Provocation, Self-Defence, Necessity, and Duress

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology University of Toronto
• Pages: 278-339

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This chapter will outline a variety of defences that may apply when the

accused faces external pressures. Unlike mistake of fact or intoxication,

these defences are not derived from the fault element of the particular

offence, and they can apply even though the accused committed the

actus reus in a physically voluntary manner and had the mens rea

required for the offence. For example, a person who intentionally kills

another may nevertheless have a defence of provocation or self-

defence. A person who intentionally breaks into a house to save them-

selves from freezing to death may have a defence of necessity and a

person who intentionally assists in a robbery because of death threats

may still have a defence of duress.

All the defences examined in this chapter, with the exception of

provocation, operate as complete defences that result in the accused’s

acquittal. Provocation is a partial defence that reduces murder to

manslaughter. As discussed above in relation to the defences of intox-

ication, mental disorder, and automatism, the appropriate disposition

for an accused is often an important factor in determining the ambit of

a particular defence.

All four defences to some extent require a person to have acted rea-

sonably in response to external pressures. In provocation, these exter-

nal pressures are sudden acts or insults generally from the victim; in

self-defence, violence, or threats from the victim; in duress, threats of

serious harm from third parties; and in necessity, dire circumstances of

peril. The Supreme Court has observed that self-defence, necessity, and

Provocation,

Self-Defence,

Necessity, and

Duress

chapter 8

duress “all arise under circumstances where a person is subjected to an

external danger, and commits an act that would otherwise be criminal

as a way of avoiding the harm the danger presents.”1

The common requirement that the accused respond to these pres-

sures in a reasonable fashion raises the familiar issue of how objective

standards should be applied to ensure fairness towards individual

accused. This issue first arose in the context of self-defence claims by

women who killed abusive partners. The Court’s landmark decision in

R. v. Lavallee2to consider particular experiences and circumstances that

the accused faced in determining whether the accused acted reasonably

has had implications for all the defences examined in this chapter. The

Supreme Court has accepted a modified objective standard that invests

the reasonable person with the relevant characteristics and experiences

of the accused for all four defences examined in this chapter. This stands

in contrast to the Court’s decision that a modified objective standard

based on an individuated or contextual reasonable person is generally

not appropriate in applying the objective fault standards discussed in

chapter 4.3The modified objective standard used to administer these

defences responds to the danger of holding accused to unreasonable

standards of restraint, but it also risks blurring the distinction between

subjective and objective standards and undermining social interests in

requiring people to satisfy general standards of reasonable conduct.

Some of the defences examined in this chapter — provocation, self-

defence, and duress (as applied to principal offenders) — are codified,

whereas others such as necessity and duress (as applied to secondary

parties) are common law defences that the courts have recognized and

developed.4Overly restrictive statutory or common law defences may

violate section 7 of the Charter by allowing those who have acted in a

morally involuntary manner to be punished and defences should not

be subject to any special deference under the Charter.5The Supreme

Court has struck out the requirement in the statutory defence of duress

that the threats must be of immediate death or bodily harm and that

Provocation, Self-Defence, Necessity, and Duress 279

1R. v. Hibbert (1995), 99 C.C.C. (3d) 193 (S.C.C.) [Hibbert].

2 (1990), 55 C.C.C. (3d) 97 (S.C.C.) [Lavallee], discussed below.

3R. v. Creighton (1993), 83 C.C.C. (3d) 346 (S.C.C.) [Creighton] discussed in ch.

4, “Who is the Reasonable Person”

4 Section 8(3) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 [Code], has

been interpreted as allowing courts to develop and recognize new defences.

Entrapment, which was examined in ch. 1, “The Charter and the Investigation

of Crime,” has been developed as a common law defence.

5R. v. Ruzic (2001), 153 C.C.C.(3d) 1 (S.C.C.) [Ruzic].

the threat must be from a person who is present at the time that the

accused commits the crime under duress.6As examined in chapter 6,

common law restrictions on the defence of intoxication have also been

found to be unconstitutional.7

a. Conceptual Considerations

1) Excuses and Justifications

Criminal law defences are sometimes classified as excuses or justifica-

tions. A defence that excuses a crime is one that acknowledges the

wrongfulness of the action, but holds that in the circumstances the

accused should not be punished for the crime. The Supreme Court has

stated that excuses rest:

on a realistic assessment of human weakness, recognizing that a liber-

al and humane criminal law cannot hold people to the strict obedience

of laws in emergency situations where normal human instincts,

whether of self-preservation or altruism, overwhelmingly impel dis-

obedience. . . . Praise is indeed not bestowed, but pardon is, when one

does a wrongful act under pressure which . . . “overstrains human

nature and no one could withstand. . . . At the heart of [necessity con-

ceptualized as an excuse] is the perceived injustice of punishing vio-

lations of the law in circumstances in which the person has no other

viable or reasonable choice available; the act was wrong but it is

excused because it was unavoidable.”8

In other words, “excuses absolve the accused of personal accountabil-

ity by focussing, not on the wrongful act, but on the circumstances of

the act and the accused’s personal capacity to avoid it.” Because the

accused has no realistic choice but to commit the crime, “criminal

attribution points not to the accused but to the exigent circumstances

facing him.”9

In contrast, a defence that acts as a justification “challenges the

wrongfulness of an action which technically constitutes a crime.” The

accused is not punished because, in the circumstances, “the values of

society, indeed of the criminal law itself, are better promoted by dis-

280 Criminal Law

6Ibid.

7R. v. Daviault (1994), 93 C.C.C. (3d) 21 (S.C.C.).

8Perka v. R. (1984), 14 C.C.C. (3d) 385 at 398 (S.C.C.) [Perka].

9Ruzic, above note 5 at paras. 40 and 46.