Justice Lebel on Excuses and the Question of Standing

Abstract

This article, written in honour of Justice Louis LeBel on the occasion of his retirement from the Supreme Court of Canada, considers the rationale for excuses in general and duress specifically. It commends Justice LeBel for his principled rejection of an older way of thinking about excuses. He rejects, first, Parliament’s claim to be entitled to set the terms of excuses as they would like. He insists that the structure of excuses is a constitutional question that constrain the jurisdiction of Parliament. And second, he rejects the suggestion that the state may make demands of citizens (to refrain from acting to protect themselves) without carrying out certain basic duties of protection. I conclude, however, by suggesting that Justice LeBel has not followed through fully on the logic of his decisions. Excuses do not concern concessions to human frailty; rather, they concern a recognition that the state’s standing to judge is limited by its own failures to carry out its duties toward those who are subject to its power. Excuses, it turns out, are fundamental aspects of the rule of law.

Keywords: excuses, duress, Supreme Court of Canada, Justice LeBel, rule of law