Bench Press 39-5: Duress as a Defence to Murder - LawNow Magazine

Bench Press 39-5: Duress as a Defence to Murder

Bench PressFor the first time in Canada, an appeal court has upheld the use of duress as a defence to a charge of murder even though the Criminal Code explicitly rules it out.  The Ontario Court of Appeal outlined the factors necessary to support both a statutory and common law defence of duress, for people who find themselves in a “kill or be killed” situation.

  • There must be an explicit or implicit threat of present or future death or bodily harm. The threat can be directed at the accused or a third party;
  • The accused must reasonably believe that the threat will be carried out;
  • There is no safe avenue of escape, evaluated on a modified objective standard;
  • A close connection in time must exist between the threat and the harm threatened;
  • The harm threatened by the accused must be equal to or no greater than the harm threatened; and
  • The accused cannot be a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that the threat or coercion to commit an offence was a possible result of this criminal activity.

The Court of Appeal ruled that even if the Criminal Code prohibits the defence of duress, it is available at common law. It noted: “Canadian criminal law does not, however, regard duress as a justification…duress is an excuse. The person excused from criminal liability is not said to have accomplished a greater good, but is rather said to have had no realistic choice but to act as she did.”

R. v. Aravena, 2015 ONCA 250 (CanLII)



Teresa Mitchell
Teresa Mitchell
Teresa Mitchell is the former Editor and Legal Writer for LawNow at the Centre for Public Legal Education Alberta.

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