What are the possible defenses in criminal and penal law?

In a criminal trial, it is essential to understand the defenses your lawyer can raise to protect your interests. Canadian criminal law recognizes several types of common law defenses, each with its own specific criteria. These defenses were introduced into case law long ago and have evolved over time as other landmark decisions have clarified their application. Understanding these defenses will help you better assess your chances of success in your case.

This guide does not constitute legal advice. To discuss your specific situation, please contact a professional.

Case law is available in case law collections, as well as for free on CanLII

The defense of impossibility

This defense applies when it is proven that the accused person did not contribute to the occurrence of the uncontrollable event in question. There are two types of impossibility: absolute impossibility, which denies the actus reus (the culpable act), and relative impossibility, which is of a moral nature. The latter cannot be successfully invoked when used alone.

The accused, who has a burden of presentation and not of conviction, must demonstrate that his defense includes the two conditions necessary for its success: externality, that is to say that the act did not originate from him, and irresistibility, that is to say that the external influence which led to the offence was impossible to counter.

In her work, Environmental Criminal Law , author Paule Hallé wrote the following about this defense in the context of a criminal offense related to environmental law:

The defense of impossibility applies the adage "no one is obligated to do the impossible" and excuses unforeseen pollution events. When accepted, it absolves the accused of all criminal responsibility since, in the case of an unforeseen pollution event, the accused is not responsible because they did not intentionally commit the actus reus of the offense.

The essential element of the impossibility defense is proof that an inevitable and unforeseeable event is the cause of the pollution. The category of inevitable events will be more or less restricted depending on whether the impossibility defense is absolute or relative.

Absolute impossibility is physical. It generally stems from an external cause beyond the defendant's control, such as an unforeseen event or force majeure. It is characterized by the defendant's lack of choice. The essential element of the impossibility defense is proving that an unforeseeable event is indeed the cause of the contaminant's presence in the environment.

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The relative impossibility is a moral one. However, it does not constitute a valid defense since the accused is not physically prevented from complying with the law. In several cases, the accused nevertheless pleaded the impossibility of complying with environmental standards. This essentially involved pollution not caused by a factor beyond the accused's control, but due to reasons of economic expediency. These defenses were generally rejected.

(Our translation) )Paule Hallé, Environmental Criminal Law , Cowansville, Éditions Yvon Blais, 2001

In environmental law, a chemical chain reaction that a company was unable to resist due to the occurrence of a fortuitous weather event could constitute a defense of impossibility. This would be a case of absolute impossibility: the company did not fail to act because it lacked the means to counteract the reaction, but rather because it was materially impossible. This defense is closely linked to the concept of force majeure, which is more commonly used in the context of civil law.

In the case of Notre-Dame-des-Prairies (Municipality of) v. Coutu , 2009 QCCM 251, a judge acquitted a driver who had failed to make a mandatory stop because the sign was covered in snow. Since it was impossible to see the sign, the defence of impossibility was accepted. Thus, even though the offence of failing to make a mandatory stop under section 368 of the Highway Safety Code is an absolute liability offence, where due diligence and/or reasonable ignorance of fact are not admissible as defences, the defence of impossibility was successfully raised.

The defence of relative impossibility must be coupled with a defence of due diligence to be accepted.

The defense of automatism

The defense of automatism can be likened to the defense of impossibility, since it also denies the actus reus . However, it differs from the latter, as it applies when the defendant denies moral culpability for an action he undeniably committed, but which is akin to a reflex. He must therefore demonstrate the absence of conscious control over his actions.

Automatism sometimes refers to a state where the accused, due to extreme intoxication, acts involuntarily, without real will or control of their movements. Since the codification of section 33.1 of the Criminal Code , this defense can only be invoked for crimes where the mens rea (or guilty intent) is specific.

Automatic behavior can also result from severe psychological trauma or a state of sleepwalking, for example.

The courts generally distinguish between two categories of automatism: automatism with mental disorder and automatism without mental disorder. This distinction is important because it leads to different legal consequences.

Automatic behavior caused by a mental disorder falls under the regime of not criminally responsible due to mental disorder as provided for in the Criminal Code . In this case, the accused may be found not criminally responsible, which sometimes leads to the intervention of a review board tasked with assessing the risks to public safety.

Conversely, automatism without mental disorders — sometimes referred to as "non-pathological automatism" — can lead to a complete acquittal.

The accused must present evidence demonstrating that the state of automatism was severe enough to abolish voluntary control of their actions. Simple memory loss, anger, or strong emotion is insufficient. Courts typically require credible medical or psychiatric evidence to establish the actual existence of this involuntary state.

In R. v. Parks , [1992] 2 SCR 871, the Supreme Court of Canada recognized that sleepwalking could, in certain circumstances, constitute a form of non-pathological automatism. This defence was therefore equated with automatism without mental disorder.

In this case, the accused drove his vehicle for several kilometers and then violently assaulted his in-laws while sleepwalking. No fewer than five expert testimonies were presented to support Mr. Parks's claim. The court concluded that he was not in full control of his actions at the time of the events and acquitted him.

The defense of automatism remains exceptional, as courts must reconcile the protection of the public with the fundamental principle of voluntary responsibility. Each situation is analyzed according to its specific facts, the credibility of the medical evidence presented, and the context surrounding the commission of the offence.

The due diligence defense

Due diligence is a defense that applies when the accused took all reasonable steps to avoid committing the offense. This means that, even if the prohibited act was committed, the accused acted with prudence and care. This defense is not admissible for absolute liability offenses. Only strict liability offenses or felony offenses are eligible for such a defense.

The Supreme Court of Canada recognized this defence in R. v. Sault Ste. Marie , [1978] 2 SCR 1299, which established the distinction between absolute and strict liability offences. In strict liability offences, the accused can avoid conviction if they demonstrate that they took all reasonable steps to prevent the offence or that they reasonably believed in a state of affairs which, had it existed, would have rendered their actions lawful.

Unlike traditional criminal offences, where the prosecution often has to prove mens rea (guilty intent), strict liability offences rely primarily on the commission of the prohibited act. However, the accused can exonerate themselves by demonstrating that they acted with care and diligence.

In Lévis (Ville) v. Tétreault , [2006] 1 SCR 420, the Supreme Court of Canada clarified the limits of this defence in the context of violations of the Highway Safety Code .

In this case, Mr. Tétreault was driving a vehicle while his driver's license was expired. He maintained that he believed the date on his license corresponded to the payment due date and not the expiry date of the license, and stated that he expected to receive a renewal notice from the Société de l'assurance automobile du Québec.

The Supreme Court, however, rejected this defense. Justice LeBel reiterated that due diligence requires more than mere passive waiting. According to the Court, a citizen must actively seek to understand and comply with their legal obligations. Believing that a notice will be sent or assuming that the administration will automatically remind someone of a deadline does not constitute sufficient due diligence.

Thus, since Mr. Tétreault had not taken any concrete steps to verify the status of his driver's license before the known expiry date, the due diligence defence could not be accepted.

This decision clearly illustrates that due diligence is based on an objective standard. The courts assess the accused's conduct by comparing it to that which a reasonable person would have acted in the same circumstances.

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The defense of necessity

The defense of necessity applies when a person commits an act prohibited by law to avoid imminent danger. For example, if you are forced to break a rule to protect your life or the life of another, this defense may apply.

For it to be admissible, it must be demonstrated that:

• The action was necessary to avert imminent danger.

• There was no other reasonable way to avoid this danger.

• The act committed is proportionate to the danger avoided.

  
  

This defense is often difficult to prove, as it involves a judgment on the emergency situation and a subjective assessment of the proportionality of the act.

In the judgment Director of Criminal and Penal Prosecutions v. Lallier , 2010 QCCQ 13264, the court acquitted Dr. Michel Lallier, a pediatric surgeon who was driving his vehicle at 123 km/h in a 70 km/h zone at 2:28 a.m. on Highway 40. Dr. Lallier was on call on the night of February 16, 2009. He received a call at his residence in St-Léonard informing him that a six-year-old child was being transferred to Ste-Justine Hospital at Maisonneuve-Rosemont Hospital due to septic shock following an intra-abdominal abscess with peritonitis. Because it was necessary to travel to the scene quickly to save the child, Dr. Lallier was acquitted.

The defense of necessity may be accepted when the offense serves to avert an imminent danger

The alibi defense

An alibi is a classic defense that consists of proving that the accused could not have been present at the scene of the crime at the time of the events. To succeed with this defense, you must provide solid evidence, such as sworn statements from witnesses, videos, or documents that confirm your presence elsewhere. It is also advisable to announce this defense in advance to increase its probative value. An alibi invoked unexpectedly during a trial is less likely to succeed. This is not legal advice; please contact us to make the right decision.

An alibi is often one of the first defenses considered, because it directly challenges the very possibility of having committed the offense.

How a lawyer can help you use these defenses

A lawyer specializing in criminal law understands the intricacies of these defenses and can advise you on the best strategy to adopt.

At LT Legal, we offer legal support services tailored to each situation. Our team can help you prepare your defense, whether it's an alibi defense, a necessity defense, or a due diligence defense. You can review our services and schedule a free consultation to discuss your case in complete confidentiality.

Concrete examples of defenses in criminal law

• Case of impossibility : A person accused of not having made their mandatory stop, which was invisible because it was covered in snow.

  
  

• Case of due diligence : A motorist who did not receive the letter from the Société d'assurance automobile du Québec (SAAQ) containing the information necessary to pay for his license, and who was unable to pay said license on time, but who contacted the SAAQ by telephone and sent them a letter to inform them of the situation.

  
  

• Case of necessity : A motorist who breaks a red light to let an ambulance pass in an emergency.

  
  

• Alibi case : An individual accused of theft when he was in another location, confirmed by witnesses and CCTV footage.

  
  
  
  

The attorneys at LT Legal will be happy to present your defense at trial

Why it's important to discuss your defense with a professional

Each case is unique. Possible defenses depend on the specific facts, the available evidence, and applicable case law. A defense that works in one case may not be admissible in another.

For this reason, it is essential to consult a lawyer who can:

• Evaluate the relevance of the different defenses.

• Prepare a strategy tailored to your situation.

• Representing you effectively in court.

  
  
  
  

Conclusion

Defenses in Canadian criminal law are varied and complex. The defense of impossibility, due diligence, necessity, and alibi are among the most common. Each relies on specific criteria that must be rigorously demonstrated.

To maximize your chances of success, it is crucial to hire a competent lawyer who can analyze your case and choose the best defense. To learn more about our services and receive personalized support, contact the lawyers at Lacroix Tarabay Legal.

This content is provided for informational purposes only and is not a substitute for professional legal advice.