The Rise and Fall of Duress (or How Duress Changed Necessity Before Being Excluded by Self-Defence)

Queen's Law Journal, 2013

36 Pages Posted: 11 Sep 2013 Last revised: 12 Sep 2013

See all articles by Steve Coughlan

Steve Coughlan

Dalhousie University - Schulich School of Law

Date Written: August 10, 2013

Abstract

The Supreme Court of Canada decision in R. v. Ryan significantly reshaped both the common law and statutory defenses of duress, harmonizing them and, in the case of the common law defense, fully articulating it for the first time. The decision is admirable for that reason. This paper argues that two further results can also be seen.

First, the defense of necessity is a common law one which is conceptually similar to duress. The Court's reasoning at a policy level about duress ought therefore to be applicable to necessity: this paper traces the ways in which that latter defense ought therefore to be re-articulated.

Second, a major benefit of Ryan was that it removed the need to apply one defense to the person who actually committed an offense while using a different one for a party to an offense. Ironically, only weeks after Ryan was decided, The Citizen’s Arrest and Self-defense Act came into force. It is argued that the newly created version of self-defense in fact overlaps entirely with the circumstances in which the common law defense of duress would have applied. The net result is that this Parliamentary action restores the need to use different defenses for the principal and parties, thus undoing a good deal of the benefit of Ryan.

Keywords: Canada, criminal law, duress, necessity, self-defense

Suggested Citation

Coughlan, Steve, The Rise and Fall of Duress (or How Duress Changed Necessity Before Being Excluded by Self-Defence) (August 10, 2013). Queen's Law Journal, 2013, Available at SSRN: https://ssrn.com/abstract=2323766

Steve Coughlan (Contact Author)

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
6061 University Ave
Halifax, Nova Scotia B3H 4H9
Canada

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
87
Abstract Views
555
rank
340,692
PlumX Metrics