Self-Defence, Provocation, Duress, and Necessity
| Author | Dominique Bourget |
| Pages | 353-370 |
CHAP TER 18
Self-Defence, Provocation,
Duress, and Necessity
Dominique Bourget
I. INTRODUCTION
e defences of provocation, duress, self-defence, and necessity are defences against criminal conviction
and may be raised by a person accused of a crime under certain specied circumstances. Defences can
generally be divided into two categories:
• Justication defences that challenge the wrongfulness of the act itself in the circumstances (e.g., self-
defenc e)
• Excuse defences that concede the wrongfulness of the act but state that the act should not be punished
due to the circumstances (e.g., provocation, duress, and necessity).
Before an accused raises a defence, the Crown must prove that the accused actually carried out the act
beyond a reasonable doubt. A defence is therefore only called for where the oence has otherwise been
proven. While the defences of self-defence, provocation, and duress are theoretically distinct, in prac-
tice they are invariably interconnected. ey will be treated as separate topics but the overlap will soon
become apparent. Horder (1998) suggests that each defence can best be distinguished by the key issue
or interest at its core: in necessity it is the moral imperative to act to avert a greater evil, even if the act is
criminal. In the case of duress, the accused is in essence claiming that inaction would lead to an unjusti-
able personal sacrice; the wrongful act is excused in that it averts an otherwise no-way-out scenario.
Horder’s article does not cover the defence of provocation, but it strikes this author that the key issue in
provocation is that the otherwise wrongful act ows from injurious conduct that inames the passion
of an ordinary reasonable individual who cannot, in the circumstances, be expected to control him or
herself.
e defences, partial defences, and excuses touched on in this chapter will generally succeed if they
create reasonable doubt in regard to their elements.
II. SELF-DEFENCE
A. Context and Definitions
According to Roach (2000), all self-defence claims are based on the accused’s apprehension of harm and
his perception of the force needed to avoid the threatened harm. Self-defence (like provocation) is con-
cerned both with the accused’s subjective perceptions and the reasonableness of those perceptions.
Self-defence is based on the premise that a person is justied in defending his or her life from attacks
by others. Self-defence proceeds from necessity and may be more properly referred to as justication
rather than a defence per se. e right to prevent an assault upon oneself, and to use force to defend
oneself, are basic principles recognied in law. In essence, self-defence is legal permission to act in highly
Dominique Bourget
circumscribed conditions. e relevant provisions are set out in sections 34, 35, and 37 of the Criminal
Code of Canada, each of which is outlined in the following sections.
e burden rests with the prosecution to establish the allegations against the accused beyond a rea-
sonable doubt. Once that has been accomplished, the accused must adduce sucient evidence to raise a
reasonable doubt as to his guilt by oering a foundation for the defence of self-defence. It will then be the
prosecution’s burden to negate the defence.
e accused will be acquitted where the jury is le with a reasonable doubt as to whether the accused
was acting in self-defence.
B. Self-Defence Scenarios
e various situations in which self-defence may be raised and the statutory provisions dealing with
them are complex. e distinctions between the various provisions in the statutory scheme dealing with
self-defence are based on whether the accused responded to an assault as the victim of an entirely unpro-
voked act, whether he provoked the act that he then needed to fend o, or whether the accused initiated
an attack without the intent to cause grievous bodily harm or death, and was met with a counterattack
that he then had to repel to save himself.
C. Preventing an Assault — Extent of Justification
In essence, section 37 of the Criminal Code condones the concept of self-defence within certain param-
eters. Section 37 reads:
(1) Every one is justied in using force to defend himself or any one under his protection from assault, if
he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Nothing in this section shall be deemed to justi fy the wilful in iction of any hurt or mischief that is
excessive, having regard to the nature of the assault that t he force used was intended to prevent.
Unlike sections 34 and 35 (an explanation of each follows), section 37 does not mention any require-
ment that the accused have a reasonable apprehension of death or grievous bodily harm, or even a rea-
sonable belief that the force used was necessary to prevent death or grievous bodily harm. e simple
requirement is that the accused use the force that is necessary to defend herself, or anyone under her
protection to prevent the assault.
e defence aorded by section 37 is an all-or-nothing matter. In other words, the accused does not
have a partial defence available to her if, in legitimately fending o an attack, she used more force than
was necessary in the circumstances. While the amount of force exerted to repel an attack needn’t be
measured in a precise manner, once the trier of fact reaches the conclusion that excessive force has been
used, the defence of self-defence has failed (R. v. Faid, 1983).
Section 37 should be read together with an overarching provision in the Criminal Code (section 26)
concerning the general use of excessive force, which reads as follows:
Every one who is authorized by law to use force is criminally responsible for any excess thereof according
to the nature and quality of t he act that constitutes the excess.
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