D. Duress
| Author | Kent Roach |
| Profession | Faculty of Law and Centre of Criminology. University of Toronto |
| Pages | 362-377 |
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Like necessity, duress occurs when an accused commits a crime in response to external pressure. In the case of duress, the pressure is threats of harm by some other person. The classic case is the person who commits a crime or assists in the commission of a crime with a gun to his or her head.
The defence of duress in Canada is very complex, in large part because section 17 of the Criminal Code contains a very restrictive defence that requires threats of immediate death or bodily harm from a person present when the offence was committed and excludes a long list of offences ranging from murder to arson. Even before the Charter, the courts minimized the harsh impact of this restrictive defence by applying it only to principal offenders, and not parties to crime. Instead, the courts applied the more flexible common law defence to parties to a crime on the grounds that they were not covered by section 17, which applies only to "a person who commits an offence." This approach mitigated the harsh effects of section 17 because in many cases a person acting under duress would only be a party to a crime-by, for example, being forced to assist-and not the principal offender.
The Supreme Court has performed some major surgery on section 17 by holding that its requirement that threats must be of immediate death or bodily harm and made by a person who is present when the crime was committed violate section 7 of the Charter by denying the defence to those who have no realistic choice but to commit the offence and thus act in a morally involuntary manner.119Section 17 as reformu-
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lated by the Court remains valid, albeit perhaps on life support. The Supreme Court has yet to rule whether the surviving parts of section 17 violate section 7 of the Charter because they categorically exclude from the defence those who commit offences such as murder, attempted murder, robbery, unlawfully causing bodily harm, and arson. It may well be that the categorical exclusion of such a long list of crimes will eventually be held to violate section 7 of the Charter. In such an eventuality, the common law defence of duress would apply not only to parties to a crime but also to principal offenders. The result would be to make the law considerably less complex and fairer to the accused.
The common law defence is less restrictive and more flexible than section 17 of the Code. The common law defence of duress applies when an accused commits a crime in a morally involuntary response to threats where there is no safe avenue of escape. The common law defence of duress, like the other defences examined in this chapter, is applied on the basis of a modified objective standard that makes allowance for the particular characteristics and attributes of the accused. It does not require the threats to be of immediate death or bodily harm or from a person who is present when the offence is committed. The courts have stressed that duress as a common law defence is similar to necessity and this suggests that, as with necessity, there is some requirement for proportionality between the harm threatened and the harm committed by the accused. Finally, circumstances of duress may prevent the Crown from proving some particularly high levels of subjective mens rea for a few crimes.
In short, duress can refer to 1) the statutory defence available under section 17 of the Criminal Code to the principal offender who commits the offence and as modified by section 7 of the Charter; 2) the common law defence available to parties to an offence (this common law defence would be available in all cases should section 17 be found in its entirety to violate section 7 of the Charter); and 3) a factor that may in rare cases prevent the Crown from proving the mental element for some crimes.
Section 17 of the Criminal Code provides that the defence of duress is available only when an accused "commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed." The courts interpreted the requirement of a threat of immediate death or bodily harm quite
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literally. In R. v. Carker (No. 2),120an accused charged with wilfully damaging public property argued that he acted under duress because he was threatened with death and serious bodily harm by fellow prisoners during a prison riot. The Supreme Court held that the defence of duress was not available because the accused and the prisoners issuing the threats were locked in their respective cells. Although the accused acted under compulsion of threats of death and grievous bodily harm that were operative at the time the offence was committed, "they were not threats of ‘immediate death’ or ‘immediate bodily harm’ and none of the persons who delivered them was present in the cell with the [accused] when the offence was committed."121Likewise, in R. v. Hébert,122a witness did not face threats of immediate death or bodily harm when he gave false testimony in court, because he could have sought official protection from anonymous phone threats. The Supreme Court has ob-served that "the plain meaning of section 17 is quite restrictive in scope. Indeed, the section seems tailor-made for the situation in which a person is compelled to commit an offence at gun point."123
Section 17 required that the threats be of immediate death or bodily harm from a person who was present when the crime was committed. The Supreme Court held in R. v. Ruzic that the requirements of immediacy and presence violated section 7 of the Charter because they could result in the punishment of a person who committed a crime in a morally involuntary manner. In that case, the accused was charged with importing heroin after a person had threatened to kill her mother who lived in a foreign country, if she did not import the drugs. The Supreme Court in R. v. Ruzic clarified that threats of death or bodily harm against third parties such as the accused’s family may be considered under section 17 of the Criminal Code.124This seems appropriate as threats to one’s family or loved ones may be just as compelling as threats to oneself, and Parliament has not clearly excluded threats to third parties from section 17. In addition, other caselaw suggests that the threats need not be express from words or gestures but can be reasonably implied from the circumstances.125For example, there could be
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an implied threat when a person instructs his cousin to assist him after the accused killed two other people.126The more flexible common law defence of duress was not an option in Ruzic because the accused was the principal offender who brought drugs into Canada. Absent a successful Charter challenge, however, section 17 would also not excuse the offence because the threats faced by the accused were not threats of immediate death or bodily harm from a person who was present when the accused actually imported heroin into Canada. Justice LEBEL for a unanimous Supreme Court held that a defence that punished morally involuntary behaviour would violate section 7 of the Charter. He reasoned:
It is a principle of fundamental justice that only voluntary conduct - behaviour that is the product of a free will and controlled body, unhindered by external constraints - should attract the penalty and stigma of criminal liability. Depriving a person of liberty and branding her with the stigma of criminal liability would infringe the principles of fundamental justice if the accused did not have any realistic choice. The ensuing deprivation of liberty and stigma would have been imposed in violation of the tenets of fundamental justice and would thus infringe section 7 of the Charter.127An accused could act in a morally involuntary manner even though he or she was not blameless or morally innocent and committed the actus reus of the crime in a physically voluntary manner and did so with the required mens rea or fault element.
Applying the principle that people should not be convicted for morally involuntary crimes, the Court in Ruzic found that the requirement in section 17 that the threats must be of immediate death or bodily harm from a person who is present violated section 7 of the Charter. In order to support its conclusions, the Court observed that the common law defence of duress in Canada and elsewhere did not have the restrictive requirements of a threat of immediate death or harm from a person present when the crime was committed. Rather, the focus under the common law was on whether there was "any safe avenue of escape in the eyes of a reasonable person, similarly situated."128The Court concluded that the requirements of immediacy and presence would prevent a person such as a battered woman or a hostage who acted in a morally involuntary manner from claiming the defence. The violations
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of section 7 of the Charter were not justified under section 1 in part because of the unwillingness of the Court to hold that any violation of...
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