Key Defence Strategies from A Criminal Defence Lawyer

Farid Zamani
Farid Zamani
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A good criminal defence lawyer customizes their approach depending on the case, the evidence, and the defendant. However, there are a few strategies that are commonly used in court. In this article, we will review these key defence strategies.

Mens Rea and Actus Reus: The Essential Elements of a Crime

Before discussing commonly used defence strategies, it is essential to understand the concepts of mens rea and actus reus. Both of these must be present for someone to be found guilty of a crime; hence, many of the defences a criminal defence lawyer might use hinge on showing that one of them is absent or was absent at the time of the crime.

Mens Rea

Mens rea refers to intent. To prove, beyond a reasonable doubt, that the accused is guilty of a crime, the Crown (the prosecution) must show that the accused intended to commit the crime. Defences such as automatism and diminished capacity propose that the accused did not have mens rea at the time of the crime.

Actus Reus

Actus reus refers to the physical act of the crime itself. If a criminal defence lawyer contends that actus reus was absent, they are saying that their client did not engage in a crime. This forms the core of defences such as consent and duress.

In summary, actus reus is the actual action or conduct that constitutes a criminal offence, whereas mens rea is the mental component of the crime: the intent to commit a crime or the knowledge that the act was a crime. Experienced criminal defence lawyers will carefully consider both these parts of a crime when deciding on a defence strategy.

Innocence


The most straightforward argument that a criminal defence lawyer can make is that their client is innocent of the charges against them. The onus is on the Crown (the prosecution) to prove that the accused is guilty beyond a reasonable doubt, so the defence lawyer will attempt to sow that doubt by challenging the Crown’s evidence. They might, for example, present an alibi or poke holes in the evidence presented by the Crown.

Mistaken identity falls under this category of defences. A good criminal defence lawyer will thoroughly scrutinize the evidence that relates to the identity of the accused, including witness statements. At trial, a skilled criminal defence lawyer would then call eyewitness testimony into question by challenging the witnesses about factors that could have impinged on their identification of the accused, such as dim lighting or their distance from the crime.

Charter of Rights and Freedoms Violations

Canada’s Charter of Rights and Freedoms includes the right to consult with a criminal defence lawyer when you are arrested and the right to be free from illegal search and seizure of your property. If a lawyer finds that either of these rights were denied to their client, they can use it to have evidence excluded from the trial or to have the charges dismissed entirely.

Absence of Mens Rea (Lack of Criminal Intent)

To use this argument, a criminal defence lawyer must show that the accused did not intend to commit a crime. Here are some examples of situations where this defence could be successful:

  • The accused made an honest mistake. For example, they had an item in the bottom of their shopping cart that they forgot about and walked through the checkout line without paying for it.
  • The accused accidentally caused an injury to someone else. For example, they were using a faulty power tool to work on their car. A part unexpectedly flew off the tool, striking a passerby in the leg and causing a serious injury.
  • The accused did not know that the item they were holding was illegal. For example, some pills that were left at their house by a visitor were narcotics, but the accused was not aware of the nature of the pills.

Duress

If the accused was forced to commit the crime, a skilled criminal defence lawyer could argue that their client had no choice in the matter. This could happen if, for example, someone threatened to harm them or another person if they did not comply.

Self-Defence or Defence of Property

In cases of violent crime, a criminal defence lawyer might argue that the accused acted in self-defence, in defence of someone else, or in defence of their property. Note that this argument can only be successful if the force that the accused used is proportionate to the threat they faced.

Consent

In some cases, a criminal defence lawyer might be able to use the argument that the victim consented to the act, which negates the crime. This defence might be used in cases of assault or sexual assault.

Mental Disorder

Commonly known as “the insanity defence,” This argument requires the criminal defence lawyer to show that the accused was suffering from a mental disorder at the time of the crime. The mental disorder must be such that the accused was not able to appreciate the nature of their actions when the crime occurred.

Automatism

This defence might be used when the accused acted involuntarily due to an external factor, such as a medical condition, extreme stress, or even severe intoxication. Although this defence is rarely used, it has been invoked to dramatic effect in the past, and cases have advanced all the way to the Supreme Court of Canada. Needless to say, a criminal defence lawyer with advanced skills is desirable for this type of defence.

Entrapment

With an entrapment defence, the focus is on the conduct of the police officers involved in the investigation and arrest rather than on the accused.

Once a criminal defence lawyer has raised the issue of entrapment, the onus shifts to the Crown to prove that the actions of the police were justified. They must show, beyond a reasonable doubt, that the police already suspected the accused of being involved in criminal activity and that the police simply offered the accused an opportunity to engage in the activity.

Going beyond a simple opportunity is entrapment. For example, if the police repeatedly try to arrange a drug purchase or repeatedly make offers to the accused to purchase child pornography, an entrapment argument could be successful.

Zamani Law – A Criminal Defence Lawyer Can Help

A good defence requires a criminal defence lawyer with an intimate understanding of the law, the justice system, and the intricacies of complex defence strategies. Zamani Law is proud to have successfully defended hundreds of people accused of crimes in Toronto, Brampton, the GTA, and the surrounding communities. We are prepared to defend you regardless of the crime you have been charged with, and we will be at your side every step of the way.

Always remember the first rule of getting arrested: don’t talk to the police before you talk to a lawyer. Make that lawyer Zamani Law.

Contact us today for a free consultation.

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