Defences

Question 1

R. v. Cinous

Answer 1

Air of Reality: Judge is gatekeeper. Defence only goes to jury if there is evidential basis for all elements.

Question 2

R. v. Lavallee

Answer 2

Self-Defence (BWS): Battered Woman Syndrome is relevant to “reasonableness” of belief in imminent danger/lack of alternatives.

Question 3

R. v. Malott

Answer 3

BWS Reasonable Person: Reasonable person standard in self-defence must be informed by experiences of battered women.

Question 4

R. v. Khill

Answer 4

Role in Incident: (s. 34) Self-defence analysis must consider accused’s role in creating the confrontation (instigation).

Question 5

R. v. Szczerbaniewicz

Answer 5

Defence of Property: Force must be proportionate. Killing/injuring to protect a diploma is disproportionate/unreasonable.

Question 6

Perka v. The Queen

Answer 6

Necessity (Excuse): Excuses the act because it is “morally involuntary.” It is not a justification.

Question 7

R. v. Latimer

Answer 7

Necessity Test: (1) Imminent Peril (Mod Obj), (2) No Legal Alternative (Mod Obj), (3) Proportionality (Harm inflicted < avoided).

Question 8

R. v. Chaulk

Answer 8

Mental Disorder (Wrong): “Knowing it was wrong” (s. 16) means knowing it was morally wrong, not just legally wrong.

Question 9

R. v. Bouchard-Lebrun

Answer 9

Toxic Psychosis: Drug-induced psychosis is “Self-Induced Intoxication,” not a “Mental Disorder.” No NCRMD.

Question 10

R. v. Abbey

Answer 10

Penal Consequences: Not appreciating punishment is insufficient for NCRMD. Must fail to appreciate nature/consequences of the act itself.

Question 11

R. v. Oommen

Answer 11

Delusion: If a delusion makes accused believe act is justified (e.g. self-defence), they cannot “know it is wrong”.

Question 12

R. v. Landry

Answer 12

God’s Orders: If mental disorder makes accused believe they are acting on divine orders (morally right), they do not “know it is wrong”.

Question 13

R. v. Stone

Answer 13

Automatism: Burden on accused (balance of probabilities). Test: (1) Internal Cause? (2) Continuing Danger? Yes -> Mental Disorder. No -> Automatism.

Question 14

R. v. Luedecke

Answer 14

Sexsomnia: Sleepwalking/Sexsomnia is generally a “Mental Disorder” (Internal Cause/Continuing Danger), leading to NCRMD.

Question 15

R. v. Graveline

Answer 15

Psychological Blow: Successful “Non-Mental Disorder Automatism.” Specific external blow caused dissociative state.

Question 16

Levis v. Tetreault

Answer 16

Officially Induced Error: Defence where accused relied on erroneous legal advice from official responsible for that law.

Question 17

R. v. Kerr

Answer 17

Necessity in Prison: An inmate carrying a weapon for defence against a gang can claim necessity if there is imminent peril and no legal alternative (guards cannot protect).

Question 18

R. v. Kagan

Answer 18

Modified Objective (Autism): In self-defence, the “reasonable apprehension” of danger must be modified to account for the accused’s cognitive conditions (e.g., autism).

Question 19

Reilly v. The Queen

Answer 19

Intoxication (Self-Defence): Intoxication is not a factor in the “reasonable person” test for self-defence. An intoxicated person is held to the standard of a sober reasonable person.

Question 20

R. v. McConnell

Answer 20

Prison Syndrome: “Prison environment syndrome” is relevant to the reasonableness of an inmate’s belief in the imminence of an attack (even if not immediate).

Question 21

R. v. Nwanebu

Answer 21

Necessity (Context): Applied Latimer. The “imminent peril” and “no legal alternative” tests must be modified to the accused’s circumstances (e.g., refugee fleeing persecution).

Question 22

R. v. Kjeldsen

Answer 22

NCRMD (Appreciate): “Appreciating” the nature of the act (s. 16) includes the capacity to estimate and understand the physical consequences flowing from it (not just knowing you are physically doing it).

Question 23

R. v. Simpson

Answer 23

NCRMD (Remorse): A lack of appropriate feelings (remorse/guilt) or being a psychopath does not qualify for the s. 16 Mental Disorder defence. You must lack the cognitive capacity to know it was wrong.

Question 24

R. v. Forde

Answer 24

Retreat (Home): A jury is not entitled to consider whether an accused could have retreated from their own home in the face of an attack (Stand Your Ground). [Source: 5851]

Question 25

R. v. Antley

Answer 25

Retreat (Home): Confirms no duty to retreat from one's own home. [Source: 5894]

Question 26

R. v. Cain

Answer 26

Retreat (General): No absolute duty to retreat, but the possibility of retreat is relevant to the "reasonableness" of the belief that killing was necessary. [Source: 5852]

Question 27

R. v. Faid

Answer 27

Excessive Force: If force was excessive (disproportionate), the self-defence justification is lost entirely. There is no partial defence (e.g., reducing murder to manslaughter). [Source: 5862]

Question 28

R. v. Rabey

Answer 28

Disease of Mind: Defined as any illness/disorder/abnormal condition that impairs the human mind (organic or functional), excluding self-induced intoxication. [Source: 6041]

Question 29

R. v. Kjeldsen

Answer 29

NCRMD (Physical Consequences): "Appreciating" nature/quality includes the capacity to understand the physical consequences (e.g., that hitting someone with a rock will crush their skull). [Source: 6006]

Question 30

R. v. Simpson

Answer 30

NCRMD (Psychopathy): Merely lacking "appropriate feelings" (remorse/guilt) or being a psychopath is NOT a defence. Must lack cognitive capacity to know it was wrong. [Source: 6008]

Question 31

R. v. Whittle

Answer 31

Fitness to Stand Trial: The test is limited to cognitive capacity (understand proceedings). The accused does not need to be capable of making rational decisions beneficial to themselves. [Source: 5953]

Question 32

R. v. Demers

Answer 32

Permanent Unfit: If an accused is permanently unfit and poses no threat, a permanent stay of proceedings may be ordered (liberty interest). [Source: 5956]

Question 33

R. v. Winko

Answer 33

NCRMD (Detention): The NCRMD regime is constitutional (not arbitrary detention) because it requires annual reviews and release if the person is not a significant threat. [Source: 5976]

Question 34

R. v. Cormier

Answer 34

Retaliation: Defence of property is for prevention or retaking. Pure retaliation (punishing the intruder) turns defence of property into assault.

Question 35

Re A (Children)

Answer 35

Necessity (Policy): (UK Case). Surgical separation of conjoined twins (killing one to save the other) was justified by necessity. Illustrates "necessity as justification".

Question 36

Southwark v. Williams

Answer 36

Necessity (Housing): Necessity is not a defence for squatting in empty housing. Policy concern: "Necessity can very easily become a mask for anarchy."

Question 37

R. v. Dudley and Stephens

Answer 37

Necessity (Cannibalism): Necessity is not a defence to murder. One does not have standing to decide who lives or dies to save oneself.

Question 38

U.S. v. Holmes

Answer 38

Necessity (Selection): (US Case). Throwing passengers overboard to save a lifeboat. If necessity is valid, selection must be fair (e.g., lottery), not arbitrary.

Question 39

R. v. V (CW)

Answer 39

Self-Induced Necessity: If the accused "willingly walked into the jaws of the lion" (e.g., creating the dangerous situation), they surrender the defence of necessity.

Question 40

R. v. Nelson

Answer 40

Self-Induced Necessity: A person who starves themselves (e.g., a 60-day fast) cannot claim necessity for breaking laws (mischief/theft) to get food. They created the condition.

Question 41

R. v. Swain

Answer 41

Crown Raising NCRMD: The accused has the right to control their defence. The Crown can only raise Mental Disorder if: (1) The accused puts their mental capacity in issue, or (2) The trier of fact has already found the accused guilty of the act.

Question 42

Amato v. The Queen

Answer 42

Entrapment: Established the common law defence of entrapment (police trickery). Proves that courts can create new defences (excuses/justifications) under s. 8(3), even though they cannot create new offences.

Question 43

R. v. Parks

Answer 43

Non-Mental Disorder Automatism (Sleepwalking): The accused drove to his in-laws' home and killed his mother-in-law while sleepwalking. The Supreme Court held that sleepwalking (somnambulism) is a form of non-mental disorder automatism because it is not a "disease of the mind" (no neurological illness) and is not caused by an internal pathology likely to recur. Because the accused's actions were involuntary, he could not form the necessary actus reus or mens rea, resulting in a full acquittal.

Question 44

R. v. Jiang

Answer 44

Involuntariness (Falling Asleep): The accused crashed her car after falling asleep at the wheel due to undiagnosed chronic insomnia she was unaware of. The Court upheld her acquittal for dangerous driving because the act was involuntary. Importantly, this case did not trigger the Stone reverse onus (where the accused must prove involuntariness) because that specific burden applies to "psychological blow" automatism, whereas this was a physical state of unconsciousness without prior fault.