Mr review 6 ignorance of law 6
Necessity and the Latimer Case
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- Duress
- Duress: Elements
- Duress: Application of Objective Modified Test
- R v Ryan 2013 SCC (Supp)
- Defences: Clarification of Subjective and Objective
Necessity and the Latimer CaseLatimer v The Queen SCC 2001 p 890Test for elements is primarily OBJECTIVE Defence grounded in understanding of actions (so they must be reasonable) Imminent Peril & Alternatives measured on modified objective test (would reasonable person have seen alternatives in this situation?) Proportionality is straight objective balance. Does the harm that you sought to cause, outweigh the harm that you sought to avoid. Ie. If someone is coming to break ur arm, and you kill someone to get out of situation = not proportional. DuressEvolved as separate defence (before necessity) Statutory intervention! It is not an MR defence (Hibtter) because motivation and intention not the same Section 17 of the Code enacted clear restrictions: Only applies in following situations: Must be threat of death or bodily harm, must be immediate Threats must be by someone who is present when the offence is committed (ie. Threaten to kill your family doesn’t count if they aren’t there) Person is not a party to a conspiracy to situation of compulsion Note: In Ruzic: court quashes immediacy and presence requirement CL: If you are non-party, this defence does not apply to you. (because judges hated this defence) Principal actors are still bound by s 17. If you are just helping someone do defence = use common law duress In Ruzic: SCC considered constitutionality Import heroine from Serbia and we will harm ur mom if you don’t. Does not pass s 17, person not under duress. Court says it is unconstitutional Court quashes “immediacy” and “presence”, but left party/non-party split intact Result? No duress defence available where certain crimes committed as listed in s 17. Duress: ElementsThreats of death or Bodily Harm (dos not have to be serious, because based on proportionality) Reasonable belief that threat will be carried out (or you won be acting involuntarily) No safe avenue of escape (reasonable belief that police cannot help safely) Close connection btw the threat and offence Proportionality – a few distinctions from necessity. (looked at from perspective of the accused, whether accused thought, reasonably, that act outweighed harm) Duress: Application of Objective Modified TestBelief there was a threat that would be carried out (Modified Objective) No safe avenue of escape? (Modified Objective) Close temporal connection? (Objective Test – Factual finding, not belief) Sankoff: this factors into no safe avenue of escape Proportionality of harm and reasonable resistence? (Modified Objective Test) The harm sought to be avoided must be proportional What would reasonable person had done, consider circumstances of the accused R v Ryan 2013 SCC (Supp)Facts: Victim of abuse, provided undercover cop with info/payment to kill her husband. Charged with counseling commission of an offence not committed, contrary to s 464(a) of Code. Issue: May a wife, whose life is threatened by her abusive husband, rely on the defence of duress when she tries to have him murdered? TJ: she may and was acquitted of counseling the commission of her husband’s murder? Decision: Reasons:
TJ: elements for offence met. Evidence of abusive relationship true. She had intense and reasonable fear, felt helpless, police didn’t respond, vulnerable, felt that hitman was the only way out. Found that CL defence of duress applied and acquitted. On Appeal, crown took position that duress was not available in law as defence to these facts Analysis: Is duress a possible defence where the threats made against A were not made for purpose of compelling the commission of an offence? Crown asserted that defence of duress not open to A TH: For an act to qualify as duress, a person must be subjected to the threat of harm. How much? There is no need to have a barrier on harm because threats of just a little harm can be dealt with in assessing whether response by accused was proportionate. TH: Given how SCC revamps duress, why could Mrs. Ryan not claim the defence? She was not compelled by any threat to commit the crime in question Court of Appeal argues: Conceptually widen the defence of duress; SCC: No TH: Primary reason why A escapes conviction is: Because the Crown did not raise the fact that duress was not available as a matter of law until the appeal If she had committed the murder – she WOULD have had the defence. Defences: Clarification of Subjective and ObjectiveMost offences are measured on subjective liability – you cannot be punished for being ignorant or stupid But defences measured MOSTLY objectively – none premised on only subjective tests Idea is that we only excuse or justify what is criminal liable where act was reasonable Defences tend to measure “morality” of action – something that cannot be left to subjective choice A few elements Subjective, some Objective, most are modified objective Directory: cans -> 2014 cans -> Law 205: criminal law full Year can (2005-2006) Jennifer Lau cans -> Chapter One: Constitutional Sources of the Criminal Law and the Criminal Code 2014 -> Charter + evidence 1 cans -> Law 120 criminal cans -> Law 120 – Criminal Law – can silvana Lovera Professor Emma Cunliffe Table of Contents cans -> Testimonial or documentary or real must be: Relevant cans -> Study Tip How to Improve Your English Pronunciation cans -> C’right: overview, 2 cans -> Table of contents section one an introduction to intellectual property Download 0.58 Mb. Share with your friends:
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