According to Canadian law, a punishable act should lie in the category of voluntary conduct. Voluntary conduct refers to the behaviour that is a result of free will. If a person’s actions are truly voluntary, only then will it be considered a criminal offence.
An individual who has no choice but to commit a criminal offence has a legal excuse. He/she is not morally blameworthy since the crime committed was morally involuntary. In cases where the offender does something because he/she had no choice, depending on the circumstances, defence of necessity and duress can be applied.
Although these laws have been designed to protect the legal rights of Canadians, they can be exploited in some cases. Hence, there are some specific rules based on which these defences can apply.
In case you feel that a certain defence applies in your case, it is better to consult a criminal defence lawyer before you advance your defence.
Requirements Of Defence Of Duress
Applying for the defence of duress is not as simple as claiming that you had no other choice. Some of the circumstances where the defence of duress may apply are:
- A person is threatened into committing a crime
- A person is threatened into committing a crime
A person had to pick between the lesser of two evils
According to Section 17 of the Criminal Code of Canada, it is not the accused’s responsibility to prove that what he did was involuntary because of threats. Instead, the responsibility lies upon the crown to prove whether the crime was committed voluntarily or involuntarily.
When the defence of duress is applied, it is determined by breaking the situation down into the following five parts. The defence of duress is not granted if even one of the parts of the test is missing. The five parts of the test are:
- Part One: The threat of death or bodily harm in both present and future
- Part Two: The accused believed that the threat will be carried out
- Part Three: There was no way to escape or avoid the threat
- Part Four: The accused did the act because he/she was threatened
- Part Five: The harm caused by the accused was not disproportionate to the test
Also Read: When Is A Crime Considered A Hate Crime In Canada?
Onus Is On The Crown
As mentioned, it is not up to the accused to prove that he/she acted a certain way and committed the crime due to force or a prevailing threat. Rather, it is up to the crown prosecutor to prove, beyond a reasonable doubt, that what the accused did was truly voluntary.
The responsibility of proving that the actions of the accused were deliberate and the result of his/her own will lies on the crown prosecutor as well. This is done if one of the elements of the five-part test is absent.
At this point, it is important to understand that even though it is up to the crown to prove that whether the act was voluntary or involuntary, it is the responsibility of the accused to provide the court with enough evidence to put them into play. This is usually done by the accused taking the stand and testifying in his/her own defence.
Although the accused has the right to silence and he/she doesn’t have to testify, in the case of defence of duress, it is common for the accused to take the stand to meet the basic threshold of the defence.
When Does The Defence Of Duress Not Apply?
There are some cases in which the accused cannot argue distress. According to the Criminal Code Of Canada, the accused is prohibited from applying for the defence of duress in the following cases:
- High treason
- 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
- Assault causing bodily harm
- Aggravated assault
- Unlawfully causing bodily harm
- Arson
- Child abduction
This also depends on the involvement of the accused in the crime. If the accused was an accessory to the crime he/she can still apply for the defence of duress.
Hire A Lawyer
If you are caught in a criminal trial and are thinking about applying for a defence, it is better to talk to a lawyer who can take your case forward.
Slaferek lawyers are highly proficient at strategizing effective defence strategies that can lead to case dismissal, reduced charges, reduced penalties, and more. To get in touch with us today, click here. Our expertise lies in criminal cases and DUI cases.
If you are scrambling with murder charges or are looking for a good criminal defence lawyer to fight your case, our team of trained lawyers can help you build a strong case. We have successfully closed hundreds of cases pertaining to murder, DUI, financial fraud and more.
