Note[1]
(June 2013)
I have instructed you on the elements of (specify offence). If you conclude that the Crown has established these elements beyond a reasonable doubt, you must still consider the defence of duress[2] . (NOA) must be acquitted of (specify offence) if s/he acted under duress.
(NOA) acted under duress if all of the following five[3] conditions are present[4] :
1. (NO3P) threatened to cause bodily harm[5] or to kill (NOA) (or specify other person(s))[6] unless (NOA) (specify act); and
2. (NOA) reasonably believed[7] that this threat would be carried out; and
3. (NOA) did not have a safe way to avoid the harm threatened; and
4. (NO3P)’s threat caused (NOA) to (specify act); and
5. The harm (NOA) caused was not disproportionate to the harm threatened by (NO3P).
(NOA) is not required to prove that s/he acted under duress. The Crown must prove beyond a reasonable doubt that s/he did not.
Unless the Crown proves beyond a reasonable doubt that at least one of these conditions for duress was absent, you must acquit (NOA) of (specify offence).
First – Has the Crown proved beyond a reasonable doubt that (NO3P) did not threaten (NOA) with bodily harm or death unless s/he (specify act)?
Second – Has the Crown proved beyond a reasonable doubt that (NOA) did not reasonably believe the threat would be carried out?
Third – Has the Crown proved beyond a reasonable doubt that (NOA) had a safe way to avoid the harm threatened?
Fourth – Has the Crown proved beyond a reasonable doubt that (NO3P)’s threat did not cause (NOA) to (specify act)?
Fifth – Has the Crown proved beyond a reasonable doubt that the harm (NOA) caused was disproportionate to the harm threatened by (NO3P)?
If each of you finds that the answer to one or more of these questions is “yes,” the defence of duress fails. It does not matter if you do not all agree on which of these questions is answered “yes”.
If you all agree that the answer to all five questions is “no”, then the conditions for duress are present and you must acquit (NOA) of (specify offence).
I will now review each of these questions with you.
If it has, the defence of duress fails.
A threat may be made by words or gestures or in some other way. It may be implied or explicit. It may refer to present or future death or bodily harm.
A threat to cause bodily harm is a threat to cause any hurt or injury that interferes with a person’s health or comfort or psychological well-being. The harm must be more than brief, fleeting, or minor.[8]
Judges may wish to review the relevant evidence within each question or wait until the summing up below. This will depend on the evidence in each case.
If it has, the defence of duress fails.
In answering this question, consider how and when the threat was made. It must have been a threat that (NOA), at the time of the offence, believed would be carried out.
As well, (NOA)’s belief that the threat would be carried out must have been reasonable. Consider all the evidence and ask yourselves whether a reasonable person in the same circumstances and with (NOA)’s personal characteristics, such as his/her age, gender and background (set out other relevant personal characteristics), would have believed that the threat would be carried out.
Consider also whether there was a close connection in time between the threat, (NOA)’s act, and the time when the threat was to be carried out. This may be relevant to your assessment of whether (NOA) believed the threat would be carried out and whether that belief was reasonable.
Consider as well whether (NO3P) was present when s/he made the threat to (NOA) and whether s/he was present at the time of the offence. It is not essential for (NO3P) to have been present, but this too may be relevant in assessing whether (NOA) reasonably believed that the threat would be carried out.
(Consider whether to review relevant evidence here.)
If it has, the defence of duress fails.
Ask yourselves whether there was a safe way to avoid the harm threatened which a reasonable person would have recognized and taken rather than commit the offence. A reasonable person is someone in the same situation who shares (NOA)’s personal characteristics, such as his/her age, gender and background (set out other relevant personal characteristics).
If the harm threatened is far removed in time from (NOA)’s act, this may be relevant to your assessment of whether (NOA) reasonably believed that s/he had no safe way to avoid that harm.
(Consider whether to review relevant evidence here.)
If it has, the defence of duress fails.
A person acts under duress when compelled by another to commit an offence.
Whether the threat caused (NOA) to act as s/he did depends on whether, in fact, it was the threat that compelled him/her to act.
At the time of the offence, (NOA) must have believed the threat left him/her with no real choice but to (specify act). As well, (NOA)’s actions must have been reasonable. Consider all the evidence and ask yourselves whether a reasonable person in the same circumstances and with (NOA)’s personal characteristics, such as his/her age, gender and background (set out other relevant personal characteristics), would[9] have committed the offence.
Consider the effect of (NO3P)’s threat on (NOA) in light of all the circumstances, including the length of time between (NO3P)’s threat and when (NOA) (specify act). You should consider whether (NO3P) was present when s/he made the threat to (NOA) and whether s/he was present at the time of the offence. You should also consider whether (NOA) had a safe way to avoid the harm threatened.
These circumstances will assist you when you consider whether (NO3P)’s threat caused (NOA) to (specify act) by denying him/her any real choice to act otherwise. These circumstances will also assist you when you consider whether (NOA)’s reaction was reasonable.
(Consider whether to review relevant evidence here.)
If it has, the defence of duress fails.
Duress excuses unlawful conduct only if the harm caused by that conduct is not disproportionate to the harm threatened. The law does not excuse causing greater harm to avoid a lesser one and expects people to display normal resistance to pressure in trying circumstances.
There are two aspects to this question.
First, compare the harm threatened with the harm (NOA) caused. Consider whether the harm threatened was equal to or greater than the harm caused by (NOA).
Second, consider all the evidence and ask yourselves whether (NOA)’s act accords with what society would expect from a reasonable person in the same circumstances and with (NOA)’s personal characteristics, such as his/her age, gender and background (set out other relevant personal characteristics).
Where there is evidence that the accused voluntarily associated with a person or persons who he or she knew might pressure him or her to commit a criminal offence, add the following instruction and adjust the numbering of the questions and the summing up accordingly.
Sixth – Has the Crown proved beyond a reasonable doubt that the threat came from a person or group with whom (NOA) voluntarily associated and who s/he knew might pressure her/him to engage in criminal activity?
If it has, the defence of duress fails.[10]
(NOA) cannot be excused for (specify offence) if the threat came from a person or group with whom s/he voluntarily associated and who s/he knew might pressure her/him to engage in criminal activity. Ask yourselves two questions:
First, did (NOA) voluntarily associate with (name the person or group)?
Second, if so, did (NOA) know[11] (name the person or group) might pressure her/him to engage in criminal activity?
(Consider whether to review relevant evidence here.)
To sum up:
(Review relevant evidence here if you have not done so already.)
Ask yourselves:
If it has, the defence of duress fails. If not, then consider the next question.
If it has, the defence of duress fails. If not, then consider the next question.
If it has, the defence of duress fails. If not, then consider the next question.
If it has, the defence of duress fails. If not, then consider the next question.
If it has, the defence of duress fails. If not, you must acquit (NOA) on the basis of duress.
To repeat, if each of you finds that the answer to one or more of these questions is “yes,” the defence of duress fails. It does not matter if you do not all agree on which of these questions is answered “yes”.
If you all agree that the answer to all five questions is “no”, then the conditions for duress are present and you must acquit (NOA) of (specify offence).
[1] This instruction applies to both the statutory defence in s. 17 of the Code and the common law defence of duress. Subject to some qualifications, these two defences have been substantially merged and share the common elements in this instruction: R. v. Ryan, 2013 SCC 3.
The defence of duress is partially defined in s. 17 of the Code, which applies only to principals (s. 21(1)(a)) and is subject to a list of excluded offences. In R. v. Ruzic, 2001 SCC 24, the Court decided that s. 17 was inconsistent with principles of fundamental justice to the extent that it permitted conviction of a morally innocent person. At least part of the inconsistency lay in the requirements of immediacy in the threat and the presence of the person who makes it, so those elements referred to in s. 17 are no longer in force.
The defence of duress also exists at common law and may apply to a principal or a secondary party (ss. 21(1)(b), (c) or 21(2); see also s. 8(3) of the Code and R. v. Paquette, [1977] 2 S.C.R. 189; R. v. Ruzic. Where the accused is alleged to be a secondary party, the instruction to the jury should specify the mode or modes of participation.
Opinion is divided about whether the common law defence of duress is available to a person charged as a principal with one of the offences enumerated in s. 17. One view is that s. 17 read with s. 8(3) excludes the common law defence in this situation. Another view is that there is room for the common law defence to operate even where the defence would not be available under the Code. There is also the question of whether the exclusion of the enumerated offences contravenes the Charter. The Court in R. v. Ryan left these issues open.
[2] This direction proceeds on the basis that the prosecution has proved the essential elements of the offence. This approach is based on R. v. Ruzic (para. 60): “the defence of duress does not negate either the mens rea or the actus reus of the crime”. In Hibbert, Chief Justice Lamer raised a question about this view of duress, but the matter has not been examined subsequently. See R. v. Hibbert, [1995] 2 S.C.R. 973 (at paras. 23-25, and 45).
[3] There is a sixth condition where the accused voluntarily associated with a person or persons who the accused knew might pressure him or her to commit criminal acts. See paragraph [7] below.
[4] In R. v. Ryan, at para. 81, the Court sets out a list of elements of the defence of duress including “a close temporal connection between the threat and the harm threatened”. These instructions incorporate this element in conditions two, three and four instead of a stand-alone condition.
[5] In Ryan, the Court held that in light of the proportionality requirement there is no need to qualify “bodily harm” by the adjective “serious” or “grievous”.
[6] In a case where the person threatens to kill or harm someone other than the accused, the condition should be: “(NO3P) made a threat to (NOA) that s/he would cause bodily harm or kill (specify person) unless (NOA) (specify act)”. Where the threat is harm a person other than the accused, this instruction must be modified accordingly throughout.
[7] Although the point is not settled by authority, it seems to be consistent with principle that, as in self-defence and provocation, an honest and reasonable belief in the existence of the threat would suffice. If this issue arises, the following instruction may be given:
“A person may mistakenly, but honestly and reasonably, believe that he or she had been threatened with death or bodily harm if he or she failed to comply with the threatener’s demand. Ask yourselves whether (NOA) honestly believed that s/he had received such a threat and whether it would have been reasonable for an ordinary person in the same circumstances to have formed the same belief.”
[8] The inclusion of “psychological well-being” is based on R. v. McCraw, [1991] 3 S.C.R. 72.
[9] There is no express authority that determines whether the appropriate word in this context is “would” or “could”. However, most of the cases use “would”, although without express consideration of this point: R. v. Cardinal, 2003 BCCA 509 at para. 17; R. v. Williams, 2002 BCCA 453 at paras. 24 and 26; R. v. Stephen, 2008 NSSC 31 at para. 324; R. v. Poon, 2006 BCSC 1158 at para. 4; R. v. McRae, [2005] O.J. No. 3200 (O.C.A.) at para. 56; R. v. Li, [2002] O.J. No. 438 (O.C.A.) at para. 28 and R. v. Gautreau, 2008 NBQB 59 at para. 33. “Could” was used in R. v. Maragh, [2003] O.J. No. 3574 (S.C.J.), at para. 8. Lexis Advance Quicklaw
[10] Both s. 17 and the common law exclude the defence of duress where a person voluntarily participates in a conspiracy or association whereby that person knew he or she might be subject to compulsion to commit criminal offences: R. v. Ryan, at paras. 75-80.
[11] Depending on the circumstances, it may be necessary to supplement this instruction with an explanation of how wilful blindness may constitute knowledge. The important concept that must be conveyed on the sixth question is that knowledge here is to be evaluated on a subjective standard. See R. v. Ryan, at para. 80.
[12] In a case where the person threats to kill or harm someone other than (NOA) the question should be: “Did (NO3P) make a threat to (NOA) that he would kill or cause bodily harm to (specify person)?”