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This week on Legally Speaking with Michael Mulligan:
Duress is a defence, sometimes referred to as an excuse, for the commission of a criminal offence.\\xa0
The rationale for the defence is the idea of moral involuntariness.\\xa0
These are the requirements for the defence:
Once the accused person demonstrates that there is an \\u201cair of reality\\u201d with respect to each element of the defence, the Crown would need to prove that the defence does not apply.\\xa0
In the case discussed, the accused, and his brother, were on the same unit in jail as a man known as Big Newf.\\xa0
Big Newf demanded that the accused smuggle drugs into the jail. If the accused didn\\u2019t do this Big Newf, who had a reputation for violence, would harm the accused, or his brother.\\xa0
Big Newf arranged for a surety to help the accused get bail and then the person acting as a surety had the accused swallow and insert drug packages into his rectum. The accused was then required to turn himself into the police to get readmitted to jail.\\xa0
The accused did not think he had any safe avenue of escape because Big Newf, and his associates, had access to his brother who was still in jail.\\xa0
The trial judge, and the Ontario Court of Appeal, both concluded that the Crown had not proven that the defence of duress did not apply.
Also on the show, the BC Court of Appeal upholds an 11-year jail sentence, for a man with no previous record, who plead guilty to trafficking in carfentanil.\\xa0
The man had been selling drugs online and shipping the drugs via Canada Post. Online advertising for the drugs included statements such as \\u201cone of the premium Fentanyl vendors in Western Canada.\\u201d, \\u201ccarfentanil \\u2026 [w]hen used responsibly \\u2026 is proven to be very safe\\u201d, and \\u201cwe have the best stealth period\\u201d.
Finally, on the show, a BC Court of Appeal decision increasing the wrongful dismissal award in favour of an articling student who was fired by her principal is discussed.\\xa0
The court described the lawyer\\u2019s conduct as \\u201chigh-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinarily standards of decent behaviour.\\u201d\\xa0
The fired student was awarded $118,934 in general damages, $25,000 in punitive damages, $50,000 in aggravated damages, and $10 for breaching an articling agreement.
Follow this link for a transcript of the show and links to the cases discussed.
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