Class 18.docx

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Published on 5 Feb 2013
Department
Class 18: More Defences
R v Paquette:
NOTE:
Some twists and turns in this case, it is similar to Logan in that a general provision of
the Code purports to make the accused person guilty of an offence by being with the
principle offender.
Recall that although there are no common law criminal offences, there are common
law defences, and the accused is able to avail himself of the common law defence of
duress.
Facts:
- accused was called up by two co-accused, Simard and Clermont - drive us to the
Pop Shoppe, we’re going to rob it
- if you don’t we’ll kill you, if you don’t wait for us we’ll kill you - had a gun to threaten
with
- drove them to the Pop Shoppe, Simard shot and killed an innocent bystander
- Simard and Clermont pleaded guilty, accused convicted under s.21(2) - commit an
offence when combine with others to form an intention for a common purpose
- was evidence of accused’s reluctance, evidence he was forced
- drove them there, took off, drove around the block, co-accused tried three times to
get into his car - he resisted
held:
@ trial: acquitted - under duress
on appeal - convicted, set aside acquittal because of Dunbar case
Dunbar - accused lived with the bank robbers, drove to and from a bank robbery, teller
was shot and killed - he shared in the profits
- court held that duress was codified in s.20 of the Code - section says no intention
where acting under threats - but excludes threats compelling to commit murder,
treason, robbery, etc.
accused in this case conceded defence under the Code didn’t apply, but argued
duress would negative the intention required to form common purpose under s.69(2)
- held - motives were irrelevant, motive to save life was motive not intention - too bad,
convicted
court of appeal felt bound by Dunbar
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SCC -
s.17 (formerly s.20) - applies to exonerate a principal offender, not a party who has
not actually committed the offence,
- if s.17 defence doesn’t apply - then the common law defence of duress must apply
- the accused did not commit the robbery or murder - s.17 defence doesn’t apply to
him
- back to s.21(2) - did accused form common intention with co-accused?
- entitled to common law defences duress
- looks at UK case - duress should apply
- generally 193 - no defence to a charge of murder, have to die yourself rather than kill
an innocent person, - but - where no certainty inaction will save the victim, no certainty
that compliance = death of a person - the general rule should not apply
- on reasoning of House of Lords in Lynch, if duress available for aider and abettor in
murder case - should also be so in a robbery case
- + distinguished from Dunbar on the facts, Dunbar knew the people, was living with
them, had a criminal record, kept some of the money etc.
- also Dunbar court thought duress as applied to what is now s.21(2) concerns only
motive - wrong - bad law - should not be followed, duress can establsh there is no
common intention as required under Code
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R v Lavallee
NOTE:
This case concerns some very important issues. It is a case about self-defence,
accordingly please refer to the text and review the Criminal Code defence of self-
defence. If successful this is an absolute defence, meaning that the accused will be
acquitted.
Provocation, on the other hand, can have the effect of a) reducing a murder conviction
to manslaughter, or b) defeating a claim for punitive damages in a civil assault and
batter case.
Certainly a primary issue is whether or not the circumstances and conduct of the
accused are consistent with self-defence, but the primary issue on appeal is the use
of expert evidence.
Evidence of Experts:
Expert evidence is “opinion evidence. Normally one would have to have an evidentiary
foundation before experts hypothetical evidence is admitted. The expert is required to
state his opinion in a hypothetical manner and not tell the court his or her conclusion
about the accused in particular. This is because the trier of fact has to make the
decision as to what the facts of the case are, after hearing the evidence. Expert
opinion in the particular is too close to the expert taking away the important job of the
trier of fact.
Hearsay Evidence:
The evidence of an out-of-court declarant, where the truth of the statement is at issue.
It is generally not admitted (with some exceptions) because there is no opportunity to
test the evidence by cross-examination.
Social science or extrinsic evidence:
This is not normally admitted into evidence, because it allows generalizations and
evidence of things that are not really before the court to be used to determine what
happened to the accused. For example, if Johnny had been accused of stealing a
chocolate bar, the crown would not be permitted to lead evidence of the statistical
probability of boys the same age as Johnny and their propensity to steal chocolate
bars. Defence counsel would rightly object that what others do tells the trier of fact
nothing about his accused.
So in this case, we will see a lot of evidence being adduced that seems to contradict
the classic rules of evidence.
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