Emotions and the Veil of Voluntarism:
The Loss of Judgment in
Canadian Criminal Defences
Benjamin L. Berger*
In this piece, the author attacks the notion of
moral involuntariness in the Supreme Court of
Canadas 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 persons 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, lauteur questionne la notion de
involont morale dans la dcision de la Cour
suprme du Canada dans laffaire R. v. Ruzic. Il affirme
que la perspective volontariste de la responsabilit
criminelle est purement descriptive. En analysant
laction humaine de faon mcanique, elle empche le
jugement et tire un voile sur les fondements normatifs
du droit criminel. Lauteur affirme le besoin dune
approche plus normative, une approche qui chercherait
valuer le caractre rprhensible au niveau moral
dune action.
Dans le cas de contrainte, lauteur suggre quil
nest pas suffisant dtablir simplement que la volont
dune personne est contrainte parce quelle agit sous
linfluence dune motion. Une valuation des
motions suggrerait que les motions impliquent une
rflexion de la part de la personne, et que les motions
peuvent tre errones. Les fondements moraux des
motions peuvent donc tre values et devraient ltre.
Le droit pourrait avoir une
inertie conservative
considrable dans un systme juridique qui permettrait
lon nexamine pas certaines attitudes. Par
que
exemple,
raction motive
particulire pourrait tre une vision rtrograde de la
socit 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
rgressifs dans le droit criminel. Cette analyse de
lauteur nous mne questionner certain des
fondements du droit criminel, et propose le retour du
jugement ouvert et significatif dans le droit des
dfenses criminelles.
source dune
la
* Assistant Professor of Law, University of Victoria. Many thanks to Dan Kahan, Gerry Ferguson,
Jeremy Webber, Eimear Spain, Janna Promislow, Sophie Nunnelley, and the two anonymous
reviewers for comments on earlier drafts of this paper. I am also grateful to Alison Luke for her
excellent research assistance.
Benjamin L. Berger 2006
To be cited as: (2006) 51 McGill L.J. 99
Mode de rfrence : (2006) 51 R.D. McGill 99
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
100
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
[Vol. 51
101
104
108
114
119
122
126
2006] B.L. BERGER LOSS OF JUDGMENT IN CANADIAN CRIMINAL DEFENCES 101
Introduction
Marijana Ruzic had no choiceso 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 didnt 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. Ruzics 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 duress3
was constitutional in its imminence and presence requirements.
1 R. v. Ruzic, [2001] 1 S.C.R. 687, 197 D.L.R. (4th) 577 [Ruzic cited to S.C.R.].
2 Criminal Code, R.S.C. 1985, c. C-46, s. 17:
17. A person who commits an offence under compulsion by threats of immediate death
or bodily harm from a person who is present when the offence is committed is excused
for committing the offence if the person believes that the threats will be carried out and
if the person is not a party to a conspiracy or association whereby the person is subject
to compulsion, but this section does not apply where the offence that is committed is
high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault
with a weapon, threats to a third party or causing bodily harm, aggravated sexual
assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing
bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence
under sections 280 to 283 (abduction and detention of young persons).
3 The statutory definition of duress has been held to apply only to principals, whereas other parties
to an offence avail themselves of the common law doctrine of duress, which does not include presence
or imminence requirements.
that
these
[Vol. 51
The Supreme Court of Canada held
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
102
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 Freedoms5 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 Courts 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
4 Ruzic, supra note 1.
5 Canadian Charter of Rights and Freedoms, s. 7, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter]:
7. Everyone has the right to life, liberty and security of the person and the right not to
be deprived thereof except in accordance with the principles of fundamental justice.
6 Indeed, the Court did not even seem to limit the scope of moral involuntariness to excuses (as
opposed to justifications). The Court went further than others, including George Fletcher who
discusses moral involuntariness in Rethinking Criminal Law (Boston: Little, Brown and Company,
1978). See Don Stuart, Charter Justice in Canadian Criminal Law, 4th ed. (Toronto: Carswell, 2005)
at 109.
7 Stuart writes: This analysis is persuasive but there is a concern. Given that defences so often
involve pragmatic determinations that someone in a situation of agonizing choice should not be
punished, even if the act was morally blameworthy, it seems confusing to speak of a principle of
moral involuntariness (ibid. at 101 [emphasis in original]).
8 Stephen G. Coughlan, Duress, Necessity, Self-Defence and Provocation: Implications of Radical
Change? (2002) 7 Can. Crim. L. Rev. 147. According to Coughlan: In their haste to keep the cap on
the toothpaste, the Supreme Court may have cut the bottom off the tube (ibid. at 149). Coughlan is
particularly concerned that the moral involuntariness principle has the potential to sap criminal law
defences of their proportionality elements. Any requirement beyond moral involuntariness that limits
access to a defence would appear to be unconstitutional.
2006] B.L. BERGER LOSS OF JUDGMENT IN CANADIAN CRIMINAL DEFENCES 103
definition of criminal offences.9 To Yeo, the Courts treatment of duress in Ruzic
failed to take account of the secondary role10 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 cases primary importance lies in how it
orients the laws understanding of criminality and, concomitantly, how it affects the
criminal laws 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.
9 Stanley Yeo, Challenging Moral Involuntariness as a Principle of Fundamental Justice (2002) 28
Queen’s L.J. 335. Yeo also argues that moral involuntariness is too imprecise a concept to qualify as
a principle of fundamental justice.
10 Ibid. at 338. Yeo explains:
However, while the question posed for offences is whether the accused is at fault, the
question posed for a defence such as duress is whether he or she should be excused or
justified even where fault has been established. Seen in this way, considerations of
defences and their elements are always subordinate to the offences they seek to excuse.
Further, the exculpatory nature of defences makes legislative judgments about defence
elements more sacrosanct than legislative judgments about the adequacy of fault
expressed in offence elements (ibid.).
I find this line of argument perplexing. An accused is not criminally liable until the constituent
elements of the offence have been proven (which may include a consideration of certain mens rea and
actus reus vitiating defences) and the finder of fact is satisfied that there are no applicable affirmative
defences. Accordingly, in my opinion, the better view is that offences and defences are equal partners
in criminal liability. In a case of self-defence, for example, it would be strange to assert that the
defence is somehow subordinate to the offence. Rather, the sphere of criminal culpabilitythe
ultimate questionis defined in the interaction between the defence and the offence.
[Vol. 51
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
104
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 uponand perhaps even challenges the salience ofthe 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 Courts 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.
Second, I wish to be clear that my focus upon emotion in this article is not meant
to suggest that all criminal law defences, or even all instances of any given defence,
turn on the question of emotion. Rather, this piece is an attempt to grapple with those
particular situations in which the influence of powerful emotions forms the basis for a
claimed defence. More specifically, my purpose is to challenge the adequacy of the
Supreme Court of Canadas current approach to such situations: the concept of moral
involuntariness.
I. What Does Moral Involuntariness Mean?
The Court was exceedingly clear in its conception of moral involuntariness and
its rejection of the notion of moral blameworthiness as the principle underlying
criminal law defences. The Court drew the dividing line between these two principles
at the point between the constituent elements of the offence and the affirmative
defences. The Court asserted that it had never taken the concept of blamelessness
any further than [the] initial finding of guilt and that [t]he undefinable and
potentially far-reaching nature of the concept of moral blamelessness12 precludes it
11 This is not to say that the distinction between justifications and excuses is not theoretically
interesting and, in some instances, practically significant. See e.g. Benjamin L. Berger, A Choice
Among Values: Theoretical and Historical Perspectives on the Defence of Necessity (2002) 39 Alta.
L. Rev. 848. For a simple formulation of the distinction between justifications and excuses, see J.L.
Austin, A Plea for Excuses in Philosophical Papers, 3d ed. by J.O. Urmson & G.J. Warnock (New
York: Oxford University Press, 1979) 175. Austin writes: In the one defence, briefly, we accept
responsibility but deny that it was bad: in the other, we admit that it was bad but don’t accept full, or
even any, responsibility (ibid. at 176).
12 Ruzic, supra note 1 at para. 41. It is unclear to me what is, precisely, this initial finding of guilt.
A verdict of guilt is only entered once the constituent elements have been proven and the finder of fact
rejects any affirmative defences. The Court seems to be asserting that there is a kind of prima facie
case of guilt established once the constituent elements of the offence have been made out, even though
the Crown may not have disproved, for example, a claim of self-defence.
2006] B.L. BERGER LOSS OF JUDGMENT IN CANADIAN CRIMINAL DEFENCES 105
from being extended as the animating principle behind the affirmative defences.
Morally involuntary conduct, the Court stated, is not always inherently
blameless.13
Instead, the Court fastened upon the notion of moral involuntariness. This
concept had been introduced into Canadian criminal law in R. v. Perka,14 a case
involving a claim of necessity. What does moral involuntariness mean? Does it mean
that a person is actually incapable of controlling his behaviour in some way? This is
the sense of physical involuntariness: a person who is holding a knife is not liable for
homicide if another actor pushes his hand into the victim. In such a case, the person is
not culpable because he was not in control of his actions. The act was not voluntary,
so it could not be attributed to him. But this is not how the Court defined moral
involuntariness. Rather, [a] person acts in a morally involuntary fashion when, faced
with perilous circumstances, she is deprived of a realistic choice whether to break the
law.15 Justice LeBel, writing for the Court, invoked the scenario that Justice Dickson
(as he then was) used in Perka to explain the concept:
By way of illustration in Perka, Dickson J. evoked the situation of a lost
alpinist who, on the point of freezing to death, breaks into a remote mountain
cabin. The alpinist confronts a painful dilemma: freeze to death or commit a
criminal offence. Yet as Dickson J. pointed out at p. 249, the alpinists choice to
break the law is no true choice at all; it is remorselessly compelled by normal
human instincts, here of self-preservation.16
Justice LeBel recognized that this notion of involuntariness, though drawn by
analogy from the more familiar notion of physical voluntariness, differs in the sense
that the accused does not act in a literally involuntary fashion.17 The act cannot be
attributed to the accused, not because he or she is actually incapable of control, but
because her will is overborne and, therefore, [h]er conduct is not, in a realistic
way, freely chosen.18 Nevertheless, a common thread runs through both the physical
and moral varieties of involuntariness: the importance of autonomy and choice.19 In
the Courts view, [t]he treatment of criminal offenders as rational, autonomous and
13 Ibid.
14 [1984] 2 S.C.R. 232, 13 D.L.R. (4th) 1 [Perka cited to S.C.R.]. The concept of normative
involuntariness found its way into the law of duress in R. v. Mack, [1988] 2 S.C.R. 903 at 946, [1989]
1 W.W.R. 557, and R. v. Hibbert, [1995] 2 S.C.R. 973 at para. 54, 184 N.R. 165 [Hibbert cited to
S.C.R.].
15 Ruzic, supra note 1 at para. 29.
16 Ibid.
17 Ibid. at para. 44. William Wilson calls this metaphorical involuntariness, noting that [i]t is
involuntary only in the sense that under different circumstances the choice would not have been
made (William Wilson, Central Issues in Criminal Theory (Oxford: Hart Publishing, 2002) at 114
[Wilson, Central Issues]).
18 Ruzic, ibid.
19 Ibid. at para. 45.
[Vol. 51
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
106
choosing agents is a fundamental organizing principle of our criminal law.20 If there
is no real choice, the accuseds acts cannot fairly be treated as a product of his
agency.21
This account of the conceptual foundations for human agency ties the Court very
closely to a tradition in criminal law theory that places free choice at the centre of
criminal culpability. The Perka decision drew consciously from the thinking of
George Fletcher, who argues that excuses should be founded on such a conception of
moral involuntariness.22 Fletchers explanation of excuses in criminal law makes free
choice the central test for criminal liability.23 Fletcher is himself building upon a
theoretical
that Dan Kahan and Martha Nussbaum have called
voluntarism.24 H.L.A. Hart is the central figure in this approach to criminal liability,
arguing that what is essential in the criminal law is that each individual is given a
fair opportunity to choose between keeping the law required for societys protection
tradition
20 Ibid. The Court found support for this proposition in the requirement for mens rea and the
existence of an insanity defence, and stated that free will and autonomy are of critical importance to a
free and democratic society. LeBel J. continues:
Its importance is reflected not only in the requirement that an act must be voluntary, but
also in the condition that a wrongful act must be intentional to ground a conviction.
Sault Ste. Marie, Re B.C. Motor Vehicle Act, and Vaillancourt all stand for the
proposition that a guilty verdict requires intentional conduct or conduct equated to it
like recklessness or gross negligence. Like voluntariness, the requirement of a guilty
mind is rooted in respect for individual autonomy and free will and acknowledges the
importance of those values to a free and democratic society … Criminal liability also
depends on the capacity to choosethe ability to reason right from wrong (ibid. at
para. 45 [references omitted]).
21 LeBel J. writes:
Punishing a person whose actions are involuntary in the physical sense is unjust
because it conflicts with the assumption in criminal law that individuals are
autonomous and freely choosing agents … It is similarly unjust to penalize an individual
who acted in a morally involuntary fashion. This is so because his acts cannot
realistically be attributed to him, as his will was constrained by some external force
(ibid. at para. 46 [references omitted]).
22 Fletcher, supra note 6.
23 Fletcher writes:
Excuses arise in cases in which the actor’s freedom of choice is constricted. His conduct
is not strictly involuntary as if he suffered a seizure or if someone pushed his knife-
holding hand down on the victims throat. In these cases there is no act at all, no
wrongdoing and therefore no need for an excuse. The notion of involuntariness at play
is what we should call moral or normative involuntariness. Were it not for the external
pressure, the actor would not have performed the deed. In Aristotles words, he would
not choose any such act in itself (ibid. at 802-803 [footnotes omitted]).
24 Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law (1996)
96 Colum. L. Rev. 269 at 302.
2006] B.L. BERGER LOSS OF JUDGMENT IN CANADIAN CRIMINAL DEFENCES 107
or paying the penalty.25 Hart thinks of the human as fundamentally a choosing
being26 who is to be accorded respect as such. When an individual had no fair or real
choice, it would be fundamentally unjust to punish her.27
Duress is a defence concerned with the effect of emotions on an individuals
acts.28 In particular, the kind of compulsion or threat that can found a claim of duress
will evoke profound feelings of fear or love for oneself or another. When one places
the voluntarist account of moral involuntariness into this context, the result is a
profoundly mechanistic29 understanding of human agency. Circumstances (threats, in
this case) produce emotions that exert themselves on the human agent. If the
emotions are strong enough, they may restrict the scope of a persons realistic
choices. As the Court in Ruzic described the way that moral involuntariness operates,
there [is] indeed an alternative to breaking the law, although in the case of duress
that choice may be even more unpalatableto be killed or physically harmed.30
25 H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford:
Clarendon Press, 1968) at 22-23 [emphasis in original].
26 Ibid. at 49 [emphasis in original].
27 Hart writes: Thus a primary vindication of the principle of responsibility could rest on the simple
idea that unless a man has the capacity and a fair opportunity or chance to adjust his behaviour to the
law its penalties ought not to be applied to him (ibid. at 181). See also Dennis Klimchuk, Moral
Innocence, Normative Involuntariness, and Fundamental Justice (1998) 18 C.R. (5th) 96:
We do not punish those who act involuntarily because their actions resist imputation to
them. Their agency, so to speak, is not implicated in their doings. … Normatively
involuntary actions, I suggest, similarly resist imputation to those who perform them. In
this case, attribution points not to a medical condition, but, rather the perilous
circumstances in which an accused find himself or herself, or to the threats of another
(ibid. at 102).
To anticipate an argument made later in this article, Harts focus on choice, voluntarism, and agency is
steeped in liberal premises. The privileging of choice as the most valued aspect of the human is a
mainstay of liberal political theory and culture. See Paul W. Kahn, Putting Liberalism in its Place
(Princeton: Oxford University Press, 2005) at 14. The liberal underpinnings of the voluntarist account
are particularly clear when contrasted with a perfectionist approach to criminal liability such as the
character theory of liability, which holds that entitlement to mitigation turns on whether the given
bad act is expressive of the quality of the individuals character. See e.g. Victor Tadros, The
Characters of Excuse (2001) 21 Oxford J. Legal Stud. 495; Kyron Huigens, Virtue and Inculpation
(1995) 108 Harv. L. Rev. 1423; Michael D. Bayles, Character, Purpose, and Criminal Responsibility
(1982) 1 Law & Phil. 5. For character theorists, liability is based on an evaluation of an agent as a
person, taken as a whole, where we are not particularly interested in whether his behavior conforms to
a norm, but in whether he is a good or bad person, considered in a more general sort of way (Claire
Finkelstein, Excuses and Dispositions in Criminal Law (2002) 6 Buff. Crim. L. Rev. 317 at 326).
Such a position would be anathema to a liberal theorist. For a thoughtful analysis of the character
theory of liability, see Michael Moore, Placing Blame: A General Theory of the Criminal Law
(Oxford: Clarendon Press, 1997) c. 13.
28 For a helpful survey of understandings of emotion in the psychological literature, see Alexander
Reilly, The Heart of the Matter: Emotion in Criminal Defences (1997) 29 Ottawa L. Rev. 117 125ff.
29 Here again, I am drawing from the schema set up by Kahan & Nussbaum, supra note 24.
30 Ruzic, supra note 1 at para. 39 [emphasis in original].
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
108
In terms of criminal liability, the idiom of moral involuntariness is, accordingly, a
descriptive one. It explains why someone acted the way that he did by reference to an
account of free choice. As Kahan and Nussbaum explain:
[Vol. 51
Conceptually, criminal law voluntarists tend to view strong emotions as
diminishing an offenders culpability on the ground that they detract from the
accuseds capacity for self-control or constrain her opportunity to exercise it. A
person whose psychological control mechanisms are overwhelmed by fear or
rage cannot justly be held accountable for criminal acts. Consistent with the
mechanistic conception, emotions enter into such an account only as forces that
either do or do not limit an offenders choices; the strength of a persons
emotions is thus of far more interest than any valuations internal to them.31
In the case of duress, if emotions are strong enough, the choice was not free, and the
person cannot be held criminally liable. A focus on moral involuntariness, the Courts
chosen approach in Ruzic, can pierce no further into the narrative of criminality; all it
is capable of saying is that the individual was overwhelmed by emotion such that she
had no real choice but to break the law.
II. What is Wrong with Moral Involuntariness?
The first problem with this account of duress is that it fails on its own terms. On
its own, the idiom of moral involuntariness simply requires that the person be subject
to circumstances that produce emotions strong enough to constrain her will. However,
this emotional requirement does not accord with the legal requirements for duress.
The Court has held that, in a case of duress, there must be no reasonable alternative to
breaking the law32 and that the harm produced must be proportionate to the threatened
harm.33 In Ruzic, the Court explained that the nature of the threat and the potential for
an alternative course of action must be assessed on a subjective-objective basis, as
against the reasonable person similarly situated.34 These requirements belie the
voluntarist account.35
The condition that there be no reasonable alternative to breaking the law imposes
an objective test on what is supposed to concern the effect of emotion on an
individuals choice. Even more obviously, an act is no less voluntary simply because,
viewed from a (substantially) objective point of view, the harms associated with
31 Kahan & Nussbaum, supra note 24 at 302 [footnotes omitted].
32 Hibbert, supra note 14 at para. 62. See also Stephen J. Morse, who writes: The coercion problem
is not lack of any choice. It is yielding to an unjustifiable choice in the absence of acceptable
alternatives (Diminished Capacity in Stephen Shute, John Gardner & Jeremy Horder eds., Action
and Value in Criminal Law (Oxford: Clarendon Press, 1993) 239 at 257).
33 Ruzic, supra note 1 at para. 62.
34 Ibid.
35 For similar critiques made with respect to the relationship between moral involuntariness and the
requirements of the defence of necessity, see Diana Young, Excuses and Intelligibility in Criminal
Law (2004) 53 U.N.B.L.J. 79.
2006] B.L. BERGER LOSS OF JUDGMENT IN CANADIAN CRIMINAL DEFENCES 109
committing the crime would be greater than those threatened. Imagine that Mary is
threatened with a trivial harmlike repeated pinchingif she refuses to steal a car. If
fear overwhelms Marys will, no matter how unreasonably, on the voluntarist account
it ought not to matter that the result is disproportionate. The requirements of
reasonable alternatives and proportionality both sound in the register of legal
accountability despite moral involuntariness. There is some moral foundation driving
the requirement for proportionality and the absence of a reasonable alternative, but
[a]n account that stresses volitional impairment cannot explain this normative
limitation.36
Yet the critical defect in the voluntarist approach to duress lies not in its
descriptive deficiencies, but in its descriptive nature. This descriptive or, in the term
used by Kahan and Nussbaum, mechanistic account explains emotions and their
impact on agency but does not evaluate them. The voluntarist idiom forestalls
judgment.
Moral involuntariness is predicated on the absence of a real choice. But what
counts as a real choice? The answer is that the assessment of reasonable choice is one
that is deeply inflected with value judgments about what is appropriate behaviour for
given individuals in a given situation. In a fundamental way, the defence of duress is
about the quality or legitimacy of the emotions that one feels, not just their
magnitude. A trite example reflects this truth: although a person might not be excused
for a robbery on account of duress if he was threatened with harm to his goldfish, a
mother would surely be excused for a theft if the alternative was harm to her
daughter. A different example exposes the depth of this evaluative vein: we might
excuse this mother for her legitimate concern for her daughter, but would condemn
her if she acted in a way harmful to her daughter when threatened with harm to
herself.
The evaluation taking place is not just of the state of the accuseds will, but of the
emotions that informed her action and whether these emotions are emotions that are
legitimate in the eyes of the community. Ultimately, this is about agent-appropriate
behaviour37what the law regards as the range of legitimate responses to particular
emotional states. Yet on the voluntarist account embraced by the Supreme Court of
Canada, the question is simply whether the will was overborne by emotion; the
normative value of the emotions goes unevaluated. Duress is, at its core, concerned
with the question of agent-appropriate behaviour, but the voluntarist accountthe
free-will description of duressdoes not speak to this question at all.38
36 Kahan & Nussbaum, supra note 24 at 335 [footnotes omitted].
37 See John Gardner, The Gist of Excuses (1998) 1 Buff. Crim. L. Rev. 575: Different people are
subject to different normative expectations when their excuses are assessed (ibid. at 579).
38 See Dan M. Kahan, The Progressive Appropriation of Disgust in Susan Bandes, ed., The
Passions of Law (New York: New York University Press, 1999) 63. Kahan addresses the impact of
voluntarism on the critical normative barometer of disgust and concludes that the voluntarist
account disguises, but does not banish, notions of disgust from the law (ibid. at 71-73).
[Vol. 51
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
110
This problem can be posed another way, using the criteria of reasonable
perceptions of threat and reasonable legal alternatives. What informs the laws view
of whether, in a given situation, a threat is sufficient and the alternatives are not
realistic? Again, the voluntarist account has no answer. This is not to say that the
problem has not been identified by voluntarist theorists. George Fletcher addresses
this question in his discussion of expectations of appropriate and normal resistance
to pressure,39 and concedes that [d]etermining this threshold is patently a matter of
moral judgment about what we expect people to be able to resist in trying
situations.40 Yet in spite of this subtending moral elementan evaluative corethe
autonomy-based account taken up by the Supreme Court fails to speak to these
central normative issues. Kahan and Nussbaum offer an incisive account of the
interplay between norms and emotion at the core of duress:
Although necessarily diverse, the emotional evaluations that inform duress
doctrine share a theme: the legitimate love of ones own. Typically, a defendant
asserts the defense of duress when the social losses associated with her act
exceed (in some sense) the threatened loss to her or her family members. Such
behaviour is tolerated by the law not just because it is inevitable that an
individual will prefer herself and her loved ones to the public at large, but also
because it is at least sometimes morally appropriate to have such a preference.
… But clearly ones love of ones own faces moral limits; complex social norms
define when such a preference is legitimate and when it is not. Duress
captures the interplay of at least some of these norms and helps to regulate the
interaction between the privilege to love ones own and the duty to treat all
persons with concern and respect.41
My argument is that at the very centre of duress, and indeed of all criminal
defences, is a set of normative evaluations about the way in which it is appropriate for
people to act.42 Put this way, it is hardly a startling assertion. What is startling, rather,
is that the free-will account with its descriptive corethat emotions exerted
themselves on the individual and the individual therefore had no real choicefails to
touch this essential aspect of criminal exculpation. On this view, emotions are
external forces, divorced from individual evaluation and decision making. The
voluntarist account of criminal defences acts as a normative veil, hiding the
underlying assumptions about what emotions are legitimate or illegitimate, what
39 Fletcher, supra note 6 at 804.
40 Ibid.
41 Kahan & Nussbaum, supra note 24 at 336 [footnotes omitted].
42 At points, the Court has been amenable to this description of the conceptual foundation for
criminal law defences. Dickson C.J.C. stated:
The criminal law is a very special form of governmental regulation, for it seeks to
express our societys collective disapprobation of certain acts and omissions. When a
defence is provided … it is because the legislator has determined that the disapprobation
of society is not warranted when the conditions of the defence are met (R. v.
Morgentaler, [1988] 1 S.C.R. 30 at 70, 44 D.L.R. (4th) 385).
2006] B.L. BERGER LOSS OF JUDGMENT IN CANADIAN CRIMINAL DEFENCES 111
actions are good or bad, and, accordingly, who should be raised or lowered in
societys estimation.
Consider the theory of criminal excuses offered by William Wilson.43 Finding
both the reasons theory and capacity theory of excuses inadequate, Wilson offers an
alternative theory of excuses that uses the concept of crisis as the crucial
consideration. Though more subtle and morally demanding of the offender than most,
Wilsons is still, fundamentally, a voluntarist theory of criminal law defences. Wilson
argues that we are normally expected to resist feelings such as aggression and
jealousy. However, under conditions of extreme crisis, we can no longer properly
hold individuals accountable for their reactions and, therefore, we allow excuses.
[T]he natural order of things, Wilson writes, is upset so we cannot properly be
punished.44 Why? Because such crises deprive individuals of their susceptibility to
conform their behaviour to rules.45 Accordingly, our actions are not authentically
ours.46 The problem with this view is the same problem that afflicts all voluntarist
approaches: what counts as a crisis to an individualcertainly what counts as the
natural order of thingsis always informed by prior assessments and judgments
about the world. These assessments can either be consistent with our highest ideals,
or can be regressive, discriminatory, and subordinating. Any theory of defences that
revolves around the impairment of volition obscures the value judgments that
condition emotion and action alike.
My claim is that there are very real dangers associated with this normative
veiling. When the legally approved idiom is one of descriptive voluntarism, the
normative assumptions that underlie our assessments of agent-appropriate behaviour
go unexamined. The formal legal response to a case of duress is that the actor had no
real choice because her will was constrained. Therefore, to respect her autonomy and
individual agency, we must not punish her. This account explains or describes, but
does not evaluate. This is so even though, as Fletcher concedes, the ship of
voluntarism floats on a sea of social norms and moral commitments. The danger is
that, left unexposed in the reasoning of our courts, morally-suspect social norms and
their regressive effects will persist in the criminal law, hidden in the shadow of the
rhetoric of constraint on will.
this mechanistic/descriptive account,
circumstances produce emotions that bear down on the person, resulting in particular
actions. But are these emotional responses that we want the law to recognize as
legitimate or even tolerable? Are the emotions conditioned by a set of social norms
In
43 William Wilson, The Filtering Role of Crisis in the Constitution of Criminal Excuses (2004) 17
Can. J.L. & Jur. 387 [Wilson, Filtering Role].
44 Ibid. at 389.
45 Ibid. at 390. Wilson describes the unifying feature of the defences of automatism, involuntary
intoxication, duress, and provocation as the recognition that the most balanced amongst us can, in
extreme conditions such as trauma, terror, anger or intoxication, lose touch with that basic core of
reasonableness which invites conformity with legal rules (ibid. at 397). This is quintessentially
mechanistic/voluntarist language, focusing as it does on emotions interfering with choice and/or will.
46 Ibid. at 389.
[Vol. 51
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
112
that we find unacceptable? In the voluntarist account that the Court has now installed
at the base of criminal defences, these questions do not figure into the analysis. The
result is a criminal law with considerable conservative inertia because the prevailing
norms and social arrangements are taken as given, like cogs in the machine of human
agency, rather than as contestable subjects that both the individual and society have a
moral obligation to inquire into and to judge.
The extent of this normative veiling is particularly apparent in the case law
concerning the contested defence of provocation. In shifting attention to the law of
provocation, I am not departing from the argument concerning duress. From the
perspective of modern criminal law doctrine, the conceptual core of the provocation
defence is the same: constraint on free will.47 Section 232 of the Criminal Code
requires a wrongful act or insult that is sufficient to deprive an ordinary person of the
power of self-control.48 In R. v. Thibert,49 the Court asserted that there are both
subjective and objective elements to the application of this test.50 Justice Cory,
speaking for the majority, explained the need for both objective and subjective
elements as an attempt to weigh in the balance those very human frailties which
sometimes lead people to act irrationally and impulsively against the need to protect
society by discouraging acts of homicidal violence.51 But what have passed for
legally cognizable constraints on free will under this voluntarist regime?
47 For the ubiquity of voluntarist accounts in the area of criminal defences, see Wilson, Central
Issues, supra note 17. Wilson writes: If we examine the full range of defences we see that each in its
own way represents a claim of involuntariness of action (ibid. at 113). See also Paul H. Robinson,
Should the Criminal Law Abandon the Actus Reus-Mens Rea Distinction? in Shute, Gardner &
Horder, supra note 32, 187. Robinson says:
[T]he voluntariness requirement is analogous to, indeed it is part of, the criminal laws
system of excuses. Both the voluntariness requirement and the excuse defences, such as
insanity, involuntary intoxication, and duress, hold a defendant blameless despite
criminal conduct, because that conduct is judged to be too much the product of forces
other than the defendants exercise of will. These exculpatory doctrines work upon a
continuum of volition, with the voluntariness requirement exculpating the most extreme
cases (ibid. at 197).
Compare K.J.M. Smith, Duress and Steadfastness: In Pursuit of the Unintelligible (1999) Crim. L.
Rev. 363. Smith writes: [D]uresss modern conceptualisation has been one predominantly based on
the incoherent notion of an overborne will (ibid. at 374).
48 Criminal Code, supra note 2, s. 232(2).
49 [1996] 1 S.C.R. 37, 131 D.L.R. (4th) 675 [Thibert cited to S.C.R.]. For an analysis of the role of
emotion in Thibert, see Reilly, supra note 28 at 140.
50 In Thibert, Cory J. writes:
[T]he wrongful act or insult must be one which could, in light of the past history of the
relationship between the accused and the deceased, deprive an ordinary person, of the
same age, and sex, and sharing with the accused such other factors as would give the
act or insult in question a special significance, of the power of self-control (ibid. at para.
19).
51 Ibid. at para. 4.
2006] B.L. BERGER LOSS OF JUDGMENT IN CANADIAN CRIMINAL DEFENCES 113
Consider the case of R. v. Fraser.52 In Fraser, the Alberta Court of Appeal
reviewed the adequacy of a trial judges self-instruction with respect to the law of
provocation. The court ordered a new trial, holding:
Had the learned trial Judge correctly directed himself on the law of
provocation, he may have found that the acts and words of the deceased were
sufficient to deprive the ordinary person of his self-control. Further, had he
properly directed himself, he would then have gone on to determine whether or
not the respondent had lost his self-control because of provocation.53
What were the underlying facts of the case? What was the basis for the accuseds
claim that his will was overborne by emotion and he should therefore be partially
excused? The accused was a young taxi driver who had driven the deceased to a
casino, gambled with this man, and then drove him home to the deceaseds apartment.
The deceased invited the accused up for a drink and, while in the apartment, allegedly
grabbed the accuseds crotch and made other sexual advances. The accused
bludgeoned the victim to death, then stole $140, and left the scene. The theory of the
defence was that the accused was subject to homosexual panic at the time and,
therefore, was deprived of his self-control.
By focusing narrowly on the question of self-control and the exercise of
unconstrained free will, the law directs the courts attention away from the underlying
normative question of whether we wish to accept this kind of emotional response to
homosexuality. Even if the accused was subject to homosexual panic, this emotional
response is conditioned by a homophobic social hierarchy whereby homosexuality is
base, dirty, or despicable. The structure of legal reasoning at worst affirms and at best
perpetuates a discriminatory and oppressive social hierarchy.54 Similar arguments
have been made with respect to the claims of overborne will that courts have accepted
with respect to male reactions to marital infidelity; claims that tend to perpetuate or
legitimate violence against women.55 The overarching point for the purposes of my
argument is that when any criminal defence is wedded to the descriptive idiom of
voluntariness, the law is condemned to be unresponsive to the need to interrogate
social norms and hierarchies for their fairness or legitimacy. Voluntariness treats the
human as acted upon by emotion, rather than an agent responsible for her emotional
reactions. In so doing, it pre-empts any normative evaluation of the emotional basis
52 (1980), 55 C.C.C. (2d) 503, 15 Alta. L.R. (2d) 25 (C.A.) [Fraser cited to C.C.C.].
53 Ibid. at 519.
54 See Kathleen Banks, The Homosexual Panic Defence in Canadian Criminal Law (1997) 1
C.R. (5th) 371. Banks writes:
A legally recognized defence theory based on the sexual orientation of the victim
wrongly re-directs the focus of the crime to the victim instead of the defendant,
suggesting that the victim is the author of his own misfortune. It also legitimates and
perpetuates paranoia of and violence against gay men and lesbians by implying that
extreme violence may be a justifiable response to a homosexual advance (ibid. at 378).
55 See Jeremy Horder, Provocation and Responsibility (Oxford: Clarendon Press, 1992) at 193-94.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
114
for action. This is the shadow cast by the new structure of criminal responsibility
announced in Ruzic.
[Vol. 51
III. What is the Alternative?
If these dangers are inherent in the moral involuntariness approach to criminal
defences, what is the alternative? The very difficulty of imagining another idiom
attests to the deep-seated legal disposition to excise considerations of social norms
and hierarchies from the criminal law. I have argued that the voluntarist account of
duress is thick on description but thin on judgment. It tells us that an individual has
been overcome by circumstantially evoked emotions and, therefore, that his set of
choices was constrained. It does not, however, pass judgment upon the legitimacy or
desirability of either those emotional reactions or the social structures and norms that
conditioned them. The linchpin of this theoretical orientation is a particular view of
emotions as forces that act upon the individual, with a resulting reaction. Ironically,
though the rhetoric of moral involuntariness places respect for the individual as an
autonomous and choosing being in the foreground,56 this view of agency is terribly
impoverished. A more satisfying account of human agency in the criminal lawone
that could bring judgment, in addition to explanation, to bear on individual acts
would have to question this descriptive approach to the role of emotion and make
emotion itself a participant in the choosing life of the autonomous actor.
The alternative lies in what Kahan and Nussbaum have called an evaluative
conception of emotion.57 An evaluative understanding of emotion treats emotions as
themselves sites for thought and reflection, rather than simply forces levelled upon
the individual. The mechanistic view of emotions sees emotions as forces that do not
contain or respond to thought58 and is, therefore, skeptical about both the coherence
of morally assessing emotions and the possibility of shaping and reshaping persons
emotional lives.59 In contrast, the evaluative conception holds that emotions express
cognitive appraisals, that these appraisals can themselves be morally evaluated, and
that persons (individually and collectively) can and should shape their emotions
through moral education.60 This is to say more than simply that emotions have a role
in decision making (though this insight is also significant). To view emotions in this
evaluative way involves recognizing that emotions are themselves always already
56 See Hart, supra note 25 at 49, 181. See also the text accompanying notes 26 and 27, above.
57 Kahan & Nussbaum, supra note 24 at 285. For a similar approach to the role of emotion in
criminal law, see Victoria Nourse, Passion’s Progress: Modern Law Reform and the Provocation
Defense (1997) 106 Yale L.J. 1331.
58 Kahan & Nussbaum, ibid. at 273.
59 Ibid.
60 Ibid. As Brian Rosebury has observed, albeit from a somewhat critical posture, this approach to
emotion in the criminal law invokes a far more ambitious conception of law as norm-enforcement, or
as a means for the moral reformation of the emotions of the masses (On Punishing Emotions
(2003) 16 Ratio Juris 37 at 42).
2006] B.L. BERGER LOSS OF JUDGMENT IN CANADIAN CRIMINAL DEFENCES 115
based in assessments of and judgments about the world. Emotions are, therefore,
themselves open to judgment.
This vision of emotions carries three implications essential to the argument in this
article: two conceptual and one juridical. The first conceptual implication is that
emotions involve thought on the part of the actor. Emotions are, as Nussbaum puts it,
intelligent.61 The kind of thought involved in emotions is a critical engagement with
the prevailing norms and social structures that suggest particular emotional responses.
Emotions are responses to thoughtful reflection on what is good or bad, high or low,
in the world around us.62 As a corollary, this view of thoughtful emotions includes the
idea that societal structures have something to do with the emotions that we feel.
Normative reflection and emotion cannot be meaningfully disaggregated. As such,
embedded in each emotion is a value-based commitment that is open to examination
and, potentially, condemnation. This point can be demonstrated by questioning a
hypothetical given by Rosebury, who critiques the evaluative view of emotion and
wants to distinguish between simple intentional emotions and emotionally charged
deliberative evaluations.63 He gives the example of someone who sincerely
dislike[s] manifestations of homosexual feeling … but still [has] formed no hostility
towards homosexuals:
judgement of
homosexuals.64 Yet this is precisely the division between emotion and reflection that
the evaluative view wants to resist. The sincere dislike to which Rosebury refers is
not a mysterious instinct, immune from explanation; rather, it is always explicable as
the product of some prior thoughtful reflection by the actor on the world as it is
presented to him. In this case, that evaluation has produced a form of homophobic
prejudice.
The second implication of the evaluative view of emotions, flowing directly from
this last point, is that emotions can be mistakenwe can err in our emotions. This
conclusion flies in the face not just of the mechanistic view of human agency, but of
the folksy wisdom peddled by the likes of Oprah and Dr. Phil who would tell us that
its not a matter of right and wrong, its about feelings. If emotions are a product of
our critical, if often less-than-conscious, reflection about the norms and assumptions
in the world around us, then we can fall into errorwe can be wrong in our emotions.
This means that emotions are, in fact, open to outside scrutiny and criticism; emotions
can be evaluated. As Kahan and Nussbaum explain, emotional error can manifest in
is, no deliberative
evaluative
that
61 Martha C. Nussbaum, Upheavals of Thought: The Intelligence of Emotions (Cambridge:
Cambridge University Press, 2003).
62 See Robert C. Solomon, The Passions (New York: Anchor Press, 1976): An emotion is a basic
judgment about our Selves and our place in our world, the projection of the values and ideals,
structures and mythologies, according to which we live and through which we experience our lives
(ibid. at 187). See also Robert C. Solomon, On Emotions as Judgments (1988) 25 American
Philosophical Quarterly 183.
63 Rosebury, supra note 60 at 45. Rather than adopting an evaluative view of emotion, Rosebury
would prefer to focus upon the degree of deliberative commitment to an action (ibid. at 52).
64 Ibid. at 46.
[Vol. 51
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
116
two ways. First, [s]ometimes emotions are inappropriate because the person was
simply wrong about what had happened, or about who was involved.65 So we might
interrogate the bases for anothers emotions to test them for informational error. But
the second kind of emotional error touches at the core of my argument: Sometimes
… our criticism of an emotion will focus on the value-appraisals themselves, or, we
might say … the value-facts.66 That is, we can critique emotions because we object to
the value judgments upon which they are based. The normative basis for the emotions
is abject and, therefore, the emotion ought to be condemned, not tolerated.
These two conclusionsthat emotions involve reflection or thought and that
emotions can be wrong, so are open to criticismgive rise to a third implication
particularly germane to the juridical context with which I am concerned. When the
law turns its attention to the human actions that flow from emotion, as is the case in
defences such as duress, it ought not to ignore the thoughtful element of emotions and
the possibility of value-errors. Indeed, this is the true moment of judgment. When
faced with a circumstance in which a person reacts to strong emotion, it is insufficient
to state simply that the individuals choice was constrained and, therefore, his conduct
was not morally voluntary. This approach dodges the difficult question. It is based on
a reductionistic view of both emotion and human agency. Most significantly, this
approach retreats from the moment of judgment. The evaluative view would require
the law to ask whether we accept the bases for this emotionwhether, in a case of
provocation, we accept the notion that homosexuals are to be feared more than
heterosexuals or whether, when it comes to duress, a threat to a loved one fairly
withdrew the accuseds responsibility to show respect and care for others.
There are two salutary effects of embracing an idiom based on this evaluative
view of emotions. By adopting a more judgmental approach to criminal defences,
the law would simply be more transparent and accurate. That is, the normative
foundations for our criminal law, and the bases upon which society will condemn or
exculpate, will be exposed to view, rather than hidden behind the veil of the
voluntarist account. Rather than hearing that the accused was acquitted because her
conduct was not morally voluntary, society would hear that the law recognized the
legitimate pull of the accuseds love for her daughter and fear that she would be
harmed, and so refused to blame her for a petty theft. But this effect is really just
ancillary to the principal benefit of an evaluative idiom, that is, an increased capacity
for law to engage changing social conditions and evolutions in communal norms. We
are far less able to identify the norms and status hierarchies implicitly at play in the
law of criminal defences when our vision is obscured by the opacity of moral
involuntariness. If they cannot be identified, they cannot be criticized, challenged, or
reformed. A more transparent idiom would allow debate and contestation on what we
understand to be desirable reactions to legitimate social norms. This is good. It is
65 Kahan & Nussbaum, supra note 24 at 287.
66 Ibid.
2006] B.L. BERGER LOSS OF JUDGMENT IN CANADIAN CRIMINAL DEFENCES 117
good because it allows the law to ferret out regressive social structures, and it is good
because it keeps the law sensitive to the evolution of social norms.
Indeed, this kind of legal change produced the triumph of recognizing that not all
cases of self-defence involve an imminent threat of harm and an immediate violent
repulse. In R. v. Lavallee,67 the Supreme Court of Canada first allowed evidence of
battered-women syndrome to help a jury understand why a woman might remain in
an abusive relationship and why her self-defending response might not look like that
of the stereotypical bar fight. In allowing this evidence, the Court was acknowledging
the need to reconfigure the way the law thought about domestic violence and the
reasonable person.68 The androcentric norms of defensive behaviour69 were
challenged because they did not take account of the realities faced by abused women.
Justice Wilson, writing for the majority, noted the role that the law had played in
perpetuating violence against women and shielding domestic violence from the
public eye. Although she acknowledged that the law had come some way in modern
times, she recognized the need for further change:
Fortunately, there has been a growing awareness in recent years that no
man has a right to abuse any woman under any circumstances. Legislative
initiatives designed to educate police, judicial officers and the public, as well as
more aggressive investigation and charging policies all signal a concerted effort
by the criminal justice system to take spousal abuse seriously. However, a
woman who comes before a judge or jury with the claim that she has been
battered and suggests that this may be a relevant factor in evaluating her
subsequent actions still faces the prospect of being condemned by popular
mythology about domestic violence. Either she was not as badly beaten as she
67 [1990] 1 S.C.R. 852, [1990] 4 W.W.R. 1 [Lavallee cited to S.C.R.].
68 See also R. v. Malott, [1998] 1 S.C.R. 123 at paras. 20, 28, 36, 155 D.L.R. (4th) 513, in which the
Court confirmed that psychiatric evidence was admissible to help a jury to appreciate the
reasonableness of an abused spouses view of her situation and her response.
69 Wilson J. writes:
Even accepting that a battered woman may be uniquely sensitized to danger from her
batterer, it may yet be contended that the law ought to require her to wait until the knife
is uplifted, the gun pointed or the fist clenched before her apprehension is deemed
reasonable. This would allegedly reduce the risk that the woman is mistaken in her fear,
although the law does not require her fear to be correct, only reasonable. In response to
this contention, I need only point to the observation made by Huband J.A. that the
evidence showed that when the appellant and Rust physically fought the appellant
invariably got the worst of it. I do not think it is an unwarranted generalization to say
that due to their size, strength, socialization and lack of training, women are typically
no match for men in hand-to-hand combat. The requirement imposed in Whynot that a
battered woman wait until the physical assault is underway before her apprehensions
can be validated in law would, in the words of an American court, be tantamount to
sentencing her to murder by instalment (Lavallee, supra note 67 at 883 [references
omitted]).
118
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 51
claims or she would have left the man long ago. Or, if she was battered that
severely, she must have stayed out of some masochistic enjoyment of it.70
The case of battered-women syndrome demonstrates the salutary impact that attention
to social norms and hierarchies can have on the law.71 All defences should be
amenable to this kind of evolution and social responsiveness. In my view, the Ruzic
approach limits the laws capacity to effect these kinds of changes precisely because
it submerges norms and social arrangements beneath the idiom of moral
involuntariness. Placated by a description of impaired volition, we are never
collectively forced to reflect upon the merits and quality of the evaluative basis for
the emotion.
I have argued that the idiom of moral involuntariness is inadequate because it
produces a kind of normative veiling. Indeed, the doctrine on the law of duress shows
that, despite itself, the law is engaged in an attenuated evaluation of the
reasonableness of emotions through its requirements of proportionality and the
absence of legal alternatives. Even the notion of a real choice has thick threads of
normative evaluation woven into it. What the law needs, then, is an idiom that
exposes the normative foundations of individual action for evaluation, contestation,
and reform. Such an idiom could not, by nature, be as formulaic as the mechanistic
voluntariness approach. I argue that another concept already familiar to Canadian
criminal jurisprudencethe notion of moral blamestrikes far closer to the mark.
I respectfully reject the Courts contention in Ruzic that moral blameworthiness is
established when the constituent elements of the offence are proven.72 Rather, I argue
that moral blame is the essence of a finding of criminal liability. Consider the
hypothetical, posed above, of the mother who, at the threat of serious harm to her
70 Ibid. at 872-73.
71 One must also, though, be conscious of the potentially regressive impacts of the Lavallee
decision, including the syndromization of womens experiences. In particular, the development of a
battered-women syndrome has been persuasively critiqued as perpetuating a view that women who
kill in justified response to domestic violence are deviant, rather than acting reasonably. On this point,
see Isabel Grant, The Syndromization of Womens Experience (1991) 25 U.B.C. L. Rev. 23;
Martha Shaffer, R. v. Lavallee: A Review Essay (1990) 22 Ottawa L. Rev. 607. For a compelling
critique of James Q. Wilsons book Moral Judgment: Does the Abuse Excuse Threaten Our Legal
System? (New York: Basic Books, 1997) [Wilson, Moral Judgment]; Victoria Nourse, The New
Normativity: The Abuse Excuse and the Resurgence of Judgment in the Criminal Law (1998) 50
Stan. L. Rev. 1435. Nourse argues that Wilsons resistance to defences like battered-women syndrome
is predicated on an unacknowledged divergence in normative commitments, rather than a genuine
distinction between this defence and those that Wilson calls traditional, like self-defence. See also
Wilson, Moral Judgment, ibid. at 58. (I have chosen to use the term battered-women, conscious of
the fact that the alternate term, battered-spouse, tends to obscure the highly gendered nature of the
violence involved. I am also, however, aware that this language poses a possible syndromizing
potential of the sort that I describe earlier in this note.)
72 Once the elements of the offence have been established, the accused can no longer be considered
blameless. This Court has never taken the concept of blamelessness any further than this initial finding
of guilt, nor should it in this case (Ruzic, supra note 1 at para. 41, LeBel J.).
2006] B.L. BERGER LOSS OF JUDGMENT IN CANADIAN CRIMINAL DEFENCES 119
child, steals a car. When the law exculpates this mother on the basis of duress, is
societys message (communicated through the criminal law) that we find this person
morally blameworthy, but that she is excused for the mechanistic reason of a
constraint on will? Surely not. We withhold blame of that mothers choice; it reflects
a legitimate emotional evaluation of the competing pulls of her love for her child and
the duty she owes others to respect their property. In this sense, John Gardners claim
that [t]he gist of an excuse … is precisely that the person with the excuse lived up to
our expectations73 is far more satisfying.
Without foreclosing the possibility of a preferable idiom,74 I therefore suggest that
the idiom of moral blameworthiness better achieves the evaluative goals for which I
have argued. Substituting the concept of blame is not a perfect solution. Its merit
lies, however, in the fact that it is an inherently evaluative concept. The conclusion
that one is worthy of blame is a conclusion always made by reference to a set of
normative standards. Intrinsically based as it is on value judgments, the conclusion
that someone is blameworthy invites the question why?, and the answer will always
be an evaluative one: the accused did something despicable, breached a social more,
et cetera. By contrast, when asked the question why?, one who concludes that
someone acted involuntarily can, as I have argued, respond simply and descriptively
that the individuals will was overborne by emotion. The idiom of blame better
orients discussion around our normative expectations for the person in the particular
situation, rather than relying on the nonevaluative and mechanistic vision of emotions
as inputs and actions as outputs. The trend in the doctrinal development of criminal
law defences should be to reintroduce meaningful and open judgment into the law of
criminal defences, with the ultimate goal of exposing social norms to debate and
progressive reform.
IV. Why the Pull to the Idiom of Moral Involuntariness?
This approach is not the one that the Supreme Court adopted, and it is not the
dominant one in Canadian criminal law. Free will, rational choice, and a mechanistic
understanding of emotion will now dominate the discourse surrounding criminal
defences. Duress will be available when the law concludes that we have lost our
agency, not that we legitimately acted out of love for ourselves or those close to us.
73 Gardner, supra note 37 at 578. Further on, Gardner explains:
The question is whether that person lived up to expectations in the normative sense. …
The character standards which are relevant to these and other excuses are not the
standards of our own characters, nor even the standards of most peoples characters, but
rather the standards to which our characters should, minimally, conform (ibid. at 579
[emphasis in original]).
74 Young evocatively argues that Sarah Lucia Hoaglands notion of intelligibility is a superior way
of speaking about judgment, as compared to the normal dichotomy of praise and blame. She
recognizes, however, that it does not offer a viable alternative mode of legal reasoning (supra note
35 at 91-92).
[Vol. 51
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
120
Provocation will still operate as a partial defence, with little reflection on the
privileging of anger as an excusing factor. Oddly, we will be entitled to act in self-
defence not because we are entitled to care for ourselves, but because our wills are
constrained.
I suspect that, at a fundamental level, most, including the members of the
judiciary, would view Marijana Ruzics act as excusable on the basis that we cannot
blame her for seeking to protect her mother by importing narcotics. If my suspicion is
correct, and the conceptual framework of moral involuntariness does not sit naturally
in our minds, a clear question arises: why has the Court so wholeheartedly embraced
this unintuitive idiom? I do not want to suggest that the Court was simply in error or
failed to see the tensions that this approach produced. I expect that the Court
struggled with these issues. Instead, the Courts embrace of the idiom of moral
involuntariness is better explained by the underlying liberal philosophical structures
evident in the Courts approach in Ruzic. This is, of course, not to assert that the
judges are self-consciously adopting a liberal theory of criminal defences. The
exercise here is not a psychological one of imputing subjective motivations to the
judges of the Supreme Court; rather, there is a conceptual architecture latent in the
doctrine, and what follows is an excavation and refining of this informing structure.
Otherwise put, the exercise is exegetical, not biographical. My argument is that this
latent theoretical apparatus exerts a strong centripetal pull towards mechanistic
idioms like moral involuntariness.
Liberal theory expresses a strong resistance to public moralizing. The public
sphere is supposed to be neutral with respect to conceptions of the good life. If
neutral, it can serve as a meeting ground for citizens with various conceptions of the
good life. Rawls classic articulation captures the aspiration well:
The aim of justice as fairness, then, is practical: it presents itself as a conception of
justice that may be shared by citizens as a basis of a reasoned, informed, and willing
political agreement. It expresses their shared and public political reason. But to attain
such a shared reason, the conception of justice should be, as far as possible,
independent of the opposing and conflicting philosophical and religious doctrines that
citizens affirm.75
Rather than morality and normative views of desirable social states of affairs, the
liberal public sphere is one predicated on reason, which can accomplish a kind of
overlapping consensus.76 It is not that the liberal vision denies the existence of these
kinds of values;77 rather, these values should not be engaged in the debate and
functioning of public institutions. The goal is a laudable one: to create a public space
in which everyone can find some normative resonance or at least no dissonance.
75 John Rawls, Political Liberalism (New York: Columbia University Press, 1996) at 9.
76 Ibid. at 11.
77 As an account of political values, a free-standing political conception does not deny there being
other values that apply, say, to the personal, the familial, and the associational; nor does it say that
political values are separate from, or discontinuous with, other values (ibid. at 10).
2006] B.L. BERGER LOSS OF JUDGMENT IN CANADIAN CRIMINAL DEFENCES 121
The aversion to public moralizing as an impediment to social consensus is
present wherever there are divergences in normative viewpoints. Yet this concern is,
arguably, particularly pressing in a society such as Canadas, marked by significant
ethnic and religious diversity. With all of its gifts, multiculturalism also produces
unique challenges for and pressures upon public institutions. If the goal is a public
sphere that can serve as a neutral meeting ground for all manner of personal, familial,
or associational commitments, multiculturalism poses a constant challenge to those
who design public institutions, such as politicians and judges, to reduce possible
points of dissonance provoked by the existence or appearance of a public morality.
The criminal law has been an active site for working out precisely this kind of
concern. The famous debate between Lord Patrick Devlin and H.L.A. Hart concerned
just this issue.78 As the most coercive and powerful engine of state social control, the
criminal law is the paradigmatic example of a social institution that liberal ideology
would seek to have elevated above the realm of public moralizing. From this liberal
viewpoint, there is no more pressing locus for overlapping consensus, no greater need
for a neutral meeting ground, than in the criminal law, which embodies the states
monopoly over legitimate violence against its own citizens. Herein lies the pull of
mechanistic idioms like moral involuntariness.
In his article The Secret Ambition of Deterrence, Dan Kahan considers the use
of deterrence arguments in the political discourse surrounding crime and risk
control.79 He shows that arguments centred on deterrence have little impact on
individuals views of contentious topics such as gun control, hate crimes, and capital
punishment. Why then, he asks, does political and legal rhetoric so consistently found
arguments on this ineffectual notion? The answer, he suggests, is that use of the idiom
of deterrence is a means by which the polity can avoid the inflamed contestation that
would be the result of engaging these issues on moral or normative grounds:
We resort to the culturally ecumenical idiom of deterrence to avoid a style of
public moralizing that principle, interest, and etiquette all condemn. In this way,
deterrence coolswith intermittent successan engine of debate that is pre-
disposed to run at a white hot temperature.80
Because it is centrally concerned with norms of behaviour,81 criminal law is an
engine of debate that is particularly disposed to this high-temperature engagement.
The sterilized idiom of deterrence allows the law to operate without risk of activating
an evaluative chain reaction among competing normative views that, in the liberal
imagination, could lead to a social meltdown.
78 See the discussions excerpted in Richard A. Wasserstrom, ed., Morality and the Law (Belmont:
Wadsworth Publishing, 1971) at 24-54.
79 Dan M. Kahan, The Secret Ambition of Deterrence (1999) 113 Harv. L. Rev. 413.
80 Ibid. at 477.
81 Kahan explains that [b]ecause it is commonly understood to express community values, criminal
law in particular is an important cue about what others believe (ibid. at 487 [footnotes omitted]).
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
122
A similar dynamic informs the use of the voluntarist idiom in criminal law
defences. A rhetorical focus on moral involuntariness has, thus, a potential functional
purpose. Informed by the liberal vision of what the public space should look like and
the need for consensus, the law can refrigerate the whole issue by speaking in the
mechanistic terms of moral involuntariness instead of inflaming the passions of the
populace on issues such as domestic violence, hierarchies of sexuality, and the
legitimacy of harming others to protect ones own. In many respects, this is the kind
of salutary subterfuge that Guido Calabresi and Philip Bobbitt argue occurs with the
delegation of tragic choice decisions to aresponsible agencies such as juries.82 I do
not suggest that this is necessarily a conscious decision on the part of legal decision
makers. Rather, the powerful influence of the liberal concern for consensus, the
intrinsically contested nature of the norms that animate the criminal law, and an
increasingly diverse and multicultural society all add up
this
understandable response. The idiom of moral involuntariness reflects a powerful, if
latent, liberal theoretical aversion to public moralizing. It also reflects a functional
concern to reduce social strife on issues involving contested normativity.
[Vol. 51
to produce
V. Why the Pull Should Be Resisted
I am not suggesting that the use of the framework of moral involuntariness is a
doctrinal oversight or mistake. I think, rather, that it is an understandable response
arising out of the convergence of an approach to law steeped in liberal premises and a
functional concern to minimize social dissensus. It may be understandable, I would
argue, but it is misguided for two reasons. First, it is founded on a particular (and
particularly thin) construction of the liberal state. Second, it underestimates the extent
to which normative messages are necessarily implicated in the criminal law and, as
such, is not expelling social conflict from the law, but simply covering it up in favour
of prevailing social structures.
Thoughtfully considered, the notion that the liberal public sphere should not
engage in value-discussions finds itself in tension with two strains of thought, both
aspects of the larger debate on what liberalism should be about. The first tension is
endogenous to classic liberal theory itself. Part of Rawls vision of political liberalism
is the centrality of the notion of a deliberative democracy. In his reply to Jrgen
Habermas, Rawls emphasizes that [t]he essential idea is that deliberative democracy,
and political liberalism also, limit relevant human interests to fundamental interests of
certain kinds, or to primary goods, and require that reasons be consistent with
82 Guido Calabresi & Philip Bobbitt, Tragic Choices, 1st ed. (New York: Norton, 1978) at 57.
Calabresi & Bobbitt argue that giving no reasons, [the jury] avoids, or at least mitigates, the conflict
between the wish to recognize differences and the desire to affirm egalitarianism in all its forms
(ibid.). But see Kahan & Nussbaum, supra note 24: The law is more likely to be just, we argue, when
decisionmakers are forced to take responsibility for their appraisals of wrongdoers emotions, and
when the public is allowed to see for itself the appraisals that its decisionmakers have made (ibid. at
274).
2006] B.L. BERGER LOSS OF JUDGMENT IN CANADIAN CRIMINAL DEFENCES 123
citizens mutual recognition as equals.83 So what deliberative democracy demands is
the reflective consideration of the extent to which public institutions reflect a crucial,
albeit thin, layer of fundamental political values, equality foremost among them.
Although Rawls commitment to a deliberative democracy is a restricted one
deliberation should take place with respect to publicly acceptable arguments and not
comprehensive doctrineshis position is suggestive of a more general argument. A
deliberative democracy requires that citizens contemplate and debate the nature and
content of public institutions such as the law. If, in an effort to achieve neutrality and
overlapping consensus, the idiom of moral involuntariness veils the normative
foundations of the criminal law, the essential building blocks for social deliberation
are taken off the table. Yet it ought to be the case in a credible liberal democracy that
people are actively deliberating about such issues. Is there not something odd about a
criminal law system that, embedded within a liberal atmosphere, hides from debate
the normative bases for assigning blame? Without such debate, the results are not the
reasoned and reasonable public decisions so valued by liberal theory. Overzealous
pursuit of consensus and neutrality by means of a mechanistic approach to emotions
and human agency in the criminal law undermines the equally essential deliberative
aspect of the liberal polity.
The second tension within the liberal vision that augurs well for the voluntarist
idiom is a more profound critique of the value of neutrality itself. This critique has
flowed most powerfully from the pen of Charles Taylor, who has argued for a
substantive, rather than procedural, understanding of the liberal project.84 Taylor has
suggested that, rather than a neutral meeting ground for all manner of private
normative commitments, [l]iberalism is not a possible meeting ground for all
cultures; it is the political expression of one range of cultures, and quite incompatible
with other ranges.85 Accordingly, liberalism cant and shouldnt claim complete
cultural neutrality. Liberalism is also a fighting creed.86 Taylor argues for a different
conception of liberalism altogether:
Id prefer to start off on another footing, and think of a liberal society as one
that is trying to realize in the highest possible degree certain goods or principles
of right. We might think of it as trying to maximize the goods of freedom and
collective self-rule, in conformity with rights founded on equality.87
If one adopts this more robust vision of the liberal project, the idiom of moral
involuntariness is a fantastic failure, albeit in pursuit of social harmony. It veils the
83 Rawls, supra note 75 at 430-31.
84 Charles Taylor, Philosophical Arguments (Cambridge: Harvard University Press, 1995) [Taylor,
Philosophical Arguments]. See Benjamin Berger, The Limits of Belief: Freedom of Religion,
Secularism, and the Liberal State (2002) 17:1 C.J.L.S. 39.
85 Charles Taylor, The Politics of Recognition in Philosophical Arguments, ibid., 225 at 249.
86 Ibid.
87 Charles Taylor, Liberal Politics and the Public Sphere in Philosophical Arguments, ibid., 257 at
258.
[Vol. 51
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
124
norms and hierarchies that are the appropriate focus for liberal reform. On this view,
far from being a faithful friend to it, the voluntarist approach to criminal law
frustrates the liberal project.
Both of these tensions internal to the conception of liberalism should provoke
some reconsideration of the legitimacy of the trend, common in the criminal law and
dramatically enacted in Ruzic, to veil norms behind sterilized idioms. Moreover, there
is a second objection to this pull, an objection that is even more disruptive of the
distaste for public moralizing and the desire to cool the passions of social contestation
over the power of the criminal law. Put simply, the objection is that public moralizing
is going on whether hidden behind the veil or not, and the temperature of normative
debate is still high. The idiom of moral involuntariness is not a cooling agent but an
oven mitt.
At the core of this objection is a plea to recognize the profound communicative
effects of the criminal law. Sociologist Joseph Gusfield has contributed substantially
to our appreciation of the symbolic impact of the law.88 Gusfield argues that, whatever
the result or rhetoric in a given instance, government actions (including courtroom
decisions) have profound communicative effects:
A governmental agents act may have symbolic import because it affects
the designation of public norms. The courtroom decision or the legislative act
often glorifies the values of one group and demeans those of another.
Government actions can be seen as ceremonial and ritual performances,
designating the content of public morality. Law is not only a means of social
control but also symbolizes the public affirmation of social ideals and norms.89
Even if the law speaks in sterilized, mechanistic terms, the pronouncement will have
an effect upon the social status of groups within society. To give an obvious example,
mitigating punishment on the basis of provocation when the basis for this claim is
homosexual panic sends a strong message to sexual minority groups that they are not
as valued as others. This is true even when homosexual panic is cast in terms of
constraints on will and lack of autonomous control. Thus, even if the effect of a
voluntarist idiom is to avoid ongoing debates about appropriate means of social
organization and which set of norms should guide the law, it must be recognized that
all lawincluding what James Wilson calls traditional defences90is a product of a
particular vision of what is good and bad, who is high and who is low in society. If
the mechanistic idiom will spare the majority from strife and discomfort, it will
meanwhile profoundly deprive new or minority groups within Canadian society of
88 Joseph R. Gusfield, On Legislating Morals: The Symbolic Process of Designating Deviance
(1968) 56 Cal. L. Rev. 54.
89 Ibid. at 57.
90 Wilson, Moral Judgment, supra note 71.
2006] B.L. BERGER LOSS OF JUDGMENT IN CANADIAN CRIMINAL DEFENCES 125
the laws affirming communicative force.91 In the result, there is no way out of the
drama of social hierarchies and normative competition. The criminal law always
operates with a view from somewhere.92
Drawing these two lines of critique together, the move towards nonevaluative
idioms is misguided for two reasons. First, it is predicated on a narrow view of
liberalism that fails to address those elements internal to liberalism that would
counsel a more evaluative approach. Second, however, even if the focus on liberal
neutrality could be defended, the voluntarist idioms failure to account for the
expressive power of the criminal laweven in its conservative silenceundermines
the approach. A sterile idiom is not neutral; its conservative momentum affirms the
status and norms of the historically powerful, while depriving the marginalized of the
affirming messages of the law.
What about an approach to criminal defencesindeed, to criminal liability at
largethat was more judgmental? Would an idiom more amenable to evaluating
the content and normative bases of emotions, rather than simply viewing them
mechanistically as forces acting on the individual, avoid these pitfalls? I think that it
would. It would accept that the criminal law is always speaking in the register of
norms and social recognition, and would seek to ensure that those expressions and
affirmations were consistent with fairness and equality. After all, this is what the
criminal trial comes down to in the end: a decision about whether we are prepared to
say that a person is or is not fairly blamed for the conduct in question.
I concede that a progressive idiom such as I propose would pose certain
challenges for our courts and even create certain risks. It is never easy to interrogate
our traditions, whether personal or juridical, because sometimes this inquiry will
reveal to us that we have been unfair or hurtful. Furthermore, the myth of value-
neutral judgment remains a powerful one. There will be portions of the political
community that have so internalized the seductive narrative of normless adjudication
that the embrace of a more transparent mode of judgment might place strain on their
sense of the judicial role. There is a risk that this portion of the community might
experience discomfort withor perhaps alienation fromthe criminal justice system.
There is one further risk: it is entirely possibleindeed, it is likelythat more
transparency in the emotions endorsed in our criminal law could, from time to time,
expose normative commitments that, although entirely inconsistent with progressive
ends, have the support of the majority of the populace. That is, we could expose
91 See Gusfield, supra note 88:
Affirmation through law and governmental acts expresses the public worth of one
subcultures norms relative to those of others, demonstrating which cultures have
legitimacy and public domination. Accordingly it enhances the social status of groups
carrying the affirmed culture and degrades groups carrying that which is condemned as
deviant (ibid. at 58).
92 See generally Thomas Nagel, The View from Nowhere (New York: Oxford University Press,
1986).
[Vol. 51
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
126
regressive, hurtful conceptions of legitimate and tolerable emotional judgments and
find that the community endorses them. Would I be bound to accept such an outcome
as a legitimate result of evaluative emotional reasoning?
My response to each of these concerns and criticisms involves its own brand of
transparency. I come to this discussion with certain presuppositions about the way
that the criminal law operates and with a set of partisan progressive commitments.
These criticisms only have force when one rejects these presumptions and
commitments. First, as I have explained, I assume that the choice is not between a
mechanistic idiom barren of normative commitments and an evaluative one that
introduces such judgments. Instead, the choice is between veiling value judgments
and exposing them. Second, my political view is that applying a veneer to these
normative foundations serves one segment of the political communitythose that
benefit from the status quo and for whom interrogation poses only the prospect of a
loss of privilegeand disadvantages the historically marginalized and subordinated.
Finally, my particular (admittedly partisan) progressive commitments lead to the
conclusion that any examination of the values and norms being expressed by the
criminal law must operate with a baseline assumption: whatever the criminal law is
expressing, it must be in the service of diversity, antisubordination, and equality.
Norms inconsistent with these baseline commitments are simply not tolerable aspects
of our legal culture and must not be given force by the criminal law. That is, what can
legitimately count as a basis for blame in the criminal law must be devoid of both
discriminatory reasoning (on the part of the justice system or the accused) and
subordinating effects. My assumption is that modern Canadian criminal law must be
involved in both reflection and prolepsis. Happily, this last point is supported by the
Canadian constitutional mandate to develop criminal common law and statute in
accordance with Charter values,93 which privilege precisely these principles.94
Conclusion
At the core of the argument I have advanced is the view that language matters in
the law. Language matters, on my account, because it can either draw us close to or
push us away from our normative commitments. Charles Taylor has argued that a
normative horizon is essential to human agency, that the horizons within which we
live our lives and which make sense of them have to include … strong qualitative
93 See e.g. R. v. Swain, [1991] 1 S.C.R. 933, 63 C.C.C. (3d) 481; Retail, Wholesale and Department
Store Union, Local 580 v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, 33 D.L.R. (4th) 174.
94 This point brings me rather close to Nourse, who argues that the criterion by which we ought to
interrogate emotions in the criminal law is whether or not the defendant appeals to the very emotions
to which the state appeals to rationalize its own use of violence (supra note 57 at 1338). Put
otherwise, the criminal laws judgment of emotions should be informed by the norms that we demand
that the law itself express. In Canada these commitments are to be found in Charter values, as
identified in our constitutional jurisprudence.
2006] B.L. BERGER LOSS OF JUDGMENT IN CANADIAN CRIMINAL DEFENCES 127
discriminations. 95 For Taylor, this is not a failing in the human condition that we
might one day overcome; it is not meant just as a contingently true psychological
fact about human beings, which could perhaps turn out one day not to hold for some
exceptional individual or new type, some superman of disengaged objectification.96
Rather, our ability to make meaning of the worldto make discriminations and
assessments and tell stories about our worldis not severable from our moral
frameworks:
You cannot help having recourse to these strongly valued goods for the
purposes of life: deliberating, judging situations, deciding how you feel about
people, and the like. The cannot help here is not like the inability to stop
blinking when someone waves a fist in your face, or your incapacity to contain
your irritation at Uncle George sucking his dentures, even though you know its
irrational. It means rather that you need these terms to make the best sense of
what youre doing.97
If reference to the normative is essential for the integrity of individuals, it must
also be essential to our institutions. The criminal law is, above all, concerned with
precisely the kinds of evaluations for which Taylor says we need reference to strongly
valued goods: deliberating, judging situations, deciding how [we] feel about people
…. This is why language is important. If we need this kind of reference to goodsto
the way we think the world should be and people should behaveto engage in the
act of judgment, it is language that will either impede or facilitate our access to these
normative evaluations. Language draws our values into explicit awareness and
creates a public space in which they can be examined, debated, admired, and
despised.98 Nowhere, I would argue, is this awareness more essential than in the
criminal law. It is through this institution that we most clearly stand in judgment of
one another and, if the good is essential to this act of judgment, then our language is
essentially important.99
In this view, the choice of idiom in a particular branch of the law is not merely a
stylistic matter or a question of clear communication, but the exercise of a choice. It is
not the choice of whether or not to reason through the criminal law on the basis of
normative commitments. I have argued that this is an unavoidable aspect of our
criminal law. There is no choice of this sort because there is no account of the reasons
that we choose to exculpate for crime (or, indeed, to presume to punish in the first
95 Charles Taylor, Sources of the Self: The Making of the Modern Identity (Cambridge: Cambridge
University Press, 1989) at 27.
96 Ibid.
97 Ibid. at 59.
98 Charles Taylor, Theories of Meaning in Charles Taylor, Philosophical Papers I: Human Agency
and Language (Cambridge: Cambridge University Press, 1985) 248 at 263.
99 See Henry M. Hart Jr., The Aims of the Criminal Law (1958) 23 Law & Contemp. Probs. 401.
Hart argues the essence of a crime is that [i]t is conduct which, if duly shown to have taken place,
will incur a formal and solemn pronouncement of the moral condemnation of the community (ibid. at
405).
[Vol. 51
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
128
place) that can truly excise judgments about the good and still make sense. Cast in the
particular, there is no amoral view of self-defence or duress. Rather, the choice is
whether to veil or to confront the social orderings and normative evaluations that
support our legal doctrines. The choice, then, is about whether we want to
acknowledge the judgmental aspect of our criminal law or whether we are prepared to
risk perpetuating negative states of affairs so that we can have the comfort of
linguistic placeholders that enjoy the appearance of a mechanistic certainty.
It is in this vein that I have argued that the idiom of moral involuntariness has
hidden dangers. Scholars have begun to critique the decision in Ruzic on doctrinal
grounds, and will no doubt continue to do so. There may be questions about whether
moral involuntariness is a precise enough idea to constitute a principle of
fundamental justice for the purposes of section 7 of the Charter, or whether this
concept will be unexpectedly disruptive to the criminal law. In this article, I too have
offered certain doctrinal critiques of the case. However, the purpose of this article has
been to draw attention to the ideological deficit that Ruzic represents. It is a deficit
that emerges in the space that the Courts chosen idiom opens up between criminal
liability and our normative evaluations. It is a deficit that is not limited to the defence
of duress or, for that matter, to the criminal law; rather, it appears wherever legal tests
occupy the space of judgment and mechanistic language displaces human agency.
Wherever it appears, I suggest that it is a deficit with the potential to distract our
attention from regressive social hierarchies and normative commitments and, as such,
with the potential to impede the justice and fairness of the law. I have suggested that,
in the context of the criminal law, the language of moral blame is to be preferred
over that of moral involuntariness. Whatever the preferred idiom, what is needed
instead is a way of speaking about human choice in the law that focuses attention
onrather than veilingthe normative quality of the emotions that inform the
decisions that people make.
I recognize that there is a kind of historical irony in the argument that I present.
The morality side of the law and morality debate was not associated with exactly
progressive ends. Famously, Lord Devlins position in his exchange with H.L.A. Hart
was built on support for laws that would marginalize homosexual members of our
community. And there can be little doubt that voluntarist, mechanistic, or otherwise
sterilizing language takes these kinds of arguments off the table. So perhaps my
desire to have more on the table would see me dining with the Devil. In the end,
however, I suppose I am arguing that it is betterand saferto be able to look him in
the face than to be consigned to wonder where in the house he may be.
