Assignment

Assignment Part 1

Research Memo (Legal Option)

TO: Abc

FROM: Xyz

DATE:

RE: CRIMINAL CHARGES & DEFENCE UNDER CRIMINAL CODE

STATEMENT OF FACTS

Tom was involved in a crime of smuggling the handguns from United States and selling them on Toronto streets. June Slow (Tom's buddy) was aware of the illegal activites of Tom but was afraid of telling to the police. She thought that she might be also sentenced guilty if she tell the police about the Tom's activities.

APPLICABLE STATUTES

If a person possesses an illegal weapon or uses an illegal weapon during the commission of a crime, he/she may face weapon charges. Common weapons charges also include Illegal firearm possession, armed robbery and selling illegal firearms.

In every criminal prosecution there are potentially three types of defences. First the Crown must prove the elements of elements of each criminal offence. Failure to prove any element will result in a verdict of 'not guilty'. For example, in any Assault prosecution (including Domestic Assault) the Crown must prove an intentional application of force. Failure to prove intent results in an acquittal. Second, the law provides for several types of positive defences, justifications and excuses. For example self defence is a complete defence to Murder and many other criminal offences. Finally, in cases where the government has violated the Canadian Charter of Rights and Freedoms a defendant can apply to have the evidence excluded.

Self-defence against unprovoked assault

34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

Extent of justification

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if

(a) he uses the force

(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and

(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;

(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and

(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.

The defence of “necessity” is a common law defence referred to ...