Any unlawful threat or coercion used by a person to induce another to act in a manner he or she otherwise would not



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DURESS
Duress - any unlawful threat or coercion used by a person to induce another to act in a manner he or she otherwise would not

-the defence is made out if the accused person acted solely as a result of the threats of death or serious injury to himself, or another, operating on his mind at the time of his act, and of such gravity that they might well have caused a reasonable man placed in the same position to act as he did and the threat may be of immediate or future death or injury (p.914)

-defence for parties to the offence (code s.21)

-it is not codified - based on common law

-code s.8 - common law continues to be applicable even if not codified

-duress is a complete defence


Elements needed for defence

-threat of death or grievous bodily harm (compulsion - just bodily harm)

-belief that the threats will be carried through (imminent threat)

-no safe avenue of escape

-the means of defence must be proportional to the threat
Distinguishing factors

-defence for parties only

-based on common law

-your actions were done because you were threatened

-this defence can not be used for treason or murder

-duress is available when the threats are directed at a third party

-the person making the threats does not have to be present at the time of the offence p.915

-the threats may be implied, but fear alone is not enough to ground the defence


Parties to offence - everyone is a party to an offence who

a) actually commits it

b) does or omits to do anything for the purpose of aiding any person to commit it

c) abets (helps) any person in committing it


Threshold test - The judge will decide if there is an “air of reality” before presenting the defence to the jury

- compliance with the law is “demonstrably impossible”


Related cases

-Hibbert v. The Queen (p.893)


Related articles

-Distinctions between compulsion and duress (p.913) they are all listed nicely





Hibbert v. The Queen

Facts:

- Supreme Court of Canada - 1995

- Nov 5, 1991, shortly before 1:00am - Etobicoke

- all the participants were drug dealers

- Fitzroy Cohen was shot four times in his apartment building with a semi-automatic handgun by Mark Bailey

- Bailey was accompanied by Lawrence Hibbert (appellant), who was a close friend of Cohen

- Hibbert asked Cohen to come downstairs from his apartment

- Bailey was waiting at the bottom of the stairs with a gun

- Cohen survived the shooting
- Cohen testified that he was aware that Bailey was seeking revenge for an incident a year earlier where Bailey was robbed by a rival drug dealer (Andrew Reid) while Cohen and others stood by and laughed

- Cohen heard from a friend that Bailey had tried to shoot Reid in a busy street, but missed

- he later heard that Reid had been murdered
- Hibbert owed Bailey $100 dollars for drugs purchased a few months before, and was trying to avoid Bailey

- Hibbert accidentally runs into Bailey at a friends place

- Bailey points a gun at Hibbert and tells him to take him to Cohen’s place

- Hibbert refuses and Bailey takes him down stairs and punches him in the face several times

- Hibbert feared for his life if he did not take Bailey to Cohen’s place

- on the way to Cohen’s they stopped at a pay phone for Hibbert to call and ask Cohen to meet him at the front door

- Bailey waited beside Hibbert while he phoned to assure he would not ‘tip him off’
- Hibbert testified that he did not ask Cohen to buzz him in, hoping that Cohen would come down and see Bailey there through the locked door

- Cohen buzzed the door open anyway, and they entered into the lobby

- Hibbert also said that he normally entered through the rear door of the building when visiting

- as they got out of the car Bailey held a gun to Hibbert’s back

- Hibbert called Cohen on the intercom and he came down from his apartment

- when Cohen came down Bailey stuck the gun in his chest and lead him down to the basement

- Bailey told Hibbert to stay in sight

- Bailey proceeded to shoot Cohen four times in the groin, legs and buttocks saying, “You’re dead now pussy”

- Hibbert never tried to intervene, but pleaded with Bailey not to kill Cohen

- Bailey and Hibbert left the building and Bailey told Hibbert that he would kill him if he went to the police

- Hibbert turned himself into the police the next day

- Bailey was never apprehended



- Hibbert charged with attempted murder

Trial - trial judge informed the jury that the defence of duress is not available if there is a “safe avenue of escape”

- acquitted of attempted murder, but found guilty of aggravated assault

-sentenced to 4 years

- appeals conviction


Court of Appeal - Hibbert claims that the test of whether or not there was a “safe avenue of escape” should be a subjective test - it depends whether or not he believed he had a “safe avenue of escape”

- appeal dismissed, but reduces his sentence to 15 months

- appeals to supreme court

Supreme Court
Issues:

- was there a safe avenue of escape

- should the test be objective or subjective
Ratio:

- appeal allowed

- judge did err - so new trial ordered

- self-defence, duress, and necessity are all very close, so the “reasonable” requirements should be assessed on the same basis

- there should be a subjective aspect to the objective test

- based on appellant’s subjective knowledge and awareness at the time




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