INTRODUCTION AND BRIEF DESCRIPTION
This section of the Criminal Code of Canada states that being ordered by a superior or public authority or claiming exceptional circumstances does not provide a defence to a charge of terrorism.
SECTION WORDING
269.1(3) It is no defence to a charge under this section that the accused was ordered by a superior or a public authority to perform the act or omission that forms the subject-matter of the charge or that the act or omission is alleged to have been justified by exceptional circumstances, including a state of war, a threat of war, internal political instability or any other public emergency.
EXPLANATION
Section 269.1(3) of the Criminal Code of Canada is a provision relating to the offence of torture. This provision was added to the Criminal Code in 2000, in response to the United Nations' Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The provision states that it is not a defence to a charge of torture that the accused was ordered by a superior or a public authority to perform the act or omission that forms the subject matter of the charge. This means that even if someone is given orders to commit an act of torture by a person in authority, they cannot use this as a defence in court. The provision also states that it is not a defence to a charge of torture that the act or omission was justified by exceptional circumstances, including a state of war, a threat of war, internal political instability, or any other public emergency. This means that even if there is a war or other public emergency, and someone commits an act of torture in the name of protecting public safety, they cannot use this as a defence in court. This provision is important because it makes it clear that torture is never justified, even under exceptional circumstances. It also makes it clear that those who are ordered to commit acts of torture cannot avoid responsibility for their actions. This provision underscores the importance of respecting human rights, even in times of crisis.
COMMENTARY
Section 269.1(3) of the Canadian Criminal Code is a provision that states that it is not a defense to a charge under this section if the accused was ordered by a superior or public authority to perform the act or omission that is the subject matter of the charge. This provision also states that it is not a defense if the act or omission is alleged to have been justified by exceptional circumstances, including a state of war, a threat of war, internal political instability, or any other public emergency. The purpose of this section is to ensure that individuals comply with the law regardless of their position or the circumstances they find themselves in. It is designed to prevent individuals from using their status or the situation as an excuse for engaging in criminal behavior. This provision applies to all individuals regardless of their position, including military personnel, police officers, politicians, and public officials. While there may be situations where an individual is ordered by their superior to engage in criminal behavior, this section of the Criminal Code makes it clear that compliance with such an order is not a defense. This provision is in line with the principle that individuals are responsible for their own actions and cannot use the orders of others as a shield against criminal liability. The provision that exceptional circumstances, including a state of war, a threat of war, internal political instability, or any other public emergency, do not provide a defense to a charge under this section, is also important. While such circumstances may create a situation where individuals feel they need to engage in criminal behavior to protect themselves or their community, this section makes it clear that such behavior will still be considered criminal and subject to prosecution. This provision also serves as a check against the abuse of power by public officials or authorities during times of crisis. In situations where individuals hold a significant amount of power and influence, they may feel that they can engage in criminal behavior to protect the greater good. This section, however, ensures that such behavior will still be subject to prosecution and that public officials are not above the law. Overall, while there may be situations where individuals feel pressured to engage in criminal behavior due to their position or the circumstances they find themselves in, this section of the Criminal Code makes it clear that such behavior will still be subject to prosecution. It is designed to ensure that individuals are held responsible for their actions and that public officials are not above the law. By doing so, it upholds the principles of justice and accountability, which are essential for a fair and just society.
STRATEGY
Section 269.1(3) of the Criminal Code of Canada removes the defence of superior orders or public authority for acts or omissions that fall within the purview of this section. This section deals with torture, which is a serious offence that is often perpetrated by individuals in positions of power and authority. When dealing with this section of the Criminal Code, strategic considerations are essential to ensure that justice is served and that the accused receives a fair trial. Some of these strategic considerations are discussed below: Raising the Issue of Superior Orders or Justification While it is no defence to argue that the accused was acting under the orders of a superior or public authority, raising this issue may still be strategically advantageous. By raising this issue, the defence may be able to create doubt in the minds of the jurors as to whether the accused had acted willfully and with the requisite intent. Additionally, by arguing that the accused acted under duress or exceptional circumstances, the defence may be able to mitigate the severity of the punishment if the accused is found guilty. Challenging the Evidence In cases of alleged torture, one of the most crucial factors is the quality of the evidence against the accused. Evidence that is obtained through coercion or other illegal means may be challenged in court, and if found inadmissible, may result in the charges against the accused being dropped. Additionally, the defence may challenge other aspects of the evidence, such as the credibility and reliability of the witnesses, the validity of forensic evidence, and the legality of the methods used to obtain evidence. Negotiating a Plea Bargain In some instances, it may be strategically advantageous for the accused to negotiate a plea bargain with the prosecution. This may involve the accused pleading guilty to lesser charges or admitting to only a part of the offences alleged against them. By doing so, the accused may be able to mitigate the severity of the punishment or avoid a lengthy trial that could result in a more severe sentence if found guilty. Selecting Expert Witnesses In many cases involving allegations of torture, expert witnesses may be called upon to provide their expert opinion on various aspects of the case. The selection of such witnesses is critical as their testimony can be the deciding factor in the outcome of the case. Expert witnesses may be used by both the prosecution and the defence, and their credibility and qualifications will be closely scrutinized by the court. Conclusion Section 269.1(3) of the Criminal Code of Canada removes the defence of superior orders or public authority for acts or omissions that fall within the purview of this section. When dealing with this section of the Criminal Code, strategic considerations are essential to ensure that justice is served, and that the accused receives a fair trial. Some strategies that could be employed include raising the issue of superior orders or justification, challenging the evidence, negotiating a plea bargain, and selecting expert witnesses. Ultimately, the most crucial consideration when dealing with this section of the Criminal Code is ensuring that justice is served, and that all parties involved are treated fairly and equitably.