• Lewis Waring

Duress and Necessity: Questioning the Distinction - Rhiannon Swan

No one should be convicted of a crime which they did not possess the mental element for because we should only punish the morally blameworthy in criminal law. For example, if someone commits an illegal act only because they have no other option or because someone’s safety is at risk, the Canadian justice system should not hold them as responsible for the act due to a lack of voluntariness in their action. Luckily, defences exist in our system to prevent convictions of the morally innocent: one such defence is duress and another is necessity.

The defences of duress and necessity

In duress, the accused asserts that their voluntariness to choose to commit the offence for which they are being charged was overpowered by a threat coming from another person. The defence exists at common law but has also been codified under section 17 of the Criminal Code (“the Code”). The section reads, “[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”. The Code then goes on to specify that section 17 will not provide a defence if the crime committed is included in a list of more violent and serious offences, such as murder, sexual assault, and arson. Meanwhile, at common law, the defence of duress is broader and can also apply to parties to an offence.

Another defence preventing the punishment of the morally innocent, necessity, has not been codified. Like duress, it has similar principles and is based on the idea that an individual was forced into committing a criminal act to prevent a worse consequence. The defence of necessity, one of excuse, frames a choice to break the law in the context of an alternative which would have resulted in harm to their own safety or the safety of others as being involuntary. In order to demonstrate necessity as a defence, an accused must show

  • a situation of danger;

  • impossibility to comply with the law as a result; and

  • proportionality of the harm committed to the harm avoided.

Both defences of duress and necessity, although similar enough to be in the same chapter of the textbook, are defined separately with distinct tests.

An inmate becomes involved in a murder

The judgment from the Manitoba Court of Queen’s Bench (“the MBQB”) in the case of R v Ducharme (“Ducharme”) was delivered on December 16, 2020. The accused in Ducharme was an inmate in maximum security at Stony Mountain Institute with the victim and two other men, Fisher and Edwards.

On April 22, 2019, the victim was killed in his cell by stabbing wounds inflicted by Fisher and Edwards. Although the accused did not inflict any wounds on the victim directly, he disposed of the murder weapon after the stabbing, which both parties agreed on. The Crown in Ducharme first alleged that the accused knew beforehand of the murder plot and should also have been found guilty of first-degree murder under section 231(2) of the Code. The Crown argued that, at the very minimum, the accused should be guilty of an accessory charge under section 23 of the Code for disposing of the murder weapon. However, the accused submitted he did not know of the plot beforehand and, furthermore, put forward a defence of duress regarding the act of disposing of the weapon.

After dismissing the murder charges based on a lack of evidence, the MBQB accepted the defence of duress regarding the accessory charge. Applying the pre-condition test from R v Hibbert (“Hibbert”), the MBQB found that the accused was afraid of Fisher and Edwards and was bullied in Stony Mountain by the two leading up to the attack on the victim. The MBQB also found that the accused also likely had knowledge of the attack when told to dispose of the weapon. Based on these facts, the MBQB found that this meant the accused acted involuntarily, even if there had been no direct threat. Stating that a reasonable person would have acted similarly to the accused, the MBQB also went on to say the Crown had an onus to prove alternative options for the accused, which it failed to meet. Hence, on this defence of duress, the accused in Ducharme was acquitted.

A blending of two defences

As a law student in my first year, the subjects we are learning are taught in very compartmentalized ways: different “types” of law are separated into classes and topics which blend together in real law are artificially separated as we grasp the basics. Although briefly mentioned as overlapping in certain regards in a seminar on the topic this year in our criminal law class, the defences of necessity and duress were separated in the textbook and involved distinct tests. However, in Ducharme, the defence successfully argued that the accused’s situation was one of both “necessity and duress”, involving actions performed under threat and therefore involuntarily. This raises a question of whether the distinction between duress and necessity has any real purpose.

The test applied by Justice McCarthy in Ducharme derived from Hibbert, a decision of the Supreme Court of Canada (“the Court”) from 1995. However, the Hibbert test in fact originally derived from R v Perka, a prior case which involved not the defence of duress but that of necessity.

In Hibbert, the Court found that there are three pre-conditions of the defence of necessity:

  • an urgent situation of clear and imminent peril;

  • demonstrable impossibility of compliance with the law; and

  • proportionality between the danger facing the accused and the harm caused by his or her unlawful acts.

This test from Hibbert is to be applied according to a modified objective standard to determine if there was a reasonable legal alternative to the commission of the offence in the given circumstances. In a review of the law, the MBQB acknowledged this test as being involved in proving necessity but, in her judgement, the meeting of the steps in the test were used to indicate evidence of the presence of duress.

Hibbert itself emphasized at first the differences between both duress and necessity as defences. In particular, the analysis focused on duress requiring a specific threat being made to induce the accused’s actions, making them involuntary. However, the MBQB then stated that, due to both defences applying to similar factual situations, they must both be based on identical juridical foundations, that foundation being involuntariness in action. As such, Ducharme demonstrates an overlap and a sharing of principles between the two defences: specifically, the "safe avenue of escape" requirement of duress and the requirement of necessity that compliance with the law was impossible.

A pointless but harmless distinction

One interesting consideration regarding a blurring between the defences of duress and necessity in Ducharme was that there was potentially no direct threat made to the accused. Despite being unable to know for certainty if there was an overt threat made to the accused, The MBQB concluded it was only appropriate to acquit as any reasonable person would have also felt compelled to commit the accused’s act in the circumstances. This fact could potentially justify not feeling fully able to rely on the defence of duress alone. However, this raises a question of whether the mixing of defences in Ducharme would have been appropriate. Why would the MBQB choose to apply a necessity standard if the defence had put forward one of duress? Can these defences be blurred?

The bottom line is: who cares?

Ultimately, the truth is that it does not matter which defence was used in Ducharme. Both defences have the same underlying principle: to acquit those who were forced to commit an illegal act, for whatever reason, and thus to protect the morally innocent. Based on the facts in Ducharme, I think most would agree justice was served. A bullied inmate who was afraid of a group of people was forced into participation in a violent act. Whether he was put up to it by “threat” or not, or however else we could possibly distinguish the two defences, is irrelevant. The correct verdict was reached, and the accused was not convicted.

While I can appreciate some more academically-minded law students might prefer a clear-cut distinction between the defences, it honestly seems to me a waste of time. As a defence for an accused who has been coerced into committing an act involuntarily, the practicality of the equivalency of the defences leads me to question why duress and necessity should be considered separate defences at all.

It will be interesting in the future to see if cases continue to combine the two defences. However, regardless of the pointless overlap between the defences of duress and necessity, it would be a further waste of time and energy for a court in the future to define and separate the two. The law should focus instead on what is important: not convicting those who commit wrongful acts involuntarily.