This is part 2 of a blog post “Major Defences to Criminal Charges- Part 1”
There are many defences that an individual may rely on after a crime has transpired. It is useful to understand and be able to identify the major defences to common crimes in case one applies to your particular situation.
The fourth defence to a major criminal charge is the defence of provocation. This defence can only be used as a defence to a charge of murder, and it does not apply to any other offence. If this defence is accepted, your charge may be reduced to a manslaughter charge. Provocation may include blows, words, or gestures that cause a person to lose their self control. However, the reaction must have been immediate, and you must not have had any time to think about the consequences of your actions.
The judge must decide objectively if the provocation was so intense that it would cause any ordinary person to lose their self control and commit the act.
The next defence is the defence of duress, which is a little complicated to understand and has statutory and common-law aspects. In order for this defence to be established, the Criminal Code states that the accused must have acted under the threat of imminent bodily harm or death, to yourself or members of your family. Secondly, the person making the threats must be present when the offence is committed. It is important to note that this defence is not available to be used for serious offences such as murder, assault causing bodily harm, arson and sexual assault. This defence is fairly complicated, and if you feel that it may apply to your particular case you should contact a lawyer.
The next defence is the defence of necessity. For this defence, you are telling the court that you had no choice but to break the law in order to prevent greater harm, and therefore your actions were not voluntary. The court considers the following factors when deciphering if this defence applies to your specific case: 1) you must have been facing a situation of clear and imminent peril or danger 2) there must have been no avenue of escape from the danger or other reasonable legal way to avoid it 3) the potential harm caused by committing the offence must be less than the harm that would have been caused by doing nothing and allowing the dangerous situation to continue.
You should consult a lawyer if you believe you can raise any of the above offences to your particular case. The lawyers at Bykov Empel LLP have extensive experience in dealing with criminal matters and will ensure your case is in good hands. If you live in the Greater Toronto Area, call the Lawyers at Bykov Empel LLP at (416) 519-3259 for a free consultation.