Class 8: Necessity and Duress Page 100%

Question 1

What is the three part test for necessity?

What standard is used?

Answer 1

1. Imminent danger (modified objective)
2. No legal alternative (modified objective)
3. Proportionate action (objective)

Question 2

Criminal law generally recognizes necessity as a what?

What about US law?

Answer 2

An excuse

A justification (which is mucho stupido)

Question 3

What is the three-part test to raise a defence of necessity?

What standards for each?

Answer 3

1) The accused must be facing clear and imminent danger or peril. Modified objective

2) There is no other clear legal alternative to what the accused did. Modified objective.

3) There has to be a proportionality balance between the harm inflicted and the harm avoided. Objective.

Question 4

Is the defence of necessity in the criminal code or is it a common law defence?

Answer 4

It is a common law defence.

The criminal code merely codifies all common law defences.

Question 5

Dudley and Stephens 1884: Queen’s Bench

Facts: They were lost at sea and ate a child in the boat to save their lives. They argued necessity as they had no other choice.

Issue: Is this necessity?

1) Apply three part test

2) What did the court say about law versus morality.

Answer 5

Holding:

1) The accused must be facing clear and imminent danger or peril.

2) There is no other clear legal alternative to what the accused did

3) There has to be a proportionality balance between the harm inflicted and the harm avoided.

• Court said it was murder but they did realistically have no other choice.
• Law and morality are not the same, and many things that may be immoral are not necessarily illegal.

Court held their actions were not worthy of a defence of necessity

Question 6

Can you raise a defence of necessity for murder?

Answer 6

Yes, even thought the TA’s said no.

Professor Mizel said this word-for-word: While the law is not perfectly settled to claim murder for necessity, it is next to impossible to claim this.

There is a very small chance for murder and necessity to be claimed.

Question 7

Petra v R 1984

Facts: Appellants were drug smugglars and were charged. They argued they did not plan to import their cargo of weed into Canada, but rather intended to go to Alaska. They had to stop for refuge in Canada as their boat was sinking and would die if they did not.

Issue: Outcome of case is irrelevant.

What is the difference between a justification and excuse? (Provide an example of both)

Answer 7

Holding

A justification: Challenges the wrongfulness of an action. Conduct that we choose not to treat as criminal is justifiable if our reason for treating it as non-criminal is predominately that it is conduct we applaud, or do not actively seek to discourage.

Self defence is a justification.

An excuse: an excuse concedes the wrongfulness of the action but asserts that the circumstances under which it was done are such that it ought not to be attributed to the actor.

Necessity is an excuse.

Question 8

What is the 5 part test for duress?

What standard is used for each?

Answer 8

Criteria that must be met for defence of duress to be successful:

1. There must be an explicit or implicit threat of present or future death or bodily harm — this threat can be directed at the accused or a third party;
2. The accused must reasonably believe that the threat will be carried out; evaluated on a modified objective standard of the reasonable person similarly situated
3. There must be no safe avenue of escape; evaluated on a modified objective standard;
4. There must be a close temporal connection between the threat and the harm threatened; (modified objective test). This requirement in no way precludes the availability of the defence for cases where the threat is of future harm.
5. There must be proportionality between the harm threatened and the harm inflicted by the accused; also evaluated on a modified objective standard .

Question 9

What does it mean when the court needs the act to be voluntary/involuntary in the context of necessity?

What is at the heart of the defence of necessity in regards to voluntariness?

If the court finds you acted voluntarily then what?

If the court finds you acted involuntary then what?

Whats the distinction between the two? How do they find out how you acted?

Answer 9

Different voluntariness needed versus automatism for example.

Voluntary in the context of necessity has to do with moral voluntariness.

In order to engage criminal liability, the actions constituting the actus reus of an offense must be voluntary. This voluntariness requirement simply refers to the need that the prohibited physical acts must have been under the conscious control of the actor. Without such control, there is, for the purposes of the criminal law, no act.

At the heart of the defence of necessity is the perceived injustice of punishing violations of the law in circumstances in which the person had no other viable reasonable choice available; the act was wrong, but it is excused because it was realistically unavoidable. Punishment of such acts can be seen as purposeless as well as unjust. The rationale is the recognition that it is inappropriate to punish actions which are normatively involuntary (are considered to be or ought to be considered involuntary) .

Voluntariness in this setting is there was no other reasonable choice, and thus it was involuntary. You need involuntary in this context to argue necessity.

If you are found to be voluntary, that means you had other reasonable options and cannot argue necessity.

Question 10

Does the defence of necessity need to be broadly interpreted or strictly controlled?

Answer 10

If the defence of necessity is to form a valid and consistent part of our criminal law, it must be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale.

Question 11

Does necessity excuse conduct or justify it?

Answer 11

Necessity goes to excuse conduct, not to justify it. Where it is found to apply it carries with it no implicit vindication of the deed to which it attaches. The question is never whether what the accused has done is wrongful. It is always by definition wrongful. The question is whether what he has done is voluntary.

Question 12

What is the first branch of the test for necessity explained?

Does the action have to be voluntary or involuntary?

What is the question you generally ask?

What fault standard will the court use for the first part of the test?

Answer 12

Firstly, “in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible”.

Therefore, actions are involuntary.

Did that person have any realistic choice of another option, could they have done something different

Modified objective

Question 13

What is the second branch for the test of necessity explained?

What is the question to ask?

What fault standard will the court use for the second part of the test?

Answer 13

Secondly, if there is a reasonable legal alternative to disobeying the law, then the decision to disobey it becomes a voluntary one.

Is there any other reasonable alternative?

The second part of this test will be a modified objective test. The question that will be asked what a reasonable person would have done in the circumstances, specifically whether a person with the degree of resistance to pressure that we expect of reasoanble peplein society, if that person would see an alternative course of action.

Question 14

What is the third branch for the test of necessity explained?

What fault standard is used?

Answer 14

Thirdly the harm inflicted must be less than that sought to be avoided. (Proportionality)

objective test.

Question 15

Generally, what happens if the necessary situation (where defence of necessity is be argued) is foreseeable to a reasonable person?

Answer 15

If the necessitous situation was clearly foreseeable to a reasonable observer, if the actor contemplated or ought to have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law, then what confronted the accused was in the relevant sense not an emergency.

His response in that sense was not involuntary but rather voluntary. Thus, a voluntary action does not rise to the defence of necessity.

Question 16

Who has the onus of proof for a crime in regards to the voluntariness of the act?

Answer 16

The crown must prove every element of the crime. The crown would need to prove the accused made a voluntary act.

Question 17

When talking about voluntariness of the defence of necessity, is there an evidentiary burden on the accused?

What about the air of reality?

Answer 17

Only evidentiary burden on the accused is to prove there is an air of reality, not voluntariness.

Question 18

Review: What is the “air of reality” test

Answer 18

“Air of reality”- sufficient evidence that, if believed, would allow a reasonable jury, properly charged and acting judicially, to conclude that the defence applied and acquit the accused

Question 19

R v Latimer 2001 SCC

Facts: Guy killed his daughter who had a significant mental disability. She would have lived otherwise but not a great life.

Issue: He argues necessity and that she was suffering

1) What is the three part test for necessity?
2) How has the third part of this test changed from Perka?

Answer 19

Holding:

Question 1
1) there must be an urgent situation of clear and imminent peril,
2) there must be no reasonable legal alternative to disobeying the law,
3) there must be proportionality between the harm inflicted and the harm avoided. The harm inflicted must not be disproportionate to the harm the accused sought to avoid. The harm avoided must be either comparable to, or clearly greater than, the harm inflicted.

Question 2:

Difference in part three of the test.

In Perka, the Court said this is the third part “Thirdly, the harm inflicted must be less than that sought to be avoided.”

In Latimer, the Court said “Thirdly, the harm avoided must be either comparable to, or clearly greater than, the harm inflicted”

Question 20

What happens if the judge deems there is no air of reality for necessity?

Answer 20

For the necessity defence, the trial judge must be satisfied that there is evidence sufficient to give an air of reality to each of the three requirements.

If the trial judge concludes that there is no air of reality to any one of the three requirements, the defence of necessity should not be left to the jury.

Question 21

Is duress found in criminal code or common law?

Is there any difference if it is found in both?

Answer 21

Both criminal law and common law

For the criminal code, you can only use duress for principles and not parties to the crime.

However, for common law, it applies to people who are also parties to the defence not merely principles.

Question 22

What is the five part test for duress?

What is the standard used for each part of the test?

Answer 22

Criteria that must be met for defence of duress to be successful:

1. There must be an explicit or implicit threat of present or future death or bodily harm. This threat can be directed at the accused or a third party;
   Evaluated on a modified objective standard
2. The accused must reasonably believe that the threat will be carried out. Evaluated on a modified objective standard of the reasonable person similarly situated
3. There must be no safe avenue of escape;
   Evaluated on a modified objective standard;
4. There must be a close temporal connection between the threat and the harm threatened. This requirement in no way precludes the availability of the defence for cases where the threat is of future harm.
   Evaluated on modified objective standard.
5. There must be proportionality between the harm threatened and the harm inflicted by the accused.
   Evaluated on a modified objective standard .

Question 23

For the defence of duress, do threats need to be implicit or explicit?

Does it need to be on you or can it be on a third party?

Does it need to be future harm or present harm?

Answer 23

Can be both implicit or explicit

Can be on you or on a third party.

Can be both present death/bodily harm or future death/bodily harm.

However, the future harm has to be of close temporal connection, cannot be a risk of bodily harm in 10 years.

Question 24

Would the destruction of your car be enough to argue duress?

Answer 24

No. Must be harm to a person

Question 25

R v Carter 1967 (Law has evolved since this case)

Facts: Accused was told he would die if he did not fix the plumbing. The threat was in another room however, and it was not directly to him.

Issue:

Using the old-law in regards to a third-party threat, can he argue duress?

What about using the modern standard?

Answer 25

Holding:

Old standard: Court held there was no present or future intent of bodily harm as the people who made the claim were not in the cell with him.

Modern standard: Third-party threat can be used.

Question 26

R v Paquette

Facts: He participated in a robbery by gunpoint. He was a party to the offence.

Issue:

Whats the test for duress?

Can he argue duress under the criminal code or common law?

Answer 26

Holding:

Duress 5 Part Test:
1) Threat
2) No safe avenue for escape
3) You believe the threat
4) Time connection
5) Proportionate

The court concluded that although s. 17 was not applicable as it only applied to principals (those who actually commit the offence), and not to parties to an offence; but because of the common law defence of duress was available to a person who was charged as a party to the offence, to which the restrictions in s. 17 did not apply.

Question 27

R v Hibbert

Facts: Attempted murder charge as he was forced to be a party under gunpoint.

Issue: Can he argue duress?

1) As he was a party, how would he argue duress?
2) To argue duress, do you need an involuntary action or voluntary action?
3) If there is a safe avenue for escape, can you claim duress?

Answer 27

Holding:

Common law for parties.

Same as necessity, need an involuntary action in the sense there is no alternative option. If there is an safe avenue for escape for example, there is no way to claim duress as it was a voluntary action

no cannot claim if safe avenue

Question 28

To determine whether or not there is a safe avenue of escape for a claim of duress, what fault standard is used?

Answer 28

A modified objective standard

Question 29

R v Ruzic 2001

Facts: Accused imported 2kg of drugs into Canada. She said she did do the crime but under duress.

Issue: Issue and holding irrelevant, this case discussed a few things

1) Is the defence of duress an excuse or justification
2) In order to claim duress, what does the crown have to prove first?
3) What is the general idea when a court says although they were morally blameworthy, they acted involuntary
4) Under duress, if you have an involuntary act then you are entitled to

Answer 29

Defence of duress is an excuse, like that of necessity. Not a justification

As such, duress operates to relieve a person of criminal liability only after he has been found to have committed the prohibited act with the relevant mens rea. Thus duress, like necessity, involves the concern that morally involuntary conduct not be subject to criminal liability.

The law excuses those who, although morally blameworthy, acted in a morally involuntary manner. The act remains wrong, but the author of the offence will not be punished because it was committed in circumstances in which there was realistically no choice. The principle of moral involuntariness is “a concession to human frailty” in the face of “agonizing choice”.

A defence that the act was involuntary entitles the accused to a complete and unqualified acquittal.

Question 30

How did the law change in regards to duress and third party threats?

Answer 30

Before; you can only use durress when the threat happened right there in their presence. They couldn’t claim duress if someone said “if you don’t do this ill kill your mom”

After: you can use duress when you have a threat to a third party and thus changed the law.

Question 31

R v Ryan SCC 2013

Facts: Accused was a victim of a violent marriage. She asked someone to kill her husband who was an undercover agent. She claimed durress

Issue:

1) What is the 5- part test for duress?

2) In answering this, there was no immediate concern. Apply this

3) Explain the difference again between an excuse and justification

4) Generally, what is needed to argue duress

Answer 31

Holding:

5 Part
1) Harm
2) No safe avenue for escape
3) you believe the harm
4) temporal connection
5) Proportional

Court said duress is only available when a person commits an offence while under compulsion (threats death etc) This was not the case and the defence of duress was not available.

Duress, like the defence of necessity, is an excuse. The act, usually committed against an innocent third party, remains wrong but the law excuses those who commit the act in a morally involuntary manner, where there was realistically no choice but to commit the act.

Self defence, in contrast, is a justification (challenges the wrongfulness of an action that technically constitutes a crime – the action is considered right) based on the principle that it is lawful in defined circumstances to resist force or a threat of force with force.

Duress is, and must remain, an applicable defence only in situations where the accused has been compelled to commit a specific offence under threats of death or bodily harm.

Question 32

What is the five part test for the defence of duress?

What standard is used?

Answer 32

Criteria that must be met for defence of duress to be successful:

1. There must be an explicit or implicit threat of present or future death or bodily harm. This threat can be directed at the accused or a third party;
2. The accused must reasonably believe that the threat will be carried out; evaluated on a modified objective standard of the reasonable person similarly situated
3. There must be no safe avenue of escape; evaluated on a modified objective standard;
4. There must be a close temporal connection between the threat and the harm threatened; (modified objective test). This requirement in no way precludes the availability of the defence for cases where the threat is of future harm.
5. There must be proportionality between the harm threatened and the harm inflicted by the accused; also evaluated on a modified objective standard .

Question 33

For the test of duress, how do you determine the proportionality requirement? (Two elements)

What fault standard is used for proportionality and duress?

What about the proportionality part of the necessity test?

Answer 33

To determine if the proportionality requirement is met, two elements must be considered:

1) The difference between the nature and magnitude of the harm threatened and the offence committed. Requires that the harm threatened was equal to or greater than the harm inflicted by the accused.

2) A general moral judgment regarding the accused’s behaviour in the circumstances. Requires a more in-depth analysis of the acts of the accused and a determination as to whether they accord with what society expects from a reasonable person similarly situated in that particular circumstance. It is at this stage that we examine if the accused demonstrated “normal” resistance to the threat.

For duress proportionality, it is a modified objective but for necessity, it is only objective.

Question 34

Once the defence of duress has been raised, assuming their is an air of reality to it, what happens?

Answer 34

The crown has the burden to prove BRD the accused did not act under duress.

Question 35

What are the two differences between common law duress and criminal code duress?

Answer 35

1. the statutory defence applies to principals, while the common law defence is available to parties to an offence.
2. The second is that the statutory version of the defence (s. 17) has a lengthy list of exclusions, whereas it is unclear in the Canadian common law of duress whether any offences are excluded.

For example, the CC says you cannot argue duress if you committed treason, murder sexual assault etc. Violent crimes are stricken.

This results in the rather incoherent situation that principals who commit one of the enumerated offences cannot rely on the defence of duress while parties to those same offences, however, can.