Canadian contractual duress and criminal duress: "irrational, anomalous, perverse, illogical and fundamentally wrong" or just misunderstood?

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

III. THE ESSENTIAL ISSUES: WILL, EXCLUDED OFFENSES, THREATS TO THIRD PARTIES, THE CANADIAN "OBJECTIVE-SUBJECTIVE STANDARD," AND BURDEN OF PROOF

There are several elements which are common to both civil and criminal duress. For example, the courts in both civil and criminal law have referred to the "will," excluded offenses, threats to third parties, the Canadian "objective-subjective" standard, and the burden of proof. These issues have been examined with various rates of success by each system. By comparing what the courts have done in the two types of duress helps to clarify the preferable approach for both.

A. The "Will" of the Individual

The truth about both criminal and contractual duress is that the literature on this topic is replete with difficult rhetoric. This rhetoric is most evident in the "overborne will" element of contractual duress. Duress or coercion is said to be "'overcoming,' 'overbearing,' 'overpowering,' 'breaking,' 'destroying,' 'subverting,' 'removing,' 'neutralizing,' or otherwise through some traumatic inner ordeal, rendering the individual's will impotent ... a 'pressure' that 'compels the will to yield,' or on the other hand as a 'suction process' that 'drains it of its capacity for free choice.'" (256) Yet, as Fingarette notes, the language is "rich, dramatic, and correspondingly lacking in objective specificity of meaning." (257) This was certainly true in Blackstone's objective requirement that the duress overcome the will of a "person of ordinary firmness." (258) The standard was then transformed to something more subjective, and asked if the victim was deprived of his or her "free will." (259) The concept of free will was discussed in depth in the New York state case of Austin Instrument Inc. v. Loral Corp., where the court concluded that a "contract is voidable on the ground of duress when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of his free will." (260) However, courts have also adopted another standard that takes into account whether the victim had "no reasonable alternative." (261)

1. Overborne Will and Contractual Duress

Modern contractual duress eliminates the common law focus on an overborne will and the destruction of will in order to "negate" consent. (262) Instead, this conception of duress still involves coercion, just not to the extent of destruction of the will of the person. In fact, Bigwood goes as far as to say "the overborne will theory was nonsensical: the victim who hands over his possessions to the highwayman acts 'intentionally,' consciously and freely choosing this alternative to the promised violence." (263) Theorist Patrick Atiyah is also incredulous about the concept of an overborne will in contractual duress because the theory would "divert attention into quite irrelevant inquiries into the psychological motivations of the party pleading duress." (264) Duress can be best conceptualized as constraint rather than a psychological condition, and the duress doctrine really has little to do with a party's "willingness." (265) Wertheimer concludes that "the moral question is whether [the party under duress] is responsible for his action and not whether he is happy about it." (266) When contractual duress is concerned, the concern is whether the defendant should have been free from any coercion rather than being overborne. (267)

Furthermore, the court in Attorney-General found that "vitiating consent" is no longer the focus in duress cases. (268) Instead, the focus is now on consent and the "quality of that consent" and whether it was true consent. (269) However, the court also adds the proviso that if consent has been given where there is a justification for relief in that "the party who acted under duress may avoid the contract, unless it has been affirmed once the circumstances amounting to duress have ceased to operate." (270) Although most theorists thought that the criminal case of Lynch (271) had put the theory of overborne will to rest, Justice Hammond acknowledged the debate in contract in Pharmacy Care saying that the "victim's will must be overborne by the improper pressure so that his or her free will and judgment have been displaced." (272) Many say that Justice Hammond did not intend to restart the overborne will debate, but rather he merely intended to add that the victim "succumbed to pressure." (273) The term is not a danger to the discussion but "can be safely left, like other chameleon phrases, to take its colour from its context." (274) The rhetoric around contractual duress has been freed from the fruitless debates of the actor and his will which is a lesson the criminal law has not learned.

2. Overborne Will and Criminal Law

As discussed above, the discussion of an overborne will has led to the confounding of the concepts of moral blameworthiness and moral involuntariness in the criminal law. Section 17 of the Criminal Code was found to violate the principles of fundamental justice because it is wrong to convict someone who behaves in a "morally involuntary" way. (275) Debates about the individual and will, from a moral and voluntariness standard, flourish in the criminal system.

Some have noted that the definition of moral involuntariness used in Ruzic is quite broad and "[o]n its face, it captures a whole range of human conduct, most of which would not ordinarily be classified as conduct performed under duress." (276) Theorist Martha Shaffer suggests that the threatened person lacks the autonomy to have real choice. Shaffer claims:

An accused who acts to avoid threatened harm is morally blameworthy of the harm that she causes because she intended to bring about that harm (assuming that moral blameworthiness is limited to considerations of mens rea). Nonetheless, she is not criminally responsible for her actions because the basic precept of criminal responsibility--that the accused was a freely choosing actor--is not made out. A person whose actions were morally involuntary does not by definition enjoy the autonomy that the law demands for an attribution of criminal responsibility. Consequently, such a person cannot be held criminally responsible for the harm that she causes. (277)

Shaffer believes that the presence and immediacy requirements are "inadequate proxies" for ascertaining moral involuntariness. (278) Elevating moral involuntariness to the level of a principle of fundamental justice has very serious ramifications which might not yet be fully appreciated. (279)

Unlike Shaffer, Justice LeBel in Ruzic found that the concepts of moral involuntariness and moral blameworthiness had to be separate and distinct because "morally involuntary conduct is not always inherently blameless. Once the elements of the offense have been established, the accused can no longer be considered blameless." (280) He went on to say that the "indefinable and potentially far-reaching nature of the concept of moral blamelessness prevents us from recognizing its relevance beyond an initial finding of guilt in the context of Section 7 of the Charter. Holding otherwise would inject an unacceptable degree of uncertainty into the law." (281) For example, if a lost alpinist forces entry (a criminal act) into a cabin in order to save his own life it is difficult to see the alpinist as completely blameless, but the state does not punish "because the circumstances did not leave him with any other realistic choice than to commit the offense." (282) What would function better is that the excuse should focus not on the act but on the circumstances and the ability of the individual to avoid the results. (283) Thus, instead of eliminating this debate as has been done in contract law, the overborne will is alive and well in the criminal law. This confusion between moral involuntariness, moral blame, fundamental justice and the overborne will adds very little to the discussion.

Again the concept of "realistic choice" surfaces but many scholars argue that this concept is value-laden and greatly undermines using moral involuntariness as a principle of fundamental justice. (284) As the actor was left with no realistic choice, there was not much doubt that the "presence" and "immediacy" portions of Section 17 would eventually be found to violate Section 7 of the Charter. The real issue was "why they violate section 7." (285) The court found that to convict one acting in a morally involuntary manner is "a violation of the principles of fundamental justice. In other words, they gave the concept of moral involuntariness the same status as moral blameworthiness, rather than having the former rely on the latter. On this basis, the presence and immediacy requirements could be struck down directly." (286) Philosopher George Fletcher's comments on the overborne will were widely cited by the Supreme Court in Ruzic:

excuses absolve the accused of personal accountability by focussing [sic], not on the wrongful act, but on the circumstances of the act and the accused's personal capacity to avoid it. Necessity and duress are characterized as concessions to human frailty in this sense. The law is designed for the common man, not for a community of saints or heroes. (287)

Although Lynch (288) purported to settle this discussion not only in the criminal law but in contracts as well, this term continued to cloud the discussion throughout the development of duress. Pao On, decided after Lynch, again said that "[d]uress, whatever form it takes, is a coercion of the will so as to vitiate consent." (289) Atiyah notes that this analysis "is totally inconsistent with the speeches in the House of Lords in the Lynch case." (290) In that case, all five justices rejected the concept of overborne will. (291) The real encapsulation of duress from both a civil and a criminal standpoint can be found in the Latin term coactus volui, or "[h]aving been forced I was willing." (292) Lord Wilberforce in Lynch made the...