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What is the Duress Defence in Canadian Criminal Law?

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You’re familiar with the use of self-defence in Canadian criminal law, right? If not, then please review the blog we posted last month because this month, we’re going to examine the use of the “duress defence” in criminal law. This defence is very similar to self-defence, as both rely on proving that a defendant was essentially forced into breaking the law. Self-defence is used to “justify” the criminal act, while a successful duress defence effectively excuses the criminal act. With self-defence, the defendant justifies their criminal act by needing to respond to violence or threat of violence. With duress, the defendant is seeking to be excused for a criminal act committed to prevent a threat of violence from being carried out. Of the two defences, duress has more limitations.

Confused?

Well, the Greater Toronto Area criminal defence lawyers at Mass Tsang will try to clear up any confusion by detailing more differences between the two defences and explaining how the duress defence is raised in Canadian court cases. Please note that the information in this blog should not be relied on as “legal advice,” and should only be used for educational purposes. Anyone facing criminal charges should always seek the services of an experienced criminal defence lawyer to ensure the best possible outcome.Mass Tsang criminal lawyers have successfully defended thousands of criminal cases and can help you mount an effective criminal defence if needed.

Duress According to the Criminal Code

The duress defence is codified into law under Criminal Code Section 17, “Compulsion by threats, which states:

“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 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….”

And then lists numerous offences under which the defence cannot be applied, which are:

  • High treason
  • Murder
  • Piracy
  • Attempted murder
  • Sexual assault
  • Sexual assault with a weapon
  • Threats to a third party or causing bodily harm
  • Aggravated assault
  • Unlawfully causing bodily harm
  • Arson
  • Child abduction

As codified, the duress defence seems straightforward. Absent the excluded crimes, if a person is threatened with death or bodily harm unless they commit a specific crime, the courts should absolve them of the offence if committed.

Of course, legal language is always open to interpretation, and Canada’s high courts have had to weigh in to add clarity to how the duress defence should be applied in criminal cases.

The Duress Defence in the Supreme Court of Canada

The Supreme Court of Canada helped guide the application of the duress defence in two different cases: R v. Ruzic, 2001 SCC 24, and R. v. Ryan, 2013 SCC 3. In R v. Ruzic, the high court ruled that Section 17’s requirement that the threat is “immediate” and the purveyor of the threat “present” violated Section 7 of Canada’s Charter of Rights and Freedoms which establishes the “right to life, liberty and security of person.” With this high court ruling, the duress defence can be used in situations involving threats to a third party or less imminent threats of death or violence. The justices also established the elements needed to mount a duress defence in their ruling.

In R v. Ryan, the Supreme Court clarified the differences between self-defence and duress and added further clarity about the requirements needed to mount a duress defence in court. The ruling also served to harmonize the statutory law covering duress with the common law understanding of duress.

How the Duress Defence is Applied in Court

Based on the Criminal Code, common law, and Supreme Court precedent, the applicability of the duress defence requires six elements:

  1. Threat of present or future death or harm directed against the defendant or third party.
  2. Belief by the defendant that this threat would have been carried out absent committing the criminal act.
  3. That there was no safe avenue of escape from the threat.
  4. The defendant cannot be a party to conspiracy or criminal association from which the threat arose.
  5. There must be proportionality between the committed criminal act and the threat against the defendant.
  6. A close temporal connection existed between the threat and the harm threatened to the extent that the defendant believed they had no other choice but to commit the crime.

In reviewing these elements, courts objectively evaluate points 3. and 5. on a standard based on how a reasonable person would have acted if in the same position as the defendant. When a defendant provides enough evidence to put the duress defence in play, the onus turns on the Crown prosecutor to prove, beyond a reasonable doubt, that the defendant’s actions had been voluntary rather than coerced by the duress. To do this, the prosecutor must establish that at least one of the six elements is missing.

Will the High Court Further Review the Duress Defence?

Many legal scholars believe that the Supreme Court of Canada will have to further clarify the Duress Defence in a future case. In particular, there are legal questions concerning whether any of the excluded offences may represent a violation of the Charter.

Consult with the Criminal Defence Experts at Mass Tsang

While the duress defence is not frequently raised in criminal cases, Mass Tsang’s skilled criminal defence lawyers will certainly turn to it when a client has been coerced into committing a crime due to threats. If you or a loved one was arrested due to a crime committed due to duress, we can review the case details to determine whether the necessary elements supporting a successful claim of duress can be raised.

The criminal defence trial lawyers at Mass Tsang have extensive experience developing criminal defence strategies that help secure the best legal outcomes for our clients. If you or a loved one is facing criminal charges in the Greater Toronto Area, contact us today for a free consultation.



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