Self-Defence, Necessity, and Duress

AuthorKent Roach
This chapter will outli ne three defences that may apply when the ac-
cused faces exter nal threats or pres sures. Unlike mistake of fact or in-
toxication, these defences are not derived from the fault element of the
particular offence, and they can apply even though the accused commit-
ted the actus reus i n a physically voluntary manner and had the me ns rea
required for the offence. For example, a person who intentionally kills
another may nevertheless have a defence of self-defence. Those who in-
tentionally break into a house to save t hemselves from free zing to death
may have a defence of necessity and a person who intentionally assists
in a robbery because of deat h 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 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 p erson to have acted reasonably in re-
sponse to external pressures. In self-defence, these external pressure s
are violence, or threats of force from the victim; i n 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 353
external danger, and commits an act that would otherwise be criminal
as a way of avoiding the harm t he danger presents.”1
The common requirement that the accused respond to these pres-
sures in a reasonable fashion raises the fami liar issue of how objective
standards should be applied to ensure fairness towards i ndividual ac-
cused. This issue f‌irst arose in the context of self-defence claim s 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 re asonably
perceived a threat and acted reasonably has had implications for all the
defences examined in t his chapter.
The Supreme Court has accepted a modif‌ied objective standard
that invests the reasonable person with the relevant cha racteristics
and experiences of the accused for all three defences examined in this
chapter, as well as the defence of provocation, which will be exa mined
in Chapter 10, because it provides a partia l defence that reduces mur-
der to manslaughter. This approach to endowing the reasonable per-
son with similar characteristics and experiences as the accused stands
in contrast to the Court’s decision that a modif‌ied objective standard
based on an individuated or contextual rea sonable person is generally
not appropriate in applying the objective fault standards discussed i n
Chapter 5.3 The modif‌ied objective standard u sed to administer the se
defences responds to the danger of holding accus ed to unreasonable
standards of rest raint, but it also risks blurring t he distinction between
subjective and objective standards and under mining social interests
in requiring people to sati sfy general standards of reasonable conduct.
Some of the defences examined in t his chapter self-defence, de-
fence of property, and duress (as applied to principal offenders) — are
codif‌ied, whereas others such a s 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. Moreover,
defences should not be subject to any special deference under the
1 R v Hibbert (1995), 99 CCC (3d) 193 (SCC) [Hibbert].
2 (1990), 55 CCC (3d) 97 (SCC) [Lavallee], discussed b elow in this chapter.
3 R v Creighton (1993), 83 CCC (3d) 346 (SCC) [Crei ghton], dis cussed in Chapter 5,
Se ctio n C(1).
4 Section 8(3) of the Criminal Code, RSC 1985, c C-46 [Code] has b een interpreted
as allowin g courts to develop and recogni ze new defences. Entrapment, which
was exam ined in Chapter 2, Section B(2)(d), has been developed as a common
law defenc e.
Charter.5 The Supreme Court has st ruck out the requirement in the statu-
tory defence of duress that the th reat must be of immediate death or
bodily harm a nd that the threat must be from a person who is present
at the time that the accused commits the crime under dures s 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
The Court has read in common law concepts to what rema ins of
the section 17 duress defence. Consistent with the common law de-
fence of duress and necessity, an accused who claim s the section 17
defence must now demonstrate a reasonable basis for his or her belief
in a threat, a close temporal connect ion between the threats and t he
commission of the alleged cri me, the existence of no safe avenue of
escape, and proportionalit y between the threats faced and the crime
committe d.7 This has brought the section 17 defence that applies to
principal offenders and the common law defence that applies to pa rties
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 defence. In other words, Parliament
remains more inclined to impose categorical restrictions on defences
than courts, which, consistent with the common law method, shape
defences on a case-by-case basis.
1) Excuses and Justif‌ications
Criminal law defences are sometimes classi f‌ied as excuses or justif‌i-
cations. A defence that excuses a cr ime is one that acknowledges the
wrongfulness of t he action but holds that in the circumstance s 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 we akness, recogni zing that a lib-
eral and humane cr iminal law c annot hold people to the strict obed i-
ence of laws in emergency situ ations where normal huma n instincts,
whether of self-preser vation or altruism, over whelmingly impel d is-
obedience . . . . Praise i s indeed not bestowed, but pardon is, when
one does a wrongful act u nder pressure which . . . “overst rains huma n
5 R v Ruzic (2001), 153 CCC (3d) 1 (SCC) [Ruzic].
6 Ibid.
7 R v Ryan, [2013] 1 SCR 14 [Ryan].

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