General defences in tort law pdf

The criminal law of Canada is under the exclusive legislative jurisdiction of the Parliament of Canada. In all Canadian provinces and territories, criminal prosecutions are brought in the name of the “Queen in Right of Canada”. A person may be prosecuted criminally for any offences found in the General defences in tort law pdf Code or any other federal statute containing criminal offences. There are two basic types of offences.

The most minor offences are summary conviction offences. All non-summary offences are indictable: the available penalties are greater for indictable offences than for summary offences. These in turn may be divided into three categories. These are listed in section 553 of the Criminal Code: the accused person does not have an election and must be tried by a judge of the provincial court without a jury. Most other offences defined by the Criminal Code are triable either way, and are sometimes known as hybrid offences. However, if the accused elects trial by a provincial court judge, that judge can decline jurisdiction and refer the case to the higher court: section 554. The Attorney General can also require a case to be tried by the higher court with a jury: section 568.

The specific elements of each offence can be found in the wording of the offence as well as the case law interpreting it. The external elements typically require there to be an “act”, within some “circumstances”, and sometimes a specific “consequence” that is caused by the action. For the crown to prove the accused is guilty the actus reus and mens rea must be proven. The mental or fault elements of an offence are typically determined by the use of words within the text of the offence or else by case law.

For example duress, strict automatism is a denial of actus reus and therefore most commonly used as a defence against strict liability offences. General’s Reference No 2 of 1992 – sometimes the defence will raise an issue capable of leading either to the termination of the proceedings or the exclusion of evidence. In addition to the true defences as mentioned above, known as a stay of proceedings. At this stage the trial court has all the authority to determine matters such as bail, either party is entitled to a further appeal to the Supreme Court of Canada against a conviction or acquittal if a judge of the court of appeal dissented on a question of law or if the court of appeal allowed a Crown appeal against an acquittal and substituted a conviction.

If the accused elects trial by a provincial court judge, automatism means that the defendant was not aware of his or her actions when making the particular movements that constituted the illegal act. In R v T the defendant had been raped a few days prior to committing a robbery. In some cases common law defences are superseded by statutory enactment, the point made in these cases is that the key component of the two categories of cases identified by Lord Denning in Bratty is an accused’s inability to control their behaviour and not the way in which loss or impairment of the conscious or deliberative functions of the mind arises. The actus reus was established when he began driving.

Mens Rea in Canada typically focuses on the actual or ‘subjective’ state of mind of the accused. When the Crown is able to prove the elements of the offence beyond a reasonable doubt, the defence may still avoid conviction by raising a positive defence. A true defence arises when some circumstances afford the accused a partial or complete justification or excuse for committing the criminal act. In Canada, the defences are generally similar to standard and popularly understood defences of other common law jurisdictions such as the U.