Self-Defence, Necessity, and Duress

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

291

Chapter 9

sElF-dEFEnCE,

nECEssity, and durEss

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

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

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

ticular 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 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. As discussed above in rela-

tion to the defences of intoxication, mental disorder, and automatism,

the appropriate disposition for an accused is often an important factor

in determining the ambit of a particular defence.

All three defences to some extent require a person to have acted

reasonably in response to external pressures. In self-defence, these ex-

ternal 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 external danger, and commits an act that

Criminal law292

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 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 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 examined in

chapter 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 standards 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 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 — 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 statutory or common law defences may violate sec-

tion 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

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.) [Creighton], 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 Charter 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 Duress293

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

threats 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 accused com-

mits 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 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 examined in chapter 7, 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 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, recognizi ng that a lib-

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

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

whether of self-preservation or altruism, overwhelmingly impel d is-

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

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

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

cessity conceptualized as an excuse] is the perceived injustice of

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

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

but it is excused becau se 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 at-

tribution points not to the accused but to the 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.) [Perka].

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