R. v. Paquette (1977) SCC
P participated in a robbery during which a bystander was killed. P contended that he had no intention to participate in the robbery and was threatened with death “if he squealed” and only participated due to the threat. In England, duress is no defense to a charge of murder; however, the SCC did not follow this approach.
R. v. Hibbert (1995) SCC
Duress is assessed on a modified objective standard, which takes the frailties of the accused into account. Lamer CJ says that special circumstances are very relevant to whether conduct was reasonable under the circumstances and thus whether that conduct was excusable.
DEFENSE OF THE PERSON
Canada has a very confusing self-defense regime, the key elements of which are outlined in CC34. Self-defense is a justification defense.
R. v. Pintar (1996) Ont. CA
When charging a jury on self-defense, the judge should consider:
1. look at the evidence to determine what CC provisions might realistically be available to the claim
2. if there is no air of reality, the defense should not be left with the jury
FOUR TYPES OF DEFENSE OF PERSON
1. Self-defense against an unprovoked assault where there is no intent to kill or do grievous bodily harm. CC34.1
To raise this defense, one must establish that:
a. the facts amount to self-defense
b. the mode of defense used was justifiable in the circumstances.
R. v. Cadwallander (1966) (Sask. QB)
The 14 year-old appellant shot his father 5 times. Over a two-year period, his father made repeated threats of death. His grades slipped in school. The day the father was killed, the son heard him load a gun and say “I’m going to kill that God-damned little bastard.” The accused shot the father while he scaled the stairs to presumably kill the son. The appellant pleaded self-defense. At trial, the Crown agreed with this but claimed the son acted excessively and should be convicted of manslaughter, which he was. This court allowed the appellant’s appeal. His conduct was not excessive in the circumstances. The test is whether the accused used more force than he on reasonable grounds believed necessary (modified objective test). The appellant met this test. The current trend is to grapple with the precise terms of each CC section.
R. v. Baxter (1975)
Followed Cadwallander in dispensing with the rigid objective test for proportionality.
Definition of Self-defense
There is not clear-cut definition. Generally, to raise this defense the force used must not be disproportionate to the assault although the defender is not expected to measure the degree of force with nicety. Very flexible approach.
2. Self-defense against an assault where the defender intends to and does cause death or grievous bodily harm. CC34.2
R. v. Bogue (1976) Ont. CA
Appellant was found guilty of manslaughter for killing her boyfriend during a domestic violence dispute. She had been visibly beaten; however, the boyfriend’s body was found in a defensive position. The Court drew a distinction between CC34.1 and 34.2
CC34.1 deals with a situation where the accused repels an unprovoked assault, but does not intend the force that he uses the cause death or g.b.h. This cannot be a defense to murder because intent to cause death is needed for that offence BUT it could be a defense to manslaughter. A jury should acquit an accused under CC34.1 if they have a reasonable doubt that:
a. the accused was unlawfully assaulted
b. the accused did not provoke the assault
c. the force used by the accused was not intended to cause g.b.h.
d. the force used by the accused was no more than necessary to enable him to defend himself
PROPORTIONALITY IS REQUIRED
CC34.2 applies where the accused intentionally kills or intentionally causes g.b.h. to is assailant. This can apply where the accused provoked the assault or was the initial aggressor. The three elements of self-defense under this section are:
a. the existence of an unlawful assault
b. a reasonable apprehension of a risk of g.b.h.
c. a reasonable belief that one must harm their adversary to preserve oneself.
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