Duress

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General Principles

Duress, along with necessity, is an excuse-based defence. All three defences arise from external threats. duress can equally be referred to as compulsion , or coercion.

Duress and necessity are "understood as based on the same ... principles". They are both based on "normative involuntariness". They both differ from self-defence as the source of the danger is a third party and not the victim.

The defence of duress is available "when a person commits an offence while under compulsion of a threat made for the purpose of compelling him or her to commit it".

The defence of duress exists both in statute under s. 17 of the criminal Code and under the common law.

The common law defence pre-dates the provisions of s. 17, however, by function of s. 8 of the Criminal Code, which preserves all common law defences, the broader common law defence is still considered.

The distinction between the two is that the statutory defence does not apply to parties, including whether they are aiders and abettors. The common law, however, can still apply for parties to the offence.

There is a further distinction of the statutory defence excluding certain types of defences while common law would apply to all types of offences.

The tests for applying the defence should be "largely the same" as between the statutory and common law versions of the defence.

Statutory Defence

Compulsion by threats
17. A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).
R.S., 1985, c. C-46, s. 17; R.S., 1985, c. 27 (1st Supp.), s. 40.

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The requirements of s.17 to have “presence” and “immediacy” is unconstitutional for violating s.7. Thus, that portion of the section has no force or effect. The listed excluded offences have been found to be unconstitutional and so must be read out of the language of s. 17. That includes robbery.

Despite the existence of the common law defence, all offences listed as defence exceptions in s.17 cannot be covered by common law. Any included offences to offences to the exempted offences listed in s. 17 are also exempted from the statutory defence.

The statutory defence requires:

1. there must be a threat of bodily harm directed against a 3rd party;
2. the accused must believe that the threat will be carried out;
3. the offence must not be listed as exempted in s. 17; and,
4. the accused cannot be a party to a conspiracy or criminal association such that the person is subject to compulsion.

In addition to the statutory elements, the applicant must also satisfy three additional common law requirements at the same time:

1. no safe avenue of escape
2. a close temporal connection
3. proportionality

Section 18 removes the common law presumption that a woman who commits an offence is doing so at the compulsion of her husband. (known as the doctrine of marital coercion)

In the context of murder, s 17 must be read down requiring that there be immediate threat of death while in the presence of the threatener. The principal must have no other avenue of escape and the act must be proportionate. Proportionality is limited by the number of deaths, where enough deaths cannot ever be justified.

The exclusion of "robbery" and "assault with a weapon" from the defence of duress violates s. 7 of the Charter and should be struck out of the legislation.

Listed Offences
The offences explicitly excluded from the statutory defence of duress under s. 17 are:

• high treason or treason (47),
• murder (239),
• piracy (74,75),
• attempted murder,
• sexual assault (271),
• sexual assault with a weapon (272),
• threats to a third party or causing bodily harm,
• aggravated sexual assault (273),
• forcible abduction,
• hostage taking (279.1),
• robbery (343, 344),
• assault with a weapon or causing bodily harm (267),
• aggravated assault (268),
• unlawfully causing bodily harm (269),
• arson (433) or
• offences under sections 280 to 283 (abduction and detention of young persons).

Compulsion of Spouse

Compulsion of spouse
18 No presumption arises that a married person who commits an offence does so under compulsion by reason only that the offence is committed in the presence of the spouse of that married person.
R.S., c. C-34, s. 18; 1980-81-82-83, c. 125, s. 4.

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Common Law

At common law, duress is an available defence to any offences short of murder. It must be shown that the accused's will was overborne by threats of death or serious personal injury such that accused is not acting voluntarily.

There are three elements to the defence. It must be established that:

1. the accused must be subject to a “threat of death or serious physical injury”
2. on an objective standard, no safe avenue of escape existed or any “reasonable opportunity to render the threat ineffective.”
3. “there must be proportionality between the threat and the criminal act alleged”

The elements have been set out as:

1. a threat of death or bodily harm to the accused by a third person;
2. the accused reasonably believed that the threat could be carried out;
3. the accused had no safe avenue of escape;
4. close temporal connection between the threats and the harm threatened
5. proportionality between the harm threatened and the harm inflicted on an modified objective standard; and
6. the accused was not party to a conspiracy or association where the accused knew that threats or coercion were a possible result to the activity.

As with all affirmative defences, if the defence is raised, the Crown has the burden of proving beyond a reasonable doubt that at least one of the elements is not available.

The threat need not be of immediate death or bodily harm.

The defence will not be available through the common law where the accused puts themselves in a position where they are likely to receive threats.

The standard used is "objective-subjective", which is the same for the defence of necessity.

The test under the common law is “arguably more stringent than s. 17” as the provision “is entirely subjective and does not require that the accused's belief be reasonable”

Elements

Threat of Bodily Harm or Death

Other instances of this requirement have stated that there must be "serious" or "grevious" bodily harm. However, the seriousness of harm is best dealt with in the proportionality element rather than this one.

Close Temporal Connection

This requirement is tied to the element of "no safe avenue of escape" since an absence of temporal connection necessarily gives rise to the possibility of a safe avenue of escape.

No Safe Avenue of Escape

This element is evaluated on a modified objective standard.

Proportionality

Proportionality concerns "whether the harm threatened [was] equal or greater than the harm caused". This requirement is integral to the principle of moral voluntariness since the greater the gap between harm threatened and the harm imposed leads to the likelihood that the harm imposed was voluntary.

This is divided into two inquiries:

1. the harm threatened must be equal or greater than the harm inflicted by the accused
2. the accused's actions must "accord with what society expects from a reasonable person similarly situated in that particular circumstance." This involves considering what is "normal" resistance to a threat.

These elements are considered on a modified objective standard.