Constitutional Limits on Criminal Law 1
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- Duress
- Statutory defense of duress
- CML defense of duress
- Summary
NecessityCC s 8(3) preserves the CML defense of necessity (Morgentaler). There are three elements to the defense: (1) imminent peril or danger, (2) the absence of a reasonable legal alternative and (3) proportionality between the harm done and the harm avoided. (Perka, Latimer) Judges enforce these requirements strictly, carefully limiting the scope of the necessity defense (Morgentaler, Perka)
A defense has an “air of reality if there is some evidence for the defence such that a trier of fact acting reasonably could acquit were it to believe the evidence is true (Cinous) (1) imminent peril or danger, The first element, that of imminence, is assessed on a modified objective standard. The relevant question is whether the accused in fact believed and whether a similarly situated reasonable person would have believed, that immediate peril or danger was present. This standard ascribes the accused’s personal circumstances and characteristics to the reasonable person insofar as these are relevant to a person’s ability to evaluate the urgency of a situation (Latimer). The peril, disaster, or harm must be direct and immediate. It is insufficient that it is merely foreseeable or likely. Rather, it must be “on the verge of transpiring and virtually certain to occur” (Latimer, Perka). (2) the absence of a reasonable legal alternative and The second element, that of no reasonable legal alternative, is also assessed on a modified objective standard. The relevant question is whether the accused in fact believed and whether a similarly situated reasonable person would have believed, that there was no reasonable legal alternative. This standard ascribes the accused’s personal circumstances and characteristics to the reasonable person insofar as these are relevant to a person’s ability to evaluate the available alternatives (Latimer). (3) proportionality between the harm done and the harm avoided. The third element, that of proportionality between the harm done and the harm avoided, is assessed on a straight objective standard (Latimer). The relevant question is whether a reasonable person would conclude that the harm caused by (accused’s act) was less than the harm that would have been caused by (if the accused didn’t act). ORGANIZING PRINCIPLE – the organizing principle for the defense of necessity is that of moral involuntariness. Duress17. A person who commits an offence under compulsion by threats of CC 8(3) preserves CML defenses, but only in so far as the criminal code does not otherwise alter them. The codified duress defence found in CC s 17, alters (narrows) the CML duress defense as it applies to persons “who commit an offence”, introducing an immediacy and presence requirements (before Ruzic) and precluding the defence’s use for certain serious offences (murder, sexual assault, etc.). Thus, where a person has committed an offence personally, rather than become party to it via aiding, abetting, or common intention (CC 21), only the CC s 17 duress defense is potentially available (Paquette). Because, however, CC s 17 only applies to persons “who commit an offence”, the CML defence of duress remains available by virtue of CC s 8(3) for those who did not personally commit an offence but become party to it via aiding, abetting, or common intention (CC 21(1)(b-c), (2)) (Paquette; Mena; Ruzic). Question of fact – Mena?
Four requirements of the statutory defence, however, remain intact after Ruzic: (Ryan) (1) there must be a threat of death or bodily harm directed against the accused or a third party; (2) the accused must believe that the threat will be carried out; (modified objective standard – person similarly situated – Ryan) (3) the offence must not be on the list of excluded offences; and (4) the accused cannot be a party to a conspiracy or criminal association such that the person is subject to compulsion. Where there are ambiguities or gaps in a statutory defense, by virtue of CC 8(3), the defense’s CML version provides clarification. Thus, alongside the remaining statutory requirements for the s 17 duress defense, there are three additional elements derived from the common law. (5) there must be no safe avenue of escape (modified objective standard – person similarly situated); The defence does not apply to persons who could have legally and safely extricated themselves from the situation of duress (Ruzic, Ryan) (6) there must be a close temporal connection between the threat and the harm threatened (Ruzic, Ryan) Linked with #5: A threat that is “too far removed in time . . . would cast doubt on the seriousness of the threat and, more particularly, on claims of an absence of a safe avenue of escape (7) proportionality (modified objective standard – person similarly situated). The accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat” (Ruzic).
(2) the accused reasonably believed that the threat would be carried out (modified objective standard – person similarly situated (Ruzic, Smith) (3) absence of any safe avenue of escape, evaluated on a modified objective standard; (Ruzic, Smith) (4) a close temporal connection between the threat and the harm threatened; There is no strict immediacy requirement (contra necessity) (Smith) (5) proportionality between the harm threatened and the harm inflicted by the accused, assessed on a modified objective standard. Two prongs: the difference between the nature and magnitude of the harm threatened and the offence committed general moral judgment regarding the accused’s behaviour in the circumstances – requires a more in-depth analysis of the acts of the accused and a determination as to whether they accord with what society expects from a reasonable person similarly situated in that particular circumstance (6) 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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