Duress

From Criminal Law Notebook
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General Principles

Duress, along with necessity, is an excuse-based defence.[1] All three defences arise from external threats.[2] duress can equally be referred to as compulsion, or coercion.[3]

Duress and necessity are "understood as based on the same ... principles". They are both based on "normative involuntariness".[4] They both differ from self-defence as the source of the danger is a third party and not the victim.[5]

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".[6]

Relationship Between Common Law and Section 17

The defence of duress exists both in statute under s. 17 of the Criminal Code and under the common law.[7]

The distinction between the two is that the statutory defence does not apply to parties, including whether they are aiders and abettors.[8] The common law, however, can still apply for parties to the offence.[9]

There is a further distinction of the statutory defence excluding certain types of defences while common law would apply to all types of offences.[10]

The tests for applying the defence should be "largely the same" as between the statutory and common law versions of the defence.[11]

  1. ↑ R v Hibbert, 1995 CanLII 110 (SCC), per Lamer CJ, at para 19
    R v Ryan, 2013 SCC 3 (CanLII), per LeBel and Cromwell JJ, at paras 13 to 33
  2. ↑ Ryan, ibid., at para 17
  3. ↑ R v Sheridan, 2010 CarswellOnt 11203(*no CanLII links)
  4. ↑ Hibbert, supra, at para 54 (“the similarities between the two defences are so great that consistency and logic require that they be understood as based on the same juristic principles”)
  5. ↑ Ryan, ibid., at para 18
  6. ↑ Ryan, ibid., at para 2
  7. ↑ R v Ruzic, 2001 SCC 24 (CanLII), per Lebel J
  8. ↑ R v Paquette, 1976 CanLII 24 (SCC), per Martland J
    R v Wilson, 2011 ONSC 3385 (CanLII), per Code J, at para 50
  9. ↑ Paquette, ibid.
    Wilson, ibid.
    Ryan, supra, at para 36
  10. ↑ Ryan, supra, at paras 83 to 84
  11. ↑ Ryan, supra, at para 81

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.
[annotation(s) added]

– CCC

Note up: 17

The requirements of s.17 to have “presence” and “immediacy” is unconstitutional for violating s.7.[1] 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.[2]

Despite the existence of the common law defence, all offences listed as defence exceptions in s.17 cannot be covered by common law.[3] Any included offences to offences to the exempted offences listed in s. 17 are also exempted from the statutory defence.[4]

The statutory defence requires: [5]

  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:[6]

  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 an 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.[7] Proportionality is limited by the number of deaths, where enough deaths cannot ever be justified.[8]

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.[9]

Listed Offences

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

  1. ↑ R v Ruzic, 2001 SCC 24 (CanLII), per LeBel J
  2. ↑ Ryan, supra, at para 36
  3. ↑ R v Mohamed, 2012 ONSC 1715 (CanLII), per Pattillo J, at para 20
  4. ↑ R v Li, 2002 CanLII 18077 (ONCA), per Finlayson JA -- kidnapping charge was also exempted as part of the abduction charge
  5. ↑ Ruzic, supra
    Ryan, supra, at para 43
  6. ↑ Ruzic, supra, at para 55
    Ryan, supra, at paras 44 to 46
  7. ↑ R v Sheridan, 2010 CarswellOnt 11203 (*no CanLII links)
    cf. R v Sandham, 2009 CanLII 58605 (ONSC), per Heeney J - concluding s. 17 does not apply to a principal to murder
  8. ↑ Sheridan, supra
  9. ↑ R v Allen, 2014 SKQB 402 (CanLII), per Kovach J

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.

– CCC

Note up: 18

Common Law

At common law, duress is an available defence to any offences short of murder.[1] 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.[2]

There are three elements to the defence.[3] 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 [4] or any “reasonable opportunity to render the threat ineffective.”[5]
  3. “there must be proportionality between the threat and the criminal act alleged”[6]

The elements have been set out as: [7]

  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 a modified objective standard; and
  6. the accused was not a 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.[8]

The threat need not be of immediate death or bodily harm. [9]

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.[10]

The standard used is "objective-subjective", which is the same for the defence of necessity.[11]

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”[12]

Burden

The accused must present "some evidence" on the necessary elements of the defence. Only then does the burden move to the Crown to prove beyond a reasonable doubt that the accused not acting under duress.[13]

  1. ↑ R v Sandham, 2009 CanLII 58605 (ONSC), per Heeney J, at para 7 - the common law has always excluded murder from duress defences
  2. ↑ R v TLC, 2004 ABPC 79 (CanLII), per Semenuk J
  3. ↑ R v Wilson, 2011 ONSC 3385 (CanLII), per Code J, at para 61
  4. ↑ R v Hibbert, 1995 CanLII 110 (SCC), [1995] 2 SCR 973, per Lamer CJ
    R v Keller, 1998 ABCA 357 (CanLII), per Sullivan JA
  5. ↑ Wilson, supra, at para 61
  6. ↑ Wilson, supra, at para 61
  7. ↑ R v Yumnu, 2010 ONCA 637 (CanLII), 260 CCC (3d) 421, per Watt JA, citing Hibbert, supra, at paras 51 to 62 (appealed to SCC)
    Ryan, supra, at para 55
  8. ↑ Wilson, supra, at para 63
  9. ↑ R v Ruzic, 2001 SCC 24 (CanLII), per LeBel J
  10. ↑ R v Li, 2002 CanLII 18077 (ONCA), per Finalyson JA
  11. ↑ Ruzic, supra, at para 71
  12. ↑ Ruzic, supra, at p. 35
  13. ↑ Ruzic, supra, at para 100 ("The accused must certainly raise the defence and introduce some evidence about it. Once this is done, the burden of proof shifts to the Crown under the general rule of criminal evidence. It must be shown, beyond a reasonable doubt, that the accused did not act under duress.")

Elements

Threat of Bodily Harm or Death

Other instances of this requirement have stated that there must be "serious" or "grievous" bodily harm. [1] However, the seriousness of harm is best dealt with in the proportionality element rather than this one.[2]

There is no requirement that there be gestures or words that reasonably communicate a threat to amount to an "implied threat" within the meaning of a duress defence.[3]

Where there is an ambiguous "implied threat", there is no requirement for the accused to take reasonable steps to determine whether the threat is real.[4]

Third Party Threats

Threats of harm to third parties may be available as a defence of duress.[5]

Threats by Criminal Organizations

The accused cannot rely on the threats against him by a criminal organization that voluntarily joined, knowing that he may be pressured to commit crimes.[6]

  1. ↑ e.g. R v Yumnu, 2010 ONCA 637 (CanLII), per Watt JA, appealed to SCC
  2. ↑ R v Ryan, 2013 SCC 3 (CanLII), per LeBel and Cromwell JJ, at para 55
  3. ↑ R v Mcrae, 2005 CanLII 26592 (ONCA), per Simmons JA
  4. ↑ Mcrae, ibid.
  5. ↑ R v Li, 2002 CanLII 18077 (ONCA), per Finalyson JA
  6. ↑ Li, ibid.

Reasonable Belief That the Threat will be Carried Out

The determination of whether there was "reasonable belief that the threats will be carried out" under the common law defence is to be assessed objectively.[1] Under the statutory s. 17 defence, the test is a subjective one.[2]

  1. ↑ R v Williams, 2002 BCCA 453 (CanLII), per Smith JA (3:0)
  2. ↑ Williams, ibid.

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.[1]

  1. ↑ R v Ryan, 2013 SCC 3 (CanLII), per LeBel and Cromwell JJ, at para 48

No Safe Avenue of Escape

This element is evaluated on a modified objective standard.[1]

  1. ↑ R v Ryan, 2013 SCC 3 (CanLII), per LeBel and Cromwell JJ, at paras 47, 65
    R v Hibbert, 1995 CanLII 110 (SCC), [1995] 2 SCR 973 (CanLII), per Lamer CJ, at paras 56 to 61

Proportionality

Proportionality concerns "whether the harm threatened" (or avoided) was "equal or greater than the harm caused".[1] 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.[2]

This is divided into two inquiries:[3]

  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.[4]

The jury should not be insturcted that the Crown must disprove lack of proportionality beyond a reasonable doubt.[5]

The judge may instruct a jury to consider whether the accused exhibited "reasonable fortitude" in resisting threats.[6]

  1. ↑ R v Ryan, 2013 SCC 3 (CanLII), per LeBel and Cromwell JJ, at para 70
    R v Williams, 2002 BCCA 453 (CanLII), per Smith JA (3:0)
  2. ↑ R v Perka, 1984 CanLII 23 (SCC), [1984] 2 SCR 232 (CanLII), per Dickson J, at pp. 252, 259
  3. ↑ Perka, ibid., at p. 252
    also Ryan, supra, at para 73
  4. ↑ Ryan, supra, at paras 72 to 73
  5. ↑ Williams, supra
  6. ↑ Williams, supra
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