Defence of duress: Addresses criminal liability of those in situations of extremity, i.e. criminal acts committed while subject to threat or compulsion from another person
Necessity: Addresses circumstances that produce situations of imminent peril.
Principle v Secondary Offender: Principal = actually committed offence, secondary = party to offence
ss. 21/22: Party provisions: “A person is party to an offence if they are the principal offender (actually committed it) or if they are a secondary offender (aided, abetted/encouraged), or counselled, procured or incited someone else to do it
Guilty of the offence, whether principal or secondary offender – equally liable
Statutory defence (s. 17) and also common law.
Statutory: s. 17 includes a list of offences where duress can’t apply (murder, attempted murder, sex assault, abduction, robbery, assault, agg. assault, etc)
Common law: Broader, lacking strict immediacy & presence requirements
Paquette/Ruzic s. 17 applies to principal offenders. Secondary offenders can turn to common law defence (preserved under s. 8)
This defence operates AFTER proof of actus reus and mens rea. The intent is there, but there is good reason for it. It excuses the action, rather than negatingmens rea (Hibbert)
If air of reality is established for either statutory or CL defence, Crown must disprove existence as to duress beyond a reasonable doubt.
The law is very inconsistent! Law reform is an easy thing to think of here in terms of clarification. Court recognised in Ryan that the law is in an unsatisfactory state.
Paquette v The Queen – the relationship between the CL and Stat Defences
Facts: During robbery, innocent bystander killed by bullet from one robber. Paquette was not present. Charged with murder under s. 21(2). Drove the robbers to the store. They had threatened to kill him
Issue: is accused precluded from using s. 17 because of the exception contained at the end of it?
Decision: Verdict of acquittal restored
Reasons: By looking at the wording of s. 17, clear that it applies to those who actually commit the offence (not parties to the offence). He did not commit the offence and is entitled, by s. 7(3) (now 8(3)) of the Code, to rely on any excuse or defence available to him at common law.
Ratio: Common law defence of duress exists. Application of s. 17 is limited to cases in where the person seeking to rely upon it has himself committed the offence.
s. 17 does not apply where criminal liability as a party falls to be determined under s. 21(2) of CC
Restrictive s. 17 defence is only exhaustive for principal offenders (actual robber). It does not apply to secondary offenders, so the more generous CL defence applies to them (no immediacy or presence requirements, and hardly any exclusions).
R v Mena ONCA
Facts: Robbery with Yee. Accused tied up store owner under directions from Yee. Carried proceeds out under his command, while Yee held a gun to the store-owner.
Issue: was he a co-principal offender or a secondary offender? If he was a co-principal, then s. 17 would apply and he would be excluded from running the defence (as it is a listed exemption).
Decision: It was open to the jury to find him as an aider and abetter in which he would be entitled to the common law defence.
Ratio: Illustrates the difficulty in characterizing an offender as primary or secondary.
Difference between co-perpetrators and aiders/abetters is often unclear. The outcome is serious, because an aider can go to common law duress, whereas co-perpetrator has to deal with s. 17 and the exclusions.
**An accused person cannot rely on the common law defence of duress if she had an opportunity to safely extricate herself from the situation of duress**
Facts: Accused said he was forced by the principle offender to lure the victim (his friend); he then stood by while the victim as shot.
Issue: Was duress available if he had an avenue of escape? Because of duress, is the mens rea negated?
Ratio: Overrules Paquette – mens rea for aiding under s. 21(1)(b) is NOT susceptible of being negated by duress.
Conclusions:
1. If the offence is one where duress is relevant to mens rea, the accused can argue that the crown has not proven beyond a reasonable doubt that they possesses the required mental state.
2. excuse based defence is also open (regardless of the bearing on mens rea)
3. the mental states in 21(1)(b) [“purpose’] and (2) [intention in common] cannot be negated by duress. In these cases, accused can only seek the excuse defence
Safe avenue of escape objective or subjective? Objective, taking into account the particular circumstances and human frailties of the accused.
R v Ruzic – requirements of immediacy and presence violate s.7
Facts: woman under threat (third party threatening to harm her mother in Serbia) crosses border using a fake passport with drugs. No immediacy, no presence of danger. She believed police in Belgrade were corrupt, didn’t report. She was the principle offender.
Issue: is it Constitutional to remove duress defence from people who have committed the offence with the immediacy and presence requirements.
Decision:Yes, “immediate and presence” requirements are too restrictive and violate s. 7. She is acquitted.
Reasons: Importing drugs not in the list of exclusions in s. 17.
Ratio:
Duress operates to relieve a person of criminal liability only after he has been found to have committed the prohibited act with the relevant mens rea.
It is a principle of fundamental justice that morally involuntary acts should not be punished (but does not negate actus reus or mens rea)
The requirements of a threat of immediate death or bodily harm from a person who is present when the offence is committed violate s.7 of the Charter because they allow the conviction of a person who commits a crime in a morally involuntary manner severed from the provision, not justified under s.1
** the principle of moral involuntariness is a principle of fundamental justice **
Combined effect of Ruzic and Paquette:
s. 17 does not apply to secondary parties; therefore secondary parties may rely on the common law defence of duress in respect of all offences; common law duress applies under s. 8(3) of the Code to the extent that the common law has not been altered or excluded by the statutory provision (in this case, s. 17 on duress);
principal offenders may rely on the common law defence of duress in respect to all offences except the s. 17 list of excluded offences;
if a principal offender commits one of the excluded offences listed in s. 17, that offender can not rely on duress as a defence.
Other differences between s.17 and the common law:
(i) section 17 (since 1983) only requires threats of "bodily harm", whereas the common law seems to require threats of "serious bodily harm; and
(ii) section 17 expressly applies a subjective test while common law duress applies a modified objective test.
R v Ryan 2013 (leading case! – Court tries to harmonize CL/stat defences)
Facts: Ryan was a battered spouse. Afraid that her separated spouse would injure her or her daughter. Sought protection of police who said there was nothing they could do. She felt trapped, hired a hitman who was actually an undercover cop.
Issue: is duress available where a wife, whole life is threatened by abusive husband, tries to have him murdered?
Decision: SCC unanimously reverses the acquittal of Ryan based on duress (though awards a stay of proceedings)
Reasons:
For duress, a person must have committed an offence that a third party had compelled her to commit. Her husband was not urging her to kill him. Not the right fact pattern for duress.
Court Clarifies the Law of Duress (harmonizes common law and statutory versions of the defence)
Distinction between Duress and Self-defence:self-defence based on the principle that it is lawful, in defined circumstances, to meet force (or threats of force) with force. The victim is the originator of the threat that causes the actor to commit what would otherwise be assault of culpable homicide. Duress (and necessity) the victims of the otherwise criminal act are third parties, who are not themselves responsible for the threats or circumstances. The purpose of the threat is to compel the accused to commit an offence.
The Principle of Fundamental Justice underlying duress: only voluntary conduct – behaviour that is the product of a free will and controlled body, unhindered by external constraints – should attract the penalty and stigma of criminal liability. No legal way out. The law excuses people who, although morally blameworthy, acted in a morally involuntary manner (Ruzic). (Whereas, self-defence is justification – Perka).
Summary: Duress is only available where accused is threatened to compel the commission of an offence. S. 17 only available for principle offenders (secondary go to common law). What is remaining for a principle offender? See below:
The Four Remaining elements of s. 17 (Post-Ruzic)
there must be a threat of death or bodily harm directed against the accused or a third party
the accused must believe that the threat will carry out
offence must not be on the list of excluded offences (subject to future Charter challenge)
the accused cannot be a party to a conspiracy or criminal association such that the person is subject to compulsion
Three supplements to s. 17 from the Common Law
5. No safe avenue of escape – does not apply to people who have safely and legally extricated themselves from the situation of duress. Measured on the modified objective standard of a reasonable person similarly situated.
6. Close temporal connection – such that the accused loses the ability to act voluntarily. Modified objective test. (a threat too far removed in time would cast doubt on the seriousness of the threat/absence of an escape – these are critical now that immediacy and presence requirements were struck down – post Ruzic, Court still needs a way to catch too remote a threat)
** 1 and 2 are on amodified objective standard – analyze together as an integrated, holistic analysis **
7. Proportionality – catch-all we don’t like overreaction/excess. Modified objective of a reasonable person similarly situated. Only an action based on a proportionately grave threat, resisted with normal fortitude, can be considered morally involuntary
- “Accused should be able to show some fortitude and put up a normal resistance to the threat” - Ruzic
The Common Law Defence of Duress Post-Ruzic
an explicit or implicit threat of death or bodily harm proffered against the accused or a third person. Present or future harm. (the “grievousness” of the threatened bodily harm is better dealt with at proportionality stage)
accused reasonably believed that the threat would be carried out (modified obj)
a close temporal connection between the threat and the harm threatened
proportionality between the harm threatened and the harm inflicted by the accused (modified objective standard). Consider the difference between the nature and magnitude of the harm threatened and the offence committed, as well as a general moral judgment regarding the accused’s behaviour in the circumstances.
the accused is not party to a conspiracy or association whereby the accused is subject to compulsion and actually knew the threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association
Summary of differences
Statutory applies to principals, common law defence available to parties to an offence.
Statutory has a lengthy list of exclusions, whereas it is unclear in Canadian common law of duress whether any offences are excluded
Court says: this is an unsatisfactory state of the law but cannot comment in this case. Some courts have found these exclusions to be constitutionally infirm. Leave the status of the statutory exclusions to another day.
** next step: argue the exclusion clause is unconstitutional, violates s.7 – i.e. what if a principal offender is charged with an excluded offence (but they can only go to s. 17)? Charter challenge? (robbery has been struck down, and a murder offence has been struck down in trial decisions) Fraser, Sheridan
Ryan chose not to address this issue, whether there are any exclusions to the defence, and whether there are any exclusions at common law
Why should the exclusions stand – why isn’t the defence available in general? If true moral involuntariness, it should be widely available.
NB: Distinction between principle and secondary offender isn't always clear.
Could be a secondary offender, or a co-principle. EXAM HINT: on a fact pattern, make this distinction clearly - based on what defence we want to run for our client
Mena: Illustration of how this distinction can be difficult
More than one principle offender here. What was the accused?
Facts: Robbery situation - accused tied up store owner under directions from Mr. Yee (the other robber), did things at Mr. Yee's command while Mr. Yee held a guno n the store owner
He argued duress
If a co-principle offender, then s. 17 would apply
But if not s. 17 was out (b/c he'd be a secondary offender)
Question left to the jury - as an aider/abetter, he would be entitled to the defence under common law
Court of Appeal suggested he was a co-perpetrator if he intended to act in concert…. This is circular logic - approach with caution.
First main distinction then is principle or secondary
Everything else is left in questions
Exclusions - will those be struck down, or will the CL be read to include exclusions?
Right now, we have exclusions in one, but not the other. Is that sustainable?
Second question, activity about criminal organization
It is unclear whether any offences are excluded from this offence, EXCEPT:
Aiders and abettors to Murder (Howe) and attempted murder (Gotts) cannot use the common law defence of murder.
What Does this Mean for Mens Rea?
Intoxication - we say impairment has compromised ability to perform intent
That is NOT the case in duress
There has been a debate as to whether duress can negate mens rea. Court says in Paquette that it is POSSIBLE in some circumstances - compulsion could negate mens rea to commit a criminal act - but they say, what is really happening here, is that the individual has full mens rea. They know what they're doing, they intend to do it (even if they don't want terrible consequences to flow) but they have mens rea. Rather, what is happening here is the recognition of an excuse.
The individual has committed the actus reus, and has the required mens rea, but we excuse them at law, because of this compromised moral involuntariness.
Same concepts in play here as in necessity
DIFFERENT than self-defence. Self-defence isn't an excuse, it is a justification. They were JUSTIFIED in doing what they did, because it was correct in the circumstances. In duress, we don't justify it - we just say you are excused (maybe - depending on whether murder stands as an exclusion)
This discussion arises frequently in the case law
Court goes back and forth on this question
Hibbert: Appears to be the last word here. It is a lawful excuse, not the negation of mens rea.
"Air of reality" test applies, as always - evidentiary burden. Then, Crown must prove beyond a reasonable doubt that the offence was not committed under duress.
Commentary by Martha Schaffer:
Battered spouses have often committed crimes under duress, and their claims have often been rejected
We see this at play in Ryan, although this was a very favourable outcome)
Schaffer speculates that judges have often been sceptical of the claims of battered spouses, and that they have had difficulty in understanding the view of the battered woman that there are no reasonable alternatives
Imminency and presence are experienced in a different way
Ryan presented half of these facts - experience of a battered spouse - but we don't actually have HER being under threat/compulsion by the spouse to commit an act against someone else
Remains to be left to see how Lavallee and the evidence of the battered spouse might play out in duress
Novel set of facts to be dealt with by court (exam hint?)
E.g. rob this bank, or I'm going to beat your daughter. This is the kind of set of facts that might work ehre.
E.g. turn some tricks on the street or I'm going to beat you
E.g. kill this person or I'll beat your daughter - Crown would argue that this isn't proportional (killing = much worse than beating)
Would want to integrate factors in s. 34(2) to assess reasonableness
Expert evidence on the psychology of battered spouse syndrome would be vital here
FINAL NOTES: Understand the basic constituent elements of statute versus CL, how are they the same and how are they different, how would you apply them to a new set of facts (and which law would you apply?), and what kind of ideas might you have around reform (aside from clarification/true harmonization). Do you have any thoughts about reform?
