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Duress, Responsibility, and Deterrence

Published online by Cambridge University Press:  13 April 2010

Brenda M. Baker
Brenda M. Baker
Affiliation:
University of Calgary
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Extract

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.

Type
Articles
Information
Dialogue: Canadian Philosophical Review / Revue canadienne de philosophie , Volume 24 , Issue 4 , Winter 1985 , pp. 605 - 612
Copyright
Copyright © Canadian Philosophical Association 1985

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References

1 Law Reform Commission of Canada, Criminal Law, The General Part, Liability and Defences, Working Paper 29 (1982), 90Google Scholar.

2 Ibid.

3 Austin, J. L., “A Plea for Excuses”, Philosophical Papers (1961), 124 (my italics)Google Scholar.

4 Gombay's treatment of excuses tends toward this narrowness, focussing on conditions of the agent and forgetting his particular situation. Also, although I think Gombay is right in saying that the law looks somewhat ambivalently at duress (seeing it as in part justification and in part excuse), it is not so clear that our law sees duress as will-debilitating (André Gombay, “Necessitate Without Inclining”, Dialogue [this issue], §9, 583–584). An alternative explanation can be given of the law's insistence that the threat be immediate and that the threatenerbe present. These might be insisted on in the interests of excluding the possibility of alternative law-conforming action to the one who is threatened. It is understandable that the courts wish to be sure that the evil threatened cannot be avoided except by law-violation.

There is separate evidence, from judicial reasoning, for a conception of duress as “will-debilitating”, though it often occurs side by side with what I think is the more adequate conception of duress as forced choice.

5 Kenny, Anthony, “Duress per Minus as a Defence to Crime: 2”, Law and Philosophy 1/2 (August 1982), 197–205,CrossRefGoogle Scholar and Anton, A. E., “Duress per Minus as a Defence to Crime: 3”, Law and Philosophy 1/2 (August 1982), 207–216CrossRefGoogle Scholar.

6 I have isolated for discussion only one strand in Kenny's considerably more complex total defence of his position (Kenny, “Duress per Minus”, 197–205). I cannot here do justice to his argument as a whole.

7 Kenny warns against allowing duress to acquit, with the words “… if the law takes away the deep blue sea, a man will go where the devil drives” (ibid. 205). However, where duress can mitigate but cannot exclude a guilty verdict, the antecedent of Kenny's argument is not satisfied—we cannot be sure just how deep the sea may be.