Moral involuntariness as a principle of excusing conditions : subtitle what's choice got to do with it?
University of British Columbia
Master of Laws - LLM
The Supreme Court of Canada decision in R. v. Ruzic (2001) formulates a new principle of fundamental justice under section 7 of the Charter. This new principle of fundamental justice holds that notwithstanding that a person committed a crime with the required guilty state of mind, they must not punished if their actions were "morally involuntary", that is to say if their acts were not the "product of a free will ... unhindered by external constraints". This principle relates to defences based on external circumstances. As a constitutional principle, it may result in the redefinition of existing defences such as necessity, duress and self-defence, and may also lead to the development of new defences. This thesis will examine the principle of moral involuntariness and evaluate its adequacy. The inquiry begins with a review of the philosophical underpinnings of the concept of responsibility, which brings to the fore notions such as freedom of the will. I will then review the theoretical basis for responsibility under the criminal law, the dominant theory of which considers the notion of choice to be fundamental. I ultimately conclude that the principle of moral involuntariness as developed by the Court is inadequate. It leads to many unanswered questions about how to measure choice and how to determine which kinds of external factors interfere with choice and which do not. Further, it does not appropriately or effectively capture the true nature of the inquiry into external excuses. When individuals are excused for committing a crime on the basis of the surrounding circumstances, it is not truly on the ground that they were deprived of a realistic choice about what to do. Choice is possible, although admittedly difficult, and the real basis of excuse is the value of the choice made. This means that a moral evaluation of the situation and the available options must be made. However, choice theory cannot accommodate this evaluation because it is based on an objective, morally neutral assessment of the possibilities and the circumstances. This approach camouflages the normative evaluation and thereby frustrates the responsibility inquiry.
Law, Peter A. Allard School of