown must prove its case to the degree that a reasonable person could not have any reasonable doubt about the defendant’s guilt. While a judge or jury does not need to be 100% certain of a defendant’s guilt, they also cannot rely on believing that the defendant “probably” committed the crime. Put another way, the high court said that the beyond-a-reasonable doubt standard is closer to the 100% certainty threshold than the “balance of probabilities” proof threshold used in civil cases.

Based on this, defence lawyers will take every opportunity during criminal trials to raise doubts about the Crown’s evidence and the overall case against the defendant. They closely examine all evidence for flaws and point out any inconsistencies that arise in the Crown’s narrative about the criminal activity. Every successfully raised doubt helps weaken the Crown’s case and makes it more difficult to secure a conviction.

This strategy is often referred to as the defence of innocence. Your lawyer does not have to do anything to prove innocence if they can successfully raise enough doubt about the Crown’s case. That said, your lawyer will undoubtedly present any evidence or testimony supporting your innocence, as this furthers doubt about the Crown’s case.

Alternative Suspect Defence

The alternative suspect defence represents a more specific effort to raise reasonable doubts about the Crown’s case, as the defence is presenting evidence that another person could be responsible for the crime. The alternative suspect could be someone already involved with the case or a third party who had not been connected to the crime by police or prosecutors. The defence’s evidence can be direct, circumstantial, or a combination of the two, but must have an “air of reality” to be presented. Typically, this involves proving that the alternative suspect has a significant connection to the crime beyond speculation.

Defences Based on Justifications or Excuses

Common law and Canadian law provide more than a dozen affirmative defences that essentially admit that the crime was committed but seek justification for the act based on distinct circumstances, or seek to excuse guilt due to a lack of criminal intent. To prevent frivolous defence efforts, these affirmative defences must evidence an “air of reality” before they can be raised during trial. Let’s look at a couple of examples of these affirmative defences.

Self Defence and Defence of Property

As one of the most well-known legal defences used in criminal law, self-defence is a reasonbly straightforward justification defence. It is also a defence codified as law in Section 34 of the Canadian Criminal Code. In short, the law states that a person is innocent of committing an offence if:

  • They believe that force or the threat of force was being used against them or another person.
  • Their defensive actions were committed to defend or protect themselves or others from the use or threat of force.
  • That the defensive actions were reasonable in the circumstances.

During trial, self-defence is raised with the presentation of physical evidence or through cross-examination of a witness. Once deemed a viable defence by the judge, the Crown is forced to dispute the self-defence claim beyond a reasonable doubt. Arguments tend to hinge on the reasonableness of the defendant’s self-defence actions, which are guided by nine factors that need to be weighed to establish self-defence and its reasonableness.

Covered under Section 35 of the Code, defence of property is like self-defence. As with self-defence, the reasonableness of the defendant’s actions tends to serve as the crux of the case. In particular, the proportional nature of the defendant’s response is a crucial element of both defences.

Duress Defence

Also codified by law, the duress defence is designed to provide an affirmative defence to people who were compelled to commit a crime due to the threat of near-term death or bodily harm. The law expressly excludes the use of this defence with 11 serious offences, including murder, attempted murder, aggravated assault, sexual assault, arson, and child abduction. As with most other defences codified by law, when successfully raised as a defence in court, the onus turns to the Crown to dispute it beyond a reasonable doubt.

Turn to the Experts at Mass Tsang for Your Criminal Defence

The criminal defence trial lawyers at Mass Tsang have extensive experience successfully raising criminal defence strategies that help secure positive outcomes for our clients. If you’ve been arrested on criminal charges in Greater Toronto Area, contact us today for a free consultation.



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