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32 Crim. L.Q. 199 (1989-1990)
Duress in the Criminal Law

handle is hein.journals/clwqrty32 and id is 219 raw text is: Duress in the Criminal Law Peter Rosenthal * There are several grounds on which an accused can attempt to be excused from criminal liability for an act because the act was compelled by another person. For example, if A. is pushed into the victim by B. then clearly A. has committed no actus reus and is not liable for any injury to the victim. A much more difficult problem arises when A. has caused injury by performing a voluntary act, in the sense of a voluntary muscular contraction, but has performed that act only because of threats made by B. to A. In such cases A. may have a defence of duress, although the scope of this defence is very unclear. The first modern academic discussion of the defence of duress, written in 1951, begins:1 Judged by the absence of any satisfactory modern authority, it must be very rare for the accused to set up as a defence that he committed the alleged crime under the compulsion of another person. Indeed the whole field of learning on this defence to criminal liability is both meagre and unsatisfactory. In the latter half of this century, however, the defence has become quite common, in Canada and in many other jurisdic- tions - the field of learning is certainly no longer meagre. Unfor- tunately, however, it is still very unsatisfactory. In 1982, His Honour Judge Borins wrote: In Canada, the defence of duress has developed in a rather anomalous fashion,2 and in 1987 Mr. Justice G. Arthur Martin held: The common law, with respect to the defence of duress, is in a somewhat unsat- isfactory state.' '3 'M.A.; Ph.D.; Professor of Mathematics and student of law at the University of Toronto. I am very grateful to Professor J. LI. J. Edwards, Mr. Justice G. Arthur Martin and Professor A.W. Mewett for their insights into this subject. They are not, of course, responsible for any of the opinions or errors contained herein. 'J. LI. J. Edwards, Compulsion, Coercion and Criminal Responsibility (1951), 14 M.L.R. 297. 2 S. Borins, The Defence of Duress (1981-82), 24 C.L.Q. 191 at p. 191. 3 R. v. Mena (1987), 34 C.C.C. (3d) 304 at p. 319, 57 C.R. (3d) 172 (Ont. C.A.).

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