Class Notes (839,119)
Canada (511,196)
Law (1,970)
LAWS 2302 (188)
John Hale (41)
Lecture 9

Lecture 9.docx

35 Pages

Course Code
LAWS 2302
John Hale

This preview shows pages 1,2,3,4. Sign up to view the full 35 pages of the document.
Lecture 9 Necessity cases - R. v. Morgentaler et al (1985, Ont. CA, p. 897) • Crown appeal from ∆’s acquittal • ∆ set up clinic in Toronto to bypass Criminal Code therapeutic abortion committee scheme • charged with conspiracy to use an induced suction method for purpose of intent to procure a miscarriage • trial Judge left defence of necessity with jury (∆ had been acquitted 3 times by juries in Québec in 1970s) • Ont. CA: said that defence of necessity was not appropriate here • conduct of ∆ must be involuntary (doesn’t apply here) • had to be evidence that compliance with the law was demonstrably impossible and there was no legal way out • here, ∆ had consciously agreed to violate the law • the defence of necessity cannot be premised on dissatisfaction with the law • Abortionist, high profile figure when abortion was illegal, he was performing abortions in a public way. He was never convicted in Quebec, and he was acquitted in Ontario. He claimed necessity, he claimed he had to set up safe abortion clinics that way women don’t have abortions in back alleys where they can get infections and die. If a woman wanted an abortion she needed to submit a request to a committee in a hospital and the committee decided whether they can have the baby or not.Alot of women were skipping the committee systems going to the State, or would go to a clinic illegally to people like Dr. Morgentaler. You cannot rely on necessity because you do not believe in the law. This is not a case of necessity; he wanted to break law consciously. - R. v. Bridges (1989,BCSC), affd 1990 BCCA • ∆ charged with contempt of court for interfering with abortion clinic • ∆’s genuine belief that abortion is immoral could not change the fact that it could not be said that no reasonable person could withstand the pressure to defy the court order • Mirror image of Morgentaler Case, Bridges was ordered to stay off the property of an abortion clinic. He wanted to stand in front to stop people from going in the clinic. He would block people from entering the clinic. He said he did it out of necessity, he was trying to save a fetus, it would die if he did not do this. You cannot rely on necessity because you do not believe in the law. He defied a court order, and was guilty of that. - R. v. Roberts (1989, PEICA) • Appeal from conviction for impaired driving • Facts: March 24, 1986, Charlottetown  ∆’s mother developed an awful pain below heart and asked ∆ to drive her to hospital  ∆ offered to call ambulance or taxi, but mother wanted her to drive in order to save $3.00 • Issue: Is necessity made out on the facts? • held: no - convicted • Ratio: there were at least 2 reasonable legal alternatives: ambulance or taxi • Incident at March 26, 1986,Accused was home with his mother. His mother developed chest pain and she thought she was having a heart attack. Roberts had been drinking, and told her he should not drive her. He offered to call an ambulance, and she insisted on him driving. He drove got pulled over and was charged with impaired driving. He had choices to him and he chose to drive anyway, cannot rely on the defense on necessity. There has to be no choices. - R. v. Berriman (1986, Nfld. C.A.) • (Appeal by Crown from acquittal for Impaired Driving (upheld at Sum. Conv. Appeal. Ct.)) • Facts:Accused went for a job interview at a shopping mall  The prospective employer offered her several drinks, which she accepted. He then began to grab at her. She demanded that he stop, but he didn’t.  She pushed him, and he knocked her to the floor; struggle followed  she screamed, but nobody came  her screams frightened him, and he ran away  she left the building, jumped into her car, and drove down the street thinking that he was chasing her  she saw a woman on the street, swerved, and hit a police car  charged with Impaired and Over 80 • Held: The act was not “realistically unavoidable”  she could have gone into another store or gotten help from a passerby • Berriman went for a job interview on a second floor of a mall. The interviewer shut the door and got some alcohol offered her some alcohol and they began drinking. The interviewer put a move on her, and she rejected, she ran out the building to her car, and started the car and ran into a parked police cruiser. She claimed necessity because it was necessary for her to leave because this guy was aggressively putting moves on her. In this case necessity was not a defense because she had other options. - R. v. McKay; R. v. White (1992, BCCA) • Facts: escaped from jail, and said they escaped because of emergency in segregation unit  there had been a prison riot some time earlier, and as a result there was tension in the jail  heat was off, and cells were wet, leading to discomfort  an unarmed guard had threatened ∆  summary: conditions were uncomfortable, atmosphere was tense  when ∆ escaped, stayed at liberty until arrested • Held: no necessity  the discomfort could not possibly be regarded by a reasonable jury as sufficient to create the “imminent risk” or “direct and immediate peril” necessary in order to invoke necessity, nor could evidence about guard’s threat  ∆ did nothing legal to avoid the peril; didn’t report situation; simply ran away, despite opportunity once free to go to authorities  in order for Judge to charge jury on necessity, there must be an air of reality; no air of reality to the defence here • MacKay and White were inmates in prison, were in the segregation unit, there was a riot earlier and it had a lot of tension. The prison turned off the heat, it was hot. Mackay and White escaped the prison for a few days. They relied on the defense of necessity, because they were scared for their life because of the tension.Areal danger would only work if they escaped and went to the authorities for help, not staying out for a few days. This is not an emergency, just because it’s uncomfortable does not mean it’s a danger or emergency.Accused could have spoken to people there were other options. - R. v. Latimer (2001, SCC, p. 890) • Would mercy killing fall within defense of necessity (either as excuse or justification)? • The Case of the father of a young daughter who suffered from extreme and worsening illness which would lead to her death, She was subjected to so many surgeries. She was suffered a lot in these surgeries; it could not explain why these things were happening to her. Latimer took a pipe up to his truck put that pipe in his daughter’s bedroom and killed her from carbon monoxide. He claimed necessity because he wanted to help her from the pain because she was in intense agony. He served many st years in jail. He was convicted of 1 Degree murder. - R. v. Deveau (1993, NB Prov. Ct.) • Facts: because of mix-up at welfare office, ∆ was not receiving her total welfare entitlement  went to grocery stores and passed a series of worthless cheques  ∆ claimed that she had legal obligation to support her children, but had no money or food  ∆ also bought cigarettes, alcohol, paid for cable, and gambled  ∆ did not pursue her husband for support, and did not apply for emergency assistance • Held: Guilty: no imminent risk or immediate peril; legal avenues not explored • Ms Deveau was a victim of a mix up at a welfare office, she got partial payment not the full payment, she went to a grocery store and bought groceries with checks that she knew were going to bounce. She said she had to do this to buy food for her kids; however she also paid for her cable bill, but alcohol, smokes, and gambled. She did not go after the father of her kids for money and did not go to emergency at welfare office. This was not a life or death situation. She cannot claim necessity when she gets more than she needed. - R. v. Hales (1995, OCJ) • Necessity is a defence to an absolute liability offence, if ∆ can show that the necessity caused the action to be involuntary. • Facts: ∆ drove through red light in order to avoid hitting car that was coming at her the wrong way down a one-way street • He drove through a red light to avoid getting hit by a car that was going to hit her from a one way street. Can you rely on necessity in absolute liability cases? Absolute Liability, all the crown has to prove is the actus reus. She went through a red light but she had a reason. Court agreed that common law offenses apply even for absolute liability offenses. For any type of offense accused can claim any of the common law defenses. - R. v. Ungar (2002, OCJ) • Off-duty paramedic acquitted of dangerous driving when he heard a dispatch about a car accident involving serious injuries, and weaved through traffic: • (from the judgment) • Mr. Ungar considered the situation to be a life threatening one for two reasons. Firstly, it was his understanding that the dispatcher had already dialed 911 and had been advised that an ambulance would not be available for a minimum of 10 minutes and possibly more. Secondly, any patient hit by an automobile and who is down on the ground, could be suffering from a number of spinal injuries. In addition he understood that the person was possibly unconscious and having trouble breathing. Just a month prior to this incident, a twelve-year-old girl had been hit in front of a school and there was nothing they could have done to save her. • Under normal driving conditions, it would take him about 5 minutes to get to the Promenade Mall from Patricia and Bathurst. But the traffic was backed up at that time on March 28, 1999. Mr. Ungar was behind 5 or 6 cars at the traffic light at Greenwin Village Road and Bathurst, immediately south of SteelesAvenue. He could also see the traffic stopped all the way up to Steeles Avenue. He got back on the radio and informed the dispatcher that he could not reach the Promenade Mall in less than 10 or 15 minutes because of the traffic. The dispatcher told him to ‘use his imagination’… • Mr. Ungar drove into the plaza parking lot and was waved over to where the victim was lying on her side with the top half of her body mostly face down between 2 parked cars. People were around talking to her but not doing anything. He got an oxygen bag and cervical collar from his car and approached her. He checked her breathing and circulation. She was breathing and she did have a pulse. He put the oxygen mask on her face and asked someone to hold her in line to avoid any spinal injury. He put the cervical collar on her without moving her. When he was going back to his car Constable Wright approached him requesting to speak to him and he said he would do so when he was finished.An ambulance arrived about 5 to 6 minutes after Mr. Ungar had arrived at the plaza and he assisted in putting the injured woman onto a backboard that the ambulance personnel had brought with them… • The Crown submits that there was a reasonable legal alternative to Mr. Ungar's driving which disentitles him to the defence. The alternative suggested was not to do anything and to allow the ambulance to arrive when it did. Mr. Ungar was faced with a situation which he felt was not only urgent but life threatening. Amonth before a twelve-year-old girl had been hit by a car and had died because they could not reach her in time. In these circumstances, a second could mean the difference between life and death. There was no reasonable legal alternative. In my opinion the defence succeeds. • I cannot pass on this case without commenting that the Crown ought to have exercised some prosecutorial discretion and either stayed or withdrawn this charge. In my 19 1/2 years on the bench and 43 years as a lawyer, I find it difficult to come up with another case in which there was more justification for the exercise of such discretion. I feel sure that anyone, including the Crown and the police officers involved, would want to know that, if their mother, spouse, daughter or sister, had been struck by a car in these circumstances and probably unconscious and it was unknown whether she was breathing or not, there would be a Hatzoloh organisation and a Bernard Ungar doing their utmost to save the life of that family member. • The charge is dismissed. • Ungar was a paramedic in downtown Toronto, he heard a broadcast that a young girl got hit by a car a few blocks away. What Ungar heard that it would take 15-20 mins for another paramedic to get there? Ungar was in another situation a few weeks ago because they took longer and a child died. He was thinking if this girls not breathing that he needs to get there. The traffic was bumper to bumper, so he decided to weave in and out of traffic, he was driving safely, he saved the girls life and the police charged him with infractions. He claimed necessity; trial judge agreed that there was a defense of necessity. The crown should have dropped the charges. Duress - 17. Aperson who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion,… • Code Defense, Duress is someone commits a crime as a result of being threaten. Defense is not available if the defendant is in an illegal organization and was threatened - 17. …but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons). - 17. Aperson who commits an offence under compulsion by threats… - 17. …of immediate death or bodily harm… - 17. … from a person who is present when the offence is committed… - 17. … is excused for committing the offence if the person believes that the threats will be carried out… - 17. … and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion… - The defense does not apply to the following charges: • High treason or treason • Murder or attempted murder • Piracy • Assault with a weapon, assault causing bodily harm, aggrevated assault • Sexual assault or sexual assault with a weapon or causing bodily harm or aggrevated social assault • Forcible abduction, hostage taking • Robbery • Arson - The Canadian defence of duress is one of the most restrictive in the world, and is much narrower than the common-law defence of duress. (eg: English C/L: only exempted offences are murder, attempt murder and treason) Duress - Compulsion by spouse - 18. No presumption arises that a married person who commits an offence does so under compulsion by reason only that the offence is committed in the presence of the spouse of that married person. - Abolishes common-law presumption of spousal compulsion, i.e., that a wife was not guilty because it was presumed that her husband made her do it Duress - Defense to Incest - 155. (1) Every one commits incest who, knowing that another person is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild, as the case may be, has sexual intercourse with that person. - (3) No accused shall be determined by a court to be guilty of an offence under this section if the accused was under restraint, duress or fear of the person with whom the accused had the sexual intercourse at the time the sexual intercourse occurred. Duress - R. v. Carker (No. 2) (1966, SCC, p. 901) • Appeal by Crown from judgment of BCCAquashing ∆’s conviction on charge of mischief • Facts: ∆ admitted damaging plumbing fixtures in cell at Oakalla Prison Farm, BC  defence wanted to call following evidence at trial: (not allowed, except at sentence)  prison riot: ∆ was told if he did not participate he would get kicked and knifed  threats were not of “immediate” death or bodily harm, nor were the people who made the threats “present” • Issue: must the threat be of “immediate” death etc, and must the threatener be “present”? • Held: yes — against accused • Ratio: at Court ofAppeal, court held that whether threat was immediate etc. was a matter of degree and a question of fact for the jury  SCC (Ritchie J): the harm was in the future and the threateners were locked up in separate cells, therefore s.17 not met  p. 881: s.17 exhaustively defines duress; no more CL defense of duress  p. 881: I agree... that in respect of proceedings for an offence under the Criminal Code the common law rules and principles respecting "duress" as an excuse or defense have been codified and exhaustively defined in s. 17... • This accused was in jail in BC, he damaged some plumbing fixtures during a prison riot, the defense of the accused for mischief causing property, he said that he was threatened that if he did not do the damaged to the property he will be kicked and knifed. The trial judge did not take that evidence because it was not an immediate consequence and the person who threatened him was not there when the riot occurred. Can he rely on the defense of duress, when its harm that will happen on a future date and when the person who threatened was not there when the damaged occurred? SCC said he cannot use the defense of duress in this case. Duress - Pacquette v. The Queen (1977, SCC, p. 903) • Appeal by ∆ from Ont.C.A., which overturned acquittal re charge of non-capital murder • Facts: robbery at Pop Shoppe in Ottawa, March 18, 1973  bystander killed by bullet fired by Simard  Simard, Clermont and Pacquette jointly charged with non-capital murder  Simard and Clermont pleaded guilty  ∆ was not present when robbery was committed or shooting occurred  ∆ charged pursuant to s.21(2) as party to an offence  ∆ admitted the following:  on day of robbery Clermont phoned ∆ for a ride  Clermont asked ∆ where he used to work, ∆ said Pop Shoppe  Clermont told ∆ to drive him there so he could rob it  ∆ said no; Clermont pulled gun and threatened to kill him  ∆ then picked up Simard, drove both to Pop Shoppe  S and C threatened revenge if ∆ did not wait  ∆ drove around block  ∆ said he was forced to participate • Issue: is the defense of duress/compulsion exhaustively set out in s.17, or is there a C/L defense? • Held: there is a C/L defense that applies when s.17 does not apply due to the specific exceptions • Murder case, accused said that he was threatened to be killed himself if he did not kill someone else, he killed the other person. The threat did not say when he will be harmed and the person who threatened him when he committed the murder. Pacquette was charged with being involved in a robbery that resulting in a killing. He was charged with aiding. SCC said that there is a common law defense of duress that applies when s.17 does not apply to the defense. SCC would be more motivated to convict a person of murder, who was in a robbery that resulted in a killing. Pacquette (1977, SCC) - Ratio: s.17 applies only where the person relying on it “has committed” an offence - S. 17 uses the words “a person who commits an offence”, not “a person who is a party to an offence” (He was part of party; he did not do the actually killing.) • s.21(1) says there are 3 categories of parties to an offence  (1)(a) actually commits it  (1)(b) does or omits to do something to aid person committing offence  (1)(c) abets (encourages by words or actions) any person committing offence • s.21(2) sets out a 4th category of party to offence:  (2)(i) common intention to carry out unlawful purpose and  (2)(ii) one of parties commits offence in carrying out common purpose and  (2)(iii) knew or ought to have known that commission of offence would be probable consequence of carrying out common purpose - therefore, s.17 sets out the law of duress only with respect to people who have committed offences, either as lone actors or as parties under s.21(1)(a) • s.17 only applies to people who actually commit the crime not to a person who was a party to an offense. Court is relying on the wording of s.17 • here, ∆ is a party to the murder only under s.21(2) (party to robbery under 21(1)(b))  Party to the murder he was a party to the murder unwillingly, he is in the 4 th Category  He should be able to use the common law defense of duress • since s.17 does not apply, ∆ is entitled to rely on any defense or excuse available at C/L - SCC agrees with DPP for Northern Ireland v. Lynch (1975, HL, p. 886): defence of duress applies when charge is aiding or abetting - according to Paquette, duress is available as a defense for one of two reasons: (1) it negates mens rea; or (2) [Lynch] it excuses otherwise criminal behavior - this issue was resolved in Hibbert (1995): available as an excuse • SCC overturned their decision from 11 years later, before they said there was only one kind of duress, and know it changed to another common law defense of duress R. v. Parris (1992, SCJ) - S. 17 is unconstitutional - Common law defense of duress, which applies to parties and not principals, recognized defense of duress when, • We know at this point have two kinds of duress. Parris brought marijuana on a plane from Jamaica. She was threatened to bring it, it never said when it was going to happen and the threatened was in Jamaica crime happened in Canada. She said that she was threatened. She claimed that s.17 is unconstitutional and that she should be able to use the common law defense of duress. Court ofAppeal found that s.17 was unconstitutional. That she should be able to use the common law defense of duress. There are four parts that make this defense useable. - Facts: ∆ contends that she brought marijuana on a flight from Jamaica to Canada after being threatened with harm if she refused. Neither of the following elements was present: • (1) threat of immediate death or bodily harm • (2) person present when threat is made - Issue: Is s.17, which limits C/L defence of duress, unconstitutional? - Held: Yes: C/L defence of duress should be left with the jury - Ratio: Common law defence of duress, which applies to parties and not principals, recognized defence of duress when, 1. ∆ acted solely as a result of threats of death or serious injury; 2. the threats were of such gravity or seriousness that they might well have caused a reasonable person placed in the same situation to act as ∆ had 3. ∆ had not had an obvious and safe avenue of escape from the person making the threat; and 4. ∆ was not a party to a conspiracy or association whereby he or she was subject to compulsion • These are four requirements described by Superior Court in 1992. It’s a trial decision not an appeal decision. R. v. Langlois (1993, Qué. C.A.) - Appeal by Crown from acquittal on counts of trafficking drugs - Facts: ∆ a recreation officer atArchambault Penitentiary • searched upon arrival at work on March 24, 1984 • in boots: 282.6 grams hash, 1,547 tablets of valium • briefcase and pick-up truck: letters addressed to imprisoned members of Hells Angels, $1,000 cash, Hells Angels clothing and stationery, video and audio cassettes intended for inmates, and 2,076 Valium pills • ∆ claimed to have received several anonymous phone calls in which caller asked if wife and children were well • another call: told that if he were ordered to do something, he had best not complain to police if he didn’t want to jeopardize safety of wife and kids • one day, inmate Fernandez gave ∆ a matchbook and told him to go to the address inside and bring what he found there to the pen • went to nude dancing club, received 10 grams hash, brought it to jail the next day • same thing happened again, leading to arrest • ∆ testified that he didn’t report because he didn’t think police could give him adequate protection; didn’t think he had time to flee with family • acquitted by jury on all counts, after trial Judge said they could consider C/L defence of duress - Issue: Constitutionality of s.17 - Decision : Unconstitutional: can rely on C/L defense - Ratio: under s.17, no actual perpetrator can rely on C/L defence of duress • Nobody charged with robbery, murder, etc. can rely on s.17 duress defense • “Because of its narrow compass, s.17 has the potential… of mandating a conviction despite the normatively involuntary character of the accused’s actus reus. It has replaced the common law defense of duress by a statutory substitute that has proved, in cases such as Carker, to be virtually inaccessible.” • Duress is the same as necessity, except that in duress the “force constraining choice is a human threat” while in necessity it can be any circumstance. - Relies on Perka, where Dickson J. stated: • “From earliest times it has been maintained that in some situations the force of circumstances makes it unrealistic and unjust to attach criminal liability to actions which, on their face, violate the law…. • [The defense of necessity]…rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or altruism, overwhelmingly impel disobedience. • The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable…. • At the heart [of the defense of necessity] is the perceived injustice of punishing violations of the law in circumstances in which the person had no other viable or reasonable choice available; the act was wrong but it is excused because it was realistically unavoidable.” - Langois was a security guard in Quebec at a jail that housed a lot of hells angels. He was searched before he went in the prison, he had a lot of drugs on him, and had money, he had hells angels clothing in stationary. He received a number of anonymous calls asking if his wife and children were ok, he kept getting these calls. He was also told not to go to the police if he wants his wife and children to live. The first time a person in jail gave him a matchbook with an address and was told to go to this place and bring back what was there. He brought back what he needed to however he was told to go again. He went again and that’s when he was searched will all that stuff. He did this because he was afraid that the hells angels would hurt his family from there connections to the outside. He got all the charged dropped, he relied on the common law defense of duress, where someone does not fit in to section17. - Common-law defense of duress: 3 elements 1. Threats of death or serious injury (implicit or explicit) 2. Threats had to be immediate (no safe avenue of escape); in other words, ∆ has a duty to try by all possible means to escape and avoid committing the crime 3. Person subjected to threats must show reasonable courage R. v. Hibbert (1995, SCC, p. 907) - Attempt murder charge, sentenced to four years jail, appealed all the way to the SCC. - ∆ charged with attempt murder; convicted by a jury of aggravated assault; sentenced to 4 years; appeal to Ont. C.A. dismissed (but sentence reduced to time served, 15 months); ∆ appeals to SCC - Facts: November 25, 1991, shortly before 1AM • Fitzroy Cohen was shot 4 times with a semi-automatic handgun as he stood in the lobby of his apartment building • shots were fired by Mark Bailey, an acquaintance who Cohen knew by his street names, “Quasi” and “Dogheart” • Bailey was accompanied by ∆, Lawrence Hibbert, who was a close friend of Cohen • Cohen came downstairs at ∆’s request, unaware that Bailey was waiting with a gun. • Cohen survived; he testified at the trial • Cohen said that, for some time, Bailey had wanted revenge for an incident a year earlier, where Bailey had been beaten up by a rival drug dealer while Cohen and others stood by and laughed • since then, the robber had been murdered and one of the other onlookers had been shot at • Cohen told ∆, his “best friend”, about the robbery of Bailey • ∆ owed Bailey $100 as payment for drugs; he had been trying to avoid Bailey, but he accidentally ran into him on the evening of November 24th • Bailey approached ∆ and told him that he was armed with a shotgun • Bailey ordered ∆ to take him to Cohen’s apartment • ∆ refused; Bailey took him to the basement and punched him in the face several times • ∆ felt that Bailey would kill him if he didn’t go along with him, so he agreed to go to Cohen’s apartment • Bailey took ∆ to his car, where Bailey’s girlfriend and another woman were waiting. Bailey told one of the women, “This might be the last time I’m going to see you.” • Bailey dropped the 2 women off; he then ordered ∆ to use a phone booth to call Cohen, and tell Cohen to be downstairs in 20 minutes. ∆ called, saying that he “had something for him.” Bailey stood beside the phone. • The women described ∆ as neither happy nor unhappy; Cohen said that ∆ was “normal”, but more abrupt than usual. • ∆ and Bailey arrived 30 minutes later. Bailey drew his gun and pointed it at ∆ when ∆ got out of the car. • ∆ called Cohen on the intercom, with the gun pointed at him • ∆ did not enter via a secret way that he normally used; he also didn’t ask to be “buzzed in”, but asked Cohen to come down • ∆ testified that he hoped that Cohen would not let him in, or would see Bailey before he opened the door • Cohen buzzed the door open without being asked to do so, and ∆ and Bailey went into the lobby • When Cohen emerged into the lobby, Bailey grabbed him and pointed the gun at his chest, saying, “You’re dead now, pussy.” • Bailey led Cohen into the ground-floor hallway, where he told ∆ to “stay someplace where I can see you.” • Bailey and Cohen exchanged words; Bailey pushed Cohen away, then shot him 4 times in the groin, legs and buttocks • Cohen described ∆ as “all sweating” and unable to look at him • ∆ testified that he was terrified the whole time, and had no chance to escape. Bailey drove him back to Etobicoke, telling him not to tell anyone. • At home, ∆ called Cohen’s brother and mother, then his own mother, then slept, then went to the police and turned himself in. Bailey has never been caught - Issues • A. How does the defense of duress apply to parties to an offence?  (1) Because actions were coerced, ∆ did not possess mens rea; or  (2) Even though there is mens rea, the party is excused from criminal liability • B. Is the defense unavailable if ∆ did not take advantage of a safe avenue of escape? (And, is existence of “safe avenue” to be considered on objective or subjective basis?) - Held: • A. re s.21(1)(b): party must only intend to do the offence; Crown does not have to prove that party “desired” to commit the offence  Therefore, duress is available as an excuse, not because it negates mens rea  When a person s a party to an offense, the crown only has to prove that the accused did the offense, duress is an excuse, it does not negate mens rea. • B. Common law defenses of duress and necessity are essentially the same, and should be interpreted the same way. Whether or not a safe avenue of escape existed must be judged on an objective basis, but the personal circumstances of the accused are relevant and important and should be taken into account  Court said that the common law defenses of duress and necessity are about the same. Would a reasonable person have been aware of other options that are legal. We assign personal characteristic to the accused. We only take into account relevant characteristics. We assign personal characteristics that are relevant. We take into consideration the persons personal characteristics. When we are dealing with offenses of negligent and reasonable person test, it is only right and proper we do not put personal characteristics, because it would be different for everyone, needs a uniform standing to offences, when we are dealing with defenses and moral culpability, its only reasonable to take into account personal characteristics. - In Pétel (1994), Lamer CJ said that in assessing self-defense “the jury must seek to determine how the accused perceived the relevant facts and whether that perception was reasonable.” - Self defense, necessity and duress are so similar that there ought to be consistency in the “reasonableness” requirement: objective test that takes into account the personal characteristics of the accused. - Therefore the “reasonableness” test in defenses is different from the reasonableness test re negligence. R. v. Ruzic (2001, S.C.C., p. 914) - Drug importation case, she was threatened to bring drugs into Canada. - Crown appeal from acquittal on charge of importing narcotics - Facts: ∆ lived with her mother in Belgrade • April 25, 1994 • ∆ was 21 years old • ∆ took bus from Belgrade, Yugoslavia to Budapest, Hungary • next day, she flew toAthens, Greece • 3 days later (April 29 ) she flew fromAthens to Toronto • in Toronto, she was found to have 3 packages of heroin strapped to her waist, total 2 kg worth about $1 million • ∆ also had a false passport in somebody else’s name • ∆ had only $80 US and $22 Can. In her possession • heroin not found at airport; officers were suspicious, and ∆ was detained • at detention centre, heroin still not found.; officer felt bulge at waist, ∆ said it was “something that nature has done to me”; officer thought it was a bone abnormality and checked no further • the threatener was somebody who ∆ met while she walked her dog; threats had started a couple of months earlier, including sexual advances • on April 21 , Mirkovic had approached ∆ in park and stuck a needle in her arm; next day, he burned her arm with a lighter (Toronto doctor found two burn marks on her shoulder) • April 23 , M. took ∆ into an alley and injected something into her, saying, “You see, you are my property now. I can do whatever I want with you.” Turned out to be heroin th • April 25 , M. called ∆ and told her to pack a bag and meet him at a hotel in 30 minutes. When she got there he took her into washroom and strapped three bags of heroin onto her. Gave her some money, told her to buy her own ticket. Threatened to harm her mother if she did not do as requested. - Decision: • s. 17 is unconstitutional  It is a principle of fundamental justice that morally involuntary behavior should not attract the penalty and stigma of criminal law.  It is a principle of fundamental justice that only voluntary conduct — behavior that is the product of a free will and controlled body, unhindered by external constraints — should attract the penalty and stigma of criminal liability.  Depriving a person of liberty and branding her with the stigma of criminal liability would infringe the principles of fundamental justice if the accused did not have any realistic choice…” • That person should not get the stigma of a criminal and get a criminal record. • Court declares s. 17 of no force or effect, insofar as it prevents an accused from relying on C/L defence of duress • “Immediacy” and “presence” requirements render s. 17 unconstitutional, and are to be read out • ∆ must raise evidence of duress, then Crown must rebut it Beyond a Reasonable Doubt - Test of duress at C/L: 4 elements • 1. Acts solely as a result of threats of death, or serious bodily harm, to herself or another person • 2. The threats were of such gravity or seriousness that ∆ believed that the threats would be carried out • 3. Threats were of such gravity that they might well have caused a reasonable person in the same situation as ∆ to act in the manner she did. I.e., Would a person of reasonable firmness, sharing the characteristics of ∆ such as age, background, have responded to the threats • 4. ∆ must not have had an obvious safe avenue of escape.; - New test that is legitimate because it was indicated by the SCC. - INADDITION, the case provides 2 more requirements… • 5. ∆ must not have been part of a criminal conspiracy or have associated with people likely to subject him to threats • 6. Proportionality between harm inflicted and harm avoided R. v. Li et al. (2002, Ont. C.A., p. 924) - Ap
More Less
Unlock Document

Only pages 1,2,3,4 are available for preview. Some parts have been intentionally blurred.

Unlock Document
You're Reading a Preview

Unlock to view full version

Unlock Document

Log In


Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.