General

 

Detailed analysis of the statutory and common law defence of duress, its scope and application, and the rational underlying the defence of duress: R v Aravena, 2015 ONCA 250

 

The duress defence in s. 17 of the Criminal Code applies only to perpetrators.  The common law defence of duress is available to persons charged as aiders and abetters, including persons charged with murder: R v Noureddine, 2016 ONCA 770 at para 89; R v Aravena, 2015 ONCA 250

 

Duress can only be left with the jury when there is an air of reality to that defence.  An air of reality exists if it is realistically open to a jury, on the entirety of the evidence, to have a reasonable doubt as to the existence of each of the essential elements of the duress defence: R v Noureddine, 2016 ONCA 770 at para 93

 

The existence of a safe avenue of escape is to be determined on an objective standard and is adjusted for subjective circumstances. The belief of the accused that he had no reasonable alternative is not sufficient to give an air of reality to the defence simply because the belief is asserted. The question is whether a reasonable person, with similar history, personal circumstances, abilities, capacities and human frailties as the accused, would, in the particular circumstances, reasonably believe there was no safe avenue of escape and that he had no choice but to yield to coercion: R v DBM, 2016 ONCA 264 at para 7

​

An accused’s failure to testify does not foreclose a duress defence although, practically speaking, it will have a negative effect on the availability of the defence in most cases: R v Noureddine, 2016 ONCA 770 at para 95

​

​