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Some violations of the law may be excused or justified. For example, if a) circumstances (not other people) demanded an act in violation of the law (necessity), b) an accused was coerced into doing an act by threat of injury from others (duress) or c) an accused defended himself or his property against attack (self-defense and defense of property.)
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Once the Crown proves the AR and MR of the offence, the accused may raise the defense of “necessity.”
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It is not an “excuse” or “justification” – their actions were still wrong, but a conviction is still prevented.
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Three elements of the defense (3 Ps):
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1. Peril – emergency; immediate and not foreseen; subjective and objective test; what would the reasonable person with the characteristics of the accused do in the circumstances?
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2. Impossibility – compliance with the law is not a real/practical option. subjective and objective test; what would the reasonable person with the characteristics of the accused do in the circumstances?
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3. Proportionality (sometimes called Response) – the response was proportional; no more harm was done than necessary; objective test.
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Re: Peril and Impossibility: the accused must have actually / subjectively known that he or she was in an emergency and had “reasonable grounds” to believe that he or she had no option but to break the law.
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A tactical burden: need only raise a reasonable doubt; Crown must disprove necessity beyond a reasonable doubt.
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Role of Judge: determine whether there is an “air of reality” to put the defense to the jury.
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Role of Jury: to determine whether the accused has raised a reasonable doubt, re: defense of necessity existed.
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R v Perka: Perka was charged with importing a narcotic and possession for the purposes of trafficking; the boat was on high seas outside of Canadian jurisdiction. The boat was having mechanical problems and there was severe weather so the boat came to Canadian shore. To prevent capsizing the cargo was unloaded. The police seized about 33.5 tons of marijuana. The argued the defense of necessity saying they had to come to shore in order to prevent their death – they were always intending on going to Alaska and not Canada. Appeal was dismissed and a new trial was ordered.
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R v Latimer: Tracey (V) suffered from a severe form of cerebral palsy; she was rendered quadriplegic and immobile; she suffered seizures daily and was in a great deal of pain that could not be controlled through medication and required ongoing surgery; “Robert Larimer formed the view that his daughter’s life was not worth living.” On Sunday, Oct. 24, 1993, while his wife and Tracey’s siblings were at church, Robert Latimer carried Tracy to his pickup truck, seated her in the cab, and inserted a hose from the truck’s exhaust pipe into the cab. She died from carbon monoxide poisoning.
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Is the defense of necessity available? Air of reality? Should it be put to the jury?
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Re: Peril: the appellant does not suggest he himself faced any peril; there was nothing in Tracey’s medical condition that placed Tracey is a dangerous situation where death was the alternative.
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Re: Impossibility: accused could have pressed on and tried to minimize the pain to his daughter.
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Re: Response/ Proportionality: the harm avoided (pain) compared to death was not proportionate.
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There must be an “air of reality” for all three requirements in order to make a charge to the jury.
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R v CWV: Accused attended a party to retrieve a keg of beer; the accused proceeded knowing that he was going to have problems in retrieving the beer; the accused was assaulted as he sat in his vehicle surrounded by a “mob” of about 20-40 people. “Fearing his safety, he put his vehicle in reverse and attempted to escape. In doing so he hit two people, two vehicles, and some trees. The injuries were minor.”
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If the situation was clearly foreseeable to a reasonable person, if the actor contemplated or ought to have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law, then I doubt whether what confronted the accused was in the relevant sense an emergency.
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The appellant foresaw, or ought to have foreseen, the necessitous situation.
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The trial judge erred by applying a lesser standard.
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Conviction quashed: new trial ordered.
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The Defense of Duress: as always, the Crown has the burden of proving the AR and MR of the offence; the defense of duress is NOT justification, does NOT say what the accused did was “right” but nonetheless, prevents conviction.
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Common-law defense (s. 8.3 of Code)
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“The defense of self-defense, necessity and duress all arise under circumstances where a person is subjected to an external danger, and commits an act that would otherwise be criminal as a way of avoiding the harm the danger presents. In the case of self-defense and duress, it is the intentional threats of another person that are the source of the danger, while in the case of necessity the danger is due to other causes, such as forces of nature, human conduct other than intentional threats of bodily harm.”
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Accused bears a tactical burden only. The accused need only raise a reasonable doubt about whether the facts support the defense. To obtain a conviction the Crown must disprove the defense beyond a reasonable doubt.
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Ryan: “Duress is… an applicable defense only in situations where the accused has been compelled to commit a specific offence under threats of death or bodily harm.
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Baker: The defense should only be available where the defendant commits a crime that he has been directly coerced to commit.
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Ruzic: “duress is merely a particular application of the doctrine of necessity. In my view, the similarities between the two are so great that consistency and logic requires that they been understood as based on the same principles.”
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Elements of the Offence: (R v Ryan):
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There must be an explicit or implicit threat of present or future death or bodily harm. This threat can be directed at the accused or a third party.
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The accused must reasonably believe that the threat will be carried out.
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There is no safe avenue of escape. This element is evaluated on a modified objective standard.
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A close temporal connection between the threat and the harm threatened.
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Proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened. This is also evaluated on a modified objective standard.
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The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association.
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Elements of the Offence: Common-Law
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1. Peril – emergency; explicit or implicit threat of death or bodily harm proffered against the accused or a third person; may be future harm; must be a close and temporal link to harm threatened; accused must not be a party to the conspiracy or association whereby the accused is subject to compulsion and knew that threats or coercion to commit an offense were the possible result of this criminal activity. Subjective and objective test.
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2. Impossibility – compliance with the law is not a real/practical option; no safe legal way out; subjective and objective test; reasonable person standard is interpreted in light of the “situation and characteristics of the particular accused.”
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3. Response – the response was proportional; no more harm was done than necessary; MODIFIED objective test (community standards).
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Ryan re: Modified Objective Test: The evaluation of the proportionality requirement on a modified objective test differs from the standard used in the defense of necessity which is purely objective.
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SCC has interpreted this to exclude aiders and abettors. They have the common-law defense only.
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R v Ruzic: Ruzic was charged with the unlawful importation of heroin, possession and use of a false passport; Accused was a Yugoslavian citizen who lived in Belgrade with her mother. She had no known criminal connections. She was approached in Belgrade by a person known to be a paramilitary criminal (“X”); X stalked and intimidated A; X told A to fly to Canada with heroin under a false passport; if she refused, X would harm her mother; A flew from Belgrade to Budapest to Athens to Toronto; she was searched at the TO airport; A had not told anyone about X’s threats; A believed that going to the police in Yugoslavia would be useless – they were corrupt;
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Held the immediacy and presence parts of s. 17 were unconstitutional and laid out the common-law requirements (see below)
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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 [+objective / reasonable] 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).
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R v Li, Chen, and Liu: accuseds were residents of China who contracted with a Chinese criminal organization (“Snakeheads”) engaged in smuggling humans into Canada; one earlier accused had used the Snakeheads’ services to illegally enter into the US; Accused did not pay the Snakeheads in full; Accuseds knew that upon arriving in Canada, they would be required to pay their balance or “work off” their debt. T was a member of the Snakeheads in Canada. T told the accuseds they had to participate in a kidnapping. T threatened them and their families in China. Accused kidnapped three individuals and held them for 22 days. T was only at the apartment very briefly and intermittently. Accused were free to come and go and had access to telephones. They pleaded the defense of duress.
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The voluntary activities of these appellants in approaching the Snakeheads for passage and illegal entry bring them within a recognized exception to the common law defense of duress. If someone puts himself in a position where he is likely to be subjected to threats of this kind, he cannot escape conviction if he is subject to threats.
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The appellants made a deal with the devil and say they had no alternative but to honor it. The appellants made no serious attempts to stand up to their oppressors, if such they were. In my opinion, the trial judge was correct in holding that there was no air of reality to the defense of duress.
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R v Ryan: Nicole Ryan was the victim of a violent, abusive and controlling husband. She believed he would cause her and their daughter serious bodily harm. She paid an undercover officer $25000 to kill her husband and provided him with an address and photograph. She was arrested under s. 464(a) counseling the commission of an offence. She pleaded duress.
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The defense of duress was not available to her because she was not under the direct compulsion of her husband, but was rather acting on her own free will. It must be one expressly or impliedly ordered by the villain.
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Regardless, the uncertainty surrounding the law of duress coupled with the Crown’s change of position between trial and appeal created an unfairness to Ms. Ryan’s defense in this case. Appeal allowed, and a stay of proceedings entered into.
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