For all the power it has over ordinary citizens, the legal system in Canada is often opaque, which leads to misunderstandings about basic notions such as guilt, acquittal, and sentencing. All-too-often, a failure to understand what criminal defense types are available causes people to enter a guilty plea unnecessarily.

The defense process begins as soon as the accused has been charged with a crime, and one of the reasons why it is important for a criminal defense lawyer to attend bail hearings alongside their client is that they can help defendants avoid sharing information that could end up incriminating themselves later on.

It is important for ordinary people to understand how criminal defense works in Canada because it empowers them to stand up for their civil rights. Even if you believe you have committed a crime, the Canadian justice system takes context into account — you may not be found guilty of an offense, or you may be found guilty of a lesser offense.

You are under no obligation to enter a guilty plea, and if there are Canadian warrants for your arrest, getting in touch with a Toronto criminal lawyer to argue your case can help you clear your name and get back to your life.

To help you understand how criminal law works in Canada, here is an outline of some of the major types of defense that an experienced criminal lawyer can use on your behalf.

Actus Reus and Mens Rea

In Canada’s legal system a person is deemed to be guilty of a crime if the prosecution can prove ‘beyond a reasonable doubt’ that the accused committed a criminal act, or actus reus, in a criminal state of mind, or mens rea.

While there are some exceptions to this formula — in strict or absolute liability offenses governing, among other things, workplace safety regulations, the prosecution doesn’t need to prove mens rea — the essential job of the prosecution is to prove both actus reus and mens rea, that the defendant committed the crime knowing they were committing a crime.

This means that many types of criminal defense revolve around proving either that the defendant did not commit the crime they are charged with, or didn’t do so with criminal intent. For example, if a teenager is caught with a knapsack full of cocaine but the defense can prove their client could not have known they were in possession of a controlled substance, they are not guilty of drug trafficking.

These types of criminal defense often require Toronto criminal lawyers to prove alibis showing that the defendant was not at the scene of the crime, or that the crime was, in fact, an accident.

Other Types of Criminal Defense

In some cases, it is clear from the outset that the defendant had both actus reus and mens rea. If someone walks into a police station and tells the officers on duty that they have killed someone who tried to knife them in the street, there is no question that they committed a homicide and acted with intent. But does this mean they are guilty of a crime?

Canadian law provides for the possibility that a crime was knowingly committed, but that mitigating factors were present. These factors may or may not justify acquittal, but they can lead to a reduced charge and a lesser sentence. These criminal defense types, called true or affirmative defenses in the Common Law tradition, are as follows.


Also known as coercion or compulsion, a criminal defense lawyer uses a defense of duress when their client was in a position where their course of action was forced by another person.

According to the case R. v. Ryan, the Supreme Court of Canada found that “the defence of duress is available when a person commits an offence while under compulsion of a threat made for the purpose of compelling him or her to commit it.”

For example, if a bank teller is being threatened at gunpoint to hand over a large sum of money, they are not guilty of robbery.


Canadian law defines automatism as “a state of unconsciousness that renders a person incapable of consciously controlling their behaviour while in that state.”

One of the classic examples of automatism is sleep terror, a disorder that results in feelings of panic and dread. One famous example is the case of Brian Thomas, a Welshman who killed his wife after mistaking her for an intruder during such an episode.

Typically, automatism is classified either as “insane automatism” or “non-insane automatism” depending on whether or not the defendant is mentally ill. While not a particularly common phenomenon, automatism is an effective defense for those who have acted under impulses brought on by mental disturbance or lack of full consciousness.


If someone is deemed to be extremely intoxicated when they committed an offense, a criminal defense lawyer may argue that they were not in their right mind and, as in the case of automatism, cannot be found guilty.

Intoxication is one of the most controversial defenses in Canadian law, and there has been a great deal of public debate about when it should and should not apply. Though the defense has been used successfully on many occasions, many legal experts are critical of the notion that someone guilty of a violent crime like rape or murder while under the influence of drugs or alcohol should not be found guilty of a criminal offense.


Like duress, the defense of necessity argues that external circumstances forced the defendant to commit the crime. Unlike duress, necessity does not require that another person forced the defendant’s hand.

Typically, duress only applies when all of the following elements are present:

  • There is an immediate threat of death or immediate peril
  • The accused has no reasonable alternative but to break the law
  • The harm inflicted was proportional to the harm avoided

For example, if a woman exceeds the speed limit while driving her choking son to hospital because she was unable to call an ambulance, the court may find that the risk of speeding is proportional to the risk to her child’s life. If she had been speeding because she was late for work, this would probably not meet the criteria.

Knowledge is power, and nowhere is this truer than when you are navigating the legal system: understanding your defense options when charged with a crime is essential if you want to protect your civil rights.

If you have been charged with an offense and are awaiting your bail hearing or first court date, make sure you have the Toronto criminal defense lawyer you need to defend yourself against the prosecution by calling Jeff Reisman Law.