The Duress Dilemma: Potential Solutions in the Theory of Right

• Author: Zoe Sinel
• Pages: 56-69

56 AP PE AL  V OL UM E 10  2005

THE DURESS DILEMMA:

POTENTIAL SOLUTIONS IN THE THEORY

OF RIGHT

Zoë Sinel

Introduction

Duress defenses, prima facie, pose a serious dilemma for theories

of punishment: an accused, committing an offense under duress,

seems to be simultaneously guilty and not guilty. In an attempt

to solve the dilemma surrounding the defense of duress, the

Supreme Court of Canada (SCC) in R. v. Ruzic

1

has chosen a

nonviable quasi-retributivist solution while a viable one seems to

be available.

To explore this hypothesis, it will be necessary first to examine the

paradox of moral culpability that inheres in duress. Since this paradox

arises in the context of retributivist justifications of punishment , an

in-depth analysis of these justifications will be conducted initially.

The apparently harsh solution that retributivism, at first blush,

1

[2001] 1 S.C.R. 687 (QL). [Ruzic]. A brief synopsis of the facts of Ruzic,

although not in themselves relevant to my thesis, should be provided here.

The accused was arrested and charged for the trafficking of drugs into

Canada. Her defense was that she did so under duress. Allegedly, a third

party had repeatedly threatened her mother’s life in order to compel her to

commit the offense.