The Defence of Duress

The defence of duress is potentially available for many offences, although its applicability to a murder charge would appear to be extremely limited.  It may, however, arise in an assault or drug trafficking case.  In essence, the defence is that a person was forced to commit an offence by someone else.

In order for the defence to be left for a jury to consider, there must be an air of reality to the following elements:

  • There must be an explicit or implicit threat of present or future death or bodily harm. This 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. This element is evaluated on a modified objective standard.
  • A close temporal connection between the threat and the harm threatened.
  • Proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened. This is also evaluated on a modified objective standard.
  • The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association

This last element can be problematic in a drug case.  Someone who is part of a criminal organization will not be able to rely on the defence, even if they have been genuinely threatened by someone else.  However, an individual who is not associated with a criminal organization but is forced to be a drug mule as a result of threats can potentially run the defence.

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