In Canadian criminal law, not every offence is committed freely. In rare situations, a person may become involved in criminal activity because they are acting under serious threats. The duress defence exists to recognize those exceptional cases, where someone acts out of fear of immediate harm rather than true criminal intent.
If you are facing charges in British Columbia, it is important to understand how duress works, how narrowly it is applied, and what must be proven in court. This defence is legally complex, and it succeeds only when the evidence clearly supports each required element.
What Is Legal Duress?
Duress describes a situation where an accused commits an offence because they were compelled by threats of death or serious bodily harm. The central principle is voluntariness. The law may excuse criminal liability when a person’s actions were not truly voluntary because the threat left no realistic alternative.
Duress does not mean the offence did not happen. Instead, it is a defence that can excuse responsibility in strict circumstances. Courts treat duress as exceptional and closely scrutinize claims to ensure the defence is not used to excuse ordinary pressure, intimidation, or difficult choices.
Duress Under the Criminal Code and Common Law
In Canada, duress appears in two related forms:
- Section 17 of the Criminal Code, which is framed for the main person who commits the offence (often called the principal)
- Common law duress, developed through court decisions and often applied to people alleged to have assisted in an offence (for example, aiding or abetting)
Over time, Supreme Court of Canada decisions have worked toward a more unified approach. In British Columbia, courts apply this harmonized framework to assess whether duress is available and, if so, whether it is made out on the facts.
Key Elements of the Duress Defence
To rely on duress, the accused must point to evidence supporting each essential requirement. These elements help ensure the defence is limited to truly coerced conduct.
1) A Threat of Death or Serious Bodily Harm
The threat must be serious and specific. Minor threats, vague intimidation, or general fear are not enough. The accused must reasonably believe that they or someone close to them would face death or serious injury if they did not comply.
2) Immediacy of the Threat
Courts look closely at whether the threat was imminent. In other words, did it leave the accused with little time to escape, refuse, or seek help? If the evidence shows there was time to safely contact police or take another step to avoid committing the offence, the defence becomes much harder to establish.
3) No Reasonable Legal Alternative
A core question in duress cases is whether there was a reasonable lawful way out. If a realistic alternative existed, the defence will usually fail. The law excuses only conduct that was effectively unavoidable, not conduct chosen under pressure.
4) Proportionality
Courts also assess whether the harm the accused sought to avoid was proportionate to the harm caused by the offence. Even where threats are serious, the law is reluctant to excuse conduct that causes extreme harm to others.
Limitations on the Duress Defence
Duress is not available for every offence. Section 17 of the Criminal Code excludes certain serious crimes, including murder, attempted murder, and some sexual offences. While common law duress can apply more broadly, courts remain cautious, particularly where violence or grave harm is involved.
Another key limitation relates to voluntary association. If the accused knowingly put themselves in a situation where coercion was foreseeable, such as joining a criminal organization, the defence may not be available. This issue can come up in British Columbia cases involving alleged organized crime or drug trafficking, where coercion is sometimes claimed but carefully tested against the evidence.
How Duress Is Proven in Court
Raising duress does not automatically result in an acquittal. The accused must first introduce some evidence capable of supporting each element of the defence. This is often referred to as meeting the air of reality threshold.
If that threshold is met, the Crown must then disprove duress beyond a reasonable doubt.
Evidence in a duress case may include:
- Testimony from the accused describing the threats and circumstances
- Messages, calls, or other communications showing coercion
- Witness evidence that supports the existence or seriousness of the threat
- Expert evidence in limited situations, such as the psychological impact of coercion
Because credibility matters, courts will look for internal consistency and independent support wherever possible.
Why Legal Advice Matters
Duress cases are fact-driven and legally demanding. If the defence is not framed correctly, it may fail before it ever reaches a jury or judge in a meaningful way. Early legal advice can help assess whether duress truly applies, identify the strongest supporting evidence, and anticipate how the Crown will challenge the claim.
An experienced criminal defence lawyer can evaluate the credibility and immediacy of the threats, test whether lawful alternatives existed, and ensure the defence is presented in line with Canadian law.
Speak with a Criminal Defence Lawyer in British Columbia
If you are facing criminal charges and believe your actions were the result of serious threats or coercion, the duress defence may be relevant. Understanding its limits and what must be proven can make a decisive difference.
To discuss your situation and protect your rights, contact Michael Shapray. He can assess whether duress or another defence may apply and guide you through the next steps with clarity and care.