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DEFENCES - no offences at common law - defences can also exist “at common law” o s. 8 (3) every rule and principle of the common law that renders any circumstance a justification or excuse for an act of defence to a charge continues in force and applies in respect of proceedings for an offence under this act or o common law defences can evolve like common law…defences are different from the crown being able to prove the mens rea and actus reus, excuse someone of criminal liability, can exist at common or codified - EXCUSE: o acknowledge the wrongfulness of the action o accused should not be punished in the circumstance, in the face of certain pressures what everyone will do if they act in those circumstance, e.g. provocation o based on the realistic assessment of human weakness o conduct pardoned but not praised o results in an acquittal (except for provocation) o example: duress, necessity, provocation - JUSTIFICTION o justified as the right thing to do (excuse it is still wrong but giving human frailties under extreme pressure act is excused, but justification is that it is perfectly right to commit and offence in this circumstance when it is a justification that disobeying the law is the right thing to do) o recognition that sometimes it is better to commit and offence than obey the law o weight competing social of obeying and disobeying the law (see R. v .Perka where SCC rejects this) o finding that conduct was not “wrongful” despite the fact it is technically a crime o results in an acquittal o tends to be a finding that it was not wrongful o example: self-defence; police who shoots a hostage taker R.v. Dudley and Stephens (1884) FACTS: “murder on the high seas” Dudley, Stephens and brooks killed and ate parker after 20 days at sea with no food or water Parker did not consent to this although was likely to die first They would all have died of famine other wise - was it better to have committed or not, 3 lives were saved as opposed to 4 lives being lost…at the same time they were intentional killing - “now it is admitted that the deliberate killing of this unoffending and unresisting boyw as clearly murder, unless the killing can be justified by some well-recognized excuse admitted by law” ISSUE: is preserving one’s own life an “absolute, unqualified and paramount duty” such that the killing was justified? Can I kill someone else to preserve my own life, is it justified? Ruling: There is no absolute or unqualified duty/necessity to preserve one’s life - chose the weakest, youngest and most unresisting - not necessary to kill him over any other - temptation should not form the basis of a legal “excuse” - the law often sets up standards that cannot be reached - sentenced to death - who defines necessity? in this case it was not necessary, no necessity to kill Parker other than others, no requirement that it was the only that they could live, they could have choosen someone else, they could have not and hoped tha they were going to be save…necessity is different form temptation (almost impossible standard to live up to), these circumstances seem different from how we usually think of, the court was not going to excuse liability to giving in the temptation to kill someone else - criminal law can set up standard that people cannot achieve, even if the circumstance is such where we can undertand why they did it, but not going to excuse conduct where there is clear necessity of particular act (this is the British view) R. v. Perka FACTS: - drug smuggling in international waters - weather and Bessel problem - sought refuge in Canadian waters - ship ran aground - captain ordered the cargo to be offloaded for fear the boat would capsize - arrest and charged with importing marijuana into Canada - relied on the defence of “necessity” SCC considered the theory of punishment: KANT—threat of uncertain evil (punishment) cannot outweigh/deter the fear of a certain evil; threat of punishment cannot outweigh/deter the fear of certain present harm…humans will always pick avoiding immediate known harm to oneself over some possible punishment, more compelling circumstance to act more HOBBES—“if a man by the terrour of present death, be compelled to doe a fact against the law, he is totally excused; because no law can oblige a man to abandon his own preservation” ; cannot oblige someone to have themselves kill or harmed in some way through imposition of criminal law, cant do it, not justified Canadian approach to necessity: - criminal law cannot hold people to strict obedience of laws in emergency situations where normal human instinct overwhelmingly (reasonable and objectivity) impel disobedience, to act and commit offence shows necessity - compulsion of the circumstaneces; what sort of pressure do the circumstance impose on the people involves, what was compelling the people to act, look at the degree to which circumstance pressure people to act…fundamentally unfair to punishm people for something tha they essentially had no choice but to break the law…no other viable choice other than to commit the offence, necessity similarly to normative involutnariness, didn’t’ have a choice between committing and not committing the offence, equated to some extent the idea of involutnariness, if you don’t’ really have a choice b.t committing and not commiting the offence because of the compelling nature of the circumstance you have acted under necessity TEST FOR NCESSITY 1) situation of clear and imminent peril (it’s an emergency); to be judged on an objective stanrd: society’s expectation of appropriate and normal resistance to pressure 2) copliance with the laws is demonstrably impossible; idea of normative involutnariness, essentially impossible to comply with the law, no other le
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