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defence of duress

In Canada, the defence of duress is recognized by both the Criminal Code of Canada and our common law.  This is a difficult defence to marshal because specific preconditions for the defence must be met.

Section 17 of the Criminal Code reads:

17 A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).

common law

In R. v. Ruzic, [2001] S.C.C. 24 the Supreme Court Canada dealt with the Constitutionality of parts of the defence of “duress” in section 17 of the Criminal Code.  In this case, the accused was forced to import heroin from Serbia to Canada by a third-party who threatened to harm her mother unless she transported the drugs. It was accepted that the Serbian police would not be able to protect her mother.

At trial, Ruzic’s defence of duress was rejected because the threat to her mother in Serbia did not satisfy both the immediacy and presence preconditions necessary to trigger a legal duress. The Supreme Court held that section 17 of the Criminal Code violated Ruzic’s section 7 right to “life, liberty and the security of person” on grounds that the potential to convict persons who, placed under duress by threats of future harm, have not acted voluntarily.

to be under duress

Unlike defences of justification, such as “self defence”, duress is a defence of excuse. Duress applies in circumstances where the accused has committed a criminal act, but effectively did so involuntarily because he or she was under duress. 

What does it mean to be “under duress”?

After the court’s ruling in Ruzic, the elements of the defence of duress can be summarized thus;

  1.  there must be a threat of death or bodily harm directed against the accused or a third party;
  2.  the accused must believe that the threat will be carried out;
  3.  the offence must not be on the list of excluded offences (such as murder);
  4.  the accused cannot be a party to a conspiracy or criminal association such that the person is subject to compulsion;
  5.  there must be no safe avenue of escape;
  6.  there must be a close temporal connection between the threat and harm threatened to the extent that the accused loses the ability to act voluntarily; and
  7.  here must be proportionality between the threat and the criminal act committed while under compulsion;

I will not discuss each element in detail; rather, I prefer to focus on a couple more interesting elements. To that end, I will explore the concepts of “no safe avenue of escape”, temporal connection, proportionality and the requirement that the accused cannot be a party to a conspiracy or criminal organization. These elements serve to restrict the defence of duress.

NO SAFE AVENUE OF ESCAPE

The principle underpinning “no safe avenue of escape” is critical to the defence of duress.  For example, in Canada, nearly every jurisdiction has access to a local police service who are tasked with responding to threats made against the public.  Ruzic narrowed the issue of “no safe avenue of escape”:

The courts will take into consideration the particular circumstances where the accused found himself and his ability to perceive a reasonable alternative to committing a crime, with an awareness of his background and essential characteristics. The process involves a pragmatic assessment of the position of the accused, tempered by the need to avoid negating criminal liability on the basis of a purely subjective and unverifiable excuse.

The takeaway is that “no safe avenue of escape” will always be adjudicated on a case-by-case, modified objective standard, where the accused’s circumstances will be critically evaluated.  As was stated in R. v. Ryan, [2013] S.C.J. No. 3:

If a reasonable person similarly situated would think that there was a safe avenue of escape, the requirement is not met and the acts of the accused cannot be excused using the defence of duress because they cannot be considered as morally involuntary.

CLOSE TEMPORAL CONNECTION

In Ryan supra, the Supreme Court stated:

The element of close temporal connection between the threat and the harm threatened, mentioned above, serves to restrict the availability of the common law defence to situations where there is a sufficient temporal link between the threat and the offence committed.

This makes sense; for the passage of time can dramatically alter a state of affairs.  Again, temporal connection must be evaluated on a case-by-case basis.

PROPORTIONALITY

Initially, the question is, what constitutes normal and appropriate resistance to pressure and where pressure exists, is it so much such as to render the action involuntary?  Where there has been an involuntary action, the question is whether it is “proportionate” to the pressure inflicted?  In Canada, murder is never a proportionate response. Trafficking or importing drugs could be a proportionate response depending on the nature of the threat of harm.  Ryan supra effectively addressed the issue of proportionality:

71  The test for determining whether an act was proportional is therefore two-pronged, and was set out by Dickson J. in Perka, at p. 252:

There must be some way of assuring proportionality. No rational criminal justice system, no matter how humane or liberal, could excuse the infliction of a greater harm to allow the actor to avert a lesser evil. ... According to Fletcher, this requirement is also related to the notion of voluntariness ([G. P. Fletcher, Rethinking Criminal Law (1978)], at p. 804):

... if the gap between the harm done and the benefit accrued becomes too great, the act is more likely to appear voluntary and therefore inexcusable. ... Determining this threshold is patently a matter of moral judgment about what we expect people to be able to resist in trying situations. A valuable aid in making that judgment is comparing the competing interests at stake and assessing the degree to which the actor inflicts harm beyond the benefit that accrues from his action. [Emphasis added.]

72  In other words, the "moral voluntariness" of an act must depend on whether it is proportional to the threatened harm.

CRIMINAL CONSPIRACY and CRIMINAL ORGANIZATION

This element concerns the voluntary assumption of risk. Logic dictates that if one voluntarily assumes the risk of participating in a criminal organization, there is an expectation that one might be put under extreme pressure due to one’s membership in the organization. In other words, as was stated in Ryan supra:

An accused that, because of his or her criminal involvement, knew coercion or threats were a possibility cannot claim that there was no safe avenue of escape, nor can he or she truly be found to have committed the resulting offence in a morally involuntary manner.

CONCLUSION

Establishing the elements for the defence of duress is no easy task. That is why the defence is seldom utilized.  That said, there are circumstances where the defence could apply. To that end, it is important for defence counsel to keep in mind that the accused need only establish an “air of reality” for the purpose of advancing a defence. To have an air of reality, there need only be an evidentiary foundation to advance the defence.


David Chow is a full service criminal defence lawyer in Calgary, Alberta.  David is a Calgary impaired driving lawyer and Calgary drug lawyer. He defends all criminal cases, including drug trafficking, impaired driving, domestic assault, home invasion, sexual assault and murder.

If you have been charged with any criminal offence in Alberta, hiring a skilled, qualified and experienced Alberta criminal lawyer may be the most important decision of your life. Lawyers can be expensive, so it is important for you to do your due diligence prior to hiring your criminal defence lawyer. Call Calgary criminal lawyer, David Chow, for a free consultation.


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