Canadian law only punishes voluntary conduct – behavior that is the product of a free will and a controlled body. It is only when someone’s actions are truly voluntary that their conduct should attract the stigma of criminal liability. There are times when someone has no other realistic option than to commit a criminal offence. When this happens, the person may have a legal excuse for what they did. Although their act remains wrong, they are not morally blameworthy because they acted in a morally involuntary way. When someone does something because they have no choice, they may be able to rely on the defence of necessity or of duress depending on the circumstances of their case.
Canadian law has very specific rules about when these defences can apply. If you think necessity or duress applies in your case, you should contact a lawyer to discuss whether you would be successful and how to best advance your defence.
WHEN DOES THE DEFENCE OF DURESS APPLY?
If you have been charged with a criminal offence, it is not enough to simply claim that you had no other choice than to do what you did. Where someone does something because they have been threatened by someone else, and had no way to avoid the harm that was threatened, that person’s actions may not be truly voluntary. There are times when someone’s decision to pick the lesser of two evils in some circumstances may not be a true, voluntary, choice. This is when the defence of duress may apply.
Canadian law has a narrow test that sets out the defence of duress. This is found in section 17 of the Criminal Code of Canada and in the caselaw that has developed over time. It is not the accused’s responsibility to prove that what he did was involuntary because of threats. Rather, it is the Crown prosecutor’s responsibility to prove, beyond a reasonable doubt, that what the accused did was the result of his own free choice.
The defence of duress requires that:
- There was a threat of present or future death or bodily harm;
- The accused reasonably believed that the threat will be carried out;
- There was no safe avenue of escape / no way to avoid the threatened harm;
- That the threat is what caused the accused to do what they did; and
- That the harm caused by the accused was not disproportionate to the harm being threatened against him. This five-part test is broken down in detail below.
PART ONE – THREAT OF DEATH OR BODILY HARM
Did someone threaten to kill or cause bodily harm to the accused unless he did what was being asked?
This is the first step of the test. Duress requires that someone threatened to kill or cause bodily harm to the accused or his family or friend unless he did what he was being told to do. Threats can be direct or implied. An example of a direct threat would be “I’m going to kill you.” An example of an implied threat may be someone staring at the accused and making a slitting gesture across their neck. A threat can be communicated through words or gestures. If the threat is ambiguous and could go either way, the law does not require that the accused take steps to clarify exactly whether and how he was being threatened.
The threat can be towards the accused, or someone else. Threats to a spouse, family member, or friend may be enough at this stage, but there has to be a close connection between the threat itself and the harm that is being threatened. The threat must be a threat to kill or cause bodily harm. For example, a threat that your children may be kidnapped and taken to another country is not a threat to kill or cause bodily harm. Bodily harm refers to any injury that is more than brief, fleeting or minor.
PART TWO – REASONABLE BELIEF THAT THREAT WOULD HAPPEN
Did the accused reasonably believe that the threat would be carried out?
Second, the accused must have reasonably believed that the threat would actually be carried out. At this stage, the judge or jury would consider what the accused believed, and whether that belief was reasonable in the circumstances. They will look at the accused’s personal circumstances, their age, gender, and any other relevant personal information when determining whether a reasonable person in the shoes of the accused would also have believed the threat would be carried out. The judge or jury will also look at how and when the threat was made. Was the threat made shortly before the accused did what he was asked to do? How much time was there between when the threat was made, the actions of the accused, and when the accused expected the threat to be carried out? A connection or lack of connection between these elements may impact whether the judge or jury finds that the accused’s belief was reasonable in the circumstances.
PART THREE – NO SAFE AVENUE OF ESCAPE
Did the accused have a safe avenue of escape available to him?
Duress is not available if there was a safe avenue of escape open to the accused. This part of the test asks whether there was a safe, obvious means of escape that was available to the accused. For example, was the accused able to run away or to seek help from police or other authorities? Whether a safe avenue of escape was open to him is determined by asking whether a reasonable person, in the same situation as the accused would have responded in the same way. The reasonable person is a hypothetical person in the same situation as the accused that has the same personal characteristics as him or her. The reasonableness or safety of other, legal, alternatives (such as running away) will depend on the nature and imminence of the threat itself.
PART FOUR – THE THREAT CAUSED ACCUSED’S ACTIONS
Was it the threat that caused the accused to do what he did?
The accused must have believed that he had no other choice but do to what was being asked of him. Again, the judge or jury will consider whether a reasonable person in the accused’s shoes would have acted the same. The judge or jury will consider how much time had gone by between the threat and the offence, whether the person threatening the accused was present when the accused was threatened, and whether that same person was present when the accused committed the offence. Here, the accused must have committed the offence only because someone had threatened to kill or seriously injure him if he did not do what he was told.
PART FIVE – PROPORTIONALITY
Was the harm caused by the accused disproportionate to the harm that was being threatened against him?
Finally, for the defence of duress to succeed, the harm that was caused by the accused cannot be disproportionate to the harm that was being threatened against him. Canadian law does not excuse a person who causes greater harm to someone else to avoid lesser harm to themselves. Our law also expects individuals to display ordinary resistance to external pressure. Here, a judge or jury would consider how the actions of the accused accords with what we expect in Canadian society of a reasonable person with the same characteristics of the accused and in the same situation as the accused. The harm caused by the accused will be disproportionate if it was worse than what was being threatened against the accused. For example, courts have found that it can never be proportionate to take another person’s life to avoid a threat to one’s own life.
THE ONUS IS ON THE CROWN
It is not the job of the accused to prove that his actions were only done because he was being threatened and therefore, not truly voluntary. Instead, it is the job of the Crown prosecutor to prove, beyond a reasonable doubt, that what the accused did was truly voluntary. The Crown must prove that the accused’s actions were deliberate and were the result of his own free choice. This is done if the Crown prosecutor can establish that one of the elements of the duress test set out above is absent. The defence of duress can only succeed if all the elements of the test have been met.
Even though it is the job of the Crown prosecutor to establish that at least one element of the test is absent, the accused does have the responsibility of providing the Court with enough evidence to put the defence into play. This is usually done by the accused taking the stand and testifying in their own defence. Although an accused person has the right to silence and never has to testify, it is common when advancing this type of defence for the accused to testify to meet this basic threshold. The decision to testify and the impact it may have on your case can be complicated and it is crucial that you talk to a lawyer when making these types of decisions about your case.
SELF DEFENCE OR DURESS?
Duress can sometimes be confused with self defence and which defence best applies depends on the particular facts of the case. If you think either of these defences might apply, but you are not sure which one, you should discuss your case in detail with a lawyer. Both defences can raise complicated issues, and it’s important you seek legal advice.
While the two defences have some similarities, they are different in important ways. First, self-defence is based on the principle that, in certain circumstances it is lawful to meet force with force. In that sense, the attacker-victim is “the author of his or her own deserts.” In duress, on the other hand, the victim is generally a non-involved third party. Second, in self-defence, the victim simply attacks or threatens the accused; the motive is irrelevant. In duress, the whole purpose of the threat is to make the accused commit the offence. In summary, self-defence is about trying to stop the victim’s threat of force by attacking him or her back. Duress, on the other hand, is about succumbing to the threats by committing an offence. Unlike self defence, duress is limited to those very few situations where the accused has been compelled to commit a specific offence under threats of death or bodily harm. Unlike self defence, duress is a very limited defence.
WHEN DOES DURESS NOT APPLY
There are certain cases where an accused person cannot argue duress. The Criminal Code prohibits the defence of duress applying in certain cases where the offence is one involving serious personal violence or threats to public safety. These include: high treason, 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, assault causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or child abduction. This, however, may depend on the Accused’s involvement in the crime. The defence of duress may be available if you are a party to an offence such as murder or robbery. Whether or how the defence of duress may apply in your particular case requires complicated legal analysis and you should talk to a lawyer.
The defence of duress is also unavailable where the Accused is part of a conspiracy or criminal association where he is subject to the use of threats to carry out criminal activity. For example, let us say the accused was involved in a conspiracy to export cocaine. At some point, he decides that he does not want to be responsible for delivering the cocaine filled luggage that he committed to earlier. When he tries to back out, however, he begins receiving threats that his wife might not be so safe the next time she takes their child to the playground. The accused knows that his boss has had personal harm inflicted on other people who have tried to back out in the past, so instead, he follows through.
Here, even if he could otherwise make out the defence of duress, the defence would not be available to him. Certain criminal activities and organizations use violence as an enforcement mechanism. Violence in many cases can be the only way that criminal organizations can ensure criminal activity is being carried out as directed. Canadian law is very clear that if the accused voluntarily associated with people that he knew might pressure him into committing a criminal offence, he is not then entitled to later claim he was threatened. The Accused cannot rely on the defence of duress where the threats were made by a criminal organization that the Accused voluntarily joined, and where the Accused knew that they might pressure him into committing the crimes.
HIRING A LAWYER
The defence of duress has very specific boundaries set by Canadian case law and by the Criminal Code about when it can apply. It is a rare defence in Canadian law given the number of restrictions outlined above and all the requirements of the five-stage test. This is among the more complicated defences used in our criminal justice system and talking to a defence lawyer about whether it applies on the facts of your case is crucial. If you have been charged with an offence, please contact a lawyer at Pringle Chivers Sparks Teskey for a free consultation to discuss your case.