Necessity only applies when the circumstances clearly show that the 3 criteria are satisfied
The defence only passes the air of reality test when evidence exists on ALL points
Here, there was no immediate peril, there was a legal alternative (palliative care), and it is nearly impossible to think of circumstances where killing someone is proportionate
Jury nullification – it is possible for a jury to nullify a law as a safety valve, but there is no right to jury nullification
DURESS
The leading case is Ryan
The basic principle of duress: people should not be held liable for conduct which is morally involuntary (principle of fundamental justice – Ruzic)
Duress only imposes a tactical burden on the accused; the Crown must prove it doesn’t apply beyond a reasonable doubt. Has to pass air of reality test to be put to the jury (Cinous)
There are statutory (s. 17) and common-law forms of the defence, but they are largely the same (Ryan – two differences are the list of excluded crimes in s. 17, and the fact that the statutory defence applies to principals whereas the common-law defence applies to parties)
Where the statutory defence is not complete, it is filled in with elements from the common law version
This is confusing for juries – especially where it is difficult to distinguish parties from principals, and two sets of instructions are required
ELEMENTS OF THE OFFENCE:
There must be an explicit or implicit threat of present or future death or bodily harm, against the accused or a third party
The offence committed cannot be on the list of exclusions (STATUTORY ONLY)
The accused cannot be exposed to the coercion because they are party to a conspiracy or criminal association
The next 3 elements must be understood together:
The accused must believe the threat will be carried out (modified objective test of a reasonable person similarly situated)
There is no safe avenue of escape (modified objective test)
There is proportionality between the threat and the offence
Two branches: the harm caused has to be proportional to the harm avoided (so no killing someone to avoid a minor threat), and the accused must have acted in accordance with society’s standards, including resisting the threat
Both of these elements use the modified objective test
Duress is an excuse, not a justification – it will only be raised if the actus reus and mens rea are present for a criminal act. It only requires moral blamelessness, not moral innocence.
Remember to keep distinction between mens rea and motive – not wanting to do it doesn’t mean you don’t have mens rea
Pre-Charter, s. 17 could only be reasoned away (e.g. the holding that it doesn’t apply to parties); with Ruzic some elements of the provision have been struck down
Ruzic
Facts – Ruzic was forced by threats made to her against her moth to smuggle heroin into Canada. She argued that the immediacy and presence requirements of s. 17 (requiring a threat of immediate bodily harm or death by someone present, as in cases where you’re held at gunpoint and forced to do something) violated s. 7 of the Charter.
SCC held that statutory defences/excuses were no different than offences as far as Charter interpretation goes. It’s not a violation of s. 7 to modify or withdraw a criminal defence.
It is only just to punish those criminal acts which arose from “the choice of a conscious mind and an autonomous will”. Only morally voluntary conduct should incur criminal liability. This is a principle of fundamental justice, as it is a foundational value of the legal system. Not all morally involuntary conduct will be blameless.
Duress is similar to necessity, though the threat comes from different locations – another agent in the former, nature in the latter. Both of them share a root in moral involuntariness.
The immediacy and presence requirements of s. 17 can lead to people who are acting in a morally involuntary way being punished for their actions. This violates s. 7 of the Charter. The common law defence is closer to Charter values.
The purpose of those sections is to ensure that the conduct is truly morally involuntary.
SCC notes that spurious claims of duress can emerge, which requires a strict application of the defence – this is different than other defences, where only an air of reality is required
Li, Chen, and Liu
You cannot voluntarily expose yourself to the coercion and avail yourself of the defence of duress; it only exists to excuse morally involuntary conduct
Necessity: the commission of an offence due to a natural threat; an excuse
Duress: the commission of an offence due to the threat posed by another party; an excuse
Duress is a narrower defence than self-defence
Duress only applies in cases where a threat of bodily harm or death is made to compel the commission of a specific offence
You cannot invoke duress where the threat is not intended to compel the performance of an offence, or where you are the person making the threat
PROVOCATION
Provocation is a partial defence/excuse for murder, which leads to a reduction from murder to manslaughter. It still requires that the actus reus and mens rea for murder be proven – it excuses them.
Evidence of provocation can show that the accused’s subjective foresight of death was undermined, and that the mens rea requirement for murder was not met (Campbell, 1977 ONCA – persuasive but not binding here).
History:
Initially emerged as the “chance-medley defence”, which was an unsystematic way of being lenient in conditions where someone was provoked into such a rage that they would kill. The penalty for murder was death, so it provided some leeway.
It became more systematized over the 17th century. Over time, it became a way to deal with affronts to one’s honour, allowing for weaker penalties for conduct done in response to provocation (to your honour).
Initially, the accused’s state of mind (loss of self-control) was key. In the 18th century, categories of provocative events were established that reflected this basis in honour (catching your wife in adultery, an “affront of pulling the nose”) – violent responses to these violations of honour were considered more or less required.
This was abandoned in the mid-19th century, where it was reconceptualised as a concession to human frailty and our capacity for uncontrollable outbursts of passion leading to violence (carried through to today – Hill 1986). Analysis of the precipitating event was made into the objective test.
After Tran, the ordinary person in provocation analysis is shaped by Charter values, as well as social context – provocation based on honour or the belief in ownership of a spouse won’t fly anymore. Contrast with older approaches:
Krawchuk (1940, SCC) – a man was “provoked” because he killed his wife when she told him she was going on a trip with her lover.
Taylor (1947) – a man was “provoked” when his wife said that another man was “alright” and slapped him (implying that he was better than her husband?). he beat her to death with a chair.
It lives in s. 232 of the Code:
232.1 - Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
232.2 - A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.
232.3 – no provocation can arise from someone doing something they have a legal right to do. (This refers to a positive right, sanctioned by law – the law does not approve of everything it does not forbid.)
This breaks down into 4 elements (Thibert), which Tran interpreted as two:
A wrongful act (an act contrary to law or morality or justice) or an insult (Taylor, 1947 – an act or the action of attacking or assailing; an open and sudden attack; injurious or contemptuous speech or behaviour; or scornful utterance intended to wound self-respect and dignity. All insults are wrongful acts); the wrongful act or insult must be fresh at the time of provocation, old wounds don’t count.
“sufficient to deprive an ordinary person of the power of self control” (an objective test, NOT using the reasonable person; Parnerkar – this refers to an ordinary person in the circumstances of the accused, including age, sex, and any factors that would give the act or insult extra significance (e.g. race, a long history of insults)); an ordinary person is not excessively angry or easy to provoke, nor are they intoxicated.
KEY: it’s not whether the ordinary person would have acted as the accused did, it’s whether the insult would’ve deprived them of the power of self-control.
“on the sudden” (Tripodi – the wrongful act or insult must strike upon a mind unprepared for it, that it must make an unexpected impact that takes the understanding by surprise and sets the passions aflame; this can include “last straw” sorts of cases)
“before regaining self-control” (the response to the insult must be sudden – this can be considered in light of intoxication, character idiosyncrasies, history of insults [though revenge is not contemplated])
The evidentiary burden imposed by the air of reality test (there must be evidence on all elements of the defence such that a properly instructed jury, acting reasonably, could acquit the accused based on the defence) must be satisfied before provocation can be left with the jury (now governed by Cinous, previous tests were Parnerkar [if there’s any evidence on the record, it goes to the jury] and Faid [this is a question of mixed law and fact, whether the act of provocation was sufficient and whether the accused lost self-control]).
Where a reasonable doubt about provocation is not raised by the evidence, any evidence of provocation can be considered in light of whether the accused subjectively intended to murder.
