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What is duress?

While duress is a concept people likely have heard of before, they may not quite know what it is or how it is applied in law in Canada.

Definition of duress

Duress is defined as using force against someone, such as false imprisonment, threats, and physical or other types of violence to get a person to do something they wouldn’t ordinarily do, such as commit a crime or sign a contract.

Duress when making a contract or a will

Duress can be used in cases in which a person was forced to sign or do something they didn’t want to do, to argue that a contract or a will is not valid.

For example, duress can be found in cases in which a will was executed or a contract was signed. If a person who signed the contract or will was forced through duress to sign away money or some sort of power, or giving something up, then the court will find the person was compelled to sign the document by serious threats of violence and/or actual violence and most likely find the document null and void.

A duress finding in the making of a contract will almost always result in a contract being invalidated.

Duress used as a criminal defence

While duress is used in civil/contracts/wills cases, it can also be used in criminal cases with the caveat that the defence of duress is only available on a limited basis.

The Criminal Code of Canada explains that duress can be used as a defence for a limited amount of crimes.

The section is entitled “compulsion by threats” and states:

“A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion. . .”

The code forbids the defence of duress when it comes to the most serious crimes, including: murder, attempted murder, sexual assault, forcible abduction and hostage taking.

However, a 2015 case         allowed for duress to be considered in a criminal case involving murder — even though the criminal code forbids it, and the defence hasn’t been able to be used in other cases involving murder.

In R. v. Aravena, a gang of bikers appealed their murder convictions arguing they were forced to kill other bikers due to duress, as they feared for their lives. Even though the Ontario Court of Appeal dismissed the appeal, they did find that the lower court judge erred in finding that duress couldn’t be used as a defence.

The court used the reasoning that if a person is truly afraid of losing their life, and feels they have no choice but to kill the person threatening them with violence, then they should have the defence of duress available to them. To disallow the defence of duress in a case where a person truly feared they were going to die is giving priority to the life of the victim over that of the accused, which was unacceptable to the court.

If you have signed a contract or a will, or any other legal document under duress, or have been charged with a crime in which duress was involved you should consult a lawyer as soon as possible.

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Duress

Criminal Code of Canada Compulsion by Threats