Canadian Criminal Law/Defences/Duress

General Principles
The defence of duress exists both in statute under s. 17 of the criminal Code and under the common law.

The common law defence pre-dates the provisions of s. 17, however, by function of s.8 of the Criminal Code, which preserves all common law defences, the broader common law defence is still considered.

The distinction between the two is that the s.17 defence does not apply to parties, including aiders and abettors. The common law, however, can still apply for parties to the offence.

Duress is an excuse-based defence.

Statutory defence
The requirements of s.17 to have “presence” and “immediacy” is unconstitutional for violating s.7. Thus, that portion of the section has no force or effect.

Despite the existence of the common law defence, all offences listed as defence exceptions in s.17 cannot be covered by common law. Any included offences to offences to the exempted offences listed in s. 17 are also exempted from the statutory defence.

Common Law
At common law, duress is an available defence to any offences short of murder. It must be shown that the accused's will was overborne by threats of death or serious personal injury such that accused is not acting voluntarily.

There are three elements to the defence. It must be established that:
 * 1) the accused must be subject to a “threat of death or serious physical injury”
 * 2) on an objective standard, no safe avenue of escape existed or any “reasonable opportunity to render the threat ineffective.”
 * 3)  “there must be proportionality between the threat and the criminal act alleged”

If the defence is raised, the Crown has the burden of proving beyond a reasonable doubt that at least one of the elements is not available.

The threat need not be of immediate death or bodily harm.

The defence will not be available through the common law where the accused puts themselves in a position where they are likely to receive threats.

"the defence in Canada, ...[is] an objective-subjective standard, as in the case of the defence of necessity" (Ruzic at para 71).