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
Date Written: August 10, 2013
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
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