Criminal Law: Defenses Against External Threats

• This chapter outlines three defenses applicable when an accused faces external threats or pressures: self-defense, necessity, and duress.
• Unlike mistake of fact or intoxication, these defenses are not derived from the fault element of the particular offense.
• They can apply even though the accused committed the actus reus in a physically voluntary manner and had the mens rea required for the offense.

Examples of Defenses

• Intentionally killing another may have self-defense.
• Intentionally breaking into a house to save themselves from freezing to death may claim necessity.
• Intentionally assisting in a robbery due to death threats can claim duress.
• All defenses examined in this chapter operate as complete defenses resulting in the accused acquittal if a reasonable doubt exists about each requirement of the defense.
• Unlike mental disorder, automatism, or extreme intoxication, the accused does not have to prove self-defense, necessity, or duress on a balance of probabilities.

Common Requirement

• All three defenses require acting reasonably in response to external pressures.
• In self-defense, external pressures are from violence or threats of force from the victim.
• In duress, these pressures are threats of serious harm from third parties
• In necessity, the pressure comes from dire circumstances of peril.
• The Supreme Court notes these defenses arise when a person is subjected to danger, committing a potentially criminal act to avert harm.
• The common requirement of responding reasonably raises the issue of applying objective standards fairly.

R v Lavallee

• R v Lavallee, a landmark decision considered particular experiences and circumstances faced by the accused, influencing all defenses examined in this chapter.
• The Supreme Court accepted a modified objective standard, investing the reasonable person with relevant characteristics and experiences.
• This standard also applies to provocation by providing a partial defense that reduces murder to manslaughter.
• The Court's approach contrasts with the decision that a modified objective standard based on an individuated person is inappropriate for fault standards.
• This modified standard addresses the danger of holding accused to unreasonable restraint standards, risking blurred lines between subjective and objective considerations.

Codification

• Self-defense, defense of property, and duress (as applied to principal offenders) are codified.
• Necessity and duress (as applied to secondary parties) are common law defenses.
• Restrictive statutory or common law defenses may violate section 7 of the Charter if they punish morally involuntary actions.
• Defenses should not be subject to special deference under the Charter.
• The Supreme Court eliminated requirements in duress for immediate threat and the threatener's presence, deeming them to lead to convictions for those with no reasonable choice.

Section 17

• The Court has incorporated common law concepts into the remaining section 17 duress defense.
• An accused claiming section 17 must demonstrate a reasonable belief in a threat, temporal connection, no safe escape, and proportionality.
• This aligns the section 17 defense (principal offenders) and the common law defense (parties), though section 17 still includes a categorical list of offenses considered too serious.
• Parliament remains more inclined to impose restrictions on defenses than courts, which shape them case-by-case.

Conceptual Considerations: Excuses v. Justifications

• Criminal law defenses are either classified as excuses or justifications.
• An excuse acknowledges wrongfulness, but deems punishment inappropriate.
• The Supreme Court notes excuses are based on realistic assessment of human weakness and the inability to hold people to obedience where human instinct overwhelms.
• Necessity conceptualized as an excuse perceives injustice in punishing violations where no viable choice exists thus the act is excused not justified.
• Excuses absolve personal accountability by focusing on circumstances, not the wrongful act. In sum criminal attribution is assigned to the exigent circumstances not the accused.
• Section 17 of the Criminal Code excuses crimes under duress by threats, and the common law defenses of duress and necessity have been conceptualized as excuses.
• A justification challenges the wrongfulness, refraining because societal values are better promoted by disobeying an act.

Self-Defense

• Self-defense is not regarded as a concession to normal human weakness. Most would classify self-defense as a justification in that people have rights to defend themselves and their property.
• Self-defense places less emphasis on circumstances and human frailty, and more on action and justification.
• Whether a defense is an excuse or justification can affect availability.
• Excuses are limited by necessities for reasonable concession to human weaknesses.
• Justifications have wide-ranging impacts holding certain values important enough to justify disobeying laws. Necessity and duress excuse crimes against third parties while self-defense justifies force against an aggressor.

The Supreme Court

• The court has refused to apply duress where a battered woman hired a police officer to kill her husband, arguing self-defense would be more appropriate.
• Any other course of action other than inflicting the injury was 'demonstrably impossible' or that there was 'no other legal way out."
• Excuses are a constitutional baseline, with unfair punishment for crimes committed when reasonable people would also commit them offensive to the Charter.

Juristic View of Excuses & Justifications

• The classification of a defense as an excuse or justification does not affect accused disposition. Duress and necessity are commonly excuses, yet yield complete acquittals just as self-defense does.
• This distinction has become blurred in Canadian law.
• A proportionally related relationship between the harm inflicted and harm avoided is thought to be one of the defining features of a justification that makes a crime rightful.
• Canadian courts and legislatures have imposed proportionality requirements in necessity and duress defenses, even if they are excuses. Recent reforms to self-defense and defence of property have dropped this language of justification.
• A narrow majority of the Supreme Court recognized new self-defense provisions obscure the moral foundation of self-defence.
• They blur the line with justification as rightful conduct in contrast to understandable & reasonable conduct.
• Contextual consideration of the accused's role in the incident, regardless of categorization.
• Justice Moldaver argued self-defence still justified a narrower approach that examined accused's conduct.
• Majority reasoning on reference omission suggests some self-defence may contain an element of excuses.
• Self-defence could relate to real concession towards human weakness and sometimes be justified.
• A fault element is absent in such defences that are examined, like in the case of mistake and intoxication.
• These defences could still relate to mental fault determination.
• Evidence relating to those defences may be joined with other mitigating factors such as intoxication.
• This would possibly allow a jury to reasonable doubt as to their original position.
• An objective element which dictates for requirements, could lead a jury to reasonable doubt.
• Duress cannot render the required relatively high element of 'mens rea' of particular offences if satisfied.

Objective & Subjective Components

• As a means to qualify from self-defense, the accused must honestly perceive their response to pressures to be in alignment external pressures in order to qualify.
• "It is society's concern that reasonable and non-violent behaviour be encouraged that directs the law to endorse the objective standard".
• To qualify for those defences and their elements to be satisfied, accused have nevertheless committed high fault of violence.
• Objective standards challenge the assurance in accused and also the expectation to live up to this objective, as set within the law.
• These factors include characteristics.
• Supreme Court can use factors like age and sex for sentencing based on objective elements of case.
• The Court has warned on such an approach that such an "approach should not be taken to subevert the logic of the objective test” in this it has failed to accomplish the original intentions of standard to all.
• Objective factors should reflect the original circumstances. Evidence assessing self defense can be past factors and experience of battering.
• Modified objective determines the perspective of the particular circumstance in which their personal experiences of women are equal to the reason for self defense.
• Modifiable standards discuss with context in relations to what level a sense of control to expect can influence outcome.
• The fact would be taken into consideration of possible implications on an accused could see how this was the best.
• In any self defense claim context, assess his claim and military context.
• Court claims whether an accused "believed that he had acted reasonably under the circumstances, but rather whether the objectively reasonable person in the community would view it as being so".
• Court requires burden of proof and although intoxication, mental disorder and other states must be proven by accused (on prob basis), defences in the chapter must be disproven by the Crown.
• If they occur during self defence, or necessity or duress then the accused must acquit.
• Accused must be given the 'benefit of the doubt'.
• In order to acquit a matter needs to be raised so it can be justified.
• The judge does not have instruct a jury of a decision if an air of doubt and reality is not present.
• The supreme court says only if instruction from court is clear do they need to take that into consideration.
• Evidence has to support a defence that a crime has occurred.

Self Defence

• Self defense involves statutory provisions that were complex and technical.
• Provisions defined circumstance in which accused are able to act in self defence.
• 2012 Amendment that were implemented provided a singular encompassing decision that governs all.
• The provisions simplify and simplify at a cost to defendents.
• Self defense has demands of other types of pressures that requires balance between the harm.
• The provisions have instead acts and determination.
• Court has said that 2012 are generally generous with claims not requiring that self defence to have assault or by requiring that listed factors should be considered in every case.
• The provision state the structure because it is subjective to act and defending.
• Objective standards include hot headedness.

New Section 34

• New section now contains defence that states accused is not guilty on reas grounds.
• there must be all three elements of doubt, as stated above.
• The section states that self defence needs expansion such as theft, and dangerous driving.
• it expands and makes a portion.
• As under current law must apply serious crimes and muder.

Reasonableness of Factors in Defenses

• Reasonable is often defined as concession to challenges of rightfulness.
• Defence is not applied if what has applied is realistic has challenges of wrongful acts.
• Defences are defined to non guilty or justified, making cases proportionate and or non proporionate.
• New provisions apply this to include use and threats.
• Protection of others includes not only accused but persons involved as well as in the case of other persons. This in contrast to other family members and third parties.
• Samartians are able to defend, and also use good in subjective matters.
• The catalyst depends on reasonable the first requirements.
• As long as that in that objective beliefs, have an objectively reliable factor.
• All can have a reasonable belief that actions should not defeat the action.