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Lecture

Criminal Law Defence.docx

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Department
Legal Studies
Course
LS 202
Professor
Frances Chapman
Semester
Winter

Description
Criminal Law Defence Tuesday, March 19, 2013 9:34 AM Criminal Law Defence o No need to launch a defence o Excuse:  a declaration of the accused that they did the wrongful action but they argue that they should not be punished for the crime o Justification:  Challenges the wrongfulness of the action; would a reasonable person do the same thing if in that same situation o Evidentiary burden  The crown has the ultimate burden, however if the accused wanted to raise the defence of duress then you have to prove your case for a time o Air of reality  Ignorance or Mistake of Law o "Mistake of law" definition  Ignorance of the law by a person who commits an offence is not an excuse for committing that offence  Under some sort of flawed reasoning  Mistake of Fact o Committed the actus reus but under "a serious mistake as to the real facts of the situation" o R. v. Kundeus 1976  Trafficking LSD; accidentally sold it to a undercover officer  Thought he was selling the wrong drug so the defence fought that the evidence was wrong  Went to the Supreme Court but was found guilty because either way he was selling the drug  Necessity o Necessity usually revolves around mother nature; snow storm o Common law defence: it is not in the Criminal Code, just have to use case law  Justice Macdonald in R.v. Salvador stated  "the defence of necessity covers all cases where non-compliance with law is excused by an emergency or justified by the pursuit of some greater good"  R. v. Dudley and Stephens (cannibalism)  What would you do?? o What would you do??  Ship strikes an iceberg, and you are one of the crew members onboard and it is up to you to decide who will live and who will die.  Women? Children? What should be the legal response? o R.v. Perka  A boat was sinking on the way to Alaska and they had to throw 34 tons of marajuana off the boat  The barrels ended up on the shores of Canada and was found guilty in the end  Inevitable, unavoidable, and where no reasonable opportunity for an alternative course of legal action was available  Less harm  Imminent peril  No reasonable alternative  Proportionality o R.v. Latimer  Daughter had severe disability, and the father placed her in the garage and turned the car on (died of carbon monoxide  Thought this way the only way to put his daughter out of pain  He did not show remorse and said he would do it again if he had to  Duress o Duress: a person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present; person believes the threats will be carried out o Could be Criminal Law or Common Law o Common law defence  Threats must be of death or serious harm  Person must feel that the threats will be carried out  A reasonable person would have acted in the same manner  There was no safe avenue of escape  There must be proportionality between the threat and the reaction  The defence is not available if the accused is put in the situation as part of a criminal organization  Not Criminally Responsible by Means of Mental Disorder (NCRMD) o M'Naghten Case 1843 o House of Lords o s. 16 of the Criminal Code  No person is criminally responsible of act committed made while suffering from a mental disorder  Has to be proved on the balance of probabilities  Presumption not suffer mental disorder until proved on balance of probabilities; onus is shifted to the accused who is trying to way that they have a mental disorder  Most of the time, they spend actually more time in a mental institution then in jail o Review boards: panel of experts to determine whether they n
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