JUST 1020 Lecture Notes - Lecture 11: Ant-Zen, Affidavit, Unlawful Assembly
Defences
Necessity and Duress
Considered "excuses" rather than "justification"
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R vs. Perka (1984)
34 tonnes of cannabis
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No intention to come to Canada
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Bad weather and mechanical problems
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Importing -acquitted
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Perka
Appealed -BC court of Appeal ordered a new trial-not necessity
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Supreme court-upheld
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Justice Dickson-one of the most important factors for valid claim of
Necessity
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"whether the accused had any reasonable alternative to breaking the
law"
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Differentiate Justification and excuse
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Justification -"challenges the wrongfulness of an action which
technically constitutes a crime"
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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
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Elements
Imminent peril or danger (modified obj test)
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The accused must have had no reasonable legal alternative to the course of
action he or she undertook (modified obj test)
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The harm inflicted by the accused must be proportional to the harm avoided by
the accused (objective test)
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Duress
Exists in both criminal law and common law
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Section 17
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Strict restrictions:
Immediate death or bodily harm
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Threat must be uttered by person who is present when the accused
person commits the crime
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Cannot be raised if accused part of a criminal gang
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Cannot be raised in relation to 22 serious crimes (Ex. murder)
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What about the future threats and if the person utteringthe threats not
there
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Ruzic (2001)
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SC ruled these 2 requirements infringed under section 7 of the charter
Marijuana Ruzic 21 years:
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Belgrade
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Heroin
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Threats to mom
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Court didn’t strike down section 17 but supplemented common law
defence of duress.
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Keller (1998)
Trafficking in LSD
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Claimed he was threatened by drug dealers
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Question for Alberta Court of Appeal
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Determine whether there was a "safe avenue of escape" -call police
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Criminal Offences
Unlawful Assembly
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Obstruct Police
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Obstruct Justice
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Perjury
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Public Mischief
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Unlawful Assembly -Sec. 63
63. (1) An unlawful assembly is an assembly of three or more persons who, with
intent to carry out any common purpose, assemble in such a manner or so conduct
themselves when they are assembled as to cause persons in the neighbourhood of the
assembly to fear, on reasonable grounds, that they
will disturb the peace tumultuously; or(a)
will by that assembly needlessly and without reasonable cause provoke other persons
to disturb the peace tumultuously
(b)
Summary conviction offence
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Riot -Sec. 64
S.64
A riot is an unlawful assemble that has begun to disturb the peace tumultuously.
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Proof that there was actual or threatened force and violence, in addition to public
disorder, confusion and uproar.
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Proof of guilty intent.
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Punishment of Rioter
Every one who takes part in a riot is guilty of an indictable offence and liable to
imprisonment for a term not exceeding two years.
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Obstruct Police -Sec. 129
S.129
Every one who
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resists or wilfully obstructs a public officer or peace officer in the execution of his
duty or any person lawfully acting in aid of such an officer,
(a)
omits, without reasonable excuse, to assist a public officer or peace officer in the
execution of his duty in arresting a person or in preserving the peace, after having
reasonable notice that he is required to do so, or
(b)
resists or wilfully obstructs any person in the lawful execution of a process against
lands or goods or in making a lawful distress or seizure,
(c)
It is no defence to a charge under paragraph b that the person whom the officer
sought to arrest was the accused’s son.
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The assistance contemplated by paragraph b may be either verbal or physical.
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Obstruct Police -Penalties
an indictable offence and is liable to imprisonment for a term not exceeding two
years, or
a)
an offence punishable on summary conviction.b)
Obstruct Justice
139. (1) Every one who wilfully attempts in any manner to obstruct, pervert or
defeat the course of justice in a judicial proceeding,
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by indemnifying or agreeing to indemnify a surety, in any way and either in whole or
in part, or
(a)
where he is a surety, by accepting or agreeing to accept a fee or any form of
indemnity whether in whole or in part from or in respect of a person who is released
or is to be released from custody,
(b)
is guilty of
an indictable offence and is liable to imprisonment for a term not exceeding two
years, or summary conviction
(c)
(2) Every one who wilfully attempts in any manner other than a manner described in
subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an
indictable offence and liable to imprisonment for a term not exceeding ten years.
(3) Without restricting the generality of subsection (2), every one shall be deemed
wilfully to attempt to obstruct, pervert or defeat the course of justice who in a
judicial proceeding, existing or proposed,
dissuades or attempts to dissuade a person by threats, bribes or other corrupt means
from giving evidence;
(a)
influences or attempts to influence by threats, bribes or other corrupt means a
person in his conduct as a juror; or
(b)
accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt
consideration to abstain from giving evidence, or to do or to refrain from doing
anything as a juror.
(c)
Perjury –sec 131
131. (1) Subject to subsection (3), every one commits perjury who, with intent to
mislead, makes before a person who is authorized by law to permit it to be made
before him a false statement under oath or solemn affirmation, by affidavit, solemn
declaration or deposition or orally, knowing that the statement is false.
132. Every one who commits perjury is guilty of an indictable offence and liable to
imprisonment for a term not exceeding fourteen years.
133. No person shall be convicted of an offence under section 132 on the evidence of
only one witness unless the evidence of that witness is corroborated in a material
particular by evidence that implicates the accused.
Elements to Prove
Statement made must be false.
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Accused knew that it was false.
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Intend to mislead.
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Under oath or solemn affirmation, orally by affidavit or solemn declaration.
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The person before whom the statement is sworn, affirmed or declared must be
authorized to receive such statements, and includes persons such as a judge at trial,
a commissioner for the taking of oaths and a notary public.
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Public Mischief 140(l)
140. (1) Every one commits public mischief who, with intent to mislead, causes a
peace officer to enter on or continue an investigation by
making a false statement that accuses some other person of having committed an
offence;
(a)
doing anything intended to cause some other person to be suspected of having
committed an offence that the other person has not committed, or to divert
suspicion from himself;
(b)
reporting that an offence has been committed when it has not been committed; or(c)
reporting or in any other way making it known or causing it to be made known that
he or some other person has died when he or that other person has not died.
(d)
Public Mischief -Penalties
(2) Every one who commits public mischief
is guilty of an indictable offence and liable to imprisonment for a term not exceeding
five years; or
(a)
is guilty of an offence punishable on summary conviction.(b)
W8 Ch11 Legal Excuse
Friday,(March(9,(2018
8:09(AM
