Partial Defences

Question 1

Partial Defences

Answer 1

Reduce the severity of the charge, but do NOT result in acquittals.
Murder reduced to manslaughter.
Robbery to theft or assault.
Provocation can only be raised in the context of a charge of murder.

Question 2

Origins of the Defence

Answer 2

Developed in relation to three foreseen situations:
1. “chance medley” (historically understood as the situation where two men suddenly engaged in a violent confrontation).
2. a man discovering his wife in an adulterous situation.
Did not apply to girlfriends- only those over whom he had a legal right.
1. a man discovering a man committing sodomy on/with his son.

Question 3

Elements of the Defense (legal test)

Answer 3

A wrongful act (indictable offence) that would have caused an ordinary person to be deprive of his/her self-control
Which is sudden and unexpected
Which in fact cause the accused to act in anger
Before having recovered his or her normal control

Question 4

Should Gender be a factor considered?

Answer 4

gender should only be considered in determining the context of the insult – not the level of self-control expected.

Question 5

Does the “ordinary person” include someone who may hold extreme cultural beliefs about women’s conduct and roles in society?

Answer 5

No. If such beliefs are present (which are often misrepresentations of cultural beliefs), they do not function to tolerate violent responses. In fact, they would lead to the conclusion that underlying beliefs were rational and not as a result of overwhelming loss of control.

Question 6

What is the test for “Heat of the moment”

Answer 6

Subjective test: not only would a reasonable person have been deprived of self-control, but also whether this particular accused was in fact deprived of self-control.

Question 7

“On the Sudden” cannot be initiated by accused because…

Answer 7

Cannot use defence: “accused cannot justify his actions in saying he was facing a situation characterized with suddenness, unexpectedness or lack of premonition.” (R. v. Tran 2010)

Question 8

What is the test for element one of provocation

Answer 8

Step one requires proof that the incident would deprive and “ordinary person” of self-control.
Appears to impose objective liability, however, case law has moved the test into subjective territory

Question 9

Is “Wrongful Act/Insult Caused Accused to Act in Anger” Subjective or objective?

Answer 9

Subjective component of the defence.
1. Would an ordinary person have lost the power of self-control?
2. Was the accused in fact provoked?
Consider all personality and background circumstances of the accused.

Question 10

Why was provocation not successful for R. v. Friesen in regards to Element #4: acting before recovering control

Answer 10

time to go to garage, connect nail gun to compressor, load gun, go back to victim and shoot while victim slept.

Question 11

When is Provocation not allowed according to S.232 (3)

Answer 11

Where the victim undertakes a legal activity, no provocation allowed.
Woman leaving her spouse – legal right, therefore not considered provocation.
Woman insulting/denigrating spouse- no legal right, therefore possibility of provocation (R. v. Galgay).

Question 12

Why did provocation not hold up in R. v. Louison?

Answer 12

Accused tried to argue that he was provoked when the cabbie hit him in the back upon release from the trunk of the car.
No- victim had a legal right to defend himself, so no possibility of provocation arising out the circumstances.

Question 13

When must the jury (trier of facts) consider the defense of provocation?

Answer 13

Where there is sufficient evidence as to give an “air of reality” to the defence, the jury (trier of fact) must consider the defence.
Evidentiary burden of proof, once met, establishes the possibility of the defence (ultimate decision in in jury’s hands).

Question 14

What type of evidence is needed for provocation?

Answer 14

R. v. Roberts: best evidence will be provided by other witnesses (observing yelling, knowing of nature of relationship or character of victim).

Question 15

What is the test for evidence being accepted for provocation?

Answer 15

evidence upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true.
Must have sufficient evidence to raise a reasonable doubt on both subj and obj elements of the defence.

Question 16

What Case changed the scope of the defence of intoxication?

Answer 16

Daviault 1994, Court ruled that intoxication may be complete defence where it induces a state “akin to automatism.”
Resulted in major public outcry from women’s groups around the world.
Result: Parliament enacted s. 33.1

Question 17

What does S.33.1 say about intoxication as a defence?

Answer 17

Where a person is charged with an offence related to an assault (or threat) to another person’s bodily integrity, self-induced intoxication is not a defence.

Question 18

What are the limitations of S.33.1?

Answer 18

The section only addresses offences of general, basic intent, so the partial defence of intoxication to crimes of specific intent remains.
Also, the section doesn’t apply where the offence does not involve interference with the bodily integrity of another.
Mischief, damage to property.
Defence is available only in the rarest of circumstances (Daviault).

Question 19

What was the result of R. v. Daley (2007)

Answer 19

Creates three levels of intoxication:
Mild intoxication: no defence.
Advanced intoxication: accused may be incapable of forming necessary mens rea of specific intent offences.
Extreme intoxication akin to automatism: negates voluntariness. Would result in an acquittal except in cases covered by s.33.1

Question 20

S.33.1 bars the partial defence of intoxication where:

Answer 20

1. Accused was intoxicated
2. Intoxication was self-induced
3. Offence is a general intent offence related to the interference with the bodily integrity of another.
   Intoxication can result from alcohol OR drugs.

Question 21

What are the elements of intoxication?

Answer 21

If advanced intoxication and a non-violent specific intent offence: intoxication can result in a conviction of a lesser, included, basic intent offence
If intoxication and offence involves violence, s.33.1 applies, no defence available.
If extreme intoxication and a basic intent offence, possible acquittal (no mens rea)

Question 22

Distinguishing Justifications & Excuses (necessity & Duress)

Answer 22

Necessity and duress are both considered excuses, rather than justifications for committing acts which are technically crimes.
Dickson (in Perka) suggests it is necessary to maintain a distinction between an excuse for committing an offence and a justification.
– An excuse implies that while the act was still wrong, it was understandable in the circumstances.
– A justification denies the “wrongfulness” of the act.

Question 23

Requirements for Defence of necessity

Answer 23

Clear & imminent peril (Morgentaler, Perka)
“At a minimum, the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make counsel of patience unreasonable.”
Ask, was there a reasonable legal alternative?
Must be some degree of proportionality between offence committed and situation averted.

Question 24

Limitations of Necessity

Answer 24

•Proportionality: cannot go beyond what is required in the case.
•Cannot be used where accused creates the emergent situation – no claim to involuntariness.
–If situation was foreseeable, then no necessity.
•Cannot be used in relation to “higher social value”
•Cannot be used to prevent someone from acting in a legally entitled way
•In general, cannot be used if there is a reasonable legal alternative.

Question 25

Distinguishing Necessity and Duress

Answer 25

Necessity usually refers to external circumstances (beyond the accused’s control), where the accused has no choice but to break the law to survive.
Duress deals with the situation where it is a person who is directing the accused to break the law or risk harm to him/herself or others.
Both situations limit the accused’s voluntariness.

Question 26

Origins of the Duress Defence

Answer 26

Originated in the context of contracts (a way to show one’s signature/consent was contrived/involuntary)

Question 27

Element’s of Duress

Answer 27

A threat of immediate death or bodily harm
That the accused believes will be carried out…
Uttered by a person who is present when the crime is committed.
Not available as a defence for members of a criminal organization or conspiracy, nor for any of the offences listed in s.17 of the Criminal Code

Question 28

Which case law influenced the Common law definition of duress

Answer 28

R. v. Ruzic
It is open to accused persons to rely first on the statutory defence, then if the statutory defence is too narrow, can also turn to the common law defence.

Question 29

Elements of Common law definition of duress

Answer 29

a threat of death of bodily harm;
reasonably believed would be carried out
where no safe avenue of escape
and temporal proximity between the threat and the harm.
Limitations per s.17 (offences & criminal organization exclusion)

Question 30

CL Duress: The Threat

Answer 30

The threat must be of death or serious bodily harm to the accused, or someone close to the accused.
The threat may be for harm done in the near future (not immediate per s. 17)
Must still be a “close temporal connection”
The accused must believe that the threat would be carried out.
Subjective test
A reasonable person, in the accused’s circumstances would have acted in the same manner as the accused did.
Modified objective test

Question 31

What is meant by no safe avenue of escape

Answer 31

Courts must consider whether there was a reasonable way for the accused to avoid breaking the law.
If there is a safe avenue of escape, the accused must pursue it, or is not able to use defence.

Question 32

Commonalities of self-defence & defence of property

Answer 32

Like necessity and duress, self defence is based on the rationale that people may be forced to react to situations in ways that contravene the Criminal Code.
It is assumed that these people were not acting entirely voluntarily.
However, in all three situations, where there is a safe alternative, the defendant must pursue that alternative to violating the criminal law.

Question 33

Three key elements to defence of person

Answer 33

A reasonable perception of force or a threat of force against a person (subjective perception of the accused, objectively verified);
A defensive purpose associated with the accused’s actions (accused’s subjective state of mind); and
The accused’s actions must be reasonable in the circumstances (objective assessment).

Question 34

Mens Rea components of Self defense

Answer 34

Self-defence considers BOTH subj. and obj mens rea:
The triggering threat has a combined subjective/objective element:
Will consider whether the accused’s perception of the threat was reasonable in the circumstances.
The considering of whether the accused was acting for a defensive purpose is purely subjective
The reasonableness of actions in the circumstances is based on an objective test.

Question 35

The reasonableness of defense actions in the circumstances is based on an objective test.

Answer 35

Did these perceptions have a reasonable basis?
Would a reasonable person have responded with a measure of force that is similar to that actually deployed by the accused person?

Question 36

Evidence dmitted into court in the context of domestic violence

Answer 36

evidence of how victims of abuse may perceive their “alternative courses of action” can be used to show the reasonableness of their decisions (Lavallee)
Reasonable belief in inflicting death/bodily harm to preserve oneself requires consideration of the full set of circumstances facing the accused.
Evidence can be used to establish:
◦why someone might remain in an abusive relationship,
◦the type and effect of violence in relationships and the accused’s ability to perceive danger and;
◦whether the accused believed there was a reasonable alternative legal course of action. (R. v. Mallot)

Question 37

Imminent peril, reasonable alternatives, and role in the incident

Answer 37

Extent to which the use of force was imminent is one factor to consider among many- it is NOT a determinative factor (Lavallee).
Whether there were other means available to accused is another factor to consider; again, NOT determinative. (Petel, 1994)
Cinous & Nolet for two cases where defence not successful because no air of reality regarding safe alternatives.
Whether the accused instigated the altercation is a factor to consider; NOT determinative.

Question 38

Trespasser

Answer 38

identify a person who violates the rights of others by entering or remaining on property without the authority to do so (Gunning, 2005).
Disinvited guests can become trespassers by rescinding the invitation and giving the trespasser sufficient time to leave.
Recall requirement of reasonableness in all the circumstances.

Question 39

Peaceable Possession

Answer 39

“Possession that is not challenged by others” (George, 2000)
Can act on behalf of another, with express permission to do so.
Thieves, protesters etc. cannot claim defence to exonerate them from liability in damaging/removing/ etc. another’s property.
Cannot retrieve stolen property (as not in possession) nor destroy/conceal property subject to dispute over owenrship.

Question 40

R. v. Gunning (2005)

Answer 40

Accused hosted a party to which the victim attended uninvited. Gunning asked victim to leave, victim refused and assaulted Gunning. Gunning picks up gun, in order to intimidate vic, gun accidentally discharges, killing victim.
Look to subjective intention of accused.
If accused acts for a defensive purposive in a manner deemed reasonable in the circumstances, defence is available and should be considered by trier of fact.

Question 41

4 requirements for successful defense of defense of property

Answer 41

A reasonable perception
of a specified type of threat to property
in ones peaceable perception