Emotions and the veil of voluntarism: the loss of judgment in Canadian criminal defences.

• Author: Berger, Benjamin L.

In this piece, the author attacks the notion of "moral involuntariness" in the Supreme Court of Canada's judgment in R. v. Ruzic. He asserts that the voluntarist account of criminal liability is purely descriptive. Through the embrace of a mechanistic understanding of human agency, it forestalls judgment and veils the normative foundation of criminal law. The author asserts the need for a more normative approach, one which seeks to evaluate the moral blameworthiness of an act.

In the case of duress, the author suggests that it is not enough to simply state that a person's will is constrained because he or she is acting under the influence of emotion. An evaluative account of emotions would suggest that emotions involve thought on the part of the actor, and that emotions can be mistaken. Therefore, the moral bases of emotions can and should be evaluated. The law could have considerable conservative inertia under a legal regime that allowed certain attitudes to go unexamined. For instance, the sources of a particular "emotional" reaction might be rooted in a subordinating, retrograde vision of society that placed a low value on certain classes of persons. Hence, the voluntarist account may allow morally suspect social norms and their regressive effects to persist in the criminal law. Through these and other lines of inquiry, the author leads us to question some of the underpinnings of criminal law thinking, and calls for the reintroduction of meaningful and open judgment into the law of criminal defences.

Dans cet article, l'auteur questionne la notion de > dans la decision de la Cour supreme du Canada dans l'affaire R. v. Ruzic. Il affirme que la perspective volontariste de la responsabilite criminelle est purement descriptive. En analysant l'action humaine de facon mecanique, elle empeche le jugement et tire un voile sur les fondements normatifs du droit criminel. L'auteur affirme le besoin d'une approche plus normative, une approche qui chercherait a evaluer le caractere reprehensible au niveau moral d'une action.

Dans le cas de contrainte, l'auteur suggere qu'il n'est pas suffisant d'etablir simplement que la volonte d'une personne est contrainte parce qu'elle agit sous l'influence d'une emotion. Une evaluation des emotions suggererait que les emotions impliquent une reflexion de la part de la personne, et que les emotions peuvent etre erronees. Les fondements moraux des emotions peuvent donc etre evaluees et devraient l'etre. Le droit pourrait avoir une inertie conservative considerable dans un systeme juridique qui permettrait que l'on n'examine pas certaines attitudes. Par exemple, la source d'une reaction > particuliere pourrait etre une vision retrograde de la societe qui placerait une valeur moindre sur certains groupes de personnes. La perspective volontariste pourrait donc permettre la persistance de normes sociales moralement suspectes et de leurs effets regressifs dans le droit criminel. Cette analyse de l'auteur nous mene a questionner certain des fondements du droit criminel, et propose le retour du jugement ouvert et significatif dans le droit des defenses criminelles.

Introduction I. What Does "Moral Involuntariness" Mean? II. What is Wrong with Moral Involuntariness? III. What is the Alternative? IV. Why the Pull to the Idiom of Moral Involuntariness? V. Why the Pull Should Be Resisted Conclusion Introduction

Marijana Ruzic had no choice--so the story goes. (1) One late winter day, while walking her dog on the streets of Belgrade, where she lived with her mother, she was approached by a man named Mirko Mirkovic. Mr. Mirkovic began a process of intimidation that would last for two months, subjecting Ms. Ruzic to threats of violence against her and her mother, placing menacing phone calls to her home, and physically and sexually harassing her. Although she gave him no information about herself, each time Mr. Mirkovic approached Ms. Ruzic, he knew more and more about her life and claimed that he knew her every move. Ms. Ruzic believed that Mr. Mirkovic had been a paid assassin during the war, and she was deeply afraid. However, like many citizens of Belgrade at the time, she felt that the police could do nothing to help her.

One day, Mr. Mirkovic called Ms. Ruzic and instructed her to pack a bag and meet him at a hotel. When she arrived, he strapped three packages of heroin to her body, gave her a fake passport and airline tickets, and told her to fly to Toronto and to deliver the drugs to a restaurant. At first she refused, but she finally acquiesced when Mr. Mirkovic threatened to harm her mother if she didn't cooperate. She landed in Toronto on 29 April 1994 and was arrested and charged with possession and use of a false passport and unlawful importation of narcotics.

At trial, Ms. Ruzic's defence was duress. She claimed that she should not be blamed for her offences because they were committed under the compulsion of another. The problem was that the Criminal Code definition of duress required that the risk of harm be imminent and that the person threatening harm be present during the commission of the offence. (2) Ms. Ruzic could claim neither. The issue that wound its way to the Supreme Court of Canada was whether the statutory defence of duress (3) was constitutional in its imminence and presence requirements.

The Supreme Court of Canada held that these requirements were unconstitutional, severed them from the section, and allowed Ms. Ruzic to rely upon the more generous common law defence. (4) The result came as no surprise to most commentators. Yet the reasoning of the unanimous Court fundamentally changed the theory of criminal law defences in Canada. The Court held that Marijana Ruzic was entitled to avail herself of the common law defence not because she was morally blameless, as the court below had held, but because she was acting in a morally involuntary manner. The Court reasoned that it was a principle of fundamental justice protected by section 7 of the Charter of Rights and Freedoms (5) that only morally voluntary acts could be criminally punished. As a new principle of fundamental justice, this holding was not confined to the law of duress, but installed a new general foundation for the law of criminal defences. (6)

The decision provoked a range of responses from commentators. One argued that the new principle of moral involuntariness was persuasive, if somewhat confusing. (7) Others were more critical. Stephen Coughlan argued that although the Court's stated motivation for adopting the moral involuntariness standard over that of moral blameworthiness was to avoid potentially far-reaching consequences, the moral involuntariness standard is actually the more expansive and disruptive principle. (8) Stanley Yeo criticized the decision for placing principles of fundamental justice relevant to criminal defences on the same footing as those that animate or limit the definition of criminal offences. (9) To Yeo, the Court's treatment of duress in Ruzic failed to take account of the "secondary role" (10) that defences play in the criminal law.

Although these critiques are all doctrinally interesting, in my view the true import of the decision in Ruzic lies elsewhere. The case's primary importance lies in how it orients the law's understanding of criminality and, concomitantly, how it affects the criminal law's sphere of concern. By installing the notion of moral involuntariness at the core of affirmative defences, the Court has suffused the law with a mechanistic understanding of human agency that veils the normative foundation of criminal law. The effect of this veiling, I will argue, is to withdraw judgment, understood as critical reflection on these norms, from its rightful place at the heart of thinking about crime. This is bad. It is bad because it facilitates the persistence of inequitable or regressive social arrangements and values; it is bad because it separates the practice of law from its inevitable communicative impact.

This article will proceed in the following way: first, I will consider what the human state of "moral involuntariness" as described in Ruzic means, and why it is that this account of human agency is unsatisfactory in the criminal law; then I will suggest an alternative approach to emotions and agency that would better address the normative component of criminal law (though it would have produced similar results in Ruzic); and finally, I will examine why it is that the law has adopted the idiom of voluntariness, arguing that it ought not to be attributed to error or silliness, but stems from genuine philosophic concerns about the nature of the interaction between criminal law and society. Nevertheless, I will suggest that these concerns are overcome by competing considerations that militate in favour of a more normative approach to criminal liability.

Before turning to the analysis, I want to pause to make clear my approach to two issues of criminal law theory. First, throughout this piece, I refer generally to "defences", or to "affirmative defences", rather than drawing the conventional distinction between excuses and justifications. I do so advisedly. In part, I do so because the Supreme Court of Canada does not confine its theory of moral involuntariness, the object of criticism in this paper, to either justifications or excuses. More fundamentally, however, the aspect of defences that I am addressing does not depend upon--and perhaps even challenges the salience of--the distinction between excuses and justifications. (11) Irrespective of whether the act is ultimately viewed as justified or simply excused, what is at stake in both the Court's theory of moral involuntariness and in this piece are those situations in which the law refuses to punish conduct owing to the presence of powerful emotional motivations. This analysis is concerned with the precise way in which we should understand the role of such emotions in criminal liability.

...