Section 17 – The Statutory Defence of Duress: Episode 19 of the Ideablawg Podcasts on the Criminal Code of Canada

In previous podcasts we have discussed the category of legal defences called justifications and excuses. We know that despite codification our criminal law permits an accused person to raise at trial a common law defence, as long as it is not inconsistent with the Code. There are purely common law defences such as the excuse of necessity (which by the way is exemplified in the seminal case taught in every first-year law school criminal law course – Regina v Dudley and Stevenson – where the two accused charged with murder committed cannibalism when their ship floundered in the high seas and they were forced to drift on a lifeboat – think Life of Pi without the animals) but there are also common law defences, which are subject to codification and found in the Criminal Code. The excuse of duress is one such defence from the common law, which appears in the Code under the section we are contemplating today, section 17.

When we first look at this section, and it is a long one, we realize that the word “duress” is never used in section 17. We therefore immediately feel that what we are about to look at and think about is not the same as the common law defence of duress. This is a correct assumption, on the face of this section. When we look behind this section however and look at the case law, which has developed in conjunction with the advent of the Charter on the mechanics of this section, we will see that in reality this section entitled “Compulsion By Threats” is really very similar to the common law version and only differs in terms of what category of accused person can use this section and for which offences.

Section 17 reads as follows:

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, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).

Before we dissect this section to have a clearer understanding of it, I want to remind you of the key elements of the class of defences we call excuses.

Both the actus reus and the mens rea of the offence must be proved beyond a reasonable doubt by the prosecution before a legal excuse or for that matter a legal justification can be used as a defence. This means that the case against the accused is made out and, but for this defence, the accused would be found guilty. In light of that prerequisite, the class of defences known as excuses acknowledge the wrongfulness of the conduct but as a result of the circumstances facing the accused person, the accused should not be held criminally responsible for his or her criminal actions. However, the circumstances facing the accused must be dire, in other words, the defence of excuse can only be used in emergency situations. It is therefore the accused’s reaction to these dire situations, which cause society to excuse or absolve their conduct.

Excuses are a concession to human frailty and therefore reflect our humanity in two ways. First, this defence realizes that as individuals, as part of our humanity, we may act inappropriately in order to preserve our life or others. Secondly, as humans we understand that we are not perfect and that our laws must bend to this truth in order to have a compassionate society.

Despite the above, the situations in which excuses can be used are very restrictive because we fear that permitting too broad an excuse for criminal conduct will result in cases where we as a society may not be so sympathetic. So, the rule of law draws a line between what is excused and what is not. The difficulty then becomes, where to draw this line in order to remain true to our humanity without losing it.

As I already mentioned, the section is a reflection, albeit as we will see an imperfect one, of the common law defence of duress and thus this section was in the 1892 Criminal Code under section 12. This original section, except for certain language changes, is virtually the same as the now section 17. Not much changed over the years to this section and yet, as I have already mentioned, the section has changed dramatically since 2001 when the Supreme Court of Canada gave this section a constitutional make-over in R v Ruzic.

The Court in Ruzic, under the auspices of section 7 of the Charter, found that the statutory duress defence was too restrictive, particularly in relation to its common law partner, which even with s.17, could be used by parties to an offence. In the Court’s view, the statutory defence, available only to principal offenders, should not be more restrictive than the common law. In order to re-balance s. 17, the Court took out those passages in the section, which did not accord with the common law equivalent. Even so, the Court did not remove the offences for which the defence was available, choosing to leave those changes, if desired, to the government.

In light of this, let’s return to section 17 and this time, I will edit the section to accord with the Ruzic decision:

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, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).

Even with these changes the defence is a difficult one to employ. According to the newest Supreme Court of Canada case, in Ryan, the defence can only be used on the following bases:

1. There must be a threat of death or bodily harm;
2. The threat can be directed at the accused or a third party;
3. The accused must reasonably believe that the threat will be carried out;
4. There must be no safe avenue of escape, evaluated on a modified objective standard;
5. There must be a close temporal connection between the threat and the harm threatened;
6. There must be proportionality between the harm threatened and the harm inflicted by the accused, evaluated on a modified objective standard;
7. The accused cannot be a party to a conspiracy or association whereby he or she is subject to compulsion as long as the accused actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association;
8. The accused must be the principal offender and;
9.  

In closing, there are a few items to note. First, the modified objective test is a creation of the Supreme Court of Canada in the series of cases on the meaning of criminal negligence. A discussion on this “test” and whether it is in fact a modifying one can be found in one of my previous blogs entitled The Subjective/Objective Debate Explained.

Second, the common law defence of duress in Canada is not restricted by type of offence, even though, in the UK the common law defence of duress cannot be used in a homicide charge, be the accused principal or a party.

Third, despite section 8(3) of the Code, which holds that common law defences continue unless they are altered or are inconsistent with the Code, section 17 changed to become more aligned to the common law as opposed to the common law defence changing to become more aligned to the Criminal Code iteration. This is because the common law defence of duress is for parties to an offence and the statutory defence is only for principal offenders. It is this distinction allows the common law defence to stand apart from the Code.

Fourth, even though Ruzic changed section 17, the Code does not reflect this change. One has to read the case law in order to know how the section should actually be implemented. This insistence by the federal government not to reflect court imposed Charter changes to sections is something that will come up again in the Code and in these podcasts. Indeed, there are whole sections, such as s.230 of the Code known as the constructive murder section, which have been struck down by the courts as constitutionally invalid and yet still appear in our Criminal Code. Why this is so is a matter of speculation but one wonders if the government believes that a differently composed court will take a different view or that the Charter may somehow change in the future. Either way, it is an oddity that these sections remain as they do as a vestige of the pre-Charter past.

Finally, there is much to be said about the recent Supreme Court of Canada decision in Ryan, which precluded the use of the duress defence in a situation where the accused was an abused woman who contracted an undercover police officer to kill her husband.  I will not, however, discuss those issues here in this podcast. Instead, I invite you to access my previous blog on the matter entitled Not To Make Excuses, But - The (Un)Responsiveness of the Supreme Court of Canada To Duress. I have also written on the application of the “air of reality test,” which is the threshold test used to determine if, in the circumstances of a case, a legal defence will be available to an accused in my blog entitled Poof! Into Thin Air – Where Have All The Defences Gone?: The Supreme Court of Canada And The Air Of Reality Test. I am currently writing a full article on this issue for publication.

We will of course come to further sections in the Criminal Code codifying common law defences where we will continue to peek back at the common law to frame the statutory doppelganger in the Code. 

Episode 19 of the Ideablawg Podcast on the Criminal Code of Canada: Section 17 - The Statutory Defence of Duress

Poof! Into Thin Air – Where Have All The Defences Gone?: The Supreme Court of Canada And The Air Of Reality Test

Last week the Supreme Court of Canada, yet again, restricted access to criminal defences. The Court, in the earlier Ryan case, signaled their desire to limit criminal defences to the realm of the reasonable person. This objectifying of defences, which in the Ryan case involves the defence of duress, places a barrier between the specific accused, as a thinking and feeling person, and her culpable actions by assessing the individual through the lens of the general; that of the reasonable person, who has no fixed address but, apparently, a lot of common sense. This external assessment, which looks outside the confines of the Court for direction, fails to appreciate the humanity before it in the shape of an accused faced with a dire choice whereby breaking the law means survival. For more on Ryan read my blog here.

Now in the Cairney and Pappas cases, the Court has added an additional barrier to all justifications and excuses through the “clarification” of the air of reality test. I have considered the lower Courts decisions on these cases in an earlier blog.

To discuss these decisions, we must first understand the antecedents of the air of reality test in Supreme Court of Canada cases. The phrase “air of reality” comes from the 1980 Pappajohn case. Pappajohn was charged with the rape of a real estate agent who was trying to sell his home. The accused and the complainant had diametrically opposed versions of the incident. According to the complainant, she was violently raped and according to the accused, they had consensual intercourse. The defence argued for the defence of mistake of fact to be left to the jury for their consideration. This mens rea defence, if accepted, would entitle the accused to an acquittal on the basis the accused had an honest but mistaken belief the complainant was consenting and therefore did not have the requisite mens rea to commit the offence. The trial judge refused to leave the defence to the jury and Mr. Pappajohn was convicted of rape.

It is in the majority judgment, written by Justice McIntyre, where the term “air of reality” is first used in relation to defences. In dismissing the appeal, Justice McIntyre finds the trial judge was correct in refusing to consider the defence of honest but mistaken belief as there was no “air of reality” to it. According to Justice McIntyre, for such a defence to be considered there must be “some evidence beyond the mere assertion of belief in consent” found in evidential sources other than the accused.

This air of reality requirement was used two years later in the SCC Brisson case, where self-defence was at issue. In Brisson, although all justices dismissed the accused’s appeal against conviction for first degree murder, there were three concurring judgments, with one such judgment written by Mr. Justice McIntyre who again finds that a trial judge must only instruct a jury on a defence, which has “some evidence sufficient to give an air of reality.” Interestingly, in the later 1985 Sansregret case, again on the application of the defence of mistake of fact in a rape case, Justice McIntyre does not refer specifically to the “air of reality” test but to the “air of unreality” of the defence.

The term “air of reality” is finally elevated to a “test” by Justice McIntyre in another mistake of fact rape case, Bulmer, from 1987. Here, Justice McIntyre fills in the phrase, “air of reality,” with a framework for trial judges to apply. He explains the test as a preliminary step in which the trial judge “is not concerned with the weight of the evidence or with the credibility of the evidence.” The simple question to be answered at this initial stage is: in all of the circumstances of this case, is there an air of reality in the defence?” The accused’s evidence will therefore become a factor but not the determining factor in deciding if there is, on the whole of the evidence, an air of reality. None of the cases I have referred to above were considered in the Pappas and Cairney cases.

After the Bulmer case, most SCC air of reality cases relate to the defence of mistaken belief until the 2002 Cinous case, which considered the defence of self-defence. Six of the nine-member Court in Cinous agreed to allow the appeal and enter a conviction. The majority reasons written by Chief Justice McLachlin and Justice Bastarache emphatically upheld previous enunciations on the test and viewed the air of reality test in the singular with no need to modify it for differing defences. They reaffirmed that the test “does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences.”

Even with this clear admonishment, the majority did modify the air of reality test by introducing the concept of the limited weighing of evidence

“where the record does not disclose direct evidence as to every element of the defence, or where the defence includes an element that cannot be established by direct evidence, as for example where a defence has an objective reasonableness component.” (underlining added)

It is the last part of this quote which concerns the use of the defences known as justifications and excuses – necessity, duress, self defence and defence of the person including provocation, the defence raised in Pappas and in Cairney. These defences all have subjective and objective elements. All of these defences are subject to the air of reality test and subsequently all of these defences are open to the limited weighing of the evidence to determine whether or not the defence will be available to the accused.

In Cinous, for example, the Court referred to the proportionality requirement of the defence of necessity as requiring the trial judge to balance the various social values at play with public policy in deciding if the harm inflicted was proportionate to the harm avoided. This objective assessment requires the trial judge to draw inferences from the world outside of the accused and thus, according to the SCC, the trial judge must employ the limited weighing of the factors underlying the defence, which may impact this assessment. 

But from where did this concept of “limited weighing” come, if as Chief Justice McLachlin maintains in the majority judgments of Pappas and of Cairney the air of reality test has never changed?

This limited weighing does not come from the assessment of defences but from directed verdict/preliminary hearing cases. The first SCC mention of “limited weighing” comes from the 1998 Charemski case on a directed verdict where the case was based on circumstantial evidence. Unsurprisingly, it is Chief Justice McLachlin who consistently approves of limited weighing and is the torchbearer of Justice McIntyre’s air of reality test. Charemski is a case heard by only a five-member court with the then Justice McLachlin in dissent. Justice McLachlin disagreed with the majority and pointedly suggested that “while some judges,” (hint as to who those “judges” are – just take a look at the majority decision), “have referred to a distinction between “no evidence” and “some evidence”, this distinction is nonsensical.” According to McLachlin, it is the sufficiency of evidence at issue. To determine sufficiency in the circumstantial world, McLachlin further explained, trial judges must “engage in a limited evaluation of inferences.”

In the SCC 2001 Arcuri case, the extent to which the trial judge or, in this case the preliminary inquiry judge, must enter into this limited weighing was clarified by Chief Justice McLachlin on behalf of the full Court. Arcuri wanted the preliminary inquiry judge to weigh the evidence as the evidence was purely circumstantial and the witnesses evidence arguably exculpatory. In dismissing the appeal, the Chief Justice explained that limited weighing did not mean the judge was actually weighing the evidence in determining guilt or innocence but engaged in limited weighing as follows:

In the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw.  This weighing, however, is limited.  The judge does not ask whether she herself would conclude that the accused is guilty.  Nor does the judge draw factual inferences or assess credibility.  The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. 

This means the trial judge when engaging in limited weighing of the evidence is considering the reasonable possibilities of such evidence and not considering the quality of the evidence. In the Court’s view it is for the trier of fact to decide what inference should be taken in determining guilt or innocence.

The nuances of this test are obvious: the idea the judge must draw a reasonable inference is importing, into yet another stage of a criminal trial, the objective standard. Such limited weighing may go the accused’s benefit such as in the Charmeski case where the then Justice McLachlin would have restored the acquittal. However, to apply the same standard of assessment to defences, may be the way of the Musketeers – all for one test and one test for all – but it fails to recognize the importance and uniqueness of justifications and excuses as the last bastion against the power of the State. Almost akin to a “faint hope” clause, when an accused turns to a justification or excuse as a defence, the case has essentially been made out against the accused as both the mens rea and actus reus, the dual requirements for a crime,  have been established beyond a reasonable doubt. Guilt is nigh and the only reasonable doubt becomes whether or not this accused, faced with dire circumstances, made the only choice available.

These defences are not broadly based and are not a concrete lifeline. They are subject to both subjective and objective elements and if the accused does not fulfill the prerequisites of the reasonable person portion of the defence, the defence fails. To then superimpose the limited weighing concept of the air of reality test, which is also based on an objective assessment, is to further restrict an already narrowly based defence.

Through this limited weighing on an air of reality test, the SCC has effectively increased the standard with which the evidence of the defence is to be assessed. One wonders if this kind of restriction is truly in the spirit of Charter values. It would be worthwhile, in a year from now, to study the impact this case will have on the ability of the accused to make full answer in defence and whether, like a transient puff of air, all of the defences are gone.