(follow this blog for a critical analysis of Canada’s legal justice system)
Duress cases often arise in situations of intimate partner violence—a woman commits a criminal offense because her usually male abuser threatens her. In the last 30 years, the law of self-defence has evolved in the context of abusive relationships. For example, a woman who kills or injures her abusive partner is excused from criminal punishment, even when her partner was not advancing at the time she injured him.
Yet, the law still has difficulty recognizing how an abuser could compel his victim to commit a criminal act. Or rather, the predominately white, male judiciary is unconsciously biased against the defendant whose abuser compels her to commit a criminal act.
What Is Duress?
When someone is forced to do something against their better judgment, they are acting out of duress. The law excuses criminal action when someone acts under duress because their actions are not morally blameworthy—they only committed the criminal offense because they were forced to do so. The moral culpability of a person acting under duress is not comparable to someone acting voluntarily. As a result, while the individual admits their criminal conduct, they are excused from criminal punishment because they acted out of duress.
When Is the Duress Defense Available?
The duress defense is a complicated area of criminal law because it can be accessed by way of either statute or the common law. Section 17 of the Criminal Code outline the statuary defense; Canadian courts have defined the common law defense over the time.
The statutory and common law duress defenses have many common elements:
- A threat of death or bodily harm;
- The defendant’s reasonable belief that the threat will be carried out;
- No safe avenue of escape;
- A close temporal connection between the threat and the harm threatened;
- The harm the defendant caused cannot be greater than the harm threatened;
- The defendant did not conspire to commit the offense
The statutory duress defense only applies when the person who commits the offense is themselves threatened. For example, Mr. Exx threatened to kill Ms. Y if she does not commit an offense. The statutory duress defense does not apply when a third-party is threatened. For example, Mr. Exx threatens to kill Ms. Y’s mother if she does not commit an offense. If a third-party is threatened, defendants can use the common law duress defense.
The statutory duress defense cannot be used if the defendant commits any of the crimes listed in section 17 of the Criminal Code. These include, but are not limited to, murder/attempted murder, sexual/aggravated assault, forcible abduction, robbery, hostage taking, or arson. Recently, the Ontario Court of Appeal found excluding murder from the section 17 defense unconstitutional. The Supreme Court denied leave to appeal, making this decision the leading case in Ontario on the interpretation of section 17.
Is Duress Available for Female Defendants Who Are Victims of Abuse?
The Ryan decision is often erroneously cited to mean duress is not an available defense for women in abusive relationships. The duress defense is available if a reasonable person in the defendant’s situation would have been compelled to commit the offense the defendant committed. This is a modified objective legal test. This analysis requires not only determining whether a reasonable person would have committed the offense under threat. The analysis must also consider the defendant’s individual circumstance to decide if committing an offense was reasonable.
Where a defendant was compelled by her abuser to commit a criminal offense, the defendant’s relationship with her abuser must be considered when determining how a reasonable person would have responded to the threat. As Professor Sheehy notes:
Batterers deploy additional methods when women attempt to separate: promises to change, apologies, and declarations of love; efforts to further isolate women from familial and social supports; and escalating threats to kill them should they leave. These men seek total surrender, which they achieve by forcing women to violate their own boundaries and moral codes, participate in their own humiliation, or sacrifice others – children, family, friends.
Is an Expert Testimony Needed?
Unfortunately, expert testimony is needed for women advancing the defense of duress after experiencing intimate partner violence. In the last 30 years, Canada’s legal system has made significant strides in addressing the unique challenges women face in the criminal justice system. For example, a series of legislative reforms now prevent a women’s sexual history to undermine a victim’s credibility during a sexual assault trial.
The law, however, continues to struggle with applying the modified objective standard to unique female experiences. The duress defense requires judges to determine if the defendant’s actions were reasonable considering the defendant’s circumstances. Reasonableness is supposed to be a completely objective standard but many judges are unconsciously biased—the more defendant who looks and acts like them, the more likely the judge will find her actions reasonable.
Studies, however, suggest that courts are only willing to incorporate the defendant’s physical attributes into the reasonableness standard, not their mental attributes. This is particularly problematic in intimate partner violence cases where abuse is verbal, not physical, and therefore show not physical signs. In these cases, courts cannot easily attribute the defendant’s mental state to the duress defense.
While 90% of intimate partner violence victims are women, only 30% of federally appointed judges are female. Worse, only 2% of Canadian federal judges are visible minorities. The criminal justice system disproportionately targets minority women, yet the Canadian judiciary remains extremely white. Whether the female defendant is a white or a visible minority, an expert witness can help the judge understand why the defendant’s act was reasonable in her abusive circumstances.
Calling expert witnesses, however, takes time. The defense must give the Crown 30-day’s notice if it intends to call an expert witness. Depending on when the defense receives disclosure, if the client being held in pre-trial detention pending trial, or if defense counsel has inherited the client from another lawyer, calling an expert witness can delay proceedings. Defense counsel must then weigh the value of calling an expert witness to strengthen the defense’s case against the impact that delaying proceedings will have on their client. The decision is rarely an easy one.
Other Defense Options for Female Defendants who are Victims of Abuse?
Where an expert witness is not feasible to establish the duress defense, defense counsel can also attempt to demonstrate that the defendant, having experienced abuse, lacks the necessary mens rea to be found guilty of the offense.
A defendant cannot be convicted of a criminal offense where they lack the mens rea necessary for the commission of the offense. Mens rea is the defendant’s intention to commit a crime. A defendant is not guilty of a crime he or she did not intend to commit unless their actions were so reckless that they should have foreseen committing a crime as inevitable. If a defendant committed an offense under duress, it may be possible to argue that they lacked the necessary mens rea to be convicted of the offense.
Historically, a criminal act committed under duress has not undermined the defendant’s mens rea—the defendant has the adequate mens rea to commit an offense but is excused from criminal liability because they lacked the moral blameworthiness to be convicted.
More recent case law, however, seems to revisit this argument. In Rochon v R, the Quebec Court of Appeal (affirmed by the Supreme Court of Canada) overturned Ms. Rochon’s conviction for producing a schedule II substance (cannabis). In this case, Ms. Rochon entrusted her son with her cottage property in her absence and, upon returning, discovered a marijuana plantation on her land. Ms. Rochon asked her son twice to get rid of the marijuana plants, saying she did not want to report him to the authorities. The Court found that Ms. Rochon’s failure to report her son to the authorities did not constitute the actus reus (criminal act) of participating in the production and possession of marijuana; nor did it constitute the mens rea (criminal intent) since she had no intention to aid her son in the production and possession of marijuana.
It’s easy to imagine a duress case with facts similar to the Rochon case. The defendant’s boyfriend set up a marijuana grow operation in her apartment. The defendant does not report her boyfriend but objects to the grow op. The police discover the grow op and charge the defendant with producing marijuana. In this set of facts, the defendant could argue she did not form the requisite mens rea to be convicted of producing marijuana.
The Way Forward
While the duress defense is available for defendants who have experienced abuse, the need for statutory restrictions on this defense and the need for expert witnesses makes the successful use of this defense difficult.
How can we make this defense more accessible to victims of abuse?
First, judicial education is needed. Judges need to be able to place themselves in the shoes of the defendant to understand why their actions were reasonable given her experiences. They need to be open to the fact that what they find reasonable and what was reasonable for the defendant may be different, but that does not necessarily mean the defendant is more morally blameworthy. Justice Rothman agreed that courses on gender bias should be part of judges’ continuing education at all stages of their careers.
Second, more female judges are needed. Former Supreme Court Judge Bertha Wilson noted that women do not accept male perceptions and interpretations of events as the norm or as objective reality. And, history has shown this to be true. Strong female judicial voices have historically been instrumental in advancing feminist legal issues and laying the foundation for female equality in the judiciary. Justice L’Heureux Dube’s dissents on consent in sexual assault cases eventually became Canadian law. And, Justice Wilson herself was instrumental both getting the Supreme Court to accept that prohibition on abortion violated a woman’s constitutional right to security of a person and in getting the criminal justice system to recognize battered women’s syndrome as a defense for women who injure or kill their abusive partners.
With judicial education and more female and minority voices in the law, the duress defense will become more widely available for intimate partner violence victims who lack the moral blameworthiness to be convicted of a criminal offense.
 R v Lavalle,  1 SCR 852: 10 WCB (2d) 101.
 R v Ryan, 2013 SCC 3 at para 81;  1 SCR 14. See also Criminal Code, RSC 1985, c C-46, s 17.
 R v Ruzic, 2001 SCC 24 at para 83;  1 SCR 687;
 Criminal Code, RSC 1985, c C-46, s 17
 R v Aravena, 2015 ONCA 250; 323 CCC (3d) 54.
 See Canadian Encyclopedia Digest
 R v Ryan, 2013 SCC 3 at paras 47-53;  1 SCR 14
 Elizabeth Sheehy, Defending Battered Women on Trial: Lessons from Transcripts (Vancouver: UBC Press, 2014) at 3.
 Criminal Code, s 276. See also Liat Levanon, “Sexual History Evidence in Cases of Sexual Assault: A Critical Re-evaluation,” (2012) 62 UTJL.
 Cynthia Lee, Murder and the Reasonable Man, (New York: New York University, 2003) at 204-206
 Cynthia Lee, Murder and the Reasonable Man, (New York: New York University, 2003) at 210.
 Kirk Martin, “Gender Imbalance: Appointments of Female Judges Under Harper’s Tories” (11 Nov 2011), The Globe and Mail online: <http://www.theglobeandmail.com/news/politics/appointments-of-female-judges-slump-under-harpers-tories/article4183464/>.
 Nicolas Keung, “Few Visible Monitories Among Canadian Judges, Study Finds” (27 June 2012), The Toronto Star online: <https://www.thestar.com/news/gta/2012/06/27/few_visible_minorities_among_canadian_judges_study_finds.html>
 Pascale Fournier, “The Ghettoisation of Difference in Canada: ‘Rape by Culture’ and the Danger of a ‘Cultural Defense’ in Criminal Trials” (2003) 29 MB L J.
 Criminal Code, section 657.3(3)
 R v Hibbert,  2 SCR 973; 40 CR (4th) 141.
 Rochon c R, 2011 QCCA 2012 at para 14.
 Melvin Rothman, “Prospects for Change in Canada: Education for Judges and Lawyers” In Martin & Maloney, Equality and Judicial Neutrality (Toronto: Carswell, 1987) 3 at 421-427.
 Bertha Wilson, “Will Women Judges Really Make a Difference?” (1990) 28(3) Osgoode LJ 507 at 519.
 See R v Park,  2 SCR 836, 39 CR (4th) 287; R v Ewanchuck,  1 SCR 330, 169 DLR (4th) 193.
 See R v Morgentaler,  1 SCR 30, 63 OR (2d) 281; R v Lavalle,  1 SCR 852: 10 WCB (2d) 101.