The most popular defense in criminal law is self-defense. There is, however, a false assumption that anyone “has no choice but to commit a crime” can be protected by self-defence.
In fact, the Criminal Law knows two other defences protecting accused who have been “forced” to commit a crime: the defence of coercion (committing an offence to achieve greater good) and the defence of necessity (feeling compelled to commit an offence because of external circumstances). These defences do not deny the mens rea of the offence charged, but constitute an excuse for the criminal’s reprehensible behaviour.
The defence of coercion
Let us assume that a person at gunpoint is compelled to refuse to comply with a peace officer’s order. Although they did not consent to commit an offence, they felt compelled to do so to ensure their safety. In this situation, the conduct of which the perpetrator is accused results from a fear induced by threats made with the aim of forcing them to commit the offence.
There are two types of constraint: moral constraint or physical constraint. Moral coercion can be a threat of death or bodily harm, while physical coercion is the very act of holding a weapon against the victim, for example.
The criteria for the defence of coercion derive from section 17 of the Criminal Code. Over the years, these criteria have been modified by Canadian courts. The court has the discretion to accept the defence of coercion and may rely on the following considerations, and more:
- Is the accused the principal perpetrator of the crime or an accomplice to the offence?
- Was the accused a victim of threats to his physical integrity or that of a third party?
- Did the threats create an immediate incentive for the accused to act? If the incitement was not immediate, was there a rational temporal criterion between the threat and the crime committed? In other words, would the accused have had time to find an alternative or another solution rather than commit the crime?
- Was the accused acting involuntarily or without free will?
Unfortunately, the defence of coercion generally does not apply when there is only a simple fear of death or bodily harm. For example, in Ryan, the accused was the victim of an abusive and dominant spouse. She feared that he would seriously injure or kill their daughter and herself, and believed that the only way out safely was to ensure his death. She contacted an undercover RCMP officer posing as a hitman and agreed to pay him $25,000 to kill her husband. The accused’s lawyers argued that the defence of coercion applies to their client’s situation. However, the court concluded that without an explicit or implied threat, a person cannot resort to this defence.
The defence of necessity
The defence of necessity is a defence for people caught in situations where they see no other option than to commit an offence.
The court will generally consider three criteria in determining the validity of the application of this defence. These criteria, described and confirmed in the Supreme Court’s Perka decision, can be summarized as follows:
- There is an imminent and obvious danger . Usually, it is an unforeseen or unforeseeable hazard;
- There is no reasonable and legal alternative;
- There is a reasonable proportionality between harm inflicted and harm avoided. In other words, the harm done will not be greater or greater than the harm avoided.
Unlike self-defense, the defense of necessity does not require a person to be in “attack” or “retaliation” mode. Where the defence provides the Court with sufficient evidence to raise the issue of necessity, the onus is on the prosecution to rebut this defence and prove beyond a reasonable doubt that the accused’s act was intentional. The accused then successfully used the defence of necessity.
For example, in Pleau, the accused and his friend Deegan drank alcohol in Deegan’s apartment. The men went outside to smoke a cigarette, then Deegan tripped down the stairs and cut his scalp on an iron handrail, causing a concussion. Neither had a phone, and the apartment had no ringtone to communicate with other residents and ask for help. The accused feared that Deegan’s injuries were irreparable due to a delay in obtaining medical attention. Seeing no reasonable alternative, the accused drove his friend to the hospital while impaired. A nurse at the hospital called the police after noticing that the accused was intoxicated. He did, however, successfully argue that the defence of necessity applied to his situation.
If you are charged with a criminal offence, it is important to be represented by an experienced criminal lawyer who can analyze all the defences applicable to your specific case. Contact Lambert Avocats without delay.