November 13 Notes and Briefs

November 13 Notes and Briefs - Two Types of Defences...

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November 13, 2008 Two Types of Defences: Justification: Self Defence You were justified in your actions, don’t want people to commit crimes, but you were justified in what you did. Excuse: Insanity What you did was wrong, but we will excuse you anyways, don’t condone their behaviour Principles of Justification 1. Structure and Underlying Theories of Justification Defences All justification defences have the same internal structure: Triggering conditions permit a necessary and proportional response Triggering Conditions: the circumstances that must exist before an actor will be eligible to act under a justification. The responsive conduct must satisfy two requirements: 1) it must be necessary to protect or further the interest at stake and 2) it must cause only a harm that is proportional or reasonable in relation to the harm threatened or the interest to be furthered. Necessity Requirement: demands that D act only when and to the extent necessary to protect or further the interest at stake. Proportionality Requirement: places limit on the maximum harm that may be used in protection or furtherance of an interest. It bars justification when the harm caused by the actor may be necessary to protect or further the interest at stake, but is too severe in relation to the value of interest. A. Searching for an Explanatory Theory Justified conduct is conduct that under ordinary circumstances is criminal, but which under the special circumstances encompassed by the justification defence is not wrongful and is even perhaps affirmatively desired. B. Public Benefit Theory Generally speaking, conduct was not justified unless it was performed in the public’s interest and in most case was limited to the action of the public officers. C. Moral Forfeiture Theory Is based on the view that people possess certain moral rights or interest that society recognizes through its criminal laws, eg. The right to life, but which may be forfeited by the holder of the right. The forfeiture of a right must be distinguished from its waiver. Some moral interests are not waivable, like someone can’t consent to their own death. The result of an actor’s voluntary decision to violate the right of another, society may determine that it will no longer recognize the wrongdoer’s interest in their life. D. Moral Rights Theory Conduct may be justified on the ground that the actor has a right to protect a particular moral interest. E. Superior Interest (or Lesser Harm) Theory Authorizes conduct when the interests of D outweigh those of the person she harms. The interests of the parties and the values they seek to enforce, are balanced.
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2. Self-Defence The limited right to use deadly force to protect yourself.
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This note was uploaded on 10/20/2009 for the course CRIM LAW 107 taught by Professor Swedlow during the Fall '08 term at McMaster University.

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November 13 Notes and Briefs - Two Types of Defences...

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