Background
On November 25, 1991, Fitzroy Cohen was shot four times with a semi-automatic handgun in the lobby of the apartment building he lived in. The shots were fired by Mark Bailey, an acquaintance of Cohen's. Cohen had been aware that Bailey was seeking revenge for an incident in the previous year in which Bailey had been robbed by a rival drug dealer while Cohen and others stood by watching and laughing.
Bailey was led to Cohen's apartment by the accused, Lawrence Hibbert, who was a close friend of Cohen. On the night of the shooting, Hibbert accidentally ran into Bailey, and was threatened with a handgun to bring Bailey to Cohen's apartment. Hibbert was also ordered to call Cohen to meet him in the lobby of the apartment.
Hibbert made no effort to intervene, and claimed that he had no opportunity to run away or warn Cohen. He was later driven from the scene by Bailey. Cohen survived the shooting, but Bailey was never caught. Hibbert turned himself in the next day and was charged with attempted murder as party to the offence.
At trial, Hibbert was acquitted of attempted murder but convicted of aggravated assault. The Court of Appeal upheld the conviction.
The Supreme Court of Canada was asked to decide the applicability of the defence of duress in the context of aiding and abetting the commission of an offence under s. 21(1)(b) of the Criminal Code.
Opinion of the Court
Chief Justice Lamer, writing for the unanimous court, held that the trial judge's instructions to the jury were incorrect and ordered a new trial. In particular, the trial judge was incorrect in referring to the mental state as being a "common intention" to carry out an unlawful purpose. Second, the instruction that the mens rea for party liability under s. 21(1)(b) could be negated by duress was also incorrect. Finally, the trial judge failed to instruct the jurors that the common law defence of duress could excuse the accused even if the Crown successfully proved the elements of the offence.
In arriving at the decision, the court considered the relationship between duress and the mens rea for party liability under ss. 21(1)(b) and 21(2) of the Code.
Mens rea of party liability
The court interpreted the word "purpose" in s. 21(1)(b) as meaning "intent" and rejected the arguments that the accused must "desire" the outcome in order to be guilty of aiding and abetting the commission of a crime. The court noted that using the concept of "desire" would lead to absurd results and would not accord with Parliamentary intention.
Under s. 21(2), the words "intention in common" was interpreted to mean that the party and the principal offender must have the same unlawful purpose in mind, but does not mean that they must have the same motives and desires.
Duress
The court found that a person acting under threats of death or bodily harm can in some cases negate the mens rea component of an offence. Whether or not it does so will depend on the particular offence in question. The relevant question in each case will be whether the definition of the offence as written by Parliament is capable of supporting the inference that the presence of coercion can have a bearing on the existence of mens rea.
In any case, the defence of duress (both the common law defence and the more narrow statutory defence set out in s. 17 of the Criminal Code) will be available as an excuse if the accused acted under threat. This acts similarly to the defence of necessity.
However, an accused cannot rely on the common law defence of duress if he or she had an opportunity to escape from the circumstances causing duress.
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The M'Naghten rule is any variant of the 1840s jury instruction in a criminal case when there is a defense of insanity:
that every man is to be presumed to be sane, and ... that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.
Mens rea is the mental element of a person's intention to commit a crime; or knowledge that one's action or lack of action would cause a crime to be committed. It is a necessary element of many crimes.
In criminal law, the intoxication defense is a defense by which a defendant may claim diminished responsibility on the basis of substance intoxication. Where a crime requires a certain mental state to break the law, those under the influence of an intoxicating substance may be considered to have reduced liability for their actions. With regard to punishment, intoxication may be a mitigating factor that decreases a prison or jail sentence. Numerous factors affect the applicability of the defense.
In criminal law, criminal negligence is a surrogate mens rea required to constitute a conventional as opposed to strict liability offense. It is not, strictly speaking, a mens rea because it refers to an objective standard of behaviour expected of the defendant and does not refer to their mental state.
Attempted murder is a crime of attempt in various jurisdictions.
Culpable homicide is a categorisation of certain offences in various jurisdictions within the Commonwealth of Nations which involves the illegal killing of a person either with or without an intention to kill depending upon how a particular jurisdiction has defined the offence. Unusually for those legal systems which have originated or been influenced during rule by the United Kingdom, the name of the offence associates with Scots law rather than English law.
An accessory is a person who assists in the commission of a crime, but who does not actually participate in the commission of the crime as a joint principal. The distinction between an accessory and a principal is a question of fact and degree:
Automatism is a rarely used criminal defence. It is one of the mental condition defences that relate to the mental state of the defendant. Automatism can be seen variously as lack of voluntariness, lack of culpability (unconsciousness) or excuse (Schopp). Automatism means that the defendant was not aware of his or her actions when making the particular movements that constituted the illegal act. For example, Esther Griggs in 1858 threw her child out of a first floor window believing that the house was on fire, while having a sleep terror. In 2002, Peter Buck, lead guitarist of the band R.E.M., was cleared of several charges, including assault, which resulted from automatism brought on by a bad interaction between alcohol and sleeping pills. In a 2009 case in Aberporth in west Wales, Brian Thomas strangled his wife in their camper van, also during a sleep terror, when he mistook his wife for an intruder. The defence of automatism is denying that the person was acting in the sense that the criminal law demands. As such it is really a denial-of-proof – the defendant is asserting that the offence is not made out. The prosecution does not have to disprove the defence as is sometimes erroneously reported; the prosecution has to prove all the elements of the offence including the voluntary act requirement. Automatism is a defence even against strict liability crimes like dangerous driving, where no intent is necessary.
R v Daviault [1994] 3 S.C.R. 63, is a Supreme Court of Canada decision on the availability of the defence of intoxication for "general intent" criminal offences. The Leary rule which eliminated the defence was found unconstitutional in violation of both section 7 and 11(d) of the Canadian Charter of Rights and Freedoms. Instead, intoxication can only be used as a defence where it is so extreme that it is akin to automatism or insanity.
Absolute liability is a standard of legal liability found in tort and criminal law of various legal jurisdictions.
The criminal law of Canada is under the exclusive legislative jurisdiction of the Parliament of Canada. The power to enact criminal law is derived from section 91(27) of the Constitution Act, 1867. Most criminal laws have been codified in the Criminal Code, as well as the Controlled Drugs and Substances Act, Youth Criminal Justice Act and several other peripheral statutes.
Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another with the intention to cause either death or serious injury unlawfully. The element of intentionality was originally termed malice aforethought although it required neither malice nor premeditation.
R v Ruzic, [2001] 1 SCR 687 is a leading decision of the Supreme Court of Canada on the common law defence of duress and constitutionality of the defence under section 17 of the Criminal Code. The Court held that section 7 of the Canadian Charter of Rights and Freedoms requires that the defence of duress be available to an accused even when they were not under immediate threat of bodily harm at the time the offence was committed.
Dunlop v R, [1979] 2 S.C.R. 881 is the leading decision of the Supreme Court of Canada on participating in a criminal act by aiding and abetting. The Court held that the mere presence of the accused at the scene of a criminal act is not sufficient to convict the person for aiding and abetting a criminal act. There must be something more.
English criminal law concerns offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a wrong against the whole of a community, rather than just the private individuals affected. The state, in addition to certain international organisations, has responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes and common law, and why some forms of behaviour are considered criminal. The fundamentals of a crime are a guilty act and a guilty mental state. The traditional view is that moral culpability requires that a defendant should have recognised or intended that they were acting wrongly, although in modern regulation a large number of offences relating to road traffic, environmental damage, financial services and corporations, create strict liability that can be proven simply by the guilty act.
R v Steane 1947 KB 997 is a case decided by the English Court of Criminal Appeal on appeal from the Central Criminal Court examining the nature of intent in establishing criminal liability.
Fault, as a legal term, refers to legal blameworthiness and responsibility in each area of law. It refers to both the actus reus and the mental state of the defendant. The basic principle is that a defendant should be able to contemplate the harm that his actions may cause, and therefore should aim to avoid such actions. Different forms of liability employ different notions of fault, in some there is no need to prove fault, but the absence of it.
R v Ryan [2013] SCC 3 is a case concerning the availability of duress in the context of domestic violence.
