Last Updated on November 15, 2018 by Steven Meurrens

In addition to the defence of duress, discussed elsewhere on this blog here, the Federal Court of Canada in Canada (Public Safety and Emergency Preparedness) v. Aly has determined that the defence of duress can apply to negate an inadmissibility finding for criminality.

The defence of necessity requires proof that:

  • there exists a clear and imminent peril;
  • there is no reasonable legal alternative available to disobeying the law; and
  • there is proportionality between the harm inflicted and the harm avoided.

As the Supreme Court of Canada noted in R v. Latimer, the requirement for “clear and imminent peril” means that:

[D]isaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable or likely; it must be on the verge of transpiring and virtually certain to occur. In Perka, Dickson J. expressed the requirement of imminent peril at p. 251: “At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable”. The Perka case, at p. 251, also offers the rationale for this requirement of immediate peril: “The requirement . . . tests whether it was indeed unavoidable for the actor to act at all”. Where the situation of peril clearly should have been foreseen and avoided, an accused person cannot reasonably claim any immediate peril.

In short, an individual must believe he faces imminent peril and that he has no legal alternative to his illegal action. Further, his belief must be reasonable given his personal and situational circumstances.

In Aly, for example, Madam Justice Simpson noted in regards to an individual who was illegally resident in Malaysia and working for a company engaged in fraud that:

The Respondent’s evidence was that he had been threatened with exposure by the Owner, had little money, limited language skills, no work permit, a short tourist visa and no UNHCR recognition. There was also objective evidence showing that he was at “constant” risk of deportation. In these circumstances, I have concluded that the IAD reasonably found that he was in imminent peril. The Minister suggests that since the Malaysian authorities had not found him, he was not in imminent peril. In my view, this submission misses the point. Once he was found, it would have been too late. He was in constant peril of discovery and it would have led to detention and deportation.