INTRODUCTION AND BRIEF DESCRIPTION
Section 17 of the Criminal Code of Canada provides a defense of compulsion to a person who commits an offence under immediate threat of death or bodily harm.
SECTION WORDING
17. 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, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).
EXPLANATION
Section 17 of the Criminal Code of Canada is an important legal provision that provides a defence for a person who commits an offence under compulsion by threats of immediate death or bodily harm. This provision recognizes that in certain situations, a person may be coerced or forced to commit a crime against their will. In such cases, the person's actions are considered excusable because their compliance was based on a reasonable fear of harm or death. However, this defence is limited in scope and applies only to certain offences. The list of excluded offences in section 17 is extensive, and it includes many serious crimes, such as murder, sexual assault, and robbery. This reflects the fact that many offences are considered so heinous that they cannot be justified, even in circumstances where a person is coerced into committing them. To qualify for this defence, a person must meet specific criteria. Firstly, they must have been under compulsion by threats of immediate death or bodily harm from a person who was physically present when the offence was committed. Secondly, the offender must not have been a party to a conspiracy or association that placed them under compulsion. Lastly, the offender must have believed that the threats would be carried out, and their belief must have been reasonable. Overall, section 17 of the Criminal Code balances the need to hold individuals accountable for their actions while recognizing that in certain situations, their compliance may have been beyond their control.
COMMENTARY
Section 17 of the Criminal Code of Canada provides a legal framework for situations where a person is compelled to commit an offence due to threats of immediate death or bodily harm. This section recognizes that a person who commits an offence under such circumstances may not have acted out of their own free will and therefore may not be entirely responsible for the offence. Under this section, a person who believes that the threats will be carried out and is not involved in a conspiracy or association where they are subject to compulsion may be excused for committing the offence. This recognition that individuals are sometimes put under pressure by others to commit crimes aligns with the principles of natural justice and places a high value on individual autonomy. At the same time, it also ensures that culpable persons are held accountable for their actions and that those who have acted under duress are not punished unfairly. However, section 17 also sets out certain limitations as to when a person can be excused for committing an offence under compulsion. For example, this section does not apply where the offence committed is a serious one such as high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson, or an offence under sections 280 to 283 (abduction and detention of young persons). This suggests that there are certain offences that are considered too serious for a person to be excused for even if they were under duress. Overall, section 17 of the Criminal Code of Canada is a useful provision that balances the need to hold individuals accountable for their actions while also recognizing that some individuals may be coerced into committing offences. It provides a much-needed legal framework for situations where individuals are acting under duress. However, it's worth noting that the section has its limitations and does not provide a blanket immunity for all offences committed under duress. Therefore, it's crucial that courts interpret and apply section 17 in a way that is consistent with the principles of natural justice and that also reflects a nuanced understanding of the realities of human behavior in situations where individuals are under compulsion.
STRATEGY
Section 17 of the Criminal Code of Canada provides for a defense to charges of committing an offense under compulsion. This section is intended to offer a protection to individuals who are forced to commit an offense under threats of immediate death or bodily harm by a person who is present when the offense is committed. As a legal practitioner dealing with a case that involves Section 17 of the Criminal Code, it's essential to consider the following strategic elements: 1. Gathering Evidence: It is necessary to investigate the case thoroughly to judge whether the defense of compulsion can be successfully made. The defense under Section 17 requires that the person believed the threats would be carried out; thus, it is vital to gather evidence to support this belief. Evidence can be collected through CCTV footage, eye witness accounts, or any other relevant documentary evidence. 2. Establishing the Severity of the Threat: The severity of the threat is essential in determining the validity of the defense under Section 17. It is necessary to investigate the nature of the threat and its potential to cause severe bodily harm or death to the accused or their family. This investigation can help establish the impression that the accused was in a precarious situation when committing the offense. 3. The Role of the Accused: The role played by the accused in the offense is also critical when using the defense under Section 17. If the accused happened to play an active role in the commission of the offense, it becomes challenging to argue that they were under duress. However, if the accused had a passive role or was coerced into committing the offense, the defense is more likely to be successful. 4. Plea Bargain: If the evidence against the accused is overwhelming and the prosecution has sufficient evidence to convict the accused, the defense counsel may consider negotiating a plea bargain. A guilty plea to a lesser charge may be an option worth exploring so that the accused can avoid more severe penalties for the original offense. 5. Use of Experts: The opinion of experts, both legal and medical, can be of significant help when arguing the defense of compulsion. Legal experts can help in establishing the validity of the defense under Section 17, while medical experts can validate the psychological consequences of the threat on the accused. In conclusion, dealing with section 17 of the Criminal Code, a lawyer must carefully investigate and evaluate the evidence and their client's role in the offense. Lawyers could employ several strategic options, such as negotiating plea bargains or presenting evidence from experts, to reduce the penalties or defend their client successfully. Ultimately, the criminal defense lawyer has to determine which strategy is best regarding the facts of the case.
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