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Lecture 8

LAWS 2302 Lecture Notes - Lecture 8: Grievous Bodily Harm, Common Law Offence, Mens Rea


Department
Law
Course Code
LAWS 2302
Professor
Mike Smith
Lecture
8

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Lecture 7
Defenses of duress: The accused will actually testify. In some cases the accused
must testify because the crown makes such a strong case. Duress is focused on the
mens rea of the case, did the accused mean to commit the offence. The defense of
duress will not apply pursuant to s. 17. And duress can be extended to a third party
(Ruzic case).
Defense of necessity: The accused is also able to argue that they committed the
offence because it was necessary because they had no option, which is the defense of
necessity. It is a common law offence that comes from case law. For example,
someone’s dying and you might not have enough time to call police so you decide to
drive them yourself and drive erratically and break every traffic law in order to save
the life of the person. The defense of necessity is not a convenient offense (like for
example I needed a Popsicle from the quickie so I drove fast to get it). It has to be
immediate danger of death or serious injury and there cant be another option
available to the accused.
Perka vs. The Queen or also known as the species defense: they are charged with
importing and trafficking drugs. 33.49 tons of marijuana was on the ship. They are
travelling with this weed and the ship gets into some difficulty. Their defense was
that they weren’t trafficking/importing weed because the ship was sinking and they
needed to bring the ship to shore and because of this they are arguing the defense of
necessity. The BC provincial court says they are not guilty and acquits them. They
needed to bring the ship to shore but they didn’t need to unload the marijuana so
there was no necessity. You have to have evidence to prove the defense of necessity.
The supreme court of Canada overturned the acquittal by the BC provincial court
after the crown appealed it to the SCC. In this case the SCC laid out what are the
requirements of the defense of necessity and the defense has to be realistic.
Self-defense: sections 34-37 of the criminal code deals with self-defense. The
accused says that they committed the act because if they didn’t they would have
been seriously injured or die. Usually happens in fight situations where someone
must use self-defense. There is a subjective (my life is in danger) and an objective
standard where the court decides if the accused actually needed to use self-defense
and their life was in danger. There will always be a subjective standard because the
accused will always say that they feared for their life but the facts of the case and
history determine the objective standard from the police. You can only use as much
force as is necessary or if you use more force then needed then it becomes assault.
In a self-defense case they must look at the facts of the case and how the weapon
came to be used. In order for the accused to argue self-defense there has to be a
reasonable apprehension of death or grievous bodily harm, the degree of force has
to be reasonable to prevent or discontinue the act and avoid death or grievous
bodily harm to you. Self-defense can also apply if I instigate the fight or attack (so
you don’t have to be the victim). The defense of self-defense doesn’t change or
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