Canadian contractual duress and criminal duress: "irrational, anomalous, perverse, illogical and fundamentally wrong" or just misunderstood?(Introduction through II. The Definitions and Modern Forms of Duress, p. 215-248)

• Published date: 22 March 2012
• Author: Chapman, Frances E.
• Date: 22 March 2012

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.

TABLE OF CONTENTS
                INTRODUCTION
                I. THE HISTORY OF DURESS
                 A. Historical Underpinnings of Contractual Duress
                 B. The History of the Criminal Defense of Duress
                 C. The Codification of the Canadian Criminal Defense of Duress
                II. THE DEFINITIONS AND MODERN FORMS OF DURESS
                 A. The Definition of Contractual Duress
                 B. Modern Contractual Duress
                 C. Definition of Criminal Duress
                 D. Modern Criminal Duress
                III. THE ESSENTIAL ISSUES: WILL, EXCLUDED OFFENSES, THREATS
                 TO THIRD PARTIES, THE CANADIAN "OBJECTIVE-SUBJECTIVE
                 STANDARD," AND BURDEN OF PROOF
                 A. The "Will" of the Individual
                 1. Overborne Will and Contractual Duress
                 2. Overborne Will and Criminal Law
                 B. Excluded Offenses--Criminal and Contractual
                 C. Threat
                 1. Threats to Third Parties in Contract Law
                 2. Threats to Third Parties in Criminal Law
                 D. Canada's "Objective-Subjective" Standard
                 1. Canada's "Objective-Subjective" Standard in Contractual
                 Duress
                 2. Canada's "Objective-Subjective" Standard in Criminal
                 Duress
                 E. Burden of Proof
                 1. Contractual Duress
                 2. Criminal Duress
                IV. COMPARISON OF CONTRACTUAL AND CRIMINAL DURESS
                 CONCLUSION
                

INTRODUCTION

The contractual and criminal bases for duress in Canada, the United States, and the Commonwealth (1) are currently in disrepair on certain issues 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 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 defense in criminal law, as a "concession to human infirmity in the face of an overwhelming evil threatened by another." (12) Controversy, however, surrounds the defense where the threats involve the sacrifice of one innocent life to save another innocent life creating a "love-hate relationship" with the defense in the criminal law context. (13) In other words, our emotional reaction to duress is linked to our feelings about those who "allow" themselves to be coerced. (14) Joshua Dressier notes that when we are concerned about locating "victims and villains," it is hard to classify someone who has succumbed to a threat. (15) He offers the classic example of an individual with a gun to his head who agrees to kill a child to escape death, and Dressler questions whether this person is a victim or a villain whose "aversion to dying was greater than his aversion to killing?" (16) These are difficult questions with no simple answers.

The law of criminal duress has become even more complicated in Canada with the advent of the Canadian Charter of Rights and Freedoms in 1982 (Charter). (17) Generally, if a Canadian court decides that a case deals with an issue under the Canadian Constitution, it must then determine if a guaranteed right of all citizens has been infringed upon. The Charter sets out the "fundamental freedoms" of all Canadians. (18) In criminal law, the courts routinely review the definition of criminal offenses to ensure conformity with the Charter; however, when examining Charter challenges to defenses, the cases are rare and often unsuccessful. (19)

Despite these developments of duress in both civil and criminal law, the defense of duress requires more analysis to best protect unwitting victims. By examining the philosophical, historical, and current state of the defense in both civil and criminal law, there is a chance for a clearer formulation for duress. (20) Through this analysis, it seems the intent of the earliest framers of the law was that the defense of duress would not be fully codified but rather it would remain flexible through the use of the common law. This Article contends that a new, more flexible standard should replace the current, more stringent version of the defense. (21) Undeniably, there has been an "extraordinary expansion of the scope of duress" in the contractual realm, while there has been an absolute narrowing of the criminal defense so that it is hardly used successfully in any modern case. (22) The following analysis shows that the current state of the duress defense is "irrational, anomalous, perverse, illogical and fundamentally wrong," (23) and it is deeply misunderstood. This Article examines the law in Canada as well as a few U.S. and Commonwealth cases. (24) Part I examines the historical development of the defense and the writings of Sir James Fitzjames Stephen, one of the first major modern theorists on duress, as well as the development of the civil law formulation of duress. Part II examines the definition of contractual and criminal duress including the state of those concepts today in their respective disciplines, and the modern state of duress. Part III addresses the problematic issues in both civil and criminal contexts including the "overborne will" theory, excluded offenses, threats to third parties, the Canadian "objective-subjective standard," and the burden of proof. Finally, Part IV compares and contrasts the problems with duress in both contexts, and concludes with a look at the future for these concepts.

I. THE HISTORY OF DURESS

This Part discusses the history of the defense of duress in both contract law and in criminal law.

A. Historical Underpinnings of Contractual Duress

Contractual duress has a long history starting with the Romans. However, it has been said that the "law in relation to [contractual] duress is not as clear as one might wish." (25) Included in the edictum perpetuum of the Roman Emperor Hadrian was the phrase "Quod metus causa gestum erit, ratum non habebo" which translates to "[w]hat is done through fear I will not uphold." (26) In this earliest of forms, this fear had to be felt by a "man of the most resolute character" and not a "weak-minded man." (27) Many forms of this edict exist in relation to "fear of personal harm, such as death, harm to physical integrity and loss of freedom, and possibility also fear of harm of an economic nature. Threats of harm to family are also covered." (28) The form of duress envisioned by the Romans was to address "compulsion through 'bending' the will of the victim ('mental' fear or vis compulsive)." (29) These complex theories about the nature of free will has ancient origins.

The earliest types of duress in civil law were those which had an overt physical element. (30) These cases involved general contracts where the pressured parties were forced to sign an agreement and were little more than a "mere mechanical instrument" and their actions were not considered to "manifest assent." (31) Lord Scarman summarized the history of contractual duress in Barton v. Armstrong saying that duress of this kind was limited:

[A]t a comparatively early date equity began to grant relief in cases where the disposition in question had been procured by the exercise of pressure ... considered to be illegitimate--although it did not amount to common law duress ... [t]here is an obvious analogy between setting aside a disposition for duress or undue influence and setting it aside for fraud. (32)

Lord Scarman cited Justice Holmes in Fairbanks v. Snow stating that relief can be provided where the "party has been subjected to an improper motive for action." (33)

Duress in the civil law has been among the "vitiating factors long recognized by the common law," (34) however, the...