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Crim 230 (Week 13 Notes)

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CRIM 230
Pete Smith

Necessity, Duress and Self-Defense Necessity • Purely a common law defense (won’t find it in the CCC) • Exists purely in the form of old cases • 8.(1) the provisions of this act apply throughout Canada except (2) ever rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defense to a charge continues in force and applies… except in so far as they are altered by or are inconsistent with this Act or any other Act… • Avoiding a result of “greater evil” by committing a crime out of “necessity” • Origins in the famous Dudley and Stephens case (UK, 1884, cabin boy “brunch” case) • House of Lords was hesitant to recognize the defense, and sentenced the crew to death (but, they got a crown reprieve 6 months later). • Perka case (1994 – drug boat runs into trouble) • The SCC recognized necessity as an “excuse” (not a justification), and said the situation must be of: o Clear and imminent peril o Where compliance with the law is demonstrably impossible o With a degree of proportionality between the evil avoided and the evil done • Used modified objective test in asking, “Was the situation so emergent that human instincts cried out for action and made patience unreasonable?” Necessity – examples • Carson (2004, OCA, cops living together have fight); • There were alternative available, ”he could have backed away… and waited to see if she stopped banging her head; alternatively, he could have attempted to place something behind *her+ head to cushion the blows” • Latimer (2001, SCC, mercy killing) • Found no AOR to the defense of necessity – Applying the modified objective test to the 3 requirements for necessity from Perka, the SCC found that: o For the imminent peril requirement, “the ongoing pain did not constitute an emergency… Tracy’s proposed surgery did not pose an imminent threat to her life, nor did her medical condition” o For the no legal alternative requirement, the alternative of struggling onward was “a reasonable legal alternative that the law requires a person to pursue…” o For the proportionality requirement the harm avoided was, ”compared to death. Completely disproportionate”. • Nelson (BCCA, 2007, spiritual cleansing case) and Hendricks (Sask, CA, 1988, care and control case) create three new caveats to necessity defense: o If the peril is “foreseeable”, likely no necessity. o Can’t go beyond what is required to escape the peril o Accused cannot, himself, create the peril Duress – commit the crime because you, or someone you know is being threatened • The event causing a “loss of choice: is a threat (not a circumstance). • Section 17. A person 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, but this section does not apply where the offence that is committed is treason, murder, piracy, attempted murder, sexual assault… • CCC Duress applied to (1) principle offender only, (2) under threat of immediate, serious harm, (3) from somebody present (4) where the threat is believed, (5) N/A where the accused is part of a criminal org, and (6) N/A from a list of crimes • Ruzic (2001, SCC, Belgrade threats against mother) CHANGES THINGS! • SCC said conditions 2 & 3 (immediate threat from somebody present) are unconstitutional (violation of s.7 to find guilt where accused may have, in fact, acted “involuntarily” – as was the case here). • Thus, the common law rule applies, except we don’t yet know if those involved in a criminal organization or conspiracy or those committing the offences listed will be disqualified Common law rules - Duress • Common law rules for Duress (from Hibbert) o Action must be the result of threats of death or SBH, subjective test • There should be a close temporal connection – the longer the delay, the less likely the action were a result of threats o Threat must be sufficiently serious that the accused believes they will be carried out, subjective test o Response to the threats must be reasonable. MODIFIED OBJECTIVE TEST (MOT) o There can be no reasonable “safe escape” from the threats MOT* • Use “modified objective test” for #3 and #4 • Were the threats of such gravity that a reasonable person, in the same circumstances as known to the accuse, would have acted in the same manner of the accused and believed there were no safe avenues for escape? • The modified objective test particularly comes into play in #4, were background and history can substantially affect the question of whether the accused reasonably knew of safe escape • However, voluntary participation in a criminal organization would likely remove the ability to claim “no safe escape” (Li, OCA, 2002) • Provocation, Necessity, Duress Summaries • For all – AOR required (evidently burden) – then crown must disprove BRD (Fontaine) Provocation – partial defense, only for a charge or murder, only reduces to manslaugh
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