The Statutory Defence of Duress
The defence of duress is codified under s 17 of the Criminal Code which excuses the commission of an offence where it was committed under compulsion by threats of immediate death or bodily harm. The statutory defence of duress, however, is inapplicable to several enumerated offences, including sexual assault, aggravated assault, unlawfully causing bodily harm, and murder. Prior to the Supreme Court decision of R v Ruzic, 2001 SCC 24, there was an additional requirement under s 17 that the compulsion by threat was of immediate death or harm, and was perpetrated by a person who was present as the offence was being committed. The Supreme Court ruled in Ruzic that the immediacy and presence requirements were a violation of an individuals Charter right to life, liberty, and security of person and were too restrictive to account for what might be an otherwise morally involuntary commission of an offence. The statutory defence under s 17 applies to an individual who actually commits a crime. Those who are parties to a crime but are not the principal actors do not get coverage, so to speak. For an individual who is a party to an offence committed under compulsion of threat, the common law defence of duress, which predates s 17, is available. Unlike s 17, however, the common law defence of duress isn’t subject to a list of excluded offences. What s 17 has created is a legal blind spot whereby those who are principal actors cannot rely on the defence of duress if they commit the excluded offences under s 17, but parties to those offences can rely on the defence.
In R v Aravena,  OJ No 1910, the Ontario Court of Appeal confirmed that the common law defence of duress was available to parties of an offence that was otherwise excluded under s 17. The court went on to remark that the exclusions specified under s 17 ‘must be found unconstitutional’. The factual circumstances in Aravena didn’t require a decision about the constitutionality of the excluded offences under s 17 so the Court’s remarks were simply a consideration of the legal principles, instead of a ruling that would bind lower courts going forward. So strictly speaking, the gap created by s 17 which excludes 20 offences from the defence of duress has yet to be filled.