The Constitutionality of Excluding Duress as a Defence to Murder

Abstract

The Supreme Court’s decision in R v Ruzic constitutionalized moral involuntariness as a principle of fundamental justice under s. 7 of the Charter. Although the Court used this principle to strike down the imminence and presence requirements in the statutory duress defence, it left open the possibility that the lengthy list of excluded offences might also violate the moral involuntariness principle. The author maintains that various doctrinal and philosophical reasons support interpreting the moral involuntariness principle in a manner that allows duress to be pleaded for the offence of murder. Although it is possible that exclusion of murder could be justified under s. 1 of the Charter, such a finding would inevitably result in a separate challenge to the mandatory minimum punishment provisions for violating the prohibition against cruel and unusual punishment found in s. 12 of the Charter.