Justification and Excuse Flashcards
Justification
challenges the moral wrongfulness of an action that is technically criminal. society at large would extend moral approval in the circumstances in which it occurred. therefore there should not be punishment for the action.
Excuse
The action was still wrong, but given the circumstances there should be no punishment
Necessity
- accused must be faced with imminent danger or peril. Not including danger or peril the accused deliberately or negligently brought on himself.
- the accused must be faced with a lack of reasonable alternative and legal course of action.
- There must be proportionality between the harm the accused inflicted and the harm avoided.
Duress - Common Law
a. Must honestly apprehend harm to himself. must be reasonable
b. Proportionality between the gravity of the threatened harm and the offence the accused is being compelled to perform.
- not available for murder, but is for aiding and abetting murder.
- the less grave, or serious the threat the more an accused is expected to show normal resistance.
c. not available is there is a reasonable and safe avenue of escape.
- mix of subjective and objective, must be actually aware of the avenue of escape, reasonableness of avenue is assessed objectively, accounting for characteristics of the accused.
Duress - criminal code
r v Ruzic: requirement that the threat of immediate death or bodily harm and that threatened be present have been removed.
POFJ that should punish morally involuntary
charter can review defences where those who are blameless are punished
Self defence 34(2)
subjective - accused must actually have apprehension of death or grevious bodily harm.
Objective - That apprehension must be reasonable in all the circumstances including the experiences and situation of the accused. lack of imminent harm or assault is progress won’t be fatal to the consideration. court looks to the totality of the situation.
