Duress - An Introduction

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Sec. 17 of the Code and the Common Law require the following to be proved:

1. The threats by which the accused is compelled must be of immediate death or bodily harm;
2. The threats must emanate from a person who is present when the offence is committed;
3. The accused must believe the threats will be carried out; and
4. The accuse must not be a party to a conspiracy or association.

In R v. Paquette, the appellant was charged with non-capital murder pursuant to sec. 21(2) of the Code, where it was alleged that he had formed a common unlawful intention with the principles of the offence. He argued, however, that he was compelled by threats of violence and/or death, thus raising the defense of duress covered by the Code in sec. 17 – compulsion by threats. That section, however, excludes the use of the defense of duress for certain crimes; namely, 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 of an offence under sec. 280 to 283 (abduction and detention of young persons). In delivering their judgement as to the applicability of sec. 17 to the crime charged, the Supreme Court was of this opinion:

“The section (sec. 17) uses the specific words “a person who commits an offence”. It does not use the words “a person who is a party to an offence”. This is significant in the light of the wording of sec 21(1) which, in paragraph (a), makes a person a party to an offence who “actually commits it”. Paragraphs (b) and (c) deal with a person who aids or abets a person committing the offence. In my opinion (Justice Martland), sec. 17 codifies the law as to duress as an excuse for the actual commission of a crime, but it does not go beyond that”

The appellant, in the present case, did not himself commit the offence of robbery or murder. In citing the recently decided case of DPP v. Lynch in the House of Lords, where the accused was a party to the offence, the Supreme Court stated that “if the defence of duress can be available to a person who has aided and abetted in the commission of murder [so as to be liable under 21(1) (b) or (c)], then clearly it should be available to a person who is sought to be made a party to the offence by virtue of sec. 21(2). A person whose actions have been dictated by fear of death or grievous bodily harm cannot be said to have formed a genuine common intention to carry out an unlawful purpose with the person who has threatened him with those consequences if he fails to cooperate.”

In R v. Hibbert, the appellant was charged with attempted murder based on the allegation that he was a party to the shooting of C by B. The Supreme Court, in a unanimous decision, sought to clarify the conceptual foundation of the defence of duress. 

• First, In Paquette, Justice Martland held that in regards to sec. 21(2) of the Code, the Mens Rea of the crime charged would necessarily be negated since “… a person whose actions have been dictated by fear of death or grievous bodily harm cannot be said to have formed a genuine common intention…” The Supreme Court, in this case, was of the view that the defense of duress provided an excuse, as opposed to negating the Mens Rea. To hold otherwise, would confuse the matter as one based on the concept of Mens Rea. Therefore, they concluded that the expression “for the purpose of aiding” in sec. 21(1)(b), properly understood, does not require that the accused actively view the commission of the offence he is aiding as desirable in and of itself. Additionally, the same principle would apply in the application of sec. 21(2). 
• Second, in seeking to justify the defence’s theoretical underpinnings, their Justiceships found it suitable to compare it to the defence of necessity. The defence of necessity, as explained by Justice Dickson in Perka, is based on the idea that the defence is excusatory, not justificatory, and is predicated on the idea of normative involuntariness – making it a species of the Actus Reus branch, as opposed to that of the Mens Rea. In other words, while the accused may have voluntarily called down the victim to the lobby (in that he had physical control over his actions), his choices to act were limited by the overarching threat of death or bodily harm. 
• Third, as with necessity, there must be a requirement that the defence only be invoked when there is “no legal way out” of the situation of duress. For duress, this is known as the safe avenue of escape requirement. This requirement is consistent with the rationale of the defence based on normative involuntariness. If the accused could have escaped without undue danger, the decision to commit an offence becomes “a voluntary one, impelled by some consideration beyond the dictates of duress”. 
• Fourth, in determining whether the “safe avenue of escape requirement” is to be judged on a subjective or objective basis, their Justiceships chose, again, to maintain the consistency with other like defences. They adopted the modified objective test. Even if it is accepted that an actor’s failure to take steps to acquire reasonable knowledge of his or her full range of options can, in itself, constitute a form of choice, it can still be argued that this only holds true when the actor is able to acquire and process additional information. That is, a person does not choose inaction when he is incapable in the first place of acting, or of knowing when to act. Thus, an argument can be made for framing the objective standard in terms of the particular actor’s capacities and abilities. Their Justiceships wished to distinguish between the sort of objective standard test to be applied in criminal defences, and that which is applied to criminal conduct – particularly citing Creighton, which dealt with unlawful act manslaughter contrary to sec. 222(5)(a) of the Code. The test there was one which employed a single, uniform standard of care subject to one exception: incapacity to appreciate the nature of the risk which the activity entails. The justification for that approach in Creighton was that “people may properly be held to a strict objective standard as a condition of choosing to engage in activities which may maim or kill other innocent people. In contrast, excuse-based defenses, such as duress, are predicated precisely on the view that the conduct of the accused is involuntary, in the normative sense – that he had no realistic alternative course of action available.

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