Self-Defence, Necessity, and Duress

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology.University of Toronto
• Pages: 324-387

324

CHAPTER 9

SELF-DEFENCE,

NECESSITY,

AND DURESS

This chapter will outli ne three defences that may apply when the accused

faces external threats or pressures. Unlike mistake of fact or intoxica-

tion, these defences are not derived from the fault element of the par-

ticular offence, and they ca n 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 intention-

ally assists in a robbery because of death threats may still have a de-

fence 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 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

Self-Defence, Neces sity, and Duress 325

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 ac-

cused. 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. Lavallee2 to consider particular e xperiences and circumsta nces that

the accused faced in determ ining whether the accused acted reasonably

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

Supreme Court has accepted a contextual objective standard that in-

vests the reasonable person with the relevant characteristics and expe-

riences of the accused for all three defences examined in this chapter,

as well as the defence of provocation, which will be examined in Chap-

ter 10, because it provides a partial defence that reduces murder to

manslaughter. This approach to endowing the reasonable person with

similar characteristics 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 standa rds discussed in Chapter

5.3 The modif‌ied objective standard used to administer these defences

responds to the danger of holding accused to unreasonable standards

of restraint, but it also r isks blurring the distinction bet ween 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 — self-defence, de-

fence 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 de-

fences may violate section 7 of the Charter by allowing those who have

acted in a morally involuntary manner to be punished. Moreover, 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 below i n this chapter.

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

Chapter 5(C)(1), “Who Is the Reas onable Person?”

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

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

which was exa mined in Chapter 2(B)(2), “The Charter and the Inve stigation of

Crime,” has been deve loped as a common law defence.

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

CRIMIN AL LAW326

The Supreme Court has struck out the requirement in the statutory

defence of duress that the threat must be of immediate death or bodily

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

time that the accuse d commits the crime under duress on the basi s that

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

sonable choice but to commit a crime.6 The Court has, however, read in

common law concepts to what remains of the sect ion 17 duress defence.

Consistent with the common law defence of duress and necessity, an

accused who claims the section 17 defence must now demonstrate a

reasonable basis for his or her belief in a threat, a close temporal con-

nection between the threats and the commission of the alleged crime,

the existence of no safe avenue of escape, and proportionality between

the threats faced and the crime committed.7 This has brought the sec-

tion 17 defence that applies to principal offenders and the common law

defence that applies to parties much closer. The section 17 defence still,

however, has a categorical list of offences that Parliament has deemed

too serious to be excused that is not present in the common law de-

fence. In other words, Parliament remains more inclined to impose cat-

egorical restrictions on defences than courts, which, consistent with

the common law method, shape defences on a case-by-case basis.

A.CONCEPTUAL CONSIDERATIONS

1) Excuses and Justif‌ications

Criminal law defences are sometimes classif‌ied as excuses or justif‌i-

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

wrongfulness of the 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 assessment of human weakness, recognizing that a

liberal 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 disobedience . . . . Praise is indeed not bestowed, but pardon

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

strains human nature and no one could withstand . . . . At the heart

of [necessity conceptualized as an excuse] is the perceived injustice

6 Ibid.

7 R. v. Ryan, [2013] 1 S.C.R. 14 [Ryan].