For 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)
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