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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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