Self-Defence, Necessity, and Duress

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology. University of Toronto
• Pages: 291-337

291

Cha pter 9

sElF-dEFEnCE,

nECEssity, and durEss

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

accused faces extern al pressure s. Unlike mistake of fact or intoxica-

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

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

the actu s reus in a physically voluntary m anner 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 break s into a house to save him- or herself from freezing

to death may have a defence of nece ssity and a person who intention-

ally a ssists in a robbery because of de ath threats may still have a de-

fence of duress.

All the defences exam ined in this chapter operate a s complete de-

fences that result in the accused’s acquittal. As discussed above in rela-

tion to the defences of intoxication, mental di sorder, and automatism,

the appropriate disposition for an accused i s often an import ant factor

in determining t he ambit of a particular defence.

All three defences to some ex tent require a person to have acted

reasonably in response to external pre ssures. In self-defence, the se ex-

ternal pressures are violence, or t hreats of violence from the victim;

in duress, threats of ser ious harm from third pa rties; and in necessity,

dire circumsta nces of peril. The Supreme Court has observed that self-

defence, necessity, and duress “all arise under circumstance s where

a person is subjected to an external danger, and commits an act that

Crimin al law292

would otherwise be cr iminal as a way of avoiding the ha rm the danger

pr e s en t s .”1

The common requirement th at the accused respond to these pre s-

sures in a re asonable fashion rai ses the familiar i ssue 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 partner s. The Court’s landmark decision in

R. v. Lavallee2 to consider particular experiences and circumstances that

the accused faced in determining whether the accused acted reason-

ably 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 a nd ex-

periences of t he accused for all three defences examined in this ch ap-

ter, as well a s the defence of provocation, which w ill be e xamined in

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

manslaughter. This approach to endowing t he reasonable person with

similar characteristics and e xperiences as the accused stands in con-

trast to the Court’s decision t hat a modif‌ied objective standard based

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

propriate in applying the objective fault standards discussed in chapter

5.3 The modif‌ied objective standard used to administer these defences

responds to the danger of holding accused to unreasonable standa rds

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

and objective standa rds and under mining social interest s in requi ring

people to satisfy general stand ards of reasonable conduct.

Some of the defences e xamined in this chapter — self-defence and

duress (as applied to principal offenders) — are codif‌ied, whereas others

such as necessity and duress (as applied to secondary parties) are com-

mon law defences that the courts have recognized and developed.4

Overly restrictive st atutory or common law defences may violate sec-

tion 7 of the Charter by allowing those who have acted in a moral ly

involuntary manner to be punished and defences should not be subject

to any special deference under the Charter.5 The Supreme Court has

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], discusse d below.

3 R. v. Creighton (1993), 83 C.C.C. (3d) 346 (S.C.C.) [Crei ghto n], discuss ed in ch.

5, “Who Is the Rea sonable Person?”

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

been interpr eted as allowing court s to develop and recognize new defence s.

Entrapment, which w as examined in ch. 2, “The Char ter and the Invest igation

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].

Self-Defence, Neces sity, and Duress 293

struck out t he requirement in the statutory defence of duress that the

threats must be of immediate death or bodily ha rm and that the t hreat

must be from a person who is present at the time that the accused com-

mits the crime under duress on the basi s that they could result in the

conviction of a person who has no other reasonable choice but to com-

mit a crime even though the threats are not of immediate death or bod-

ily harm from a person who is present when the crime was committed.6

As exa mined in chapter 7, common law restrictions on the defence of

intoxication have also been found to be unconstitutiona l.7

a. ConCeptual Consider ations

1) Excuses and Justif‌ications

Criminal l aw defences are sometimes classif‌ied a s excuses or justif‌i-

cations. A defence that excuses a crime is one that ack nowledges the

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

cused should not be pun ished for the crime. The Supreme Court h as

stated that excuses rest

on a realistic a ssessment of hum an weaknes s, recognizi ng that a lib-

eral and humane crim inal law cannot hold people to the strict obedi-

ence of laws in emergency situation s where normal hum an instincts,

whether of self-pre servation or altruism , overwhelmi ngly impel d is-

obedience . . . . Praise is indeed not bestowe d, but pardon is, when

one does a wrongful act under pre ssure which . . . “overstrains hu-

man nature and no one cou ld withsta nd . . . . At the heart of [ne-

cessity conceptuali zed as an excuse] is the perceived i njustice of

punishing violation s of the law in circumstances in which the person

has no other viable or rea sonable choice available; the act was w rong

but it is excused becau se it was unavoidable.”8

In other words, “excuses absolve t he 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 t he accused but to t he exigent circumstances

facing him.”9

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 (S.C.C.) [Perk a].

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