Section 34(1): Can repel force with force if you don't cause death or grievous bodily harm
Section 34(2): Can repel force with deadly force if you are under reasonable apprehension of death or grievous bodily harm and there is no reasonable alternate means to preserve themselves.
Section 35: If you start a fight, and are met with overwhelming force, can repel with force but have duty to retreat.
Can people who provoke the assault avail themselves of the defence under s 34(2), or are they restricted to s 35? If the former, it suggests that the duty to retreat only applies when you don't cause death or bodily harm...
R v McINTOSH [1995] SCC
FACTS
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A threatens man with knife in order to regain stolen stereo equipment. At one point, the deceased attacked the A with a metal dolly and A retaliated with the knife, killing him. No evidence that A took any steps to retreat from the conflict so he won't succeed under s 35. Can he avail himself of s 34(2)? If so, all he has to show is reasonable apprehension and belief that he could not otherwise preserve himself. Crown led evidence to explain the contradiction in the statutory provisions on a historical basis, and argued that the inconsistency amounted to a drafting error.
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RULING
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Majority rejects Crown's analysis, as the words of the statute and their plain meaning are not ambiguous. The two sections may be inconsistent, but that's insufficient to interpret them otherwise. Majority invokes rule of statutory construction that where there are two possible interpretations, the Court should favour the one that is to the A's benefit.
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RATIO
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Sections 34.2 and 35 are inconsistent.
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Parliament doesn't do anything until very recently, in Bill C-26, which replaces s 34-42 of the CC with a much more general definition of self-defence. This opens up the applicability of self-defence while also shifting a great degree of discretion to the trier of law that there is an air of reality to the defence, and to the trier of fact to determine whether the defence is made out.
For the exam, be familiar with both the old provisions and the incoming one, but apply the provisions that are in force.
R v CINOUS [2002] SCC
FACTS
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A caused the death of another, relying on s 34(2). Group of men are involved in computer theft and resale ring. Before the killing, A lost one of his guns. This led to fear that the group was planning to off him. Group pressures A to get back into computer theft, and eventually he agrees. Meets with two of the group to steal some computers, some evidence that they were planning to kill him (change of gloves, hands in jackets, whispering to each other). No threats, but A felt trapped and pulled into a gas station and killed one of the men. When asked why he didn't go to the police, A argued that it didn't seem reasonable. TJ allowed the defence to go to the jury but erred in describing it.
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RULING
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Defence argues that air of reality test is met when there is any evidence for the defence. The Court disagrees, holding that the air of reality threshold is met where a properly instructed jury, acting reasonably, could acquit. Based on these facts, the Court finds that there is an air of reality of 5 of the six required elements of self-defence, but that there was no air of reality to the claim that there was no reasonable alternative. Therefore, the TJ's errors don't matter.
CONCURRENCE
Policy-based approach: whatever the six parts of the test may be, the court will not rely on the beliefs of a criminal sub-culture to determine the reasonable person test.
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RATIO
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Has to be an air of reality to the objective test and to the subjective beliefs of the A.
There needs to be sufficient evidence on every aspect of the defence to conceivably make it out in order to meet the air of reality test.
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DEFENCE OF NECESSITY & DURESS NECESSITY -
Peril
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Modified objective standard
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No reasonable legal alternative
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Modified objective standard
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Proportionality between harm
avoided and harm caused
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Objective standard
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Necessity is a common law defence not found anywhere in the Criminal Code. If successful, it offers a full defence and could potentially apply to any offence, though as we'll see there may be restrictions on this.
Necessity is a companion defence to duress. This defence is rarely invoked and even more rarely successfully in the criminal law. Despite this, it is an interesting defence given its potentially broad scope - it is an admission by the law that there may be some situations where acting illegally may be morally involuntary (no reasonable person could have refrained from committing these acts).
Justifications: traditionally, under the common law this offered a full defence.
Excuses: traditionally, under the common law offered a penalty mitigation.
This distinction is not really relevant in Canada anymore - some excuses offer a full defence.
Q: How far are we willing to go to examine the extent to which external pressures vitiate consent?
R v PERKA, NELSON, HINES & JOHNSON [1984] SCC
FACTS
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A are smuggling drugs from Columbia to Alaska by boat. If successful, they won't be committing any criminal offence in Canada. Unfortunately for them, their boat runs into mechanical trouble while a storm approaches. They pull the boat into a cove off the west coast of Vancouver Island, the boat runs aground and they have to off-load the drugs and are charged with importing drugs. There is no question that the A possess both the AR and the MR for the offense. But there is evidence that coming ashore was at least prudent, and maybe even essential.
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RULING
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Necessity is a common law defence in Canadian criminal law meant to function as a realistic assessment of human weakness. However, the scope of this defence needs to be limited lest any extenuating circumstances prove exculpatory. Therefore, the defence requires 3 elements:
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Some kind of urgent peril
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No legal way out of the situation
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Proportionality between the harm caused by and that avoided by breaking the law
Key point: A are already engaged in illegal activity when urgent peril arises - does this disentitle them from the defence of necessity? No, but there is some relevance - if the urgent peril is RF, that will weigh against the defence.
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RATIO
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The fact that you're already engaged in illegal activity does not disentitle the A from employing the defence of necessity, unless that activity created the urgent peril.
Defence of necessity requires:
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urgent peril;
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no legal way to escape;
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proportionality between the harm caused and avoided.
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R v LATIMER [2001] SCC
FACTS
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A kills disabled daughter. A charged with murder 2 (Crown made tactical decision). A argued that it was a mercy killing and thus the defence of necessity. Other key issue: constitutionality of mandatory minimum sentence of 10 years for murder 2.
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RULING
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A argued that he had a constitutional right to have some defence left with the jury, so that jury nullification was an option. Jury nullification is an American doctrine, and is not the case in Canada. The court rejects this argument and holds that the A must establish an air of reality in order to have a defence left with the jury. Applying PERKA test, the court finds it difficult to equate a situation of chronic pain without causing death with an urgent peril (the emergency shouldn't be a long-standing state of affairs but a new event). The court also finds that there were obvious legal alternatives. Finally, proportionality can't be found because murder is worse than suffering.
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RATIO
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First two parts of the test from PERKA are modified objective (was A’s belief honest and reasonable?), third is pure objective.
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Unclear if homicide can ever be excused by necessity. Imminence requirement is important given that this is an excuse, not a justification.
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R v UNGAR [2002] ONT CJ
FACTS
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A charged with dangerous operation of a motor vehicle – drove on the wrong side of a street and broke the speed limit with lights flashing while driving to deliver emergency medical assistance to an injured woman.
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RULING
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TJ ignored test from PERKA and LATIMER above, but still likely the defense would’ve likely succeeded anyway. Likely possible to use necessity when the emergency threatens a third party. Crown should’ve used discretion here, embarrassing to proceed with these charges. Acquitted.
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RATIO
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Not a reasonable legal alternative to fail to respond to the call for assistance.
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RE A (CHILDREN) (CONJOINED TWINS: SURGICAL SEPARATION) [2001] UK CA
FACTS
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Surgeons wanted to separate conjoined twins to save the larger twin. If the surgery was not performed, it was certain that both would die within a year. The parents don't want the surgery, so the doctors go to court to order that the surgery be performed and they be immunized from prosecution due to necessity.
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RULING
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Judges ordered the surgery, but split 3 ways in their justification:
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Self-defence
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Necessity
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Parens patriae jurisdiction
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RATIO
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Interesting example of application of necessity.
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There are limits to the defence of necessity… The peril needs to be of a temporary and emergency nature, not a longstanding social issue like poverty, lack of housing, etc. Otherwise, Jean Valjean would go free! Unpossible.
R v WALDNER [2001] MB Prov Ct
FACTS
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A was a farmer. He and 2 friends were unloading honeycombs from bee hives. The A was highly allergic to bee stings but had worked with bees for 10 years and wore protective clothing. He had never been stung before while wearing this clothing. Some of the bees crawled through the clothing and stung the A. He required immediate medical attention. The A and his friends had been drinking. The A was the least intoxicated of the three and so he drove himself to the local hospital. He was stopped by police and charged with impaired driving.
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RULING
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TJ was very generous to the A, acquitted.
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RATIO
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Interesting example of application of necessity.
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MCMILLAN BLOEDEL v SIMPSON ET AL [1994] BCJ
RATIO
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Difficult to employ the defence of necessity for civil disobedience.
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DURESS
SCC has recently decided R v RYAN and resolved some of the outstanding questions about the defence. Duress deals with the situation where a person committed a crime in such a way that it is morally involuntary, but unlike necessity, the lack of volition is created not by an external peril but the threat of another person. Historically, duress has had both a common law component and a statutory component.
The statutory defence is set in s 17 of Criminal Code and sets out a very limited set of circumstances - an imminent threat of death or grievous bodily harm, the threat-maker must be present at the time, and a number of offences are simply excluded from the defence. If successful, this defence offers a complete defence.
In a case called PAQUETTE, the SCC held that the statutory defence of duress applies only to principal offenders (the person who actually commits the offence). The SCC focuses on the wording of s 17 - "the person who commits the offence" - to exclude parties to an offence. As such, parties who aid or abet the principal offender still have access to the common law defence of duress, which has traditionally been broader. It does not require that the threat of death or bodily harm be imminent, nor that the threat-maker be present, and is open to use in any offence. The result of PAQUETTE was to create a significant disparity in the availability of duress
HIBBERT v THE QUEEN [1995] SCC
FACTS
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A charged as a party to an offence committed by X – A had taken X to V’s apartment because X threatened to kill A if he didn’t – A claims he had no opportunity to flee or warn V.
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RULING
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CL defence of duress still requires no legal way out before it can operate.
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RATIO
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Parties to an offence can raise CL defence of duress.
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R v RUZIC [2001] SCC
FACTS
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A charged with importing heroin using a fake passport – testified that she and her mother had been threatened by X who had also been physically violent to A – expert evidence support A’s assertion that she didn’t trust the Yugoslavian police to protect her.
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RULING
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As the principal offender, A has to rely on the statutory defence of duress. While her offence is not excluded, the statutory defence is too strict because X was not present and the threat was not imminent. A must raise an air of reality about each element of the defense; then the Crown has to disprove 1 BRD. Standard for air of reality should be reasonable but strict. The words “immediate” and “who is present while the offence is committed” in s. 17 break POFJ (morally involuntary conduct not be subject to criminal punishment) and therefore s. 7 of the Charter and can’t be saved and are read out. Imminence (relaxed) and whether a reasonable person would respond likely read in to replace them. Unsure if the list of banned offences can stand, likely not. TJ was correct to leave it to the jury, given the Charter breach. Acquitted.
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RATIO
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The words “immediate” and “who is present while the offence is committed” in s. 17 break POFJ that morally involuntary conduct not be subject to criminal punishment. Seems to merge CL and statutory defences of duress, except for excluded offences for principal offenders.
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R v RYAN [2012] SCC
FACTS
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A is beaten, strangled, sexually assaulted, and threatened with guns for fifteen years by her husband. When she asks for a divorce and takes steps to leave him, he threatens to kill her and their daughter and describes in detail how he will hide their bodies. Police aren’t helpful, so the A tries to hire someone to kill her husband and tried to hire an undercover police officer. A was charged with counseling to commit murder (an inchoate offence), which is an offence regardless of whether the murder was committed.
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RULING
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The threat has to be meant to compel the A to commit the offence - in this case, the ex-husband's threat is not designed to compel the A to contract his death. Despite this fact, both the NS TJ and CA found that the defence of duress could operate in these circumstances. But is this really a case of self-defence, like LAVALLEE? That was one argument that went largely unexplored. Maybe having somebody help you doesn't meet the statutory requirements of self-defence - what about necessity? Requires temporal imminence which is lacking here.
The circumstances of this case are exceptional and warrant a stay of proceedings. Although the appeal should be allowed, it would not be fair to subject the A to another trial. The abuse she suffered and the protracted nature of these proceeding have taken an enormous toll on her. The law of duress was unclear which made resort to the defence at trial unusually difficult. Furthermore, the Crown changed its position about the applicable law between the trial and appeal process, raising a serious risk that the consequences of decisions made during the conduct of R’s defence cannot be undone in the context of a new trial.
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RATIO
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Largely merges the statutory and CL defences of duress - only difference is list of excluded offences for statutory defence (some of which may be unconstitutional).
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Judicial Stay
Extraordinary remedy in the power of the court that is equivalent to an acquittal.
Crown Stay
Suspension of the proceedings and theoretically open to the Crown, depending on the circumstances, to reopen proceedings. Most of the time, however, a Crown stay is permanent.
DEFENCE OF DURESS
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Threat of death or grievous bodily harm (some kind of bodily harm, at a minimum), which can be directed at the A or a third party
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Reasonable belief that the threat will be carried out (has been measured subjectively, but should be modified objective)
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Not party to a criminal enterprise (can't use duress as a shield for criminal activities you'd already agreed to)
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No reasonable legal alternative (modified objective)
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Close temporal connection between the threat and the committed offence
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Proportionality. In some ways, the list of excluded offences functions in this way. Some of these exclusions may be unconstitutional based on a s 7 challenge. (modified objective)
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