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NOTES

The appellant could not have failed, even in his drunken state, to perceive that the woman was unconscious and incapable of giving her consent to copulation.  He didn’t suggest that he had her consent to the act.  If the woman was alive, he was raping her.

R. v. Kundeus [1976] 2 S.C.R. 272

FACTS

Kundeus was charged with trafficking in LSD when he sold mescaline to an undercover cop, not knowing that the capsules actually contained LSD and not mescaline.  The trial judge convicted of trafficking in LSD on account that the mens rea was there regarding trafficking mescaline.  The B.C. C.A. set aside the conviction.  Crown appealed to Supreme Court.

ISSUE

Had the necessary mens rea been proved despite the fact that Kundeus thought he was selling mescaline and not LSD?

HELD

Yes. Crown’s appeal allowed; trial judgment and sentence restored.

RATIO

An intention to commit a crime (trafficking mescaline), although not the precise crime charged, will provide the necessary mens rea because the accused cannot contend that he was acting lawfully or innocently.

NOTES

Laskin C.J.C. (Spence J. concurring) offered a lengthy dissent in that if there is any doubt that the accused was offering and intending to sell mescaline, that can’t be translated to a finding that the accused offered and intended to sell LSD.  At worst, it would require a new trial.

Duress

R. v. Ruzic (April 20, 2001) 2001 SCC 24

FACTS

Ruzic charged with importing 2kg of heroin.  A shady person in Belgrade threatened to harm her mother if she didn’t carry the heroin into Canada on a flight.  Ruzic invoked the common-law defence of duress and held that s. 17 of the Criminal Code, which denies her the defence of duress because she did not meet the immediacy and presence requirements, contravenes the Charter.  Ruzic was acquitted at trial and the Crown’s appeal was dismissed.

ISSUE

Does s. 17 violate the Charter in part?

HELD

Yes. Crown’s appeal dismissed.

RATIO

Section 17 is too strict because the immediacy and presence requirements preclude the threats of future harm and therefore violate the s. 7 of the Charter because it allows persons who acted involuntarily to be declared criminally liable.

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