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DEFENSE OF DURESS

R. v. Ruzic, 2001 SCC 24, [2001] 1 SCR 687


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The accused was tried before a judge and jury on charges of unlawfully importing two kilograms of heroin into Canada, contrary to s. 5(1) of the Narcotic Control Act, and of possession and use of a false passport contrary to s. 368 of the Criminal Code.  The accused admitted having committed both offences but claimed that she was then acting under duress and should thus be relieved from any criminal liability.  She testified that a man in Belgrade, where she lived in an apartment with her mother, had threatened to harm her mother unless she brought the heroin to Canada.  She also said that she did not seek police protection because she believed the police in Belgrade were corrupt and would do nothing to assist her.  The accused conceded that her claim of duress did not meet the immediacy and presence requirements of s. 17 of the Code, which provides a defence for 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”.  She successfully challenged the constitutionality of s. 17 under s. 7 of the Canadian Charter of Rights and Freedoms, raised the common law defence of duress and was acquitted.  The Crown appealed the acquittal on the charge of importing heroin, but the Court of Appeal dismissed the appeal.


Held:  The appeal should be dismissed.

Subject to constitutional review, Parliament retains the power to restrict access to a criminal defence or to remove it altogether.  The question for the courts is whether restricting the defence accords with Charter rights.  Statutory defences are not owed special deference by reviewing courts.  Determining when to absolve a person for otherwise criminal behaviour is a value-laden exercise, but statutory defences do not warrant more deference simply because they are the product of difficult moral judgments.

Although moral involuntariness does not negate the actus reus or mens rea of an offence, it is a principle which, like physical involuntariness, deserves protection under s. 7 of the Charter.  It is a principle of fundamental justice that only voluntary conduct – behaviour that is the product of a free will and controlled body, unhindered by external constraints – should attract the penalty and stigma of criminal liability.  Depriving a person of liberty and branding him or her with the stigma of criminal liability would infringe the principles of fundamental justice if the person did not have any realistic choice.

Section 17 of the Code breaches s. 7 of the Charter because it allows individuals who acted involuntarily to be declared criminally liable.  The section limits the defence of duress to a person who is compelled to commit an offence under threats of immediate death or bodily harm from a person who is present when the offence is committed.  The plain meaning of s. 17 is quite restrictive in scope.  The phrase “present when the offence is committed”, coupled with the immediacy criterion, indicates that the person issuing the threat must be either at the scene of the crime or at whatever other location is necessary to make good on the threat without delay should the accused resist.  Practically speaking, a threat of harm will seldom qualify as immediate if the threatener is not physically present at the scene of the crime.  The immediacy and presence requirements, taken together, clearly preclude threats of future harm.  While s. 17 may capture threats to third parties, the immediacy and presence criteria continue to impose considerable obstacles to relying on the defence in hostage or other third party situations.  The underinclusiveness of s. 17 infringes s. 7 of the Charter.  The Crown made no attempt before this Court to justify the immediacy and presence criteria according to the s. 1 analysis and has therefore failed to satisfy its onus under s. 1.  In any event,  the criteria would likely not meet the proportionality branch of the s. 1 analysis.  In particular, these requirements seemingly do not minimally impair the accused’s s. 7 rights.

The common law defence of duress was never completely superseded by s. 17 of the Code, and remains available to parties to an offence.  The common law defence has freed itself from the constraints of immediacy and presence and thus appears more consonant with the values of the Charter.  The common law of duress, as restated by this Court in Hibbert,  recognizes that an accused in a situation of duress not only enjoys rights, but also has obligations towards others and society.  As a fellow human being, the accused remains subject to a basic duty to adjust  his or her conduct to the importance and nature of the threat.  The law includes a requirement of proportionality between the threat and the criminal act to be executed, measured on the objective-subjective standard of the reasonable person similarly situated.  The accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat.  The threat must be to the personal integrity of the person.  In addition, it must deprive the accused of any safe avenue of escape in the eyes of a reasonable person, similarly situated.


The Court of Appeal and the trial judge were right in allowing the common law defence of duress to go to the jury, and the trial judge adequately instructed the jury on the defence.  In the future, when the common law defence of duress is raised, the trial judge should instruct the jury clearly on the components of this defence including the need for a close temporal connection between the threat and the harm threatened.  The jury’s attention should also be drawn to the need for the application of an objective-subjective assessment of the safe avenue of escape test.  Nevertheless, the trial judge’s charge, viewed in its entirety, contained all the elements required by the common law rules on duress.  The criterion of the safe avenue of escape was well explained as was the objective component of this test.  The law does not require an accused to seek the official protection of police in all cases.  The requirement of objectivity must itself take into consideration the special circumstances in which the accused found herself as well as her perception of them.  The trial judge drew the jury’s attention both to that objective component and to the subjective elements of the defence.  As to the immediacy of the threat, the trial judge brought home to the jury the fact that the threat had to be a real threat affecting the accused at the time of the offence.  This instruction at least implied that the jury had to consider the temporal connection between the threat and the harm threatened, although it would have been preferable to say so in so many express words.  There was no misdirection either on the burden of proof.  The accused must certainly raise the defence and introduce some evidence about it.  Once this is done, the burden of proof shifts to the Crown under the general rule of criminal evidence.  It must be shown, beyond a reasonable doubt, that the accused did not act under duress.


Jim O'Neil, LL.B.

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