Getaway Driver | Party to an Offence

Getaway driver? Party to an offence? Can the accused get in trouble? What are his/ her liabilities? What if he/ she was under duress? What if he or she believed that the threats will be carried out if they do not participate in the commission of the offence?


What if the accused was under duress?


Whether the common law defence of duress was available to the accused depends on whether it was open to the jury to conclude that he was a party to the offence of robbery as an aider under s. 21(1)(b), as distinct from having actually committed the offence as a co-perpetrator.

The question then becomes whether the accused encouraged the commission of the offence and, if he/she did not actually commit the offence as a co-perpetrator, his/her liability as a secondary party falls to be determined under s. 21(1)(b) of the Code.


Is the accused a co-perpetrator of the offence? What is a co-perpetrator?


An intention to act in concert with another is an integral part of the doctrine that, where one person commits one element of the offence and another person commits another element of the offence, both are co-perpetrators of the offence.

In order for an accused to be committed the robbery under the co-perpetrator doctrine and, hence, be disentitled to the defence of duress by s. 17, it would be necessary for the Crown to satisfy the jury beyond a reasonable doubt that the accused intended to act in concert with his co-accused.


Basic principles


Parties to offence


  • 21 (1) Every one is a party to an offence who

    • (a) actually commits it;

    • (b) does or omits to do anything for the purpose of aiding any person to commit it; or

    • (c) abets any person in committing it.

  • Common intention

    (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

  • R.S., c. C-34, s. 21


What if the accused committed the offence under compulsion of a threat to bodily harm?


Section 17 codifies the defence of duress:

  • It requires threats of immediate death or bodily harm. An aider who invokes the common law defence of duress must meet a higher standard with respect to the nature of the bodily harm threatened than the actual perpetrator under section.

  • Section 17 of the Code provides that a person who commits an offence under compulsion by threats of immediate death or bodily harm is excused for committing the offence if he believes that the threats will be carried out.

  • The unreasonableness of the accused’s belief is an item of evidence going to whether he genuinely believed the threats would be carried out.


Limitations/ When is it unavailable?


  1. The defence of duress is usually unavailable to a person who had an obvious safe avenue of escape. Where the defence of duress is invoked, whether the accused failed to avail himself or herself of some opportunity to escape or to render the threat ineffective, is a question for the jury.

  2. If an accused person is found as a co-perpetrator of the offence of robbery, then s. 17 would render the defence of duress unavailable to the accused.

  3. The offence is not one of the offences excluded by the section from the defence of duress.

    • 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 249 to 250.2 (abduction and detention of young persons).


Does fear constitute as duress?


  • Mere fear does not constitute duress in the absence of a threat, either express or implied.

  • Where an implied threat is relied upon to constitute duress either under s. 17 or under the common law, the threshold question is whether the acts, conduct or words of the person alleged to have made the threat could reasonably be construed as a threat of the required kind.

  • On this threshold question, an objective standard must necessarily be met. If the judge at the conclusion of the evidence is of the opinion that no reasonable jury could find that the words or conduct constituted a threat of the kind required, the judge will withdraw the defence of duress from the jury.


Other questions to consider:


  • Did the accused person play an important and indispensable role in the offence?

  • Did the accused have an obvious safe avenue of escape?

  • Is the offence is one of the offences excluded by the section from the defence of duress.