Self-Defence, Necessity, and Duress

• Author: Kent Roach
• Pages: 352-421

352

CHA PTER 9

SELF-DEFENCE,

NECESSITY,

AND DUR ESS

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.

CR IMIN AL LAW354

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.

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 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].