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CRIM 230 (44)

CRIM 230 NOTES Ch10-12.docx

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CRIM 230
Simon Verdun- Jones

CHAPTER 10 – Provocation and Intoxication: Partial Defences Provocation (s232) Provocation provides a partial excuse, only in relation to a charge of murder, and if successful, its sole effect is to ensure that the accused is convicted of manslaughter rather than murder – show little mercy to those who lose power of self-control in the face of highly stressful circumstances  4 required elements for a successful defence of provocation o A wrongful act or insult that would have caused an ordinary person to be deprived of his or her self control o Which is sudden and unexpected o Which in fact caused the accused to act in anger o Before having recovered his or her normal control  Objective Element: The Ordinary Person Requirement (s232(2))= Code requires that the wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self control o Modified objective – must consider accused’s particular background (background relationship between deceased and accused) and characteristics (excluding characteristic relating to ‘temperament’ and power of self-control’) o Can only argue characteristics IF the provocation was directly related to such characteristics o Thibert – wife wanted to leave him, but he convinced her not to, then deceased takes her in ‘possessive manner’ and taunts Tilbert to shoot him – victim’s action immediately before his death was ‘taunting and insulting’  an ordinary person face with same situation would have been provoked by actions of deceased as to lose power of self-control  The Subjective Element: Act in the Heat of the Moment (s232(2)) o The accused must have acted upon the alleged provocation “on the sudden and before there was time for his passion to cool” o Subjective approach  the accused was ACTUALLY deprived of power of self-control by the provocation o Salamon1959 - Not available to those accused who causes the provocation  Legal Rights (s232(3)) o “No one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death/bodily harm” o Is not a provocation if person had legal right to do something – eg Sheriff execute a warrant – not an insult, b/c have legal right. o The lack of legal remedy does not mean you have the legal right – eg no punishment for insulting someone, does not mean it is your legal right o One have the right to do or say things in a relationship, can break up, etc, - but does NOT extend to insulting the other person o Terminating a relationship is not an ‘insult or wrongful act’ capable of provocation o Self-defence is an example of legal right (eg louison 1975 – taxi driver put victim in trunk, who defended by throwing hammer, and taxi driver kills victim, but saying was prvowas convicted, because victim was acting in self defence Intoxication (Beard rules  S33) Intoxication has become a partial defence to most of the more serious criminal charges.  Mild Intoxication  Induce inhibitions and socially acceptable behaviours, but do not negates specific mens rea  Advanced Intoxication  This occurs where there is intoxication to the point where the accused lacks specific intent, to the extent of an impairment of the accused’s foresight of the consequences of his act sufficient to raise a reasonable doubt about the requisite mens rea  Extreme Intoxication akin to automatism  Negates voluntariness and thus us a complete defence to criminal responsibility o Such defence would be rare - Limited to non-violent types of offences Three Beard Rules (1920)  1. If intoxication induces a disease of the mind and renders the defendant mentally disordered, must be acquitted by the reason of NCRMD  2. Intoxication is only a defence for specific intent, not general intent  3. If intoxication does not prevent forming of intent, it is irrelevant that intoxication made it more difficult for him to control his action o General intent  relates solely to the performance of the act in question with no further ulterior intent or purpose  Apply force in the offence of common assault o Specific intent  involves the performance of the actus reus, coupled with an intent or purpose going beyond the mere performance of the questioned act  Striking a blow or administering poison with the intent to kill or assault with intent to maim or wound Daviault v. R.  modified the Beard Rules for crimes of general intent – Enactment of Section 33.1  where offence involves violence, self-induced intoxication can NEVER be a valid defence no matter how severe the intoxication  Where offence involves no assault, only in those very exceptional cases where intoxication is so extreme as to produce a state akin to automatism or insanity, the accused will have the benefit of an absolute defence CHAPTER 11 – Necessity and Duress: Two Defences Necessity (n/a in CC) The defence of necessity arises where the accused can only avoid some disaster or calamity by breaking the law. The defendant is basically asserting that the evil that he sought to avoid was greater than the evil inherent in the breaking of the law  Justification = challenges the wrongfulness of an action that is a crime (eg police shoots hostage taker– is fully justified)  Excuse = concedes the wrongfulness of the action but asserts the circumstances under which it was done are such that it ought not to attributed to the action (eg have sex with minor but taken all reasonable steps to ascertain age) o Valid claim of necessity serve to ‘excuse’ person from responsibility on basis that he ‘acted involuntarily’ from a ‘moral or normative’ point of view Three requirements 1. The accused must have been in a position of imminent peril or danger 2. The accused must have had no reasonable legal alternative to the course of action he or she undertook 3. There must be proportionality between the harm inflicted and the harm avoided  The modified objective test must be applied to the first two requirements Perka 1984 – charged with importing and possession of narcotics for the purpose of trafficking cannabis – claim the drugs was for Alaska, but serious of mechanical problems and poor weather, for safety of crew, obliged to enter Canadian waters in order to seek refuge and to make repairs  Court ruled guilty because they had alternatives – they could’ve threw away drugs to avoid breaking the law in Canada Latimer 2001 – mercy killing- daughter Tracy disabilities so severe, endure multiple seizures, experience a lot of pain, but parents refuse to insert feeding tube into stomach to enhance process of providing nutrition – killed her with carbon monoxide poisoning – court ruled guilty because had if latimer had permitted the use of a feeding tube to improve her health and reduce pain through medication, she might have been better. Also he rejected to allow her to stay in group home. Two limits – defendant may los
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