Can duress apply as a defence to a quasi-criminal charge? The interesting decision in R. v. Chu 2008 CarswellOnt 3557 suggests yes.
The Court writes:
Duress
43 I was not able to find any decisions, reported or otherwise, dealing with the defence of duress under the Smoke Free Ontario Act nor was I referred to any by the prosecutor or counsel for the defendant.
44 Duress is a defence used in both civil and criminal matters. Here I am dealing with a regulatory matter, which by its nature is quasi-criminal.
45 In the criminal context, the defence of duress can be used in two circumstances:
i. first, as a statutory defence under s. 17 of the Criminal Code,
ii. second, as a defence at common law.
46 In the regulatory context, the defence of duress that is used is not the statutory defence but instead is the defence at common law. Although similar to the defence of necessity, it is not the same. The defence of necessity was not argued here. That being said, the Supreme Court of
47 I begin my analysis with the statement at paragraph 17 of the
[17] R. v. Ruzic, supra, holds that s. 17 of the [Criminal] Code is unconstitutional in so far as it restricts the defence of duress to circumstances where the threats are of immediate death or bodily harm and the threatener is present when the offences are committed. The common law defence of duress does not include such restrictions.
and at paragraphs 28 and 29:
[28] On the basis of Ruzic, it must now be accepted that duress can arise from threats of future harm, not just immediate harm. It can arise from threats to third parties, not only threats to the accused himself or herself. It is not necessary that the threatener be present when the actual offence is committed: see R. v. Ruzic, supra, at pp. 29 and 40 - 41. However, there must be a close temporal connection between the threat and the harm threatened. The threat must be a real threat affecting the accused at the time of the offence: see p. 43. The duress defence is assessed by a mixed objective/subjective standard. It is available where a reasonable person having reasonable firmness, sharing the same characteristics as the accused such as his or her age or background, would have acted on the threats: see pp. 31-32.
[29] However, it is still the law that the duress defence is not available where the accused has a safe avenue of escape. In applying this defence, the law does not require an accused to seek the protection of police in all cases. The requirement of objectivity must take into consideration the special circumstances in which the accused finds himself or herself as well as his or her perception of those circumstances (R. v. Ruzic, supra, at pp. 31 and 40).
48 Duress is a defence available to an individual who, under the pressure of an unlawful threat by another person to harm him or a third person, commits an offence. The defence is fact specific and when successful results in the defendant being found not guilty of the offence alleged. It is a defence that acknowledges human weakness in situations of danger as it has at its heart the idea that the weaker party is left with no real choice.
49 The rationale of necessity and thereby duress is a recognition the law "cannot hold people to the strict obedience of the law in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience": Perka v. R. (1984), 14 C.C.C. (3d) 385 (S.C.C.).
50 Although the statutory defence involves a subjective test by requiring that the defendant believe that the threat will be carried out, our courts have adopted an objective standard of reasonableness for the common law defence. As Justice Libman writes in his text Libman on Regulatory Offences in
Necessity requires that "compliance with the law be demonstrably impossible"; duress is likewise unavailable "where a safe avenue of escape is open to the defendant". The issue as to whether a safe avenue of escape existed must be determined on an objective basis, taking into account the personal circumstances of the defendant.
[R. v. Hibbert, [1995] 2 S.C.R. 973, 99 C.C.C. (3d) 193]
Punishing persons whose acts are involuntary in the physical sense is unjust, "because it conflicts with the assumption of the criminal law that individuals are autonomous and freely choosing agents". It is likewise unjust to penalize an individual who acts in a morally involuntary fashion, because his or her acts "cannot be realistically attributed to that person". Like physical involuntariness, moral voluntariness deserves protection as a tenet of fundamental justice. It is a principle of fundamental justice that only voluntary conduct, that is, "behaviour which is the product of a free will and a controlled body, unhindered by external constraints", should attract criminal liability.
[R. v. Ruzic, [2001], 1 S.C.R. 687, 153 C.C.C. (3d) 1].
51 Accordingly, the question is whether, on the facts of this case, a reasonable person in Mr. Chu's situation would have felt compelled to act in the manner in which he did.
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