LS202 Lecture Notes - Actus Reus, Mental Disorder, Snapple

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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
Went to the Supreme Court but was found guilty because either way he was selling
the drug
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
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