The Troubled History of the Defence of Duress and Excluded Offences: Could the Reasoned Use of Mitigation on Sentencing Prevent Duress from (Further) Becoming Archaic, Gendered, and Completely Inaccessible?

Abstract

One of the most controversial, and least discussed, elements of the defence of duress is the list of excluded offences that appears in s. 17 of the Canadian Criminal Code. In the seminal cases of R v Ruzic and R v Ryan, the Supreme Court refused to address the excluded offences and left the discussion to “another day.” This article examines the historical development of the defence through the earliest case law and the writings of Sir James Fitzjames Stephen who was one of the first theorists on duress and a major figure in drafting the Criminal Code. Stephen’s dislike of the defence of duress seems to be the only reason for the statutorily restrictive defence. This article traces the few cases following Ryan using a historic lens and current perspective to determine what is next for the embattled defence, including the place for duress and mitigation upon sentencing.