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13-defences.docx

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Department
Legal Studies
Course
LS 202
Professor
Frances Chapman
Semester
Winter

Description
LS 102 CRIMINAL LAW DEFENCES MARCH 19 INTRODUCTION - No obligation on defense to launch - Crown has burden of proving everything “evidentiary burden” in criminal law - If defendant decides to speak, burden shifts to defense - Air of reality test: if there is believability - 2 general categories 1. Excuse  declaration by accused that they did wrongful action but the law should not punish them  usually used in duress: “yes I killed him BUT…I was held at gunpoint [forced]”  very risky, rarely successful 2. Justification  Declaration that challenges wrongfulness of action that constitutes as crime  Guy who’s hiking in winter freezing, does he break into cabin to save his life? IGNORANCE OR MISTAKE OF LAW - Mistake of law: unsure how the law would apply  Committed the actus reus but under a serious mistake as to the real facts of the situation - Ignorance of the law is no excuse for breaking the law NECESSITY - Common law defense [not in criminal code, no guidance from legislation except from case law]  The defense of necessity covers all cases where the law is excused by an emergency or justified by the pursuit of some greater good - Put in bad situation [mother nature made, cannibalism Dudley case] - Intertwined with duress [but duress is from another person] 1. Imminent peril 2. No reasonable alternative 3. Proportionality - Necessity used in R. v. Latimer [disabled daughter functioning at 2 infant intelligence killed by father to stop her pain] DURESS - A person commits an offence under threats of immediate death or bodily harm and believes it will be carried out if the person does not participate - Confusing in the Criminal Code b/c many exceptions  Robbery, forcible abduction, attempted murder, treason, hostage - Common Law Defense 1. the threats must be of death or bodily harm 2. threats must be sufficiently serious that the accused believed it would be carried out 3. threats were of such gravity that the reasonable person would have acted same way 4. no safe avenue of escape 5. proportionality between the threat and the reaction 6. defence is not available if the accused if put in the situation as part of a criminal organization NOT CRIM
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