In the criminal law there are various defences. One of the least utilized is the defence of necessity and its variant duress. Necessity a defence because it negates the requirement that a wrongful act also be accompanied by malicious or wrongful intent. In latin: mens rea. What is intended is avoiding a grievous harm, such as death, rather than committing a crime.

The classical example is the person who is lost or stranded on a mountain, sure to die of exposure. This person in order to avoid death would be justified in breaking into a cottage in order to avoid death by exposure. The prohibited act, break and enter, is rendered lawful by the “necessity” of avoiding death.

Another way to look at it is that the act it self is not wrongful or does not qualify as actus reus because it was not voluntary. When the individual has no real choice except to break the law because the consequence of not breaking the law is so extreme and disproportionate then the law will not hold an individual criminally liable.

Whether the prohibited act is involuntary or lacks the wrongful intent required by criminal law, there is no moral blameworthiness that attaches to conduct necessitated by circumstances or imposed by threat or violence.

Still the person acting under duress or by necessity did voluntarily act against the law and did intend that the wrongful act be committed. It is therefore argued that although the wrongful act and the wrongful intent are present the fact that they were clouded by duress or necessity offers a shield to the accused person. The conduct is therefore “excused”. In R. v. Ruzic the Supreme Court of Canada states:

“…[A]n excuse acknowledges the wrongfulness of the accused’s conduct. Nevertheless, the law refuses to attach penal consequences to it because an “excuse” has been made out. In using the expression “moral involuntariness”, we mean that the accused had no “real” choice but to commit the offence. This recognizes that there was indeed an alternative to breaking the law, although in the case of duress that choice may be even more unpalatable – to be killed or physically harmed.”

Duress is a necessary course of action which is imposed by threat or violence.

There are four ingredients that must be met before the law will excuse a crime because the accused was acting under duress.

• One: acts solely as a result of threats of death, or serious bodily harm to herself or another person.
• Two: the threats were of such gravity or seriousness that the accused believed that the threats would be carried out.
• Three: the threats were of such gravity that they might well have caused a reasonable person placed in the same situation as the accused, to act in the same manner as she did.
• Finally, the accused must not have had an obvious safe avenue of escape.

It should also be noted that there is a strong thread in the case law that suggests that the accused person cannot have had a hand in creating the circumstances by which he is oppressed. This means that a person who joins the mob or a motorcycle gang and is ordered under threat of death to commit a crime, cannot then rely on the defence of duress having willful joined a group where he knew he would be subject to such threat of violence.