FAQs
What is Duress?
Under Canadian law, you can only be convicted of a crime if you acted of your own free will (i.e., voluntarily) during the commission of the crime.
So, if you can prove that your actions were involuntary or the product of someone else controlling your actions through threats and you had no choice but to act in the way you did, it can be a valid defence against many criminal charges.
Another way to term this is acting under duress.
Let’s take a closer look at duress and how it may be used in criminal defence law.
What is duress?
Duress is essentially a “legal excuse” that excuses the commission of an offence when it is carried out under compulsion by threats of immediate death or bodily harm.
Although it does not make the actions any less wrong, the duress defence recognizes that sometimes people have no choice but to take those actions and so they cannot be held morally blameworthy or liable for the crime.
For instance, if someone holds a gun to your head and threatens to shoot you unless you take a certain action, any actions taken thereafter (while the threat persists) would likely be considered acting under duress. Note, however, that the use of a dangerous weapon is not necessary to put forward a defence of duress.
Canadian law is very specific about when the defence of duress can apply. It is codified in section 17 of the Criminal Code of Canada (Compulsion by threats).
Duress is sometimes confused with the defence of necessity. This is where a defendant is forced by natural circumstances to choose between two evils and committing the crime is the lesser evil.
A good example where it could be applied is if a man was charged with driving with a suspended license because he needed to make a telephone call to help his pregnant wife, who was experiencing pains.
Speak to criminal defence lawyer Cory Wilson if you are in any doubt if duress may apply in your case.
How to prove duress?
Arguing duress is no simple matter but it is up to the prosecution to prove that the actions of the accused were the result of his/her own free choice.
The defendant cannot simply claim that there was no choice but to do what he/she did. A defence lawyer will need to prove that the crime was committed because of a threat or that the defendant was otherwise forced into taking the criminal action, i.e., it was not committed by free will.
By introducing the duress defence, a skilled lawyer may raise a reasonable doubt that the actions of the accused were voluntary — but five key elements will need to be proven:
There was a threat of death or bodily harm
If someone threatened to kill or cause bodily harm to the accused or their family unless they followed their wishes (threats can be direct or implied), duress may be a valid defence. The threat of harm can be immediate or in the future.
The accused reasonably believed that the threat was real
To be a viable defence, the threat needs to be credible and the accused must genuinely believe that failure to take the requested actions might lead to the stated consequences. Would a reasonable person in the same situation have believed the threat would be carried out?
There was no way to avoid the threatened harm
The defence of duress also requires that there was no safe avenue of escape for the accused, i.e., the actions could not have been avoided. If it is shown that the accused was able to run away or seek help from the police, the defence may not be viable.
The threat caused the accused to do what they did
A defence lawyer must also prove that the threat caused the accused to act how they did, i.e., that he or she had no other choice but do to what was being asked. Again, would a reasonable person in the same situation have come to the same conclusion?
The harm caused was not disproportionate to the threat
With a defence of duress, the lawyer must also demonstrate that the actions of the accused were in proportion to the level of threat.
So, for instance, if the accused was threatened with being punched if he/she didn’t shoot another person, pulling the trigger could be seen as disproportionate to the threat. Under Canadian law, an individual is expected to exert ordinary resistance to external pressure.
When can the statutory defence of duress be applied?
There is a common-law version of the defence of duress, which predates the statutory version.
The statutory duress defence can only be used for an individual who commits a crime. Those who are parties to a crime but are not the principal “actors” are not covered by the provisions in section 17 of the Criminal Code. They are, however, covered by the common-law version.
Some offences in Canada are exempt from the use of the statutory defence, most notably:
However, the common-law version of the defence of duress places no such restrictions on the types of criminal cases in which it can be applied.
Self-defence vs duress
Duress is sometimes confused with self-defence as well as the defence of necessity outlined above.
Self-defence is based on the principle that it is lawful to meet force with force, in certain circumstances. So, a “victim” of an attack may lawfully use reasonable force to repel that attack. The motive of the attack is irrelevant
This is very different from duress, where the victim is usually an uninvolved third party and the motive of the threat is to make the accused commit the offence.
Both defences can raise complex issues and require the experience and skills of a seasoned criminal defence lawyer.
Call us to arrange a confidential consultation
To speak with Cory Wilson or arrange a free, no-obligation consultation with Wilson Criminal Defence, call 403-978-6052 or email us here.