Excuse concedes the wrongfulness of the action but asserts that the circumstances under which it was done are such that it ought not be attributed to the actor. For example, the perpetrator who acts under a disease of the mind and is incapable of understanding the nature and consequences of is acts, or the person who labours under a mistake of fact, etc. are actors of whose criminal actions we disapprove of but whom, in appropriate circumstances, our law will not punish. There is no vindication for an excuse.
R. v. Dudley and Stephens (1884) Eng. QB
A ship sank and two sailors and a cabin boy survived and stayed in a lifeboat for quite some time without food or water. The two sailors killed the cabin boy, ate him and were later saved. They argued that their wrongful act was done out of necessity. The Court stated that “man has no right to declare temptation as an excuse.” D and S were sentenced to death but only ended up serving six months.
Perka v. R. (1984) SCC
Drug smugglers facing dangerous waters and a damaged and malfunctioning boat off Canada’s coast. They were enroute to a dropping point in Alaska with tons of cannabis. They sought refuge on Canada’s coastline to make repairs and proceed. The boat hit ground and the captain ordered the cargo to be offloaded. They were caught and charged by police with importing cannabis into Canada for the purpose of trafficking. Dickson classifies the defense of necessity as an excuse but outlined three restrictive conditions:
1. There must be imminent peril or danger. At a minimum, peril must be so present that normal human instincts cry out for action and make counsel of patience unreasonable
2. The act must be inevitable, unavoidable and provide no reasonable opportunity for an alternative course of action that does not involve a breach of law (i.e. there can’t be a legal way out the situation). Perka states that if there is an alternative to disobeying the law then the involuntary act becomes a voluntary one and one may not be able to rely on this defense.
3. There must be proportionality. The harm inflicted must be less than the harm sought to be avoided. A less rigid requirement would mean that the accused could do something worse than the harm sought to be avoided.
This defense obviously applies to illegal conduct. It is measured by an objective standard – was the necessitous situation clearly foreseeable to a reasonable observer? If so, the defense does not apply. Accused need only satisfy the evidential burden, which puts the defense of necessity in issue.
R. v. Latimer (2001) SCC
L murdered his disabled daughter by stuffing her into the family car while it was on and shutting the garage door, thus killing her with the exhaust fumes. The trial judge refused to allow the defense of necessity (no air of reality), affirming that the three elements from Perka must be in place. The first two must be assessed using a modified objective standard. The third must be evaluated objectively – looks a society’s values to determine what represents a transgression.
DURESS
Duress is a statutory defense and only applies to principal offenders. This defense serves as an excuse to criminal conduct, not a justification. To qualify for the common law defense of duress (or provocation, necessity or self-defense), the accused must subjectively and honestly perceive the need to respond reasonably to the threats.
Under CC17, compulsion by threats of immediate death or grievous bodily harm is excused if:
a. if the party believed that the threat would be carried out (subjective)
b. if the person under duress cannot be part of the act.
R. v. Carker No.2 (1967) SCC
The accused raised the defense of duress to a charge of willfully damaging the plumbing in his prison cell. He sought to introduce evidence to show that he had committed this offence under the compulsion of threats and was therefore entitled to be excused for committing it by virtue of CC17. The accused was compelled to do the act under the compulsion of threats of death and grievous bodily harm BUT they were not immediate or continuous threats because the threateners were locked in different cells than the accused.
R. v. Hebert (1989) SCC
This case followed Carker. A witness did not face the threat of immediate death or bodily harm when giving testimony in court because he could have sought protection against anonymous phone threats.
R. v. Ruzic (2001) SCC
A woman smuggled 2 kilograms of heroine into Canada because a man had threatened to kill her mother back home if she didn’t. LeBel J. referred to Carker as too narrow because it precludes the use of the defense of duress only because the immediacy requirement is not met, which precludes the use of this defense for threats of future harm. Targets of the harm may be third parties; however, meeting the immediacy threshold can difficult to meet in these situations. A narrow interpretation of CC17 breaches s.7 because it allows individuals who acted involuntarily to be declared criminally liable. The immediacy and presence requirements violate s.7 and are not saved under s.1.
The common law defense of duress is far less restrictive than the statutory defense of duress found in CC17 because the former is available to third parties and is available to all crimes. The test for the common law defense of duress is the modified objective standard. Canadian courts have imposed a no safe avenue of escape (assessed objectively) limitation for the common law defense of duress. If a safe avenue of escape exists, the actions cannot be considered involuntary. In other words, this defense cannot be used if the accused had an opportunity to extricate himself from the situation of duress through legal means. The rationale for this rule is that in such circumstances the condition of normative involuntariness for the defenses of necessity and duress is absent. The common law defense of duress applies:
a. threats to third parties are covered.
b. If there was no safe avenue of escape available.
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