Necessity, Duress and Self-Defense

Transcription

1 Necessity, Duress and Self-Defense Necessity Purely a common law defense (won t find it in the CCC) Exists purely in the form of old cases 8.(1) the provisions of this act apply throughout Canada except (2) ever rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defense to a charge continues in force and applies except in so far as they are altered by or are inconsistent with this Act or any other Act Avoiding a result of greater evil by committing a crime out of necessity Origins in the famous Dudley and Stephens case (UK, 1884, cabin boy brunch case) House of Lords was hesitant to recognize the defense, and sentenced the crew to death (but, they got a crown reprieve 6 months later). Perka case (1994 drug boat runs into trouble) The SCC recognized necessity as an excuse (not a justification), and said the situation must be of: o Clear and imminent peril o Where compliance with the law is demonstrably impossible o With a degree of proportionality between the evil avoided and the evil done Used modified objective test in asking, Was the situation so emergent that human instincts cried out for action and made patience unreasonable? Necessity examples Carson (2004, OCA, cops living together have fight); There were alternative available, he could have backed away and waited to see if she stopped banging her head; alternatively, he could have attempted to place something behind *her+ head to cushion the blows Latimer (2001, SCC, mercy killing) Found no AOR to the defense of necessity Applying the modified objective test to the 3 requirements for necessity from Perka, the SCC found that: o For the imminent peril requirement, the ongoing pain did not constitute an emergency Tracy s proposed surgery did not pose an imminent threat to her life, nor did her medical condition o For the no legal alternative requirement, the alternative of struggling onward was a reasonable legal alternative that the law requires a person to pursue o For the proportionality requirement the harm avoided was, compared to death. Completely disproportionate.

2 Nelson (BCCA, 2007, spiritual cleansing case) and Hendricks (Sask, CA, 1988, care and control case) create three new caveats to necessity defense: o If the peril is foreseeable, likely no necessity. o Can t go beyond what is required to escape the peril o Accused cannot, himself, create the peril Duress commit the crime because you, or someone you know is being threatened The event causing a loss of choice: is a threat (not a circumstance). Section 17. A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is treason, murder, piracy, attempted murder, sexual assault CCC Duress applied to (1) principle offender only, (2) under threat of immediate, serious harm, (3) from somebody present (4) where the threat is believed, (5) N/A where the accused is part of a criminal org, and (6) N/A from a list of crimes Ruzic (2001, SCC, Belgrade threats against mother) CHANGES THINGS! SCC said conditions 2 & 3 (immediate threat from somebody present) are unconstitutional (violation of s.7 to find guilt where accused may have, in fact, acted involuntarily as was the case here). Thus, the common law rule applies, except we don t yet know if those involved in a criminal organization or conspiracy or those committing the offences listed will be disqualified Common law rules - Duress Common law rules for Duress (from Hibbert) o Action must be the result of threats of death or SBH, subjective test There should be a close temporal connection the longer the delay, the less likely the action were a result of threats o Threat must be sufficiently serious that the accused believes they will be carried out, subjective test o Response to the threats must be reasonable. MODIFIED OBJECTIVE TEST (MOT) o There can be no reasonable safe escape from the threats MOT* Use modified objective test for #3 and #4 Were the threats of such gravity that a reasonable person, in the same circumstances as known to the accuse, would have acted in the same manner of the accused and believed there were no safe avenues for escape?

3 The modified objective test particularly comes into play in #4, were background and history can substantially affect the question of whether the accused reasonably knew of safe escape However, voluntary participation in a criminal organization would likely remove the ability to claim no safe escape (Li, OCA, 2002) Provocation, Necessity, Duress Summaries For all AOR required (evidently burden) then crown must disprove BRD (Fontaine) Provocation partial defense, only for a charge or murder, only reduces to manslaughter. Recognizes possibility of lost control in the face of an intensely insulting event (s.232 CCC) Recognizes a: o (1) wrongful act or insult o (2) sufficient to deprive an ordinary person of the power of self-control, which o (3) does deprive them to self-control N/A if victim is acting within their civil rights (Galgay), and must look at objective and subjective tests ( ought they to have lost control and did they lose control). Anger alone is insufficient (Parent), characteristics, background and ethnicity are relevant (Thibert, Nahar), the insult and response must both be sudden (Friesen) Necessity CL defense (from s.8) accused avoids a greater evil by committing a crime An excuse (not a justification), in a situation of o (1) Clear and imminent peril, o (2) Where compliance with the law is demonstrably impossible, and o (3) There is proportionality between the evil avoided and done (Perka, Latimer) Apply modified objective test to all three parts. Was the situation so emergent that human instincts cried out for action and made patience unreasonable? (Perka) Peril can t be created by the accused, can t be foreseeable, and the accused can t go beyond what is necessary to escape (Nelson, Hendricks). Duress involuntary crime done due to a threat from another against accused or another Since Ruzic s.17 not generally applicable*. From Hibbert, CL duress requires: o (1) Serious threat o (2) Reasonably believed o (3) With a reasonably appropriate response (4) and no reasonable escape. Use modified objective test for #3 and #4

4 Self-Defense S with use of force by PO s S deal with self defence by citizens 34. (1) Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by fore it the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. S.31(1) is essentially self-defence lite which has 4 important parts: o Accused must be unlawfully assaulted (N/A in a fistfight Paice, SCC); o Assault must have been unprovoked (even by insults/gestures); o In defending him/herself the accused cannot intend to inflict DOG (death or grievance bodily harm) (although DOG may unintentionally happen); o Proportionality is required in the response (Nelson, BCCA, slap response kills, objective test applied but mathematical precision not require)d. Self-Defense (HEAVY) 34.(2) everyone who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if o He causes it under reasonable apprehension of heath or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and o He believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm the differences: o DOG is caused in using the self-defense; o The accused can be the original aggressor (provocation does not disqualify using the defense, nor does being in a fistfight); o Proportionality not required as long as: Fog is caused under reasonable apprehension of DOG; and It is believed by accused on reasonable grounds that there is no other way to preserve themselves All 3 requirements: o (a) being unlawfully assaulted o (b) with apprehension of DOG and o (c) having no alternatives are subjective test: with an underlying, objective requirement of reasonableness

5 Case examples and additional points about s.34(2) You must escape if you can (Cinious SCC, 2002) BUT THERE IS NO requirement to escape if already in your home (Proulx, SCC, 1998); o In Cinous, the SCC found no evidentiary grounds in a subjective or objective belief in the absence of alternative to the killing The existence of an assault and apprehension of DOG depends on what is reasonably in the mind of the accused given then circumstances and history (Petel, 1994, daughters boyfriend from hell case) o Previous threats may help the jury to decide whether threats were made on the evening of the crime, they are also very relevant in determining what the accused believed, not only concerning the existence of the threats, but also concerning her apprehension of a risk of death or grievous bodily harm and her belief in the need to use deadly force There is a special case for Battered Wife Syndrome (Lavalle, SCC, 1990, also see Valliencourt); Courts apply BWS to reasonability parts of 34(2) o Expert evidence does not and cannot usurp the jury s function of deciding whether, in fact, the accused s perceptions and actions were reasonable. But fairness and the integrity of the trial process demand that the jury have the opportunity to hear that opinion Prison setting may be relevant in applying reasonability of any belief (McConnel, SCC, 1996), but outside prison, personal moral codes are irrelevant (Pilon, OCA, 2009).