Can You Be Forced To Be A Criminal?*

People who commit offences often say they felt pressured. Very rarely will this be a defence.



Can you imagine a situation where you could be forced to commit a crime? Parliament can.



There is a section of the Criminal Code of Canada enacted to deal with that very scenario. It addresses the defence known as 'duress'.The Supreme Court of Canada has broadened the effect of the section, to the benefit of the accused, to make it conform with the Canadian Charter of Rights and Freedoms. Essentially a person who commits an offence under compulsion of threats is not guilty. The rationale is that people who act involuntarily should not be found criminally liable.



5 considerations for the defence of duress:

1. The accused acted solely as a result of threats of death or serious bodily harm to himself or another person.

2. The threats were of such gravity and immediacy that the accused believed that the threats of harm would be carried out.

3. The threats were of such gravity and imminence that they might have caused a reasonable person, placed in the circumstances of the accused, to act in the same manner as he did.

4. The accused had no obvious safe avenue of escape.

5. For reasons of public policy, an accused charged with one of many serious offences involving personal violence (such as murder and robbery), or threats to public safety (such as arson and treason), does not qualify for the duress defence. However, parties to those offences, as opposed to the actual perpetrator of the offence, can rely on the defence of duress, with the exception of the offence of rape. As you can see, it becomes complicated.



The defence is not available if the accused could seek the help of police. Nor, for example, where the accused voluntarily joined a criminal organization that he knew might pressure him to do criminal acts. Duress is available where, for example, someone is under attack and drives dangerously while escaping in his car. He is not guilty of dangerous driving as he had no option.



Even before the defence of duress was codified in the Criminal Code, it was recognized in common law as a defence, and exists as a defence in addition to the Criminal Code section. It is similar to the defence of 'necessity' and, like necessity, it can only be invoked where there is no legal way out of the situation. The Supreme Court of Canada has said "The accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat. The threat must be to the personal integrity of the person...it must deprive the accused of any safe avenue of escape in the eyes of a reasonable person, similarly situated".



*Articles are for interest only; do not treat as legal advice as each fact situation is different and the law is constantly changing. All content © 2011 Lisa Christian