As an accused, choosing whether to elect the criminal law defense of necessity, duress, or self defence has been somewhat of a crapshoot over the last 53 years. With five major changes to the defenses since the 1960s electing a defense has been akin to a game of russian roulette insofar as one loads up a defense, spins the chamber at trial, and hopes their shot at acquittal was the successful one. This note will provide a brief overview of the five major changes that have occured to these three similar defences, since the 1960’s, and the extent of their capacity under the current legal framework now that is has been altered by a statutory change to self-defence.
The Five Major Changes to Necessity, Duress, and Self-Defence
At the beginning of the year 1966 the law surrounding these three defences was relatively simple: duress gave an excuse to a person ordered to commit a crime under threat; self-defence justified an assault as a response when an individual is protecting themselves or another from an immediate threat of, or the application of, a physical harm; and necessity was a broader category that excused the commision of an offence under an urgent situation of imminent peril. The only complication was that duress had both a common law and codified component.
(1) The initial Change to Duress
In December of 1966, the Supreme Court of Canada (SCC) took a narrowed view of the defence of duress. At trial, he admitted having damaged the plumbing fixtures in the cell where he was incarcerated but, through his counsel, he sought to introduce evidence to show that he had committed this offence under the compulsion of threats and was therefore entitled to be excused. The SCC ruled in R v Carker that the defence of duress could only be elected when the threat was immediate from a person who was present. Carker was convicted of having unlawfully and wilfully damaged public property. This was severely limiting as accused like Carker could be convicted for crimes, such as damaging plumbing in Carker’s case, when their only motivation was to avoid a future threat, similar to the threat of death at the earliest opportunity, from other inmates to Carker.
(2) The second Change to Duress
Only ten years later, in October of 1976, the SCC found in R v Paquette that the defence of duress could either be applied to an accused when they are a party to the crime or when they are the principal who directly commits the crime. The distinction was important because the defence of duress had both common law and codified elements; under the superseding statutory provisions (of then s 17 of the Criminal Code of Canada) “principals” who committed an offence were prevented from electing the defence when committing certain crimes, such as murder. Conversely, the common law defence, electable by parties to a crime, had no such limitations and was thereby used to acquit Paquette. While this was judicially fair to Paquette, who was forced by threats from colleagues to drive them to a robbery where they murdered someone, it added a complicating factor towards electing the defense of duress as it segmented into two branches for parties versus principals.
(3) The third change to Duress and Tying it to Necessity
After a short 19 year period of stability the SCC again altered the defence of duress and tied it to the defence of necessity in the 1995 decision R v Hibbert. The SCC imposed another limitation upon the defence of duress by finding that it was not available where the opportunity of a safe escape had been present. This was a reasonable limitation as duress was meant to be an excuse, not a justification, for the commission of a crime, and common sense indicates that one should not commit a crime if it can be safely avoided (through escape). The greater complication introduced in R v Hibbert was that the grounds for likening duress to necessity is that both are based on normative involuntariness – this will cause issues later in the timeline as it suggests all elements of duress and necessity must be similar when concerning normative involuntariness (that the accused had no other choice than to comply with the threat).
(4) Replacing the Statutory Defence of Duress with Common Law Duress
Six years later in the 2001 case R v Ruzic the SCC took a more direct approach towards defining the purpose of the three defences in finding that an accused cannot be convicted for morally involuntary behaviour. This finding was based on previous decisions from the SCC which stipulated that an accused cannot be convicted for physically voluntary behaviour and that the morally involuntary basis for necessity is similar to that of physical involuntariness. The conclusion was that the SCC finally ruled that the narrowing restrictions imposed by the 1966 decision in Carker violated the Canadian Charter of rights and Freedoms and led the SCC to strike down the violative elements of the statutory defence of duress, which was then s 17 of the Criminal Code.
This resulted in a unified approach towards the application of the the defence of duress to both principals and parties to an offence – since the common law provisions filled the newly created gap the first violative statutory requirement of a present threat was replaced by the common law provision of a safe avenue of escape, and the second violative statutory requirement of the threat being immediate was replaced by the more reasonable common law provision of a strict temporal connection. This successfully simplified the law by returning it to a state similar to how it was at the beginning of 1966 before R v Carker.
(5) Clarifying the Statutory and Common Law Elements Duress
The most recent change to the three similar defences of necessity, duress, and self-defence was in the 2013 SCC judgement from R v Ryan where the SCC was able to clarify the implications of their 2001 decision in R v Ruzic. First, the court identified the four remaining statutory elements of s 17 of the criminal code: (1) that there must be a threat of death or bodily harm against the accused or another; (2) the accused must believe the threat will be carried out; (3) the offence must not be one of the listed excluded offences under the appropriate subsection of the Criminal Code; and (4) the accused cannot be part of a criminal organization that is threatening them to act. The four aspects are all minor and reasonable stipulations that do not exceptionally differentiate the defence from common law duress.
Second, the SCC explained that their decision in R v Ruzic added a third element of proportionality to the defence of duress wherein the crime committed must be proportional to the harm threatened or being carried out. The proportionality requirement effectively acts as the prohibited grounds under the statutory defence of duress – in other words, an accused will probably not have access to the defense of common law duress if they commit murder in response to someone threatening to hit them with a dodgeball. This decision in R v Ryan successfully made the defenses of duress as similar and easy to understand as they had been since before R v Carker. Then Parliament amended statutory self-defence.
The Current Legal Framework After the Statutory Alterations to Self-Defence
After the decision of R v Ryan and the legal framework for the similar defences of necessity, duress and self-defence was finally set out clearly by the SCC, Parliament passed the new s 34 of the Criminal Code which made self-defence more encompassing, overtaking situations that were previously covered by necessity, and most (if not all) of the situations covered by duress. The key elements of s 34 self-defence is that a person is not guilty of an offence if it was a reasonable act performed to defend themselves, or another, on the basis of a reasonably held belief that they were being, or would be, harmed.
While duress is limited to situations where an accused commits an offence because they were forced to by another, both necessity and self defense allow the commission of any reasonable offence when there is: (1) an urgent situation of imminent peril under necessity; or (2) a force or threat of force under s 34 defence. Therefore, after having only enjoyed six years of stable legal ground from the decision in R v Ryan, under the new legal framework duress will continue to hold its own narrow carved out ground; while necessity and duress are now forced to compete based on whether a situation involved a force, or threat of force, or whether there was an urgent situation of imminent peril.
Load up your russian roulette revolver defence attorneys, spin the chamber at trial, and hope your shot at acquittal was the successful one in electing necessity, duress, or self-defence.
Cases and Statutes
R v Carker – https://nextcanada.westlaw.com/Document/I10b717d0093263f0e0440003ba0d6c6d/View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default)
R v Paquette – https://nextcanada.westlaw.com/Document/I10b717d0183d63f0e0440003ba0d6c6d/View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default)
R v Hibbert – https://nextcanada.westlaw.com/Document/I10b717ce807d63f0e0440003ba0d6c6d/View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default)
R v Ruzic – https://nextcanada.westlaw.com/Document/I10b717ce762663f0e0440003ba0d6c6d/View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default)
R v Ryan – https://nextcanada.westlaw.com/Document/Id393096ae66f2ae8e0440021280d79ee/View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default)
S. 34 of the Criminal Code of Canada – https://laws-lois.justice.gc.ca/eng/acts/C-46/section-34.html