Washington University Global Studies Law Review Volume 11 Issue 2 2012 Canadian Contractural Duress and Criminal Duress: "Irrational, Anomalous, Perverse, Illogical and Fundamentally Wrong" or Just Misunderstood? Frances E. Chapman St. Jerome's University Follow this and additional works at: https://openscholarship.wustl.edu/law_globalstudies Part of the Contracts Commons, Criminal Law Commons, and the International Law Commons Recommended Citation Frances E. Chapman, Canadian Contractural Duress and Criminal Duress: "Irrational, Anomalous, Perverse, Illogical and Fundamentally Wrong" or Just Misunderstood?, 11 WASH. U. GLOBAL STUD. L. REV. 215 (2012), https://openscholarship.wustl.edu/law_globalstudies/vol11/iss2/1 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Global Studies Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. Washington University Global Studies Law Review VOLUME 11 NUMBER 2 2012 CANADIAN CONTRACTUAL DURESS AND CRIMINAL DURESS: “IRRATIONAL, ANOMALOUS, PERVERSE, ILLOGICAL AND FUNDAMENTALLY WRONG”† OR JUST MISUNDERSTOOD? FRANCES E. CHAPMAN ABSTRACT The contractual and criminal bases for duress in Canada, the United States, and the Commonwealth are currently in disrepair. Contract law serves to enforce binding agreements that are reflective of our choices, but duress threatens to nullify that very purpose. In addition to the contractual basis of duress, the law of duress has developed from a criminal defense perspective, but it has been difficult to apply. Controversy surrounds the defense particularly where the threats involve the sacrifice of an innocent person. Only by examining the philosophical, historical, and current state of this defense in the civil and criminal context can one begin to repair and reformulate the defense of duress for future application. † R. v. Ruzic (1998), 41 O.R. 3d 1 (Can. Ont. C.A.), supp. reasons 165 D.L.R. (4th) 574 (Can.), (per Laskin J.A., referring to criticisms of Fish J.A. in R. v. Langlois (1993), 54 Q.A.C. 87 (Can. Que. C.A.)). Frances E. Chapman, Assistant Professor of Legal Studies, St. Jerome‘s University, University of Waterloo, Waterloo Ontario Canada. I thank St. Jerome‘s University for its generous research support. I am much indebted to my research assistant, and former student, Melody Jahanzadeh for her unending assistance with this Article. Thank you for your expert assistance with research and editing. I would also like to thank Professor Winifred Holland for her unfaltering assistance and mentorship during my LL.M. degree, and for continuing to challenge me on all aspects of the criminal law. This Article would not have been possible without her encyclopeadic knowledge of criminal law defenses. Thank you also to Professor Sally Gunz for her support in expanding my research in this area and for her suggestion that I present this research at the Academy of Legal Studies in Business Conference in Richmond, Virginia in August 2010. 215 Washington University Open Scholarship 216 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 11:215 TABLE OF CONTENTS INTRODUCTION ........................................................................................ 216 I. THE HISTORY OF DURESS .................................................................... 220 A. Historical Underpinnings of Contractual Duress ........................ 220 B. The History of the Criminal Defense of Duress ........................... 224 C. The Codification of the Canadian Criminal Defense of Duress ... 228 II. THE DEFINITIONS AND MODERN FORMS OF DURESS ......................... 233 A. The Definition of Contractual Duress .......................................... 233 B. Modern Contractual Duress ......................................................... 238 C. Definition of Criminal Duress ...................................................... 239 D. Modern Criminal Duress .............................................................. 241 III. THE ESSENTIAL ISSUES: WILL, EXCLUDED OFFENSES, THREATS TO THIRD PARTIES, THE CANADIAN ―OBJECTIVE-SUBJECTIVE STANDARD,‖ AND BURDEN OF PROOF .............................................. 249 A. The ―Will‖ of the Individual ......................................................... 249 1. Overborne Will and Contractual Duress ................................ 250 2. Overborne Will and Criminal Law .......................................... 251 B. Excluded Offenses—Criminal and Contractual ........................... 254 C. Threat ........................................................................................... 259 1. Threats to Third Parties in Contract Law ............................... 260 2. Threats to Third Parties in Criminal Law ............................... 263 D. Canada‘s ―Objective-Subjective‖ Standard ................................ 264 1. Canada‘s ―Objective-Subjective‖ Standard in Contractual Duress ..................................................................................... 264 2. Canada‘s ―Objective-Subjective‖ Standard in Criminal Duress ..................................................................................... 268 E. Burden of Proof ............................................................................ 271 1. Contractual Duress ................................................................. 271 2. Criminal Duress ...................................................................... 273 IV. COMPARISON OF CONTRACTUAL AND CRIMINAL DURESS ............... 277 CONCLUSION ........................................................................................... 281 INTRODUCTION The contractual and criminal bases for duress in Canada, the United States, and the Commonwealth1 are currently in disrepair on certain issues 1. For the purposes of this Article, the Commonwealth includes the United States, Canada, New Zealand, Australia, England, and a brief reference to India. https://openscholarship.wustl.edu/law_globalstudies/vol11/iss2/1 2012] CANADIAN CONTRACTUAL AND CRIMINAL DURESS 217 after a long and sordid history. For that reason, there is a real need to examine the state of the duress defense in both realms. Contract law is more than an allowance to make binding agreements reflecting our choices; contract law also protects those who do not make agreements of their own free will. Contract law responds to duress because to ―enforce agreements made by fraud or coercion would nullify the point of allowing binding agreements in the first place.‖2 Historically, contractual duress was applied in narrowly circumscribed situations.3 A contract could only be vitiated if it had been ―procured as a result of actual or threatened physical violence (‗duress of the person‘)‖ obtained through aggression or threat of crime or tort.4 For example, individuals could avoid a contract in 1642, according to Lord Coke, if there was a ―fear of losse of life, 2. of losse of member, 3. of mayhem, and 4. of imprisonment; otherwise it is for fear of battery, which might be very light, or for burning of his houses, or taking away, or destroying of his goods or the life, for there he may have satisfaction in damages.‖5 Yet, even in these cases, recovery occurred for ―duress of goods‖ only on a restrictive basis.6 Duress of goods was increasingly recognized by the Commonwealth as well as U.S. courts, and the duress defense began to develop more fully.7 This recognition also extended to the more inclusive concept of ―economic duress‖ as well as ―business compulsion.‖8 Yet, defining the test for contractual duress has encountered difficulties. In addition to the evolution of duress from a contract law standpoint, the law of duress has also developed from a criminal law basis. The goal of criminal law is to ―create a set of rules that best implements our collective sense of justice.‖9 But, when it comes to the criminal defense of duress, centuries of development have failed to produce a workable basis 2. ALAN WERTHEIMER, COERCION 20–21 (1987). 3. CHRISTINE BOYLE & DAVID PERCY, CONTRACTS: CASES AND COMMENTARIES 710 (6th ed. 1999). 4. Id. at 710. 5. See E. ALLAN FARNSWORTH, FARNSWORTH ON CONTRACTS 432 (1990) (citing Lord Coke, E. Coke, Second Institute 482–83 (1642)). This list was interpreted by courts many years later, see Rubenstein v. Rubenstein, 120 A.2d 11, 14 (NJ) as ―(1) For fear of loss of life; (2) For fear of loss of limb; (3) For fear of mayhem; (4) For fear of imprisonment.‖ 6. BOYLE & PERCY, supra note 3, at 710. 7. Herbert Fingarette, Victimization: A Legalist Analysis of Coercion, Deception, Undue Influence, and Excusable Prison Escape, 42 WASH. & LEE L. REV. 65, 86 n.55 (1985). 8. FARNSWORTH, supra note 5, at 433. For the purposes of this paper, duress in its more physical and overt form will be discussed. For a discussion of business compulsion see Pharmacy Care Systems Ltd. v Attorney General [2004] CA 198/03 16 Aug. 2004, para. 92 (N.Z.). 9. Paul H. Robinson, Causing the Conditions of One‘s Own Defense: A Study in the Limits of Theory in Criminal Law Doctrine, 71 VA. L. REV. 1, 1 (1985). Washington University Open Scholarship 218 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 11:215 capable of supporting a common law or codified version of the defense.10 Over time, the defense of duress (also called compulsion, compulsion by threats, or coercion)11 was conceptualized as a full