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Canadian contractual duress and criminal duress: "irrational, anomalous, perverse, illogical and fundamentally wrong" or just misunderstood?


The contractual and criminal bases for duress in Canada, the United States, and the Commonwealth are currently in disrepair. Contract law serves to enforce binding agreements that are reflective of our choices, but duress threatens to nullify that very purpose. In addition to the contractual basis of duress, the law of duress has developed from a criminal defense perspective, but it has been difficult to apply. Controversy surrounds the defense particularly where the threats involve the sacrifice of an innocent person. Only by examining the philosophical, historical and current state of this defense in the civil and criminal context can one begin to repair and reformulate the defense of duress for future application.


       A. Historical Underpinnings of Contractual Duress
       B. The History of the Criminal Defense of Duress
       C. The Codification of the Canadian Criminal Defense of Duress

       A. The Definition of Contractual Duress
       B. Modern Contractual Duress
       C. Definition of Criminal Duress
       D. Modern Criminal Duress

       A. The "Will" of the Individual
          1. Overborne Will and Contractual Duress
          2. Overborne Will and Criminal Law
       B. Excluded Offenses--Criminal and Contractual
       C. Threat
          1. Threats to Third Parties in Contract Law
          2. Threats to Third Parties in Criminal Law
       D. Canada's "Objective-Subjective" Standard
          1. Canada's "Objective-Subjective" Standard in Contractual
          2. Canada's "Objective-Subjective" Standard in Criminal
       E. Burden of Proof
          1. Contractual Duress
          2. Criminal Duress



The contractual and criminal bases for duress in Canada, the United States, and the Commonwealth (1) are currently in disrepair on certain issues after a long and sordid history. For that reason, there is a real need to examine the state of the duress defense in both realms. Contract law is more than an allowance to make binding agreements reflecting our choices; contract law also protects those who do not make agreements of their own free will. Contract law responds to duress because to "enforce agreements made by fraud or coercion would nullify the point of allowing binding agreements in the first place." (2)

Historically, contractual duress was applied in narrowly circumscribed situations. (3) A contract could only be vitiated if it had been "procured as a result of actual or threatened physical violence ('duress of the person')" obtained through aggression or threat of crime or tort. (4) For example, individuals could avoid a contract in 1642, according to Lord Coke, if there was a "fear of losse of life, 2. of losse of member, 3. of mayhem, and 4. of imprisonment; otherwise it is for fear of battery, which might be very light, or for burning of his houses, or taking away, or destroying of his goods or the life, for there he may have satisfaction in damages." (5) Yet, even in these cases, recovery occurred for "duress of goods" only on a restrictive basis. (6) Duress of goods was increasingly recognized by the Commonwealth as well as U.S. courts, and the duress defense began to develop more fully. (7) This recognition also extended to the more inclusive concept of "economic duress" as well as "business compulsion." (8) Yet, defining the test for contractual duress has encountered difficulties.

In addition to the evolution of duress from a contract law standpoint, the law of duress has also developed from a criminal law basis. The goal of criminal law is to "create a set of rules that best implements our collective sense of justice." (9) But, when it comes to the criminal defense of duress, centuries of development have failed to produce a workable basis capable of supporting a common law or codified version of the defense. (10) Over time, the defense of duress (also called compulsion, compulsion by threats, or coercion) (11) was conceptualized as a full defense in criminal law, as a "concession to human infirmity in the face of an overwhelming evil threatened by another." (12) Controversy, however, surrounds the defense where the threats involve the sacrifice of one innocent life to save another innocent life creating a "love-hate relationship" with the defense in the criminal law context. (13) In other words, our emotional reaction to duress is linked to our feelings about those who "allow" themselves to be coerced. (14) Joshua Dressier notes that when we are concerned about locating "victims and villains," it is hard to classify someone who has succumbed to a threat. (15) He offers the classic example of an individual with a gun to his head who agrees to kill a child to escape death, and Dressler questions whether this person is a victim or a villain whose "aversion to dying was greater than his aversion to killing?" (16) These are difficult questions with no simple answers.

The law of criminal duress has become even more complicated in Canada with the advent of the Canadian Charter of Rights and Freedoms in 1982 (Charter). (17) Generally, if a Canadian court decides that a case deals with an issue under the Canadian Constitution, it must then determine if a guaranteed right of all citizens has been infringed upon. The Charter sets out the "fundamental freedoms" of all Canadians. (18) In criminal law, the courts routinely review the definition of criminal offenses to ensure conformity with the Charter; however, when examining Charter challenges to defenses, the cases are rare and often unsuccessful. (19)

Despite these developments of duress in both civil and criminal law, the defense of duress requires more analysis to best protect unwitting victims. By examining the philosophical, historical, and current state of the defense in both civil and criminal law, there is a chance for a clearer formulation for duress. (20) Through this analysis, it seems the intent of the earliest framers of the law was that the defense of duress would not be fully codified but rather it would remain flexible through the use of the common law. This Article contends that a new, more flexible standard should replace the current, more stringent version of the defense. (21) Undeniably, there has been an "extraordinary expansion of the scope of duress" in the contractual realm, while there has been an absolute narrowing of the criminal defense so that it is hardly used successfully in any modern case. (22) The following analysis shows that the current state of the duress defense is "irrational, anomalous, perverse, illogical and fundamentally wrong," (23) and it is deeply misunderstood. This Article examines the law in Canada as well as a few U.S. and Commonwealth cases. (24) Part I examines the historical development of the defense and the writings of Sir James Fitzjames Stephen, one of the first major modern theorists on duress, as well as the development of the civil law formulation of duress. Part II examines the definition of contractual and criminal duress including the state of those concepts today in their respective disciplines, and the modern state of duress. Part III addresses the problematic issues in both civil and criminal contexts including the "overborne will" theory, excluded offenses, threats to third parties, the Canadian "objective-subjective standard," and the burden of proof. Finally, Part IV compares and contrasts the problems with duress in both contexts, and concludes with a look at the future for these concepts.


This Part discusses the history of the defense of duress in both contract law and in criminal law.

A. Historical Underpinnings of Contractual Duress

Contractual duress has a long history starting with the Romans. However, it has been said that the "law in relation to [contractual] duress is not as clear as one might wish." (25) Included in the edictum perpetuum of the Roman Emperor Hadrian was the phrase "Quod metus causa gestum erit, ratum non habebo" which translates to "[w]hat is done through fear I will not uphold." (26) In this earliest of forms, this fear had to be felt by a "man of the most resolute character" and not a "weak-minded man." (27) Many forms of this edict exist in relation to "fear of personal harm, such as death, harm to physical integrity and loss of freedom, and possibility also fear of harm of an economic nature. Threats of harm to family are also covered." (28) The form of duress envisioned by the Romans was to address "compulsion through 'bending' the will of the victim ('mental' fear or vis compulsive)." (29) These complex theories about the nature of free will has ancient origins.

The earliest types of duress in civil law were those which had an overt physical element. (30) These cases involved general contracts where the pressured parties were forced to sign an agreement and were little more than a "mere mechanical instrument" and their actions were not considered to "manifest assent." (31) Lord Scarman summarized the history of contractual duress in Barton v. Armstrong saying that duress of this kind was limited:

[A]t a comparatively early date equity began to grant relief in cases where the disposition in question had been procured by the exercise of pressure ... considered to be illegitimate--although it did not amount to common law duress ... [t]here is an obvious analogy between setting aside a disposition for duress or undue influence and setting it aside for fraud. (32)

Lord Scarman cited Justice Holmes in Fairbanks v. Snow stating that relief can be provided where the "party has been subjected to an improper motive for action." (33)

Duress in the civil law has been among the "vitiating factors long recognized by the common law," (34) however, the scope of the vitiation has been changing for centuries. The need to draw the line between permissible pressure in all contractual negotiations and pressure that is illegitimate has been the overwhelming consideration. (35) The modern conception of contractual duress includes not only those physical threats to the person but also to one's "personal liberty." (36)

Similarly, the 1847 English case of Cumming v. Ince dealt with the forcible confinement in a "private lunatic asylum" of a mother by her two married daughters and their husbands. (37) After the daughters had forcibly committed their mother to the institution, they said that they would not pursue the finding of lunacy against her if she would sign over certain title deeds. (38) Cumming alleged that the contract that was not binding because it was obtained by duress. Her lawyer's clerk testified that he believed that she "acceded to the arrangement only from fear of these consequences." (39) The court held that even if her confinement was legitimate it was a "restraint on her will, which prevented any contract made under that duress from binding her." (40) Justice Denman noted that "she was induced to resign them by fear of personal suffering brought upon her by confinement in a lunatic asylum by the act of the defendants" and that the contract which resulted was not of her own free will. (41) The court determined that Cumming was induced to sign the documents so she would be released from the asylum and the judge asked: "[i]s not this truly described as duress?" (42) This rhetorical question led the court to confirm the verdict of the lower court: the contract was void for duress.

There are a few important Canadian examples of contractual duress. One of the clearest examples is the 1877 case of Armstrong v. Gage. (43) In Armstrong, the court was faced with a plaintiff of "advanced years" who was "wholly unacquainted with legal matters" and who was accused of defrauding the defendants by changing tickets of weight measurements for grain. (44) The defendants were described as "men of great shrewdness" who convinced the plaintiff that he was guilty of forgery, and if he could not prove otherwise, he would be convicted of a crime and sent to jail. (45) The plaintiff was not allowed to consult with anyone, and was told that if he left the defendant's office he would be immediately arrested. The plaintiff was kept confined for at least four hours and told that the only resolution would be for him to immediately execute a mortgage for $600 on his property. (46) The defendants claimed that the plaintiff was "cool, clear, and collected" when he mortgaged the property.

As a threshold matter, the court in Armstrong had to address the critical issue of who had the burden of proof. The court ruled that it is the plaintiff's burden to show that the mortgage was secured through duress, but "no presumption is to be made against the plaintiff of being indebted to any amount; and the burden is thrown upon the defendant." (47) The court found that the plaintiff was under duress as the defendants were "violent and threatening" and that the plaintiff was afraid of arrest if he attempted to leave to obtain legal advice. (48) Finding for the plaintiff, the court set aside the mortgage, made no presumptions against the plaintiff, and placed the burden on the defendants to prove that the grain transactions were inaccurate. (49)

Later, Piper v. Harris Manufacturing Co., (50) concerned the sale of a mowing machine in return for a chattel mortgage on a horse for the price of the mower. (51) In the course of this deal, the company became dissatisfied with their security and sought to give back the horse for a mower. The plaintiff, who was already subject to one criminal proceeding, claimed the defendants threatened him with another criminal action. (52) Although he was not "afraid of personal violence, or of the horse being taken by force," the plaintiff said that he believed the criminal case threatened by the defendants would injure his prior criminal case if the threat did indeed manifest into another criminal charge. (53) Justice Osier clarified that duress must involve a fear for loss of life, bodily integrity, mayhem, or imprisonment. (54) The court found that in this case there was "no warrant, no immediate imprisonment was possible, nor could there have been caused by what was said a reasonably grounded fear of restraint of liberty." (55) Even though the court found that there was no evidence of duress on the facts of Piper, its reasoning solidified the grounds for duress in Ontario. (56)

Like the plaintiffs who argued duress in Armstrong and Piper for confinement or threats of detention, there are several historic examples of courts finding duress under circumstances of unlawful confinement and the threat of detention. In one of the earliest cases, The Earl of Northumberland's Case of 1583, the plaintiff imprisoned the defendant and assigned auditors to investigate an account "made by duress," which acknowledged the concept. (57) Similarly, in the 1872 case of Bromley v. Norton, the court examined a situation where Thomas Bromley, his wife Clara, and his six children were staying at a hotel in Germany for over three months. (58) Mr. Bromley absconded without paying the debt, leaving Mrs. Bromley to answer for her husband's obligations. (59) Mrs. Bromley was arrested and placed in custody for three days as a means of "obtaining some security for his debt." (60) The evidence showed that no credit was given to Mrs. Bromley, but only to her husband. In his decision, the Vice-Chancellor noted that placing "Mrs. Bromley under the custody of the police was a most tyrannical proceeding," and that no law of any nation in Europe would authorize a "hotel keeper to arrest a wife for the debt of an absconding husband." (61) Mrs. Bromley was only freed because an agent of her father was sent from England to secure her release. (62) Before she was let go she signed a memorandum claiming the debt as her own. (63) The court found that the inn-keeper knew that the debt was not hers and that "while Mrs. Bromley was under duress, he compelled her to make an acknowledgement which he knew to be untrue." (64) Thus, the court saw this action as illegitimate pressure and did not uphold the memorandum because of the duress she experienced when she signed the document. (65)

B. The History of the Criminal Defense of Duress

Just as in the history of contractual duress, the defense at criminal law dates back to the Romans (66) and ancient Hebrews. (67) Aristotle wrote about compulsion and the voluntary nature of one's acts, saying, "an individual may resist the threat and suffer the evil rather than do what he thinks to be wrong; he will then be praised, and his resistance will show that it was not inevitable that a person should submit to the threat." (68)

Lord Matthew Hale was one of the primary theorists to discuss actions performed under duress or compulsion. In Pleas of the Crown, Hale stated:

if a man can be menaced with death, unless he will commit an act of treason, murder or robbery, the fear of death doth not excuse him, if he commit the fact; for the law hath provided a sufficient remedy against such fears by applying himself to the courts and officers of justice for a writ or precept de securitate pacis. (69)

After pointing to the institutional assistance available in the form of writ, Hale concludes that one needs not resort to crime, saying instead that if a person is

desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant's fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact; for he ought rather to die himself, than kill an innocent. (70)

Hale pointed specifically to the crimes of murder, treason and robbery as being excluded from the defense and that one should rather sacrifice oneself than commit these crimes.

It is unclear where this list of excluded offenses identified by Hale originated. What is clear is that it is unrealistic to expect someone who is under duress to commit a crime to be able to halt the crime in order to apply for a writ under law to protect herself from the person pressuring her to commit the crime. Such a notion to apply for a writ to protect oneself from duress assumes that the intended crime occurs a sufficient period of time after the duress. However, after this ancient writ was eliminated, "the exclusion of murder from the defense may be an anachronism, there being no clear reason why the exclusion should be maintained." (71) One might be able to prove duress in the case of murder, but nonetheless there is an historic aversion to allow a murderer to use this defense.

One of the earliest references to a case of duress in the common law was in 1321 (72) as a defense to treason, (73) but the history of criminal duress is intertwined with contractual duress as the two have developed from the same line of cases. The legal principles of compulsion as the basis for a defense evolved as early as 1552 in the context of civil law when the courts began to grapple with the difficult question of voluntariness and the overborne will, and what one may do to preserve oneself. In the 1552 civil case of Reniger v. Fogassa, (74) the court spoke about a defense of compulsion as a principle of law from which the defense of duress developed. In that case, to prevent a vessel from sinking during a brutal storm the captain of the ship was forced to throw part of their shipment of woad (75) overboard to save the men and other goods aboard. When he arrived at port with only a partial load of material, Fogassa paid a portion of the customs fees due and asked for time to assess the money owing on the uncertain amount of remaining product.

The agreement to allow time for payment in Reniger was later challenged, allowing the court to comment on necessity, compulsion and duress. Counsel for the defendant argued that this was a situation where "a man may break the words of the law, and yet not break the law itself" because of elements beyond his control. (76) He continued that the words of the law will be "broken to avoid greater inconveniences, or through necessity, or by compulsion ...." (77) The court said that there is "a tempering of the rigor of the Law" in that "necessitas non habet legem" or necessity does not submit to law. (78) Thus, "if the arm of any man is drawn by compulsion, and the weapon in his hand kills another, this shall not be Felony, or be damnified, because he did it by compulsion." (79) The argument was established that if an individual is forced and compelled to break the law, they should not suffer the subsequent penalties.

The development of the defense was slow during the following centuries, but in the 1746 case of R. v. M'Growther (80) and the 1831 case of R. v. Crutchley, (81) the courts struggled with whether the defendant would be able to escape punishment for treasonous acts. (82) The defendant in M'Growther provided evidence that the Duke of Perth had coerced individuals to join ranks in the rebellion by threatening that if they did not join they would have their "houses burnt" and their "goods spoiled." (83) The court found that these threats were "no excuse in the eye of the law for joining and marching with rebels." (84) It was found that the only crimes that this would excuse is
   force upon the person, and present fear of death; and this force
   and fear must continue all the time the party remains with the
   rebels. It is incumbent on every man, who makes force his defence,
   to shew [sic] an actual force, and that he quitted the service as
   soon as he could. (85)

The court in M'Growther disallowed the duress defense because it found that the accused did not take advantage of a chance for escape. (86) That is, public policy concerns encouraging escape precluded application of the defense. (87) Despite these concerns, the court in R. v. Crutchley, found that duress was successfully invoked in defense to the criminal charge of destruction of property, and the malicious damage to a threshing machine that occurred during a riot. (88) Unlike the earlier defendants, the defendant Crutchley was successful because the court found that he was compelled to cause damage to the machines and he escaped at his first opportunity. (89)

One of the first recorded cases where duress was argued as a defense to murder was in 1838 in the English case of R. v. Tyler and Price. (90) The defendants asserted that they were under duress by an individual who called himself "Sir William Courtenay" who had coerced them with promises of "plenty in this world and happiness hereafter, and that he asserted that he was above all earthly authority, and was the Saviour of the world." (91) If the individuals did not join freely, the "Saviour" threatened them with physical harm. (92) Lord Denman found that, where individuals are "induced to join a mischievous man, it is not their fear of violence to themselves which can excuse their conduct to others ... no man, from a fear of consequences to himself, has a right to make himself a party to committing mischief on mankind." (93) Lord Denman advised that "it cannot be too often repeated, that the apprehension of personal danger does not furnish any excuse for assisting in doing any act which is illegal." (94) Again, because the defendants did not take an opportunity for escape and because of the lack of evidence of imminent danger, the court disallowed the defense. (95) Again, this supported the premise that one is better to sacrifice oneself rather than succumb to a threat.

C. The Codification of the Canadian Criminal Defense of Duress

After centuries of sparse decisions, the movement toward codification in the United Kingdom began with Thomas Babington Macaulay who first drafted the Indian Penal Code in 1835. (96) This Code was enacted in 1858 and went into effect in 1862. (97) Jurists note that the duress defense "might with advantage be abolished" and that the first draft of the Indian Penal Code in 1835 proposed to wholly eliminate the defense; (98) however, the final draft of the Indian Code in 1860 contained a section "more lenient than that originally proposed." (99) In England, codification and its impact on the defense of duress culminated with a series of reports first published in 1841. The reports criticize the unwritten and unorganized system of law which a common man could not decipher. (100)

Any analysis of the duress defense in the Commonwealth inevitably begins with Sir James Fitzjames Stephen who was the English Secretary to the Council in India in the nineteenth century. (101) Upon return from his post, he was "disturbed by the lack of system in the law of his own country" and, with the support of the Attorney General, he introduced a Criminal Code in the English Parliament in 1878. (102) Even before the Code, Stephen published extensively on duress, (103) arguing a "choice of evils" theory and discussing the nature of voluntary actions. (104) His ideas about criminality stemmed from his beliefs on morality. Sir Stephen wrote that "indefinite and unscientific as the terms may be in which morality is expressed, the administration of criminal justice is based upon morality." (105) He saw the laws of a country as reflecting this morality.

Although Sir Stephen acknowledged that an individual could physically manipulate another, he believed that threat of physical harm was much different. Since "even in extremis, when acting under the threat of death, an individual is still exercising the ability to choose whether to act in a particular way." (106) Sir Stephen believed that even the "very strongest forms of compulsion do not exclude voluntary action." (107) To illustrate his theory, Sir Stephen argued that

a criminal walking to execution is under compulsion if any man can be said to be so, but his motions are just as much voluntary actions as if he was going to leave his place of confinement and regain his liberty. He walks to his death because he prefers it to being carried. This is choice, though it is a choice between extreme evils ... [a] man is under compulsion when he is reduced to a choice of evils, when he is so situated that in order to escape what he dislikes most he must do something which he dislikes less, though he may dislike extremely what he determines to do. (108)

For Sir Stephen, choice was still autonomous even if subject to severe compulsion. (109)

Sir Stephen's attitudes toward duress were based, in part, on his writings in his Digest. (110) Sir Stephen loathed to apply duress to felonies and said duress "does not apply to high treason or murder. It probably does not apply to robbery. It applies to uttering counterfeit coin. It seems to apply to misdemeanors generally." (111) Sir Stephen's reasoning for these assertions is wholly absent leading one to believe that these statements were purely conjecture. When speaking of duress particularly, Sir Stephen noted that "hardly any branch of the law of England is more meagre [sic] or less satisfactory than the law on this subject." (112) He noted that, after

nearly thirty years' experience at the bar and on the bench, during which I have paid special attention to the administration of the criminal law, I never knew or heard of the defence of compulsion being made ... and I have not been able to find more than two reported cases which bear upon it. (113)

Sir Stephen was one of the Commissioners called upon in 1879 to prepare the Draft Code for England. (114) A "note" section, Section 23, is dedicated to compulsion. (115) In that section, the Commissioners noted that "the case of a person setting up as a defence that he was compelled to commit a crime is one of everyday occurrence." (116) This statement seems to be in contradiction to Sir Stephen's comments that he had not known of a case of compulsion in his thirty years as a lawyer and judge. However, the Commission concluded by saying that "we have framed section 23 of the Draft Code to express what we think is the existing law, and what at all events we suggest ought to be the law." (117)

The English Draft Code received a lukewarm reception by the House so a Royal Commission was appointed to examine the proposal. (118) This led to a revised draft bill in 1879, which died with the change of Ministry in 1880 and put an end to Stephen's attempt to codify English law. (119) However, the Commissioners noted in their Report that the common law defense should be retained so that no individual is deprived of a defense, pointing to a need for flexibility under the Draft Code. (120)

Although the Draft Code was not adopted in England, it formed the basis for the Canadian Criminal Code. Section 23 of the English Draft Code is almost identical to the current section of the Canadian Criminal Code. (121) The Canadian Code was introduced to Parliament in 1892 by Sir John Thompson, (122) who was the Minister of Justice for Canada. (123) The bill passed the House and received Royal Assent on July 9, 1892, and came into force on July 1, 1893. (124) Many argue that there was an absence of detailed inquiry that one might expect for the first Criminal Code of Canada. (125) Nonetheless, Canada was unquestionably on the "forefront of the codification movement" (126) and "by any standard the bill of 1891 was a considerable work of legal scholarship." (127) The lack of debate on each of the sections of the Code was because "the minister of justice knew exactly what he needed in his bill to assure its smooth passage through Parliament, and he instructed his draftsmen accordingly." (128) However, the idea that the defenses in the Code could be improved after its initial drafting was largely unrealized at the time. (129)

The 1892 version of Section 23 in the English Draft Code excluded a total of ten offenses, and, although the origin of the list of exclusions is unclear, (130) it is plausible that Canadian criminal law of the duress defense is the legacy of Hale and Stephen's personal opinions. Other than a brief mention by the Honorable Mr. Davies, duress was not discussed in Parliament. (131) Sir Stephen's conclusions seem to adhere to a moral condemnation of a guilty person escaping just punishment rather than an actual examination of the case law and existing principles. Indeed, the restricted development of the duress defense may have been a "reflection of Sir James Stephen's antipathy to the defence." (132) Even though Sir Stephen's very limited view of duress was not fully reflected in the codification, it may account for the Canadian defense of duress "being one of the most restrictive to be found and certainly narrower than the English common law of 1892 or today." (133)

The codified form of the law of duress in Canada was amended in 1955 with the introduction of the revised Criminal Code. (134) Although this may have been an opportunity to amend the laws regarding duress, the relevant section was not substantially altered. Instead of engaging in a meaningful discussion of the defense of duress, the Honorable Stuart S. Garson simply replied that the current legislation "stood the test of time" and that they would not change the law purely for the sake of change. (135) The defense of duress was slowly developing through case law, (136) but there were very few cases that used this defense during this time period, and even fewer that were successful. (137)

It is important to note that the 1892 Canadian Criminal Code maintained an important underlying principle: the common law defenses were not superseded by the Code. (138) Although the court would eventually find that there was an "uneasy tension in some cases between interpretation of a detailed statutory provision and application of a common law defence," (139) the result was the availability of the common law defense, and the ability to call on the common law in certain circumstances where the codified defense was too restrictive. This would allow the case law to dictate what the defense would look like. (140) The framers of the Canadian Code wanted to preserve the flexibility in the use of duress, (141) and arguably they made a political decision in their codification choices. (142) The bottom line is that even though duress is clearly important to the justice system, little thought was given to the codified defense at the time of the inception of the Canadian Criminal Code, despite opportunities to do so, but the common law defense was still available leading to this duality of the modern criminal defense.


A. The Definition of Contractual Duress

Contractual duress advanced significantly in the Commonwealth with the foundational Australian case of Barton v. Armstrong. (143) This 1976 Privy Council case involved some of the clearest forms of an individual under duress that is found in any of the Commonwealth countries. In this case the chairman, Armstrong, exerted pressure on the managing director of a company, Barton, to sign deeds. Barton eventually brought an action to say that a deed that he had signed was executed under duress and that it was voidable in relation to his part of the deal. (144) Lord Scarman succinctly summarized the contractual elements involved and the lack of precedent on point: "A threatens B with death if he does not execute some document and B, who takes A's threats seriously, executes the document it can be only in the most unusual circumstances that there can be any doubt whether the threats operated to induce him to execute the document." (145) To support this theory, the court was provided with significant evidence of duress.

During the fifty-six day trial, Barton alleged that Armstrong threatened him in numerous ways including statements that he would have him murdered. (146) Barton alleged that Armstrong made the statement, among others, that the "city is not as safe as you may think between office and home. You will see what I can do against you and you will regret the day when you decided not to work with me." (147) For months, Barton received calls at 4:00 and 5:00 in the morning five consecutive nights at a time with heavy breathing and occasionally a voice saying "[y]ou will be killed." (148) Barton eventually recognized this voice as Armstrong's and, indeed, the trial court found that Armstrong was responsible for these calls. (149) The court also found that Armstrong said "I will show you what I can do against you and you had better watch out. You can get killed," and that Armstrong told Barton that he had the support of the police, organized crime was growing, and $2,000 would be sufficient remuneration for killing him. (150) In direct relation to the contract, Barton relayed that Armstrong said "[y]ou had better sign this agreement--or else" and "[u]nless you sign this document I will get you killed." (151)

However, the trial court did not find that all of these threats alleged were made. The trial court explained its mixed findings saying: "on many occasions [Armstrong] had threatened Barton with death, and that Barton was justified in taking [sic] and did take these threats seriously" but while Barton was in "fear for the safety of himself and his family, these threats and the fear engendered by them did not in fact coerce him into entering into the agreement." (152)

On appeal, all three judges of the Court of Appeal found that Armstrong made threats that were "intended by him to induce and were understood by Barton to be intended to induce him to enter into the agreement." (153) In Barton, Lord Scarman adopted the reasoning in Reynell v. Spyre (154) in that if there is anything like deception involved, a contract cannot stand, and that the same principle should apply to duress: if "Armstrong's threats were 'a' reason for Barton's executing the deed he is entitled to relief even though he might well have entered into the contract if Armstrong had uttered no threats to induce him to do so."(155) Thus, duress need only be a factor, not the only factor, that leads an individual to sign a contract under duress. (156) Later, the New Zealand court in Pharmacy Care adopted similar reasoning saying that "[i]t is not necessary to show that duress was the sole cause inducing the agreement. It is enough if it was 'an' inducement of the requisite character." (157) In Barton, the court also held that, once the defendant establishes that duress existed, "the burden is placed upon the party issuing the threat to establish that the threat did not contribute to the decision to enter into the agreement." (158)

The widely-accepted modern definition of contractual duress comes from Lord Scarman in the 1983 British case of Universe Tankships Inc. of Monrovia v. International Transport Workers Federation. (159) Lord Scarman said there are two elements to contractual duress including "(1) pressure amounting to compulsion of the will; and (2) the illegitimacy of the pressure exerted." (160) One must first examine the consent of the complainant and the pressure that impairs the decision-making of that individual as the "defendant must have behaved in a way which makes the pressure affecting the complainant's consent to be regarded as illegitimate ... it is the combination of the two elements that constitute duress." (161) The court in Universe Tankships stated that the nature of the pressure will often be easily defined as illegitimate, but this is not always the case. (162) When the pressure is clearly decisive, one needs to be absolved from the "normal moral or legal consequences of one's actions. Hence, as a result of coercion ... contracts are not binding: the 'consent' brought to them is treated in law as revocable." (163) The law reflects these arguments: proven contractual duress is a vitiating defense when the pressure is clearly decisive. (164)

There has been much written on the issue of whether a contract is void or voidable when completed under duress. Many judges have sought to treat the agreements as voidable rather than "void ab initio," or void from the moment a contract is entered into, so that the aggrieved party can choose whether or not to enforce the contract. (165) Lord Simon of Glaisdale stated in the decision in Lynch v. D.P.P. of Northern Ireland, that duress "again deflects, without destroying, the will of one of the contracting parties .... The contract procured by duress is therefore not void: it is voidable--at the discretion of the party subject to duress." (166) As noted by Justice Hammond in Pharmacy Care, however, if "duress is to be asserted, it may be lost by affirmation." (167) In North Ocean Shipping Co. Ltd. v. Hyundai the court cites Chitty on Contracts saying that a

person who has entered into a contract under duress, may either affirm or avoid such contract after the duress has ceased; and if he has so voluntarily acted under it with a full knowledge of all the circumstances he may be held bound on the ground of ratification, or if, after escaping from the duress, he takes no steps to set aside the transaction, he may be found to have affirmed it. (168)

One consequence of making contracts voidable rather than void is that third parties have a greater chance for protection for any reasonable reliance on a contract formed under duress. (169) The victim may assert duress as a defense to a breach action or void a contract by starting an action for rescission at a reasonable time after the threat has ended. (170)

The case law indicates that economic pressure renders the contract not only voidable but also actionable as a tort for damages. (171) In Universe Tankships, Lord Scarman noted that the law of civil duress was comprised of illegitimate pressure to the victim:

[The] practical effect of [these elements] is compulsion or the absence of choice. Compulsion is variously described in the authorities as coercion or the vitiation of consent. The classic case of duress is, however, not the lack of will to submit but the victim's intentional submission arising from the realisation that there is no other practical choice open to him. (172)

In addition to this definition, the pressure must be such that the law views it as wrongful which Lord Wilberforce and Lord Simon of Glaisdale aptly noted in their dissent in the case of Barton v. Armstrong. (173) The court in Attorney-General for England and Wales v. R. added to this definition of contractual defense saying that all cases of duress involve the "but for" test that without this pressure they would not have entered into the contract. (174) That pressure can come in various forms "to the person or to economic interests and can also involve social, professional or moral elements. The pressure may be direct or indirect, and its impact requires an examination of the circumstances in which the party under pressure is situated as a result of the pressure." (175) Thus, the threat can be inferred by speech or by the behavior of the individual in question. (176) This definition allows for a very broad interpretation of what comes within the realm of duress in civil law, and covers a very large range of conduct.

B. Modern Contractual Duress

One of the most recent pronouncements on civil duress in the Commonwealth is in the 2004 New Zealand case of Pharmacy Care Systems Ltd. v. Attorney General, which both endorsed and expanded upon the test of Universe Tankships. (177) Pharmacy Care expanded the test to a seven-part "elements of duress" test:
   First, there must be a threat or pressure. Secondly, that threat or
   pressure must be improper. Thirdly, the victim's will must have
   been overborne by the improper pressure so that his or her free
   will and judgment have been displaced. Fourthly, the threat or
   pressure must actually induce the victim's manifestation of assent.
   Fifthly, the threat or pressure must be sufficiently grave to
   justify the assent from the victim, in the sense that it left the
   victim no reasonable alternative. Sixthly, duress renders the
   resulting agreement voidable at the instance of the victim ...
   Seventhly, the victim may be precluded from avoiding the agreement
   by affirmation. (178)

Even though the plaintiff Pharmacy Care met the elements of the elaborate test created by the court, it lost on the issue of duress because it did not quickly seek to rescind the deed. (179) Leave to appeal to the Supreme Court of New Zealand was refused on the basis that the "law of New Zealand on the subject of duress is sufficiently clear and settled." (180) While it had been unclear how widely this new expanded test would be used, the Court of Appeal for New Zealand recently commented on this expanded test in McIntyre v. Nemesis DBK Ltd. (181) In that case, the court said that what was set down as "elements" of duress were actually only "legal propositions of relevance to duress." (182) After the seven-part element test was criticized as unworkable, the court instead endorsed the Universe Tankships test. (183) With this clarification, the law of contract remains broad and relatively simple today.

C. Definition of Criminal Duress

The current state of the criminal law defense of duress is much more complicated and unclear than its counterpart in the law of contract. While duress is "of venerable antiquity and wide extent," (184) it has proven to be an "elusive juristic concept" (185) as it is difficult to trace its uncertain history with relatively few reported cases and a vague and unstable foundation. (186) The imprecise and overlapping definitions of "duress," "coercion" and "compulsion" has done little to rectify the problem. Instead, the interchangeable usage of the terms add to the confusion of their meaning:
   [c]ompulsion ... appears to be the expression first used in the
   context of overbearing threats which induce criminally proscribed
   actions and is the expression commonly used by the common law
   commentators .... Duress however, is the term preferred by
   Blackstone and is now widely used in Anglo-American law. Both
   expressions, however, continue to be used interchangeably in the
   case-law 'without definition, and regardless that in some cases the
   legal usage is a term of art differing from popular usage.' (187)

The current codified version of the defense is found in Section 17 of the Canadian Criminal Code:

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). (188)

The codified defense of duress in Canada is undeniably restrictive, and it could be reasoned that this is so because a successful defense of duress results in a complete acquittal.

Alternatively, in R. v. Ruzic, Justice LeBel found several factors that comprise the common law defense. The first factor was a safe avenue of escape judged on the objective-subjective standard of a reasonable person similarly situated. (189) Second, the court found that proportionality was an element of the common law defense, again measured on the standard according to a reasonable person similarly situated. (190) Third, the court in Ruzic established that, in relation to the threat, the "accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat. The threat must be to the personal integrity of the person." (191) Justice LeBel also voiced the need for a court to instruct a jury that there was a real threat affecting the accused at the time of the offense and the "need for a close temporal connection between the threat and the harm threatened." (192) The accused must raise the defense and introduce some evidence, and the court must determine if it has an "air of reality." (193) The court found that those who are parties rather than perpetrators to the statutorily excluded offenses, such as aiders or abettors, will continue to be able to use the common law defense because the two groups are treated differently under Canadian law. (194) This common law definition of the defense is much more expansive than the codified version.

D. Modern Criminal Duress

The pivotal Canadian Supreme Court decision in R. v. Ruzic (195) surveyed the troubled history of criminal duress. Justice LeBel, writing for the Court, acknowledged the concerns Justice Lamer expressed a few years earlier in the Supreme Court case R. v. Hibbert: (196) "the law relating to duress has been plagued, nonetheless, with some uncertainties and inconsistencies since the beginning of its development. This is understandable. Duress involves the resolution of conflicts between individual rights and duties to others or obligations as a citizen." (197) The call for a universal analysis of duress was overdue, and many theorists were hopeful that Ruzic would answer the fundamental questions about the defense. The Supreme Court noted in Ruzic that, "[i]n the realm of criminal law, the courts routinely review the definition of criminal offenses to ensure conformity with Charter rights." (198) When examining Charter challenges to defenses, however, the cases are "rare and had never been successful before the Supreme Court until Ruzic." (199) The need for certainty and a solution to the problem of duress was required. To understand the modern form of this defense, it is important to have an understanding of this case and why it has prompted renewed interest in duress.

In Ruzic, Marijana Ruzic was charged with importing two kilograms of heroin into Canada on April 29, 1994, valued approximately at $1 million Canadian dollars, (200) in violation of Section 5(1) of the Narcotic Control Act. (201) Ruzic was also charged with the possession and use of a false passport in violation of Section 368 of the Criminal Code. (202) Ruzic testified that she was forced to bring the drugs to Canada or her mother in Belgrade in the former Yugoslavia would be harmed or even killed. (203) She testified that a man named Mirko Mirkovic knew personal information about the accused and approached Ruzic on several occasions. (204) He claimed to know that Ruzic's mother was ill and that they lived together. (205) Ruzic, who was only 21 years old at the time, was the sole caretaker for her mother, and did not want to cause her mother concern. (206) She testified that she felt she could not seek the assistance of the police in Belgrade because of their potential involvement with criminal organizations: "[P]eople die in the streets. We don't have a law; it's corruption. And the crime it's very high and so people are afraid." (207) In Belgrade, Mirkovic showed Ruzic a knife and said that he liked to "cut people." (208) He started sexually touching the defendant and told her that he would like to have sex with Ruzic and her mother. (209) The violence escalated, and Mirkovic burned the defendant with a lighter and injected her with a needle of a substance that she believed to be heroin. (210)

Mirkovic strapped three packages of heroin to Ruzic's body and told her that she had to travel to Canada with the drugs or he would "do something to her mother." (211) Upon entering the country, Ruzic lied to Canadian immigration officers, but eventually the packages of heroin were discovered in her possession. (212) At trial, defense counsel argued that Ruzic did not meet the "immediacy" or "presence" requirements of Section 17, which had been restrictively interpreted until this point; they hoped to use the more inclusive interpretation in the common law provision. (213) The defense thus sought a declaration that Section 17 violated Section 7 of the Charter and that it was not saved by Section 1 (214) because the aggressor was not present with the threatened party, the threat was to a third party, and there was not an immediate threat to the victim.

The trial judge ruled that Section 17 did violate the Charter and instructed the jury on the common law defense of duress. (215) Ruzic was acquitted of both charges on December 9, 1994. (216) At the Court of Appeal, Justice Laskin, writing for the unanimous court, agreed with the trial judge that Section 17 violated the Charter because it infringed Section 7 and was not saved by Section 1. (217) The court declared Section 17 of no force or effect "to the extent that it prevents an accused from relying on the common law defense of duress preserved by section 8 (3) of the Code." (218) Accordingly, the Crown's appeal was dismissed, and the case went to the Supreme Court. Justice LeBel, writing for the unanimous court, articulated:

[a]lthough moral involuntariness (219) does not negate the actus reus or mens rea of an offence, it is a principle which, similarly to physical involuntariness, deserves protection under s. 7 of the Charter. It is a principle of fundamental justice that only voluntary conduct--behaviour that is the product of a free will and controlled body, unhindered by external constraints--should attract the penalty and stigma of criminal liability. Depriving a person of liberty and branding her with the stigma of criminal liability would infringe the principles of fundamental justice if the accused did not have any realistic choice. The ensuing deprivation of liberty and stigma would have been imposed in violation of the tenets of fundamental justice and would thus infringe s. 7 of the Charter. (220)

The court used this reasoning to strike down the "immediacy" and "presence" requirements of Section 17 of the Criminal Code. As Justice LeBel noted in the decision "[t]he plain meaning of s. 17 is quite restrictive in scope. Indeed, the section seems tailor-made for the situation in which a person is compelled to commit an offence at gun point." (221) As this language shows, the defense is more nuanced than the restrictive paradigmatic example provided in Ruzic. Not every case involves a gunman who is present and threatening immediate force.

However, the unfortunate result of Ruzic is that it has "allowed moral involuntariness to require an acquittal even when the accused's behaviour is morally blameworthy." (222) Thus, it may be possible that someone who acted in a morally involuntary way but who was morally blameworthy would nonetheless be acquitted. (223) This finding does not accord with the principle formed in past cases that there should not be a focus on the actus reus or mens rea in order to analyze duress. (224) The court in Ruzic decided to base the defense on an extremely tenuous foundation. Instead of taking the opportunity to clarify the defense and square it with the lower court's conception of duress, the court raised more questions.

The fundamental basis of the decision is that the Supreme Court created this new principle of fundamental justice because they were worried about the ramifications of equating moral involuntariness with moral innocence: they denied that morally involuntary behaviour is necessarily not blameworthy. Their fear was that to identify the two would have unintended consequences for the justice system. (225)

It seems that "in their haste to keep the cap on the toothpaste, the Supreme Court may have cut the bottom off the tube." (226) Again, as seen below, (227) Ruzic left open the issue of whether the excluded offenses in Section 17 remain and how they may be removed by Parliament or the courts. (228) So far, this question has remained unanswered. Although the court softened the defense of duress in Ruzic, the defense remains very confusing. (229) Stanley Yeo argues that although the Supreme Court made the concept of moral involuntariness a principle of fundamental justice, it "lacks sufficient constraint and is too imprecise to qualify as a principle of fundamental justice." (230)

The decision in Ruzic was not clear on whether Section 17 was completely struck down or if only the two portions--presence and immediacy--were impacted. Justice LeBel stated, "I prefer to ground the partial striking down of s. 17 on the fundamental principle that criminal liability should not be ascribed to physically or morally involuntary behaviour." (231) The reference to "partial striking down" is ambiguous, and it is not clear whether the court intended to strike down only the presence and immediacy requirements (thus addressing only the specific questions feature that renders the latter immune from criminal censure, namely, that involuntary actions resist imputation to the actor putatively responsible for their commission." Ruzic, 1 S.C.R. para. 46. before the court) or whether the court intended to go further and to strike down the whole of the first part of Section 17 and to substitute the common law defense for that portion of Section 17. The very recent case of R. v. Ryan (232) below indicates that this has not been the result.

However, the analysis in Ruzic is consistent with the hypothesis that courts are trying to take into account the intent of the earliest framers of the law, who suggested that duress was not meant to be entirely codified:

[T]o strike down only a portion of the defense is more complex. If we were literally only to partly strike down the defense, by removing the imminence and presence requirements, then we would be left with a section that allows anyone to invoke duress when they act under compulsion by threats. It is clear that this is not the Court's intention, and that they want some restrictions on what sort of threats will be required. Their intention is to read into the statute the more relaxed common law standard .... But this intent would be made much clearer if the Court actually spoke in Ruzie about 'reading in', rather than simply about 'striking down.' (233)

It seems as if the court meant the test of duress was meant to be flexible, and a new, more flexible standard should now be adopted. (234) This approach seems to be consistent with the most recent Canadian criminal case to come through the Nova Scotia Court of Appeal.

R. v. Ruzic attempted to answer some of the questions inherent in duress. One of the most important findings was that the common law version of the defense had "freed itself from the constraints of immediacy and presence and thus appears more consonant with the values of the Charter" (235) and acknowledged that the common law defense was an important part of the criminal law of Canada.

The court found that with respect to future harm the "underinclusiveness" of the duress defense in Section 17 infringes on the right to life, liberty and security of the person protected under Section 7 of the Charter "because the immediacy and presence requirements exclude threats of future harm to the accused or to third parties. It risks jeopardizing the liberty and security interests protected by the Charter, in violation of the basic principles of fundamental justice." (236) Upholding the Charter, future harm was identified as an important element to preserve within the common law defense. (237) The court, however, noted that, in the future, the "trial judge should instruct the jury clearly on the components of this defense including the need for a close temporal connection between the threat and the harm threatened." (238) The Supreme Court permitted future harm within a time limitation.

In Ruzic, Justice LeBel also found that standard of immediacy is less strict in the common law defense. He stated that, although the defense requires the person imposing duress require "immediate" action by the defendant, this immediacy requirement has been "interpreted in a flexible manner by Canadian jurisprudence and also as appears from the development of the common law in other Commonwealth countries, more particularly Great Britain and Australia." (239) Instead of the strict presence and immediacy requirements of Section 17, the common law simply provides for a "close connection in time, between the threat and its execution in such a manner that the accused loses the ability to act freely." (240) If this temporal connection is absent it would be doubtful that the individual could argue he or she did not have a safe avenue of escape. While there is much debate on the individual elements of this definition, these considerations seem to be the current test employed by Canadian courts. Still, as Coughlan has noted, "there is murkiness below the surface." (241)

The duress defense continues to evolve. Although the list of excluded offenses to which the duress defense is unavailable seems unaffected by the Ruzic decision, at least one court has permitted a defendant to claim the duress defense in robbery even though robbery is listed as one of the twenty-two excluded offenses. (242)

Finally it must be noted that the future use of the common law defense of duress is not without problems. Some commentators have noted that even if "s. 17 is constitutionally invalid, it does not follow that the common law is constitutionally valid if, as it stands, it too would allow for the conviction of a person who is 'morally innocent.'" (243) Thus, by simply finding Section 17 unconstitutional, questions remain about the common law and how to ensure that the same constitutional challenge does not occur under any new common law formulation of duress.

A very recent case has sought to clarify the statutory law of duress. In R. V. Ryan, (244) the Nova Scotia Court of Appeal had the opportunity to discuss the confusing nature of duress which was, again, commented to be "a rather confusing amalgam of statutory and common law." (245) This case has very unique facts. The defendant, Ms. Ryan, decided that after a life of "constant abuse at the hands of her husband," to contract an individual to murder her husband. (246) She in fact contracted with an undercover R.C.M.P. officer, and was charged with counseling to commit murder under the Criminal Code. (247) The trial judge and the Court of Appeal both outlined a life of domestic violence where Ms. Ryan feared for her life and the life of her daughter during her husband's "reign of terror," and lived in "constant terror." (248) Mr. Ryan described to his wife how he would kill her and their young daughter and then he would bury them behind where they lived. (249) Ms. Ryan called the police more than nine times, spoke to Victim Services approximately 11 times, and attempted to obtain a peace bond to no avail. (250)

The Court of Appeal evaluated whether the defense of duress would apply in this non-traditional situation because the defense of self-defense would not apply because Ms. Ryan contracted someone else to carry out the act of murder. Although the Court of Appeal asked whether the "defence of duress [could] go where it had never gone before," they concluded that Ms. Ryan had no way out, and that the defense should not be limited simply because it could not "fit neatly into the traditional parameters of one of our enumerated defences." (251) The court determined that Ms. Ryan was the principal to the offense rather than a party, and her offense was not one of the excluded offenses in Section 17; therefore, she would come within the codified defense.

The Court of Appeal first analyzed the safe avenue of escape and the immediacy and presence requirements, and went back to the Supreme Court decision in Ruzic. Extraordinarily, the court in Ruzic actually references this type of situation where a battered woman may use the duress defense when coerced by her spouse to commit a crime. The court specifically noted that

Even though her partner is not present when she commits the offence and is therefore unable to execute it immediately, a battered woman may believe nonetheless that she has no safe avenue of escape. Her behaviour is morally involuntary, yet the immediacy and presence criteria, strictly construed, would preclude her from resorting to s. 17. (252)

The Court of Appeal concluded that the defense of duress would apply in this situation even though the victim was the aggressor rather than a third party, (253) and that there was no other safe avenue of escape on the subjective facts of the case. (254)

For all of these reasons, the court found that the statutory form of the duress would apply, there was no safe avenue of escape, the defense had an air of reality, and subsequently upheld the acquittal of the defendant. This case has now gone to the Supreme Court of Canada, and arguments were heard and decision reserved on June 14, 2012 just before the publication of this Article. This is a good opportunity for the court to clarify the defense of duress and ameliorate some of the questionable elements outstanding from Ruzic. The Crown wishes to retry the case arguing that self-defense has been confused with the defense of duress, that there was a misapprehension of the evidence, that there was not an air of reality to the defense, and that the common law defense would not apply to someone who has hired a hitman. (255) This is a great opportunity to discuss all of these duress issues, but it is likely that some of the elements from Ruzic will not be considered in this upcoming decision, leaving some ambiguity.
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Title Annotation:Introduction through II. The Definitions and Modern Forms of Duress, p. 215-248
Author:Chapman, Frances E.
Publication:Washington University Global Studies Law Review
Date:Mar 22, 2012
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