8. Duress

Summary of Duress #

General Points #

The defence of duress excuses a person (resulting in an acquittal) for a criminal act they commit when threatened or compelled by another person.

Duress may apply:

i. as a defence available under s 17 of the Code to a principal offender who commits the offence;

ii. as a defence available at common law to a party to an offence; or

iii. as a factor which, in some cases, may be relevant to whether the accused had the requisite fault for an offence.[^1]

Burdens: #

To rely on either the statutory or common law defence of duress, the accused bears an evidentiary burden to establish an air of reality with respect to each element of the defence; the Crown then has the persuasive burden to prove BARD that one or more elements of the defence do not apply.

The defence of duress under s 17: #

Section 17 excuses an accused (acquittal) where she commits an offence by compulsion of threats of death or bodily harm and believes that the threats will be carried out. (The belief is to be assessed on an exclusively subjective basis.) (Mena, Ruzik)

Section 17 also requires that the threat be immediate and that the person making the threat be present at the time of the offence. In Ruzik, the SCC found that these two requirements violate section 7 of the Charter; the violation cannot be justified under section 1; and as a result, these requirements were struck down, but not the rest of the section.

(The requirements of immediacy and presence violate s 7 because they allow for a conviction in cases involving “morally involuntary” acts, which the Court in Ruzik held is contrary to ‘fundamental justice’. The violation could not be justified under s 1, given the common law defence as a less impairing measure.)

Section 17 does not require that at the time of the offence, the accused had no safe avenue of escape or that the offence committed be proportionate to the threat at issue.

The only remaining restrictions on the defence of duress in section 17 are that the accused may not rely on the defence if:

i. she is involved in a “conspiracy or [criminal] association” with the person making threat; and

ii. the offence at issue is any one of several offences listed in the section, including murder, robbery, sexual assault, and aggravated assault.

Given the Charter analysis in Ruzik, these remaining limitations on the defence are likely also to be found contrary to s 7 and not a reasonable limitation on that right under s 1 (given the availability of the common law defence).

If section 17 were struck down in its entirety, a principal offender could rely on the defence of duress at common law. (Ruzik)

The defence of duress at common law: #

An accused may rely on the defence of duress where:

i. she was compelled to commit the offence by a threat of death or bodily harm to herself or another person;

ii. there was no safe avenue of escape; and

iii. the offence committed was proportionate to the threat faced. (Ruzik)

Threats need not be immediate or made by a person present. (Ruzik)

The accused’s belief that he or she faced a threat of death or bodily harm must be reasonable on a modified objective standard (reasonable person, similarly situated but who shares the ‘characteristics and frailties’ of the accused). (Ruzik)

“The accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat.” (Ruzik)

Whether the accused had no safe avenue of escape is assessed on the modified objective standard described above. (Hibbert)

The proportionality between the threat and the criminal act to be excused is also measured on the modified objective standard noted above. (Ruzik) (By contrast, in relation to the defence of necessity, the Court in Latimer held that proportionality is to be assessed on a strictly objective standard.)

Other Points from the case law: #

Duress applies only to an offence committed under compulsion of a threat (of death or bodily harm) made for the purpose of compelling the accused to commit the specific offence. If an accused is threatened without compulsion, her only defence is self‑defence. (Ryan)

Section 17 applies only to principal offenders, or “a person who commits an offence” (Paquette)

Where it is unclear whether a person acted as principal or as party, both the common law and statutory defence should be put to the jury, so long as there is an air of reality for each aspect of each defence (Mena)

Where a person charged as a party to an offence acts under some form of compulsion, this fact alone would not negate or raise a doubt about whether he or she had the mens rea for aiding or abetting, or acting with a “common intention,” in sections 21(1) or 21(2). (Those provisions require a basic intent to aid the principal, but not a desire that the principal’s crime be committed.) A prima facie case may thus be made out for being a party to an offence, but the accused may then rely on the common law defence of duress – if she can establish an air of reality for each element of the defence. (Hibbert)

In the case of some offences (aside from those in which a person is charged as a party under s 21(1) or (2)), the fact that an accused acted under compulsion may negate, or raise a reasonable doubt about, the particular intent required for the offence even if the elements of the defence of duress at common law or s 17 are not made out. (Hibbert)

© Robert Diab, TRU Law, 2022