(Re)-Constitutionalizing Duress and Necessity

The Supreme Court of Canada’s decision in Ruzic established that the principle of moral involuntariness forms both the conceptual and constitutional basis for the duress and necessity defences. Scholars have contended that the moral involuntariness principle is not only inconsistent with the legal requirements the Court has developed for the duress and necessity defences, but also serves to veil the underlying values which might otherwise form the bases of these defences. The practical effect of ignoring the moral distinctions underlying an accused’s act is to unjustly deny some accused a criminal defence, contrary to s. 7 of the Charter. By re-constitutionalizing the defences along a continuum of principles—moral involuntariness, moral permissibility, and moral correctness—I argue that the law will be able to develop in a manner which permits the legal requirements for duress and necessity to be commensurate with the moral qualities of an accused’s act.LL.M.2018-12-07 00:00:0