Self-defence, necessity, and duress

AuthorKent Roach
ProfessionFaculty of Law and Centre of Criminology. University of Toronto
Pages317-319

Page 317

This chapter will outline a variety of defences that may apply when the accused faces external threats or 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 self-defence. A person who intentionally breaks into a house to save him- or herself 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 operate as complete de-fences that result in the accused’s acquittal. In each case, there must be a reasonable doubt about each requirement of the defence. Unlike in the cases of mental disorder, automatism, or extreme intoxication, the accused does not have to establish self-defence, necessity, or duress on a balance of probabilities.

All three defences require a person to have acted reasonably in response to external pressures. In self-defence, these external pressures are violence, or threats of violence 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 duress "all arise under circumstances where a person is subjected to an

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external danger, and commits an act that would otherwise be criminal as a way of avoiding the harm the danger presents."1The common requirement that the accused respond to these pressures 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 contextual objective standard that invests the reasonable person with the relevant characteristics and experiences of the accused for all three defences examined in this chapter, as well as the defence of provocation...

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