What Are The Potential Defences For Importing?

What Are The Potential Defences For Importing?

• Factual Innocence: Failure of the Crown to prove every essential element of the specific offence beyond a reasonable doubt.
• Duress: Under section 17 of the Criminal Code, the defence of duress exists where one commits an offence under compulsion of threats of immediate death or bodily harm from a person who is present when the offence is committed. The accused must have believed that the threats would be carried out and cannot be a party to a conspiracy or association whereby a person is subject to compulsion. This defence cannot be invoked with assault-related offences (including sexual assault), bodily harm offences, murder, arson, kidnapping, etc.
• Necessity: The defence of necessity may be invoked in emergency-type situations. In R v Latimer, 2001 SCC 1, the Supreme Court of Canada set out the three factors that must be present for the defence of necessity to succeed in a case:
  • The accused must be in an situation of imminent peril or danger;
  • The accused must have had no reasonable legal alternative to breaking the law; and
  • The harm inflicted by the accused must be proportional to the harm avoided by the accused.
• Entrapment: Entrapment occurs where a person who has otherwise not committed a crime is induced by police or given an opportunity by police to commit a criminal act. The defence of entrapment is available where police give someone who they have no reason to suspect is involved with criminal activity an opportunity to commit an offence, or they may induce a person, who they have reasonable suspicion to believe is involved in crime, to commit an offence through lies, tricks, and persuasion.
• Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:
  • the right against unreasonable search and seizure;
  • the right to not be arbitrarily detained;
  • the right to be informed promptly of the reasons for arrest;
  • the right to retain and instruct counsel without delay; and
  • the right to be tried within a reasonable time.
    • A successful Charter challenge may also result in a stay of proceedings, or evidence from your case being excluded.