Last updated on August 30th, 2021
Last Updated on August 30, 2021 by Steven Meurrens
The Supreme Court of Canada has “clarified” the elements of the duress defence. The defence is important because it can affect admissibility.
For example, in Guerra Diaz v. Canada (Citizenship and Immigration), 2013 FC 88, the Federal Court of Court determined that the Immigration and Refugee Board improperly applied the test of whether duress applied, and ordered a new hearing by a different member.
Duress and Inadmissibility
It is basically trite law that where there is duress, then a person does not have the mens rea do either commit a crime or be a member in a group that renders the individual inadmissible to Canada. In Jalloh v. Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 317, the Federal Court stated that:
In my view, it is preferable to consider the evidence of membership along with the evidence of coercion in determining whether there are reasonable grounds to believe the person genuinely was a member of the group. One way of looking at this issue is to regard evidence of duress as defeating the mens rea of membership (Thiyagarajah v Canada (Minister of Citizenship and Immigration), 2011 FC 339). Accordingly, evidence relating to duress must be considered along with the evidence relating to membership in deciding whether the person really was a member of the group or, rather, was motivated by self-preservation.
In sum, a person cannot be considered to be a member of a group when his or her involvement with it is based on duress. At a minimum, a member is someone who intentionally carries out acts in furtherance of the group’s goals. A person who performs acts consistent with those goals while under duress cannot be said to be a genuine member.
Therefore, the finding of membership should rest on indicia that the person’s intentions were consonant with the group’s objects, not survival. The evidence should be considered as a whole to determine whether the person was truly a member or whether his or her acts carried out in the group’s name were coerced. It must be remembered, of course, that the issue to be decided under s 34(1)(f) is whether there are reasonable grounds to believe that the person was a member, not whether the evidence establishes such a connection on a balance of probabilities, or whether duress has been made out on any particular standard of proof. This, too, suggests that all of the relevant evidence should be considered together.
That duress can negate membership in a group rendering a person inadmissible was again affirmed in T.K v. Canada (The Minister of Public Safety and Emergency Preparedness), 2013 FC 327.
In Canada (Public Safety and Emergency Preparedness) v. Gaytan, 2021 FCA 163, the Federal Court of Appeal affirmed that in determining whether an individual is inadmissible under paragraph 37(1)(a) of the Immigration and Refugee Protection Act the Immigration Division and Immigration Appeal Division are entitled to consider the defense of duress.
R v. Ryan
Individuals and representatives intending to rely on the defense of duress should accordingly carefully read the Supreme Court of Canada’s decision.
In R v. Ryan, Supreme Court clarified the elements of the defence of duress, which was raised when a battered spouse tried to have her husband murdered. The Supreme Court took the opportunity to clarify the law of duress. The following requirements must be met for there to be duress:
- There must be an explicit or implicit threat of death or bodily harm proffered against the accused or a third person. The threat may be of future harm, although there must be a close connection in time such that the accused essentially loses the ability to act freely;
- The accused reasonably believed that the threat would be carried out as analyzed on a modified objective basis according to the test of the reasonable person similarly situated;
- There is non-existence of a safe avenue of escape, evaluated on a modified objective standard. In other words, a reasonable person in the same situation as the accused and with the same personal characteristics and experience would conclude that there was no safe escape or legal alternative to committing the offence;
- There is a close temporal connection between the threat and the harm threatened. This does not preclude the availability of the defence for cases where there is threat of future harm;
- There must be proportionality between the harm threatened and the harm inflicted by the accused. This is also evaluated on a modified objective standard. The harm threatened must be equal to or greater than the harm inflicted by the accused; and
- The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association. In other words, did the accused voluntarily put himself into a position where he or she could be coerced?
Several Federal Court decisions involving Immigration and Refugee Board decisions have affirmed that the test articulated above applies to immigration decisions, including Mohamed v Canada, 2015 FC 622, Ghaffari v. Canada (Minister of Citizenship and Immigration) ,  F.C.J. No. 704, and Gil Luces v. Canada (Public Safety and Emergency Preparedness), 2019 FC 1200.
The Federal Court is not unanimous on this, however. In Mansouri v. Canada (Citizenship and Immigration), 2018 FC 144, Justice Diner stated:
The law is clear that the Officer must, in reviewing a permanent residency application, be satisfied that the foreign national (i) has applied for such status, (ii) has met the obligations for entry broadly set out in section 20 of IRPA, and (iii) is not inadmissible. The Officer does not have a duty — statutory or otherwise — to review the due process that occurred within the foreign trial, which would be akin to an appeal, and create a whole host of challenges; neither IRPA nor the jurisprudence imposes such a weighty legal duty on visa officers. Therefore, Mr. El Mansouri cannot succeed on his first argument that the Officer erred in declining to examine the validity of his conviction in South Korea.