Imported drug to Canada. Caught at airport. Said she was forced to. Someone in home country threatened her. Said she didn’t go to police bc she didn’t trust them
Was the judge correct in giving the jury the common law defence of duress?
It is a PFJ that only voluntary conduct – behaviour that is the product of free will and controlled body, unhindered by external constraints – should attract the penalty and stigma of crim law.
Elements of the Common Law Defence of Duress:
**Not available if: safe avenue of escape (standard is modified objective)
**Threats must be grave – accused must demonstrate some fortitude and do what is reasonable to resist the threat
**Proportionality – proportionality between threat and crim act to be executed (standard is a modified objective standard)
***Should be close temporal connected between the threat and the harm
Moral involuntariness is not the same as moral blameless:
*Blameworthiness deals with the requirement of proving MR
*Involuntariness has nothing to do with MR.
s.17 – limits the defence of duress to a person who is compelled to commit an offence under threats of immediate death or bodily harm from a person who is present when the offence is committed.
**The immediacy and presence requirement, taken together, clearly preclude threats of future harm
Common law defence of duress – does not negate MR or AR, but relieves a person from penal consequences and stigma of a finding of criminal liability