Self-Defence, Necessity, and Duress

• Author: Kent Roach
• Pages: 317-381

317

Cha pter 9

sElF-dEFEnCE,

nECEssity, and durEss

This chapter will outli ne a variety of defences that may apply when

the accused faces exter nal threats or pressures. Unlike mista ke 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

committe d the actus reus in a physically voluntar y manner and had the

men s rea required for the offence. For example, a person who inten-

tionally kill s another may nevertheless have a defence of self-defence.

A person who intentionally break s into a house to save him- or herself

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

who intentionally assist s in a robbery because of death threat s may still

have a defence of duress.

All the defences examined in this chapter operate as complete de-

fences that result in the accus ed’s acquittal. In each ca se, there must be

a reasonable doubt about each requirement of the defence. Unlike in

the cases of mental d isorder, 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 re-

sponse to external pressures. In self-defence, these external pressures

are violence, or threats of violence from the vict im; in duress, threats of

serious harm f rom third parties; and in necessity, dire circum stances of

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

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

Cr imin al law318

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 fa shion raises the familiar issue of how objective

standards should be applied to ensure fairness towards individual ac-

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

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

R. v. Lavallee2 to consider particular e xperiences and circumsta nces that

the accused faced in determ ining whether the accused acted reason-

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

The Supreme Court has accepted a contextual objective standard t hat

invests the reasonable person with the relevant character istics and ex-

periences of the accused for all three defences examined in this chap-

ter, as well as the defence of provocation, which will be exam ined in

chapter 10, because it provides a partial defence th at reduces murder to

manslaughter. This approach to endowing the reasonable person with

similar cha racteristics and experiences as the accused stands in con-

trast to the Court’s decision that a modif‌ied objective standard based

on an individuated or contextual reasonable person is generally not ap-

propriate in applying the objective fault standards discussed i n chapter

5.3 The modif‌ied objective standard used to administer these defences

responds to the danger of holding accused to unreasonable standard s

of restraint, but it also ri sks blurring the distinction bet ween subjective

and objective standards and under mining social interests in requiring

people to satisfy general stand ards of reasonable conduct.

Some of the defences examined in t his chapter — self-defence,

defence of property, 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 rec-

ognized and developed.4 Overly restrictive statutory or common law

defences may violate section 7 of the Charte r by allowing those who

have acted in a morally involuntary manner to be punished and de-

fences should not be subject to any special deference under the Charter.5

1 R. 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 b elow.

3 R. v. Creighton (1993), 83 C.C.C. (3d) 346 (S.C.C.) [Creigh ton], discu ssed in

ch. 5(C)(1), “Who Is the Reasona ble Person?”

4 Section 8(3) of the Criminal Code, R.S.C. 1985, c. C-46 [Code] ha s been inter-

preted as allow ing courts to develop and recogn ize new defences. Entrapment,

which was exa mined in ch. 2, “The Charter and the I nvestigation of Crime,” has

been developed as a com mon law defence.

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

Self-Defence, Neces sity, and Duress 319

The Supreme Court has struck out the requirement in the statutory

defence of duress that the threats must be of immediate death or bod-

ily harm and th at the threat must be from a person who is present at

the time that the accu sed commits the crime under duress on the basis

that they could result in the conviction of a person who has no other

reasonable choice but to commit a crime.6 As exam ined in chapter 7,

common law restrictions on the defence of intoxication have als o been

found to be unconstitutional.7

a. ConCept ual C onsider ations

1) Excuses and Justif‌ications

Criminal law defences are sometimes classi f‌ied as excuses or justif‌i-

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

wrongfulness of t he action but holds that in the circumstances the ac-

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

stated that excuses rest

on a realistic a ssessment of human wea kness, recogni zing that a

liberal and hum ane crimina l law cannot hold people to the strict

obedience of laws in emergenc y situations where normal hum an

instinct s, whether of self-preservat ion or altruism, overwhel mingly

impel disobed ience . . . . Praise is indeed not be stowed, but pardon

is, when one does a wrongfu l act under pressure which . . . “over-

strains hum an nature and no one could with stand . . . . At the heart

of [necessity conceptuali zed as an excuse] is the perc eived injustice

of punishing viol ations of the law in circum stances in which the per-

son has no other vi able or reasonable choice available; the act wa s

wrong but it is excused b ecause 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 real istic choice but to commit the crime, “criminal at-

tribution points not to the accused but to the ex igent circumstances

facing him.”9 Section 17 of the Criminal Cod e provides that a person

6 Ibid.

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

8 Perka v. R. (1984), 14 C.C.C. (3d) 385 at 398, [1984] 2 S.C.R. 232 [Perka].

9 Ruzic, above note 5 at paras. 40 and 4 6.