KEY distinction is the nature of apprehended risk

• 
  34(1) can NEVER be a defence for murder
  

• 
  Note, proportionality aspect of 34(1) is the only purely objective element of s.34(1) or (2)
  

• 
  This makes s.35 a Dead letter (it’s more strict to accused than 34(2) so no reason to ever use it)
  

• 
  Whynot in 1983 represents the old-fashioned approach (threat not imminent)
  
• 
  Lavalee = major shift
  
  • 
    Gets rid of imminence (which had been read in as a requirement for 34(2)) as a requirement, now only a factor to be considered
    
  • 
    Expert evidence CAN be admitted at the “no other alternative” stage, especially for Battered Spouse Syndrome
    
  • 
    “reasonable person” takes into consideration the circumstances of abuse (“reasonable battered woman”)
    
• 
  Petel in 1994
  
  • 
    SCC officially expands “reasonable person” to a contextualized approach based on a range of factors including personal history
    
• 
  Malott in 1998
  
  • 
    judge should instruct jury that evidence should be used for:
    

ii) nature and extent of violence and impact on accused

iii) accused’s ability to perceive danger (she knows his patterns)

iv) whether accused believe on reasonable grounds that she could

not otherwise preserve herself from death or grievous bodily harm

State of the Law (See Chart)

• 
  Now: core and periphery provisions:
  
  • 
    Core – s.34(1) and 34(2)
    
  • 
    Periphery (read down) – s. 35, s.37
    
    • 
      S.35 is dead (see above)
      
    • 
      s. 37
      
      • 
        alive and well for defence of others
        
      • 
        interpreted very broadly to be a general protection of others = very rational
        
      • 
        BUT, a component of s.37 can be used as a gap-filler
        
        • 
          ONLY if 34(1) and (2) don’t apply (VERY rare)
          
• 
  Distinguishing b/w 34(1) and 34(2)
  

*34(2) is for apprehension of death/GBH so given more allowance in your behaviour b/c scarier circumstances (can be provoked, can cause death, can INTEND to cause death)

• 
  Written very hurriedly = sloppy, confusing and complicated. Reform?
  
  • 
    German law makes self-defence LEGAL/lawful
    
  • 
    Don Stuart’s “Recommendations for a General Part” lay out same law in very basic, straightforward language
    
• 
  Requirements based on barroom brawl scenario = doesn’t consider violence against women
  
  • 
    Imminence had been read into provisions, but not universally applicable (Wilson in Lavalee rejects the imminence standard that had been added as a judicial gloss)
    
    • 
      Imminence is still a factor, but NOT a requirement
      
• 
  Though Lavalee is progressive for women, there are several critiques:
  
  • 
    Isabelle Grant: syndromization of woman’s experience (not believable until evidence of a syndrome is put before court?)
    
  • 
    L’H-D and McLachlin in Malott: don’t want ‘battered woman’ to become a woman’s identity – don’t’ victimize her, she was acting rightly
    
    • 
      Don’t want to turn self-defence into a concession to human frailty
      
• 
  If reasonable person is contextual (as in Lavallee) then shouldn’t it apply to Cinous = shouldn’t he get off?
  
  • 
    Clearly a policy decision: don’t want to encourage sociopathic behaviour/organized crim
    
• 
  constitutional imperative that ‘reasonable person’ must be constructed gender-equally
  

• 
  participant in criminal activity/organization
  
• 
  shooting in van at gas station
  
• 
  Binnie:
  
  • 
    Fails air of reality test for 34(2) and 3^rd state (no reasonable alternatives) – passes subjective test but fails objective test = no defence
    
  • 
    Can’t give leeway to members of criminal organizations
    

-accused killed common law husband who had threatened to kill her son, shot him when passed out in truck from drinking

- Trial: jury acquitted

- CA: ordered new trial

- “no person has right in anticipation of an assault that may or may not happen, to apply force to prevent the imaginary result”
Lavallee1990 SCC

• 
  Accused 22, history of abuse, had suffered multiple injuries from partner
  
• 
  Mand drunk, angry, after party she hid in closet
  
• 
  He said “either you kill me or I’ll get you”
  
• 
  She shot him in back of head when he was leaving the room
  
• 
  Trial Judge:
  
  • 
    Admitted evidence of Battered Spouse Syndrome
    
  • 
    Jury acquitted
    
• 
  Man. CA:
  
  • 
    Ordered new trial, said expert evidence should NOT be admitted
    
  • 
    (normal rule is only bring in expert evidence when jury/judge NOT an expert – juries/judges supposed to be experts on assessing credibility of human behaviour)
    
• 
  Wilson (Majority):
  
  • 
    Allowed evidence
    
  • 
    Allowed acquittal
    
  • 
    Judges/juries have preconceived ideas about abusive relationships and need expert evidence to educate
    
  • 
    Historical barroom brawl scenario produces requirements that don’t apply to battered women:
    
    • 
      1) temporal connection (imminent risk is not present)
      
    • 
      2) no other reasonable alternative = problematic and goes to systemic/cyclic nature of abusive relationships
      
  • 
    “reasonable man” is not able to inform a battered woman, must be “reasonable in circumstances of battered spouse”
    
    • 
      is NOT relaxing reasonable/objective standard, simply contextualizing it
      
  • 
    1 legal change
    
    • 
      pushes back on idea of imminence that was read in by judges (but not part of statute) – says the rationale was understandable but not universally applicable
      

• 
  woman forced to weigh/do coke and hide weapons
  
• 
  shot man and partner
  
• 
  jury asks for clarification: whether threats and acts leading up to incident should be considered
  
• 
  SCC:
  
  • 
    Contextual approach MUST be taken at every step
    
  • 
    Expands range of factors to be considered under “reasonable person”
    
    • 
      Look at history, etc.
      

- 19yr relationship of abuse

- man couldn’t get pills, she knew he’s be pissed, she shot him, reloaded gun, took taxi and killed his mistress

- appeal regarding jury instruction

- SCC:

- about jury instructions (see above)

• 
  Duress = compulsion from a person (vs. Perka'>Necessity = compulsion from a circumstance)
  
• 
  Central feature: a person is less blameworthy if they commit an offence from pressure from another person
  
• 
  Duress concedes to AR and MR = a stand alone defence (affirmative) (Dunbar)
  
  • 
    Confirmed in Hibbert in the Ruzic decision
    
  • 
    MR is THAT you meant to do it, not WHY you meant to do it
    

A person can be guilty of an offence in 4 ways:

1. 
   person actually commits crime (Principal Offender)
   
2. 
   aids another in committing a crime ----------------------------
   
3. 
   abetting/encouraging someone to commit a crime -----------Secondary Offenders
   
4. 
   counseling/procuring/inciting someone to commit a crime –
   

• 
  punishment is exactly the same for all 4 scenarios
  
• 
  distinction b/w primary and secondary offenders if what we’re concerned with in law of duress
  

• 
  2 different defences: common law and s. 17
  
• 
  Elements of Common Law Defence:
  
  • 
    1) “accused must be subject to threat of death or serious injury to himself or to another (doesn’t have to be immediate but must have temporal connection)
    
  • 
    2) must commit offence as product of threat (must believe threat will be carried out
    
  • 
    3) gravity of threat that a reasonable person would commit act
    
  • 
    4) must have reasonable belief that there’s no reasonable alternative
    
  • 
    5) accused must not be a voluntary member of criminal association
    
    • 
      This is very broad
      
    • 
      Normal criminal burden of proof
      
• 
  Elements of Statutory Defence of Duress (s. 17)
  
  • 
    Imposes 3 restrictive requirements on common law defence of duress
    

1. 
   requires immediacy of bodily harm
   
2. 
   person posing threat must be present
   
3. 
   duress not available for 22 offences including murder, sexual assault, robbery, arson (“excluded offences)
   

• 
  SCC in Carker 1967 says s.17 is supreme & only defence of duress (s. 17 replaced common law defence) = NO DURESS AT COMMON LAW
  
• 
  SCC in Paquette 1976 = revival of common law duress
  
  • 
    s.17 applies only to principal offenders (have to us it or nothing)
    
  • 
    common law duress applies to secondary offenders (s.17 doesn’t apply)
    
    • 
      makes consequences of distinction b/w principal and secondary HUGE
      
    • 
      Mene says you have to charge jury with both possibilities
      
• 
  Charter = BCMV = laws can be tested for their substantive fairness
  
• 
  Post-Charter = Ruzic
  
  • 
    PFJ: the morally involuntary cannot be punished
    
    • 
      Justified via analogy to physical voluntariness requirement for AR
      
  • 
    Held: immediacy and presence requirements of s.17 are unconstitutional = strike our s.17(1) and (2), leaving ONLY s.17(3) intact
    

• 
  Common Law Duress applies to ALL claims of duress except for principal offenders accused of one of the 22 excluded offences in s.17(3)
  

• 
  Threatener wasn’t present = not considered an ‘immediate’ threat
  
• 
  Accused tried to argue common law duress
  
• 
  s. 8(3) of Code preserves common law defences = rejected
  
• 
  Held: s. 17 is only duress defence (s.17 replaced common law defence)
  

• 
  there can be more than one principal offender
  
• 
  about distinguishing b/w principal and secondary
  
• 
  ordered new trial – open to jury to find on facts whether accused was principal or secondary offender
  

• 
  Pop Shop robbery
  
• 
  Paquette was asked to give friends a ride, refuses, gets held up at gunpoint, threatened with revenge if he didn’t wait until they were done – they ended up killing someone during robbery
  
• 
  Paquette charged with murder
  
• 
  BUT murder is one of excluded offences for duress
  
• 
  Held: s. 17 ONLY applies to principal offenders = secondary offenders can use common law duress
  
  • 
    Interprets “a person who commits” in statute to mean a principal offender only
    

• 
  friend of victim forced at gunpoint to call him down from apt, knowing he’d be shot
  
• 
  whether a safe avenue of escape existed is to be determined on a subjective/objective standard
  

• 
  Belgrade, woman forced to smuggle drugs to Canada upon threats to her mother’s life
  
• 
  Arrested in Toronto
  
• 
  She’s a principal = subject to s.17 BUT no immediacy or presence of threatener
  
• 
  Ruzic argues immediacy and presence requirements breach PFJ: The moral involuntary cannot be punished
  
  • 
    First justification: if you don’t have a choice, can’t be blameworthy – looks to BCMV
    
    • 
      Rejected by court
      
  • 
    Analogize moral voluntariness to physical voluntariness – strong notion in law that we won’t punish involuntary behaviour, respect for human agency, NOT your act (though this does NOT negate AR)
    
    • 
      Accepted by court
      

• 
  Necessity is an excuse (Dickson in Perka) – though Wilson disagrees = heated academic debate
  
  • 
    “rests on realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to this strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobediences” 928
    
• 
  3 legal requirements (from Perka, flowing from Morgentaler, expanded on in Latimer_)__2)_compliance_with_law_must_be_demonstrably_impossible__no_reasonable_legal_alternative_(_Latimer'>Latimer) with normal burden of proof
  
  • 
    1) Situation must be urgent and peril must be imminent such that counsel of patiences is unreasonable
    
    • 
      forseeability is not enough (Latimer)
      
  • 
    2) compliance with law must be demonstrably impossible
    
    • 
      no reasonable legal alternative (Latimer)
      
  • 
    3) proportionality b/w harm intended and harm avoided
    
    • 
      “no rational criminal justice system could excuse the infliction of a greater harm…”
      
    • 
      2 harms must be of comparable gravity (Latimer)
      
• 
  requirements refined in Latimer
  
  • 
    1) and 2) standard is modified-objective test: “honestly believe on reasonable grounds”
    
  • 
    3) is purely objective: “does community view 2 harms as comparable”
    

• 
  storm puts ship in peril – was importing SHIT TONS of marijuana to Alaska but had to stop on Vancouver island
  
  • 
    didn’t MEAN to stop in Canada but had to b/c of weather
    
• 
  Dickson distinguishes b/w justification and excuse
  
  • 
    Justification: acting rightfully
    
    • 
      Often praised as motivated by some great object
      
    • 
      Punishment incompatible with social approval
      
  • 
    Excuse: concession to human frailty
    
    • 
      Wrongful conduct but circumstances make it understandable
      
    • 
      No implicit vindication of deed
      
    • 
      Not to be praised, only pardoned
      
• 
  Wilson
  
  • 
    Nervous about necessity being an excuse
    
  • 
    Weighing b/w 2 conflicting legal duties
    
    • 
      Excuse – makes it look like a much more imminent situation
      
    • 
      Justification – involves a choice b/w lesser of 2 evils
      

• 
  father kills daughter who’s debilitated with CP
  
• 
  father charged with 1^st degree murder, convicted of 2^nd degree, ordered new trial
  
• 
  we read 2^nd trial – charged only with 2^nd degree murder
  
• 
  trial judge did NOT put defence to jury b/c no air of reality
  
• 
  jury comes back to ask judge about penalty – judge says you might have input (he thinks they want a higher sentence, but really they want below the minimum sentence)
  
• 
  jury returns verdict of guilty (minimum = life, 10 yrs parole) and recommends 1 yr. eligibility
  
  • 
    = pseudo jury nullification
    
    • 
      *note: juries can nullify but you can’t tell them that they can, they have to do it on their own
      
• 
  Judge accepts 1 yr parole – gives a constitutional exemption and grants 1 year ineligibility b/c 10 yrs would be cruel and unusual punishment
  
  • 
    SCC rejects this
    
• 
  held: trial judge was right that there was no air of reality, but wrong to lower to 1 yr parole = gives minimum sentence
  
• 
  Latimer released this year
  
  • 
    Denied parole first time through b/c didn’t show sufficient remorse
    
• 
  SCC says gov. always has Royal Prerogative of Mercy at its disposal
  
  • 
    Used to be used when we had death penalty