Duress, Responsibility, and Deterrence

Brenda M. Bakera1

a1 University of Calgary

Andre Gombay gives a penetrating, accurate account of the functioning of duress as a defence in current Canadian law, and puts forward an intelligent and very appealing suggestion as to how the law on duress might be reformed. As part of the underpinnings for his reform proposals, he attempts to unravel the elements of justification and excuse that intertwine in duress and provides his analysis of how duress is distinguishable from other excuses or defences. I agree with him that the present working conception of duress in law falls far short of its appropriate moral potential as a defence, and I wish in these comments to support his proposals for reform. However, I think his arguments regarding the nature of duress, and its bearing on our responsibility for what we do under duress, are less persuasive, and it is here that I will begin.