The defence of illegality is grounded on the principle that a plaintiff should not be permitted to recover damages that arise from his or her own illegal or immoral conduct. This article considers the historical development of the illegality defence and its modern-day application across three jurisdictions: Canada, the United States, and England and Wales. The application of the illegality defence in the context of facilitator liability is considered in order to highlight the similarities and inconsistencies across these jurisdictions. Despite having similar motivations for invoking the defence, courts in the US generally employ a more rigid approach to the defence of illegality, focusing almost exclusively on whether a wrongdoer will benefit from his or her wrongful conduct if the defence is not successfully invoked. By contrast, courts in Canada, and England and Wales are more flexible in their approach, which ultimately seeks to preserve the integrity of the justice system and often takes into account the impact that a successful application of the illegality defence will have on the ‘true victim’ of the wrongdoing.
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