W7- Necessity and Duress

Question 1

What is the difference between justification and excuse?

Answer 1

A justification challenges the wrongfulness of an action

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.

Question 2

If an act was done out of necessity, the law recognizes…

Answer 2

The reaction of the accused was out of their control, and therefore not done voluntarily.

Question 3

The defence of necessity operates because wrongful acts are excused when…

Answer 3

it is excused because it was realistically unavoidable

Question 4

Necessity is an…

Answer 4

excuse, not a jestification

Question 5

When will necessity apply?

Answer 5

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

Question 6

When will necessity not apply?

Answer 6

Wen there was a legal alternative to disobeying the law

Question 7

Betond whether or not there was a legal way out, what must also be proven for necessity?

Answer 7

The harm inflicted must be lesser than the harm avoided

Question 8

For necessity, the burden of proof falls to

Answer 8

the Crown always bears the burden of proving a voluntary act

Question 9

What burden of proof does the accused bear for necessity?

Answer 9

Only to show that there is an “air of reality” to the calim

Question 10

3 elements for defence of necessity, and what are their objective/subjective standards?

Answer 10

there must be an urgent situation of clear and imminent peril, - modified objective

2) there must be no reasonable legal alternative to disobeying the law, - modified objective

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. (Different from previous case – R. v. Perka which was decided 17 years earlier.) - objective

Question 11

Like necessity, duress operates out of proving

Answer 11

that the act was ultimately involuntary, and that the accused had no legal way out

Question 12

Whether or not a person had a safe avenue of escape is measured by a ___ standard

Answer 12

modified objective

Question 13

Like necessity, duress is an ___

Answer 13

excuse

Question 14

The law excuses those who…

Answer 14

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

Question 15

Duress is a defence only when…

Answer 15

only in situations where the accused has been compelled to commit a specific offence under threats of death or bodily harm.

Question 16

5 criteria for defence of duress

Answer 16

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 17

What is a main difference between the defence of duress and necessity?

Answer 17

Necessity requires the threat to be immediate, while duress can accept threats hat are in the future