R. v. Ruzic, 2001 SCC 24, [2001] 1 SCR 687

R. v. Ruzic, [2001] 1 S.C.R. 687, 2001 SCC 24

Her Majesty The Queen                                                                   Appellant

v.

Marijana Ruzic            Respondent

and

The Attorney General for Ontario,

the Canadian Council of Churches and

the Canadian Council for Refugees                                                  Interveners

Indexed as:  R. v. Ruzic

Neutral citation:  2001 SCC 24.

File No.:  26930.

2000:  June 13; 2001:  April 20.

Present:  McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for ontario

Constitutional law – Charter of Rights  – Fundamental justice – Criminal Code  providing for defence of compulsion by threats -- Provision requiring that threat  be of immediate death or bodily harm from a person who is present when offence is committed -- Whether immediacy and presence requirements of provision infringe principles of fundamental justice -- If so, whether infringement justifiable -- Canadian Charter of Rights and Freedoms, ss. 1 , 7  – Criminal Code, R.S.C. 1985, c. C-46, s. 17 .

Criminal law – Defences – Duress – Criminal Code  providing for defence of compulsion by threats -- Provision requiring that threat must be of immediate death or bodily harm from a person who is present when offence is committed -- Whether trial judge right in allowing common law defence of duress to go to jury – Whether trial judge adequately instructed jury on defence – Criminal Code, R.S.C. 1985, c. C-46, s. 17 .

The accused was tried before a judge and jury on charges of unlawfully importing two kilograms of heroin into Canada, contrary to s. 5(1) of the Narcotic Control Act, and of possession and use of a false passport contrary to s. 368  of the Criminal Code .  The accused admitted having committed both offences but claimed that she was then acting under duress and should thus be relieved from any criminal liability.  She testified that a man in Belgrade, where she lived in an apartment with her mother, had threatened to harm her mother unless she brought the heroin to Canada.  She also said that she did not seek police protection because she believed the police in Belgrade were corrupt and would do nothing to assist her.  The accused conceded that her claim of duress did not meet the immediacy and presence requirements of s. 17 of the Code, which provides a defence for 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”.  She successfully challenged the constitutionality of s. 17  under s. 7  of the Canadian Charter of Rights and Freedoms , raised the common law defence of duress and was acquitted.  The Crown appealed the acquittal on the charge of importing heroin, but the Court of Appeal dismissed the appeal.

Held:  The appeal should be dismissed.

Subject to constitutional review, Parliament retains the power to restrict access to a criminal defence or to remove it altogether.  The question for the courts is whether restricting the defence accords with Charter  rights.  Statutory defences are not owed special deference by reviewing courts.  Determining when to absolve a person for otherwise criminal behaviour is a value-laden exercise, but statutory defences do not warrant more deference simply because they are the product of difficult moral judgments.

Although moral involuntariness does not negate the actus reus or mens rea of an offence, it is a principle which, like physical involuntariness, deserves protection under s. 7  of the Charter .  It is a principle of fundamental justice that only voluntary conduct – behaviour that is the product of a free will and controlled body, unhindered by external constraints – should attract the penalty and stigma of criminal liability.  Depriving a person of liberty and branding him or her with the stigma of criminal liability would infringe the principles of fundamental justice if the person did not have any realistic choice.

Section 17 of the Code breaches s. 7  of the Charter  because it allows individuals who acted involuntarily to be declared criminally liable.  The section limits the defence of duress to a person who is compelled to commit an offence under threats of immediate death or bodily harm from a person who is present when the offence is committed.  The plain meaning of s. 17  is quite restrictive in scope.  The phrase “present when the offence is committed”, coupled with the immediacy criterion, indicates that the person issuing the threat must be either at the scene of the crime or at whatever other location is necessary to make good on the threat without delay should the accused resist.  Practically speaking, a threat of harm will seldom qualify as immediate if the threatener is not physically present at the scene of the crime.  The immediacy and presence requirements, taken together, clearly preclude threats of future harm.  While s. 17 may capture threats to third parties, the immediacy and presence criteria continue to impose considerable obstacles to relying on the defence in hostage or other third party situations.  The underinclusiveness of s. 17  infringes s. 7  of the Charter .  The Crown made no attempt before this Court to justify the immediacy and presence criteria according to the s. 1  analysis and has therefore failed to satisfy its onus under s. 1 .  In any event,  the criteria would likely not meet the proportionality branch of the s. 1  analysis.  In particular, these requirements seemingly do not minimally impair the accused’s s. 7  rights.

The common law defence of duress was never completely superseded by s. 17 of the Code, and remains available to parties to an offence.  The common law defence has freed itself from the constraints of immediacy and presence and thus appears more consonant with the values of the Charter .  The common law of duress, as restated by this Court in Hibbert,  recognizes that an accused in a situation of duress not only enjoys rights, but also has obligations towards others and society.  As a fellow human being, the accused remains subject to a basic duty to adjust  his or her conduct to the importance and nature of the threat.  The law includes a requirement of proportionality between the threat and the criminal act to be executed, measured on the objective-subjective standard of the reasonable person similarly situated.  The accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat.  The threat must be to the personal integrity of the person.  In addition, it must deprive the accused of any safe avenue of escape in the eyes of a reasonable person, similarly situated.

The Court of Appeal and the trial judge were right in allowing the common law defence of duress to go to the jury, and the trial judge adequately instructed the jury on the defence.  In the future, when the common law defence of duress is raised, the trial judge should instruct the jury clearly on the components of this defence including the need for a close temporal connection between the threat and the harm threatened.  The jury’s attention should also be drawn to the need for the application of an objective-subjective assessment of the safe avenue of escape test.  Nevertheless, the trial judge’s charge, viewed in its entirety, contained all the elements required by the common law rules on duress.  The criterion of the safe avenue of escape was well explained as was the objective component of this test.  The law does not require an accused to seek the official protection of police in all cases.  The requirement of objectivity must itself take into consideration the special circumstances in which the accused found herself as well as her perception of them.  The trial judge drew the jury’s attention both to that objective component and to the subjective elements of the defence.  As to the immediacy of the threat, the trial judge brought home to the jury the fact that the threat had to be a real threat affecting the accused at the time of the offence.  This instruction at least implied that the jury had to consider the temporal connection between the threat and the harm threatened, although it would have been preferable to say so in so many express words.  There was no misdirection either on the burden of proof.  The accused must certainly raise the defence and introduce some evidence about it.  Once this is done, the burden of proof shifts to the Crown under the general rule of criminal evidence.  It must be shown, beyond a reasonable doubt, that the accused did not act under duress.

Cases Cited

Distinguished:  R. v. Finta, [1994] 1 S.C.R. 701; R. v. Penno, [1990] 2 S.C.R. 865; referred to: R. v. Parris (1992), 11 C.R.R. (2d) 376; R. v. Langlois, [1993] R.J.Q. 675; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Vriend v. Alberta, [1998] 1 S.C.R. 493; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Seaboyer, [1991] 2 S.C.R. 577; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Perka v. The Queen, [1984] 2 S.C.R. 232; R. v. Hibbert, [1995] 2 S.C.R. 973; Bergstrom v. The Queen, [1981] 1 S.C.R. 539; R. v. Daviault, [1994] 3 S.C.R. 63; R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. DeSousa, [1992] 2 S.C.R. 944; R. v. Chaulk, [1990] 3 S.C.R. 1303; Rabey v. The Queen, [1980] 2 S.C.R. 513; R. v. Parks, [1992] 2 S.C.R. 871; R. v. Stone, [1999] 2 S.C.R. 290; R. v. Carker, [1967] S.C.R. 114; Paquette v. The Queen, [1977] 2 S.C.R. 189; R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1; R. v. Martin, [1989] 1 All E.R. 652; R. v. Abdul-Hussain, [1998] E.W.J. No. 4183 (QL); Re A (Children) (Siamese Twins Decision), [2000] E.W.J. No. 4875 (QL); R. v. Howe, [1987] 1 All E.R. 771; R. v. Gotts, [1992] 1 All E.R. 832; Lynch v. Director of Public Prosecutions for Northern Ireland, [1975] 1 All E.R. 913; R. v. Lewis (1992), 96 Cr. App. R. 412; R. v. Heath, [1999] E.W.J. No. 5092 (QL); R. v. Graham, [1982] 1 All E.R. 801; R. v. Hudson, [1971] 2 Q.B. 202; R. v. Hurley and Murray, [1967] V.R. 526; R. v. McCafferty, [1974] 1 N.S.W.L.R. 89; R. v. Dawson, [1978] V.R. 536; R. v. Abusafiah (1991), 24 N.S.W.L.R. 531; R. v. Palazoff (1986), 43 S.A.S.R. 99; R. v. Lawrence, [1980] 1 N.S.W.L.R. 122; R. v. Brown (1986), 43 S.A.S.R. 33; R. v. Williamson, [1972] 2 N.S.W.L.R. 281; Osborne v. Goddard (1978), 21 A.L.R. 189; United States v. Jennell, 749 F.2d 1302 (1984); United States v. Contento-Pachon, 723 F.2d 691 (1984); United States v. Marenghi, 893 F. Supp. 85 (1995); Esquibel v. State, 576 P.2d 1129 (1978); People v. Harmon, 232 N.W.2d 187 (1975); State v. Toscano, 378 A.2d 755 (1977); Rhode Island Recreation Center v. Aetna Casualty & Surety Co., 177 F.2d 603 (1949); New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46;  R. v. Heywood, [1994] 3 S.C.R. 761.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 24 .

Constitution Act, 1982, s. 52 .

Criminal Code, R.S.C. 1985, c. C-46, ss. 8(3) , 17  [am. c. 27 (1st Supp.), s. 40(2)  (Sch. I, item 1)], 368.

Narcotic Control Act, R.S.C. 1985, c. N-1 [rep. 1996, c. 19, s. 94], s. 5(1).

Authors Cited

Côté, Pierre-André.  The Interpretation of Legislation in Canada, 3rd ed.  Scarborough, Ont.:  Carswell, 2000.

Côté-Harper, Gisèle, Pierre Rainville et Jean Turgeon.  Traité de droit pénal canadien, 4^e éd.  Cowansville, Qué.:  Yvon Blais, 1998.

Findlay, Mark, Stephen Odgers and Stanley Yeo.  Australian Criminal Justice, 2nd ed.  Melbourne:  Oxford University Press, 1999.

Fletcher, George P.  Rethinking Criminal Law.  Boston:  Little, Brown, 1978.

Gillies, Peter.  Criminal Law, 4th ed.  Sydney:  LBC Information Services, 1997.

Hall, Jerome.  General Principles of Criminal Law, 2nd ed.  Indianapolis:  Bobbs‑Merrill, 1960.

Klimchuk, Dennis.  “Moral Innocence, Normative Involuntariness, and Fundamental Justice” (1998), 18 C.R. (5th) 96.

LaFave, Wayne R., and Austin W. Scott, Jr.  Substantive Criminal Law, vol. 1.  St. Paul, Minn.:  West Publishing, 1986.

O’Connor, Desmond, and Paul A. Fairall.  Criminal Defences, 3rd ed.  Sydney:  Butterworths, 1996.

Parent, Hugues.  “Histoire de l’acte volontaire en droit pénal anglais et canadien” (2000), 45 McGill L.J. 975.

Parent, Hugues.  Responsabilité pénale et troubles mentaux:  Histoire de la folie en droit pénal français, anglais et canadien.  Cowansville, Qué.:  Yvon Blais, 1999.

Shaffer, Martha.  “Scrutinizing Duress:  The Constitutional Validity of Section 17  of the Criminal Code ” (1998), 40 Crim. L.Q. 444.

Smith, Sir John.  Smith & Hogan: Criminal Law, 9th ed.  London:  Butterworths, 1999.

Sullivan, Ruth.  Driedger on the Construction of Statutes, 3rd ed.  Toronto: Butterworths, 1994.

APPEAL from a judgment of the Ontario Court of Appeal (1998), 41 O.R. (3d) 1, 164 D.L.R. (4th) 358, 112 O.A.C. 201, 128 C.C.C. (3d) 97, 18 C.R. (5th) 58, 55 C.R.R. (2d) 85, [1998] O.J. No. 3415 (QL), addendum reported at 41 O.R. (3d) 39, 165 D.L.R. (4th) 574, 115 O.A.C. 361, 128 C.C.C. (3d) 481, [1998] O.J. No. 4732 (QL), dismissing the Crown’s appeal from the accused’s acquittal on a charge of unlawful importation of heroin.  Appeal dismissed.

Croft Michaelson and Morris Pistyner, for the appellant.

Frank Addario and Leslie Pringle, for the respondent.

Gary T. Trotter and John McInnes, for the intervener the Attorney General for Ontario.

Marlys Edwardh and Jill Copeland, for the interveners the Canadian Council of Churches and the Canadian Council for Refugees.

The judgment of the Court was delivered by

1                    LeBel J. – On April 29, 1994 Marijana Ruzic, a Yugoslav citizen, landed at Pearson Airport in Toronto carrying two kilograms of heroin strapped to her body and a false Austrian passport.  When the heroin was found on her, she was arrested, charged and tried for possession and use of a false passport and unlawful importation of narcotics.  At trial, Ruzic successfully challenged the constitutionality of s. 17  of the Criminal Code, R.S.C. 1985, c. C-46 , raised the common law defence of duress and was acquitted by a jury.  The Crown appealed the acquittal without success to the Ontario Court of Appeal.  This appeal now raises, as a core issue, the constitutional validity, under s. 7 of the Canadian Charter of Rights and Freedom, of s. 17  of the Criminal Code  and more precisely of some of the conditions restricting the admissibility of the defence of duress.  For reasons differing in part from those of the Court of Appeal, I will suggest that s. 17  of the Criminal Code  be declared unconstitutional in part, that the acquittal of the respondent Ruzic be upheld and that the appeal be dismissed.

I.   Facts

2                    The respondent Marijana Ruzic was born in Belgrade in the former Yugoslavia.  She was 21 years old when she entered Canada.  When heroin was discovered on her, she was charged with three offences, two of which proceeded to trial:  possession and use of a false passport contrary to s. 368  of the Criminal Code , and unlawful importation of a narcotic contrary to s. 5(1) of the Narcotic Control Act, R.S.C. 1985, c. N-1.

3                    Ms. Ruzic admitted having committed both offences but claimed that she was then acting under duress and should thus be relieved from any criminal liability.  She testified that, two months before her arrival in Canada, a man named Mirko Mirkovic approached her while she was walking her dog in the streets of Belgrade, where she lived in an apartment with her mother.  She described him as a “warrior” and believed he was paid to kill people in the war.  An expert witness testified at trial that, in 1994, large paramilitary groups roamed Belgrade and engaged in criminal and mafia-like activities.  The same expert maintained that people living in Belgrade during that period did not feel safe.  They believed the police could not be trusted.  There was a real sense that the rule of law had broken down.

4                    From there began a series of encounters between Mirkovic and the respondent while she was walking her dog.  Each time he approached her, he knew more about her, although she had shared no details of her life with him.  He phoned her at home.  He told her he knew her every move.  Ms. Ruzic alleged that his behaviour became more and more intimidating, escalating to threats and acts of physical violence.  On one occasion, he burned her arm with a lighter.  On another, he stuck a syringe into her arm and injected her with a substance that smelled like heroin and made her nauseous.  She indicated that these physical assaults were coupled with sexual harassment and finally threats against her mother.

5                    On April 25, 1994, Mirkovic phoned the respondent and instructed her to pack a bag and meet him at a hotel in central Belgrade.  Once there, he allegedly strapped three packages of heroin to her body and indicated that she was to take them to a restaurant in Toronto.  He gave her the false passport, a bus ticket from Belgrade to Budapest and some money.  He told her to fly from Budapest to Athens, and then from Athens to Toronto.  When she protested, he warned her that, if she failed to comply, he would harm her mother.

6                    Ms. Ruzic arrived in Budapest on April 26.  Late that evening, she boarded a plane to Athens, where she arrived early the next day.  She then purchased a ticket to Toronto.  She missed that flight, exchanged her ticket for the next available flight, and left for Toronto two days later, on April 29.

7                    During the two months prior to her journey to Canada, Ms. Ruzic testified that she did not tell her mother or anyone else about Mirkovic.  She was afraid he would harm whoever she told.  She did not seek police protection because she believed the police in Belgrade were corrupt and would do nothing to assist her.  She maintained that she followed Mirkovic’s instructions out of fear for her mother’s safety.  She made no attempt while in Budapest or Athens to seek the assistance of police or other government officials.  Similarly, before her arrest, she did not ask any Canadian authorities for help.  She asserted that she believed the only way she could protect her mother was to obey Mirkovic’s orders. 

II.   Constitutional and Statutory Provisions

8                    Canadian Charter of Rights and Freedoms 

1.  The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

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.

Criminal Code, R.S.C. 1985, c. C-46 

8. . . .

(3)  Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.

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).

III.    Judicial History

A.        Ontario Court (General Division)

9                    Ms. Ruzic was tried before Herold J. and a jury.  Her main line of defence was that she acted under duress.  She conceded that her claim of duress did not meet the immediacy and presence requirements of s. 17  of the Criminal Code .  Mirkovic’s threats were not of “immediate” death or bodily harm and he was not “present” when she committed the offence.  Furthermore, the threats were directed at her mother.  She accordingly challenged the constitutionality of s. 17  under s. 7  of the Charter , in order to raise the common law defence of duress that, in her mind, did not incorporate the requirements of immediacy and presence.

10                Herold  J. accepted her submissions, holding that s. 17  of the Criminal Code  infringes s. 7  of the Charter  and cannot be justified under s. 1 .  Rather than setting out the grounds for his conclusion in any detail, he adopted the reasoning of two previous judgments in which s. 17  was found unconstitutional: R. v. Parris (1992), 11 C.R.R. (2d) 376 (Ont. Ct. (Gen. Div.)), per Thomas J., and R. v. Langlois, [1993]  R.J.Q. 675 (C.A.), per Fish J.A.  He then instructed the jury on the common law defence of duress, which is preserved by virtue of s. 8(3)  of the Criminal Code .  The jury acquitted Ms. Ruzic on both charges.  The Crown appealed the acquittal on the charge of importing heroin to the Court of Appeal for Ontario.

B.         Ontario Court of Appeal (1998), 41 O.R. (3d) 1

11                Writing for the Court of Appeal, Laskin J.A. upheld the trial judge’s finding that the immediacy and presence requirements in s. 17  infringe s. 7  of the Charter .  First, he maintained that it would violate the principles of fundamental justice to convict a person whose actions are morally involuntary.  He held that this Court in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, and subsequent cases had recognized, as a principle of fundamental justice, the requirement that the morally blameless should not be punished.  He likened moral voluntariness to moral blameworthiness.  Those who act in a morally involuntary fashion, he stated, are not morally blameworthy for what they do.  It follows that it would be contrary to s. 7  of the Charter  to attach criminal liability to their conduct.  In the alternative, he found such similarity between moral blamelessness and moral involuntariness that it would be as unfair to punish morally involuntary conduct as it would be unjust to punish morally blameless behavior.

12                Second, Laskin J.A. held that the immediacy and presence restrictions in s. 17  are poor measures of moral voluntariness.  They deny access to the defence to an accused who is threatened with future injury.  In addition, they render the defence unavailable to persons whose family members are the target of the threatened harm.  As he explained at p. 32:

The underlying problem with the immediacy and presence restrictions is that they do not adequately capture all morally involuntary conduct.  Perka and Hibbert hold that the essence of involuntary conduct is the absence of a realistic choice or a safe avenue of escape.  The mother whose child is abducted, or Mr. Langlois whose family is threatened, or Ms. Ruzic who lives where the police cannot help her or her mother, or the battered spouse who cannot leave her abusive relationship, do not have a realistic choice but to commit a criminal offence, even though the threatened harm is not immediate and the threatener is not present when the offence is committed.

He concluded that the immediacy and presence requirements contravene s. 7  of the Charter  because they permit the conviction of persons whose conduct is morally involuntary.

13                Laskin J.A. also endorsed an alternative basis for finding that s. 17  violates s. 7 .  It is that the immediacy and presence restrictions risk punishing persons contrary to the principle of fundamental justice that the deprivation of a right must not be arbitrary or unfair.  In his view, these criteria conflict with Parliament’s purpose in providing the defence in the first place, which is to excuse acts that are morally involuntary.

14                Third, Laskin J.A. held that the violation of s. 7  was not saved by s. 1 .  He specified three reasons for so finding: the appellant made no submissions regarding s. 1 ,  there are no decisions of this Court in which a breach of s. 7  has been justified, and the immediacy and presence requirements in s. 17  do not satisfy the proportionality component of the s. 1  analysis.  He declared s. 17 of no force or effect to the extent that it prevents an accused from relying on the common law defence of duress.  He then added that this declaration applied only to those offences not listed in s. 17  as an excluded offence.

15                Last, Laskin J.A. concluded that Herold J. did not misdirect the jury on the elements of the common law defence of duress.  The trial judge was not required to use the word “immediate” or “imminent” in his explanation of that defence.  The operative test was whether the accused had a safe avenue of escape, assessed on a reasonableness standard taking into account the personal circumstances of the accused.  While the trial judge might have described the objective nature of the standard more clearly, Laskin J.A. surmised that his instructions, on this question, did not amount to a reversible error.

IV.   Issues

16                Lamer C.J. stated the following constitutional questions: 

1.         Do the requirements in s. 17  of the Criminal Code, R.S.C. 1985, c. C-46 , that a threat must be of immediate death or bodily harm and from a person who is present when the offence is committed infringe the rights of an accused person as guaranteed by s. 7  of the Canadian Charter of Rights and Freedoms ?

2.         If the answer to Question 1 is yes, is the said infringement of the s. 7  rights a reasonable limit that can be demonstrably justified under s. 1  of the Canadian Charter of Rights and Freedoms ?

3.         Does s. 17 of the Criminal Code, R.S.C. 1985, c. C-46 , infringe the rights of an accused person as guaranteed by s. 7  of the Canadian Charter of Rights and Freedoms  by precluding access to the defence of duress where the threat is to a third party?

4.         If the answer to Question 3 is yes, is the said infringement of the s. 7  rights a reasonable limit that can be demonstrably justified under s. 1  of the Canadian Charter of Rights and Freedoms ?

17                The first and central question before us is thus framed in the same way that it was in the courts below: do the immediacy and presence requirements in s. 17  of the Criminal Code  infringe s. 7  of the Charter , and, if so, can they be justified under s. 1 ?  This question raises several subsidiary matters:

--         Are statutory defences owed special deference by reviewing courts?

--         Is it a principle of fundamental justice that only morally voluntary conduct can attract criminal liability?

--         Do the immediacy and presence requirements in s. 17  infringe this principle?  Is a broader interpretation of s. 17  possible as argued by the appellant, in order to avoid a declaration of unconstitutionality?

–          What can the common law tell us on the defence of duress?

–          If there is a violation of s. 7 , can it be justified under s. 1 ?

--         As an alternative question, do the immediacy and presence requirements in s. 17  infringe the principle that constitutional rights should not be restricted in a manner that is arbitrary or unfair?

18                At issue also is whether s. 17  of the Criminal Code  infringes s. 7  of the Charter  by precluding access to the defence of duress where the threatened harm is directed not at the accused, but at a third party.  The appellant puts forth a third issue, which is whether the trial judge’s exposition of the common law defence of duress to the jury was defective.

19                Before examining each issue, it should be noted that s. 17  of the Criminal Code  places another restriction on the defence.  It lists 22 offences, ranging from murder and sexual assault to less serious crimes such as robbery and arson, which are excluded from the scope of the defence.  Importation of narcotics, and possession and use of a false passport, do not appear on this list.  Thus, this appeal does not concern the constitutional validity of the list of excluded offences.

V.   Analysis

A.      Are Statutory Defences Owed Special Deference by Reviewing Courts?

20                The appellant argued in the Court below that statutory defences are not subject to Charter  scrutiny.  Laskin J.A. rejected this submission.  The argument was recast somewhat before this Court.  At the hearing, the appellant now appeared to concede that the scope of s. 17  is susceptible to Charter  review, but maintained that the courts should assume a posture of deference when undertaking such an assessment.  The prosecution contends it belongs to Parliament to decide when otherwise criminal conduct should be excused, because determining who can rely on the statutory defence of duress and in what circumstances is an inherently policy-driven exercise.  The appellant asserts that the legislature is best placed to determine what constitutes “morally involuntary” conduct for the purpose of invoking s. 17 , given the difficult value judgments involved in defining duress.  The appellant submits that the appropriate standard of review would restrict courts to consider simply whether the restrictions on the defence are irrational or arbitrary.  As a corollary of its approach, the Crown did not seek to justify s. 17  under s. 1  of the Charter .  Before the Court, it argued rather that, if properly construed, s. 17  would not even infringe the Charter .

21                It bears emphasizing that a statutory defence, like any other legislative provision, is not immune from Charter  scrutiny.  Section 24  of the Charter  and s. 52  of the Constitution Act, 1982  command the judiciary to review the work of the legislature, according to the standards enshrined in those documents.  As Iacobucci J. stated in Vriend v. Alberta, [1998] 1 S.C.R. 493, at pp. 566-67:

Democratic values and principles under the Charter demand that legislators and the executive take these into account; and if they fail to do so, courts should stand ready to intervene to protect these democratic values as appropriate.  As others have so forcefully stated, judges are not acting undemocratically by intervening when there are indications that a legislative or executive decision was not reached in accordance with the democratic principles mandated  by the Charter . . . .

22                Soon after the Charter  came into force, Lamer J. (as he then was) pointed out in Re B.C. Motor Vehicle Act, supra, at pp. 496-97, that courts have not only the power but the duty to evaluate the substantive content of legislation for Charter  compliance.  In the realm of criminal law, the courts routinely review the definition of criminal offences to ensure conformity with Charter  rights.  This has included the mens rea element of an offence: e.g., R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154.  These powers and responsibilities extend equally to statutory defences.  Courts would be abdicating their constitutional duty by abstaining from such a review. Defences and excuses belong to the legislative corpus that the Charter  submits to constitutional review by the courts.

23                Subject to constitutional review, Parliament retains the power to restrict access to a criminal defence or to remove it altogether.  As Cory J. indicated for the majority in R. v. Finta, [1994] 1 S.C.R. 701, a withdrawal of a criminal defence will not automatically breach s. 7  of the Charter .  Among other things, Finta raised the question whether the removal of the defence of obedience to or authority of de facto law for war crimes and crimes against humanity infringed s. 7 .  Cory J. observed, at p. 865, that restricting the availability of a defence “will not generally violate s. 7  when a defence is inconsistent with the offence proscribed, in that it would excuse the very evil which the offence seeks to prohibit or punish”.  Likewise, in R. v. Penno, [1990] 2 S.C.R. 865, the removal of drunkenness as a defence to a charge of impaired driving was deemed consistent with s. 7 .

24                The circumstances in this appeal are quite different from those in Finta and Penno.  There is no suggestion that the defence of duress is inconsistent with the offences with which Ms. Ruzic was charged.  Section 17  would not excuse the “very evil” that those offences seek to punish.  In my view, the relevance of Finta and Penno to the present appeal is that limitations on a criminal defence may very well be consistent with s. 7  of the Charter .  Thus, the issue is not whether the legislature may restrict or remove a criminal defence.  It certainly can.  The question for the courts is whether restricting the defence of duress accords with Charter  rights.

25                The appellant urges the Court to take a significantly more restrained approach to reviewing statutory defences. At this point, the appellant seems to be asserting that an attitude of strong deference would be appropriate, even at the first stage of the constitutional analysis, while assessing whether an infringement of the Charter  has taken place, prior to the justification stage under s. 1 .  The appellant has failed to make a convincing case for the adoption of such a standard.  Determining when to absolve a person for otherwise criminal behaviour is a value-laden exercise.  However, statutory defences do not warrant more deference simply because they are the product of difficult moral judgments.  The entire body of criminal law expresses a myriad of policy choices.  Statutory offences are every bit as concerned with social values as statutory defences. 

26                The issue of deference to the legislature’s policy choices is ordinarily considered at the s. 1  stage of a Charter  analysis.  Yet, even at the infringement stage of the inquiry, the legislature is acknowledged some latitude in its work.  This is reflected, for example, in the interpretive presumption of constitutionality.  This principle is based on the notion that Parliament intends to adopt legislation that is consistent with the Charter :  see R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at pp. 322-27;  P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at pp. 365-73.  If a statutory provision is capable of an interpretation that is constitutional and one that is not, then the courts should choose the construction that conforms with the Charter : Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078;   R. v. Mills, [1999] 3 S.C.R. 668, at paras. 22 and 56.  (See also generally  R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606.)  There is no support in the case law, however, for the “irrational or arbitrary” threshold advocated by the appellant.  I would accordingly reject it.

B.         Is it a Principle of Fundamental Justice That Only Morally Voluntary Conduct Can Attract Criminal Liability?

27                Whether it is a principle of fundamental justice under s. 7  of the Charter  that morally involuntary conduct should not be punished is a novel question before this Court.    We are thus called upon to canvass once more the contents of the “principles of fundamental justice”, this time in the context of the defence of duress as framed by s. 17  of the Criminal Code .

28                The Court has on numerous occasions confirmed that the principles of fundamental justice “are to be found in the basic tenets of our legal system”: Re B.C. Motor Vehicle Act, supra, at pp. 503 and 512.  McLachlin J. (as she then was) added in R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 603, that they may be distilled from “the legal principles which have historically been reflected in the law of this and other similar states”.  Whether a principle qualifies as a principle of fundamental justice depends on an analysis of its nature, sources, rationale and essential role within our evolving legal system: Re B.C. Motor Vehicle Act, supra, at p. 513.  In Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at pp. 590-91, Sopinka J. explained that the principles of fundamental justice must be capable of being articulated with some precision; they must be more than broad generalizations about our ethical or moral beliefs.  He stated that they are the “principles upon which there is some consensus that they are vital or fundamental to our societal notion of justice” (p. 590).

29                The notion of moral voluntariness was first introduced in Perka v. The Queen, [1984] 2 S.C.R. 232, for the purpose of explaining the defence of necessity and classifying it as an excuse.  It was borrowed from the American legal theorist George Fletcher’s discussion of excuses in Rethinking Criminal Law (1978).  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.  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 alpinist’s choice to break the law “is no true choice at all; it is remorselessly compelled by normal human instincts”, here of self-preservation.  The Court in Perka thus conceptualized the defence of necessity as an excuse.  An excuse, Dickson J. maintained, concedes that the act was wrongful, but withholds criminal attribution to the actor because of the dire circumstances surrounding its commission.  He summarized the rationale of necessity in this way, at p. 250:

At the heart of this defence is the perceived injustice of punishing violations of the law in circumstances in which the person had no other viable or reasonable choice available; the act was wrong but it is excused because it was realistically unavoidable.

30                Extending its reasoning in Perka to the defence of duress, the Court found in R. v. Hibbert, [1995] 2 S.C.R. 973, that it too rests on the notion of moral voluntariness.  In the case of the defences of necessity and duress, the accused contends that he should avoid conviction because he acted in response to a threat of impending harm.  The Court also confirmed in Hibbert that duress does not ordinarily negate the mens rea element of an offence.  Like the defence of necessity, the Court classified the defence of duress as an excuse, like that of necessity.  As such, duress operates to relieve a person of criminal liability only after he has been found to have committed the prohibited act with the relevant mens rea: see also Bergstrom v. The Queen, [1981] 1 S.C.R. 539, at p. 544 (per McIntyre J.).

31                Thus duress, like necessity, involves the concern that morally involuntary conduct not be subject to criminal liability.  Can this notion of “moral voluntariness” be recognized as a principle of fundamental justice under s. 7  of the Charter ?  Let us examine possible avenues which have been put forward by the respondent towards such recognition.

1.         Moral Voluntariness and Moral Blameworthiness

32                As we will see below, this Court has recognized on a number of occasions that “moral blameworthiness” is an essential component of criminal liability which is protected under s. 7  as a “principle of fundamental justice”.  The respondent in the case as bar attempts to link the principles of “moral blameworthiness” and “moral voluntariness” as a means of securing the constitutional status of the defence of duress.  Laskin J.A. in the Court below has followed this line of reasoning.  However, the appellant argues that “moral blamelessness” only arises in the absence of either the actus reus or the mens rea of an offence.  One who acts under duress, he contends, remains a morally responsible agent whose behaviour is not blame-free.  Further, the appellant submits that moral involuntariness is too vague and amorphous a concept to constitute a principle of fundamental justice.

33                This controversy about the concepts of moral blamelessness and moral involuntariness brings us back to the foundations of criminal responsibility.  In the analysis of duress and of its relationship with the tenets of the criminal justice system, is it appropriate to equate moral blamelessness with moral involuntariness?

34                Even before the advent of the Charter , it became a basic concern of the criminal law that criminal responsibility be ascribed only to acts that resulted from the choice of a conscious mind and an autonomous will.  In other words, only those persons acting in the knowledge of what they were doing, with the freedom to choose, would bear the burden and stigma of criminal responsibility.  Although the element of voluntariness may sometimes overlap both actus reus and mens rea (see R. v. Daviault, [1994] 3 S.C.R. 63, at pp. 73-75, per Cory J.), the importance of mens rea and of the quality of voluntariness in it underscores the fact that criminal liability is founded on the premise that it will be borne only by those persons who knew what they were doing and willed it.  In a recent essay, Professor H. Parent summed up the nature of what has now become a guiding principle of Canadian criminal law:

[translation]  What is meant by a so-called “moral” or “normative” voluntary act is nothing more or less than a voluntary act taken in its accepted meaning of a free and thought out action.  At the semantic level, adding the attributes “moral” and “normative” to the expression “voluntary act” has  become necessary in light of the state of confusion that currently arises from the coexistence of the materialist and intellectualist approaches to the voluntary act in English and Canadian criminal law.  In short, the requirement of a free and thought out act is still a fundamental axiom of our criminal law system.  Although the moral element attached to the individual is not, as a general rule, formally expressed in the academic literature or in reported cases, its presence can be deduced from the standard application of criminal responsibility and the various causes of exoneration.  [Emphasis added.]

(Responsabilité pénale et troubles mentaux: Histoire de la folie en droit pénal  français, anglais et canadien (1999), at p. 271.)       

See also:  H. Parent, “Histoire de l’acte volontaire en droit pénal anglais et canadien” (2000), 45 McGill L.J. 975, at pp. 1013 ff. On the notion of mens rea generally, see G. Côté-Harper, P. Rainville and J. Turgeon, Traité de droit pénal canadien (4th ed.  1998), at pp. 357 ff.

35                An example of this approach may be found in the jurisprudence on the application and interpretation of offences purporting to impose an absolute responsibility on the accused.  Even before the Charter  came into force, through the use of techniques of interpretation, the Supreme Court had sought to restrict the application of the penal provisions of statutes that imposed absolute liability.  The judgment of this Court in R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299, underscores this view that absolute responsibility was inconsistent with the correct understanding of the founding   principles of criminal liability.  Without requiring a full mens rea, the Court decided that, generally speaking, absent very clear and explicit language to the contrary, at least a defence of due diligence should be available to the accused.  This form of penal responsibility had to be grounded on an element of voluntariness, the choice left to the accused being at least that of acting with due diligence, to avoid convicting innocents (p. 1313).  Dickson J. also wrote (at p. 1310): 

In sharp contrast, “absolute liability” entails conviction on proof merely that the defendant committed the prohibited act constituting the actus reus of the offence.  There is no relevant mental element.  It is no defence that the accused was entirely without fault.  He may be morally innocent in every sense, yet be branded as a malefactor and punished as such. 

36                It is clear from Dickson J.’s reasons in Sault Ste. Marie that such a regime of absolute penal responsibility was deemed to breach the most basic principle of criminal liability and criminal law, and that criminal responsibility should be attributed only to an act that is the result of the deliberation of a free and conscious mind.  This principle was recognized as one of the principles of fundamental justice  within the meaning of s. 7  of the Charter  in Re B.C. Motor Vehicle Act, supra.  In that case, Lamer J. held the following, at p. 492:

A law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice and, if imprisonment is available as a penalty, such a law then violates a person’s right to liberty under s. 7  of the Charter . . . . 

37                That decision and the Court’s subsequent judgment in Vaillancourt, supra, were explained by McIntyre J. in R. v. Bernard, [1988] 2 S.C.R. 833, at p. 880:

In Re B.C. Motor Vehicle Act . . . and in R. v. Vaillancourt . . . it was held that the requirement for a minimum mental state before the attachment of criminal liability is a principle of fundamental justice.  Criminal offences, as a general rule, must have as one of their elements the requirement of a blameworthy mental state.  The morally innocent ought not to be convicted.

See also generally R. v. Martineau, [1990] 2 S.C.R. 633, and R. v. DeSousa, [1992] 2 S.C.R. 944.  This idea may also be found in the reasons of Dickson J. in Perka, supra.  With this background in mind, I turn to consider the respondent’s first submission, which hinges on Laskin J.A.’s assimilation of moral voluntariness to moral blameworthiness.

38                It should be emphasized that this Court, in cases like Sault Ste. Marie and  Re B.C. Motor Vehicle Act, has referred to moral innocence in the context of the discussion of the mental element of an offence.  Hibbert, on the other hand, held that the defence of duress does not normally negate mens rea.  Rather, it operates to excuse a wrongful act once the actus reus and mens rea components of the offence have been made out.  Laskin J.A. conceded this point, but countered that moral blameworthiness is a broader concept, extending beyond the traditional elements of an offence.  Both Laskin J.A. and the respondent rely heavily, in this respect, on Professor Martha Shaffer’s article “Scrutinizing Duress: The Constitutional Validity of Section 17  of the Criminal Code ” (1998), 40 Crim. L.Q. 444, in making this argument.

39                Professor Shaffer acknowledges in her article, at pp. 453-54, that moral blameworthiness is an ambiguous concept, the meaning of which this Court has not had occasion to discuss in any significant way.  I am reluctant to do so here, particularly since, in my opinion, conduct that is morally involuntary is not always intrinsically free of blame.  (See also R. v. Chaulk, [1990] 3 S.C.R. 1303, at pp. 1396-98.)  Moral involuntariness is also related to the notion that the defence of duress is an excuse.  Dickson J. maintained in Perka that an excuse acknowledges the wrongfulness of the accused’s conduct.  Nevertheless, the law refuses to attach penal consequences to it because an “excuse” has been made out.  In using the expression “moral involuntariness”, we mean that the accused had no “real” choice but to commit the offence.  This recognizes that there was indeed an alternative to breaking the law, although in the case of duress that choice may be even more unpalatable  –  to be killed or physically harmed.

40                Let us consider again the situation of the lost alpinist: can we really say he is blameless for breaking into somebody else’s cabin?  The State refrains from punishing him not because his actions were innocent, but because the circumstances did not leave him with any other realistic choice than to commit the offence.  As Fletcher, supra, puts it, at p. 798, excuses absolve the accused of personal accountability by focussing, not on the wrongful act, but on the circumstances of the act and the accused’s personal capacity to avoid it.  Necessity and duress are characterized as concessions to human frailty in this sense.  The law is designed for the common man, not for a community of saints or heroes.

41                To equate moral involuntariness with moral innocence would amount to a significant departure from the reasoning in Perka and Hibbert.  It would be contrary to the Court’s conceptualization of duress as an excuse.  Morally involuntary conduct is not always inherently blameless.  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.  The undefinable and potentially far-reaching nature of the concept of moral blamelessness prevents us from recognizing its relevance beyond an initial finding of guilt in the context of s. 7  of the Charter .  Holding otherwise would inject an unacceptable degree of uncertainty into the law.  It would not be consistent with our duty to consider as “principles of fundamental justice” only those concepts which are constrained and capable of being defined with reasonable precision.  I would therefore reject this basis for finding that it is a principle of fundamental justice that morally involuntary acts should not be punished. 

2.         Moral Voluntariness and Voluntariness in the Physical Sense

42                The respondent’s second approach, which relates moral voluntariness back to voluntariness in the physical sense, rests on firmer ground.  It draws upon the fundamental principle of criminal law that, in order to attract criminal liability, an act must be voluntary.  Voluntariness in this sense has ordinarily referred to the actus reus element of an offence.  It queries whether the actor had control over the movement of her body or whether the wrongful act was the product of a conscious will. Although duress does not negate ordinarily actus reus per se (just as it does not ordinarily negate mens rea as we have just seen), the principle of voluntariness, unlike that of  “moral blamelessness”, can remain relevant in the context of s. 7  even after the basic elements of the offence have been established. Unlike the concept of “moral blamelessness”, duress in its “voluntariness” perspective can more easily be constrained and can therefore more justifiably fall within the “principles of fundamental justice”,  even after the basic elements of the offence have been established.

43                Let us examine the notion of “voluntariness” and its interplay with duress more closely.  As Dickson J. stated in Rabey v. The Queen, [1980] 2 S.C.R. 513, at p. 522, “it is basic principle that absence of volition in respect of the act involved is always a defence to a crime.  A defence that the act is involuntary entitles the accused to a complete and unqualified acquittal.”  Dickson J.’s pronouncement was endorsed by the Court in R. v. Parks, [1992] 2 S.C.R. 871.  The principle of voluntariness was given constitutional status in Daviault, supra, at pp. 102-3, where Cory J. held for the majority that it would infringe s. 7  of the Charter  to convict an accused who was not acting voluntarily, as a fundamental aspect of the actus reus would be absent.  More recently, in R. v. Stone, [1999] 2 S.C.R. 290, the crucial role of voluntariness as a condition of the attribution of criminal liability was again confirmed (at para. 1, per Binnie J., and paras. 155-58, per Bastarache J.) in an appeal concerning the defence of automatism.

44                In introducing the concept of moral voluntariness in Perka, the Court specifically linked it to the more familiar notion of physical voluntariness discussed above.  Dickson J. acknowledged that the two concepts are not identical.  The lost alpinist, for instance, does not act in a literally involuntary fashion; he is physically capable of avoiding the criminal act.  Fletcher, supra, at p. 803, puts forth another example, more pertinent to the defence of duress.  Suppose someone puts a knife in the accused’s hand and forces it into the victim’s chest.  The accused’s body is literally overpowered, as is her will.  Consider next the situation of someone who gives the accused a knife and orders her to stab the victim or else be killed herself.  Unlike the first scenario, moral voluntariness is not a matter of physical dimension.  The accused here retains conscious control over her bodily movements.  Yet, like the first actor, her will is overborne, this time by the threats of another.  Her conduct is not, in a realistic way, freely chosen.

45                What underpins both of these conceptions of voluntariness is the critical importance of autonomy in the attribution of criminal liability: Perka, supra, at pp. 250-51; Fletcher, supra, at p. 805.  The treatment of criminal offenders as rational, autonomous and choosing agents is a fundamental organizing principle of our criminal law.  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:  Martineau, supra, at pp. 645-46.  Criminal liability also depends on the capacity to choose – the ability to reason right from wrong.  As McLachlin J. observed in Chaulk, supra, at p. 1396, in the context of the insanity provisions of the Criminal Code , this assumption of the rationality and autonomy of human beings forms part of the essential premises of Canadian criminal law:

At the heart of our criminal law system is the cardinal assumption that human beings are rational and autonomous: G. Ferguson, “A Critique of Proposals to Reform the Insanity Defence” (1989), 14 Queen’s L.J. 135, at p. 140.  This is the fundamental condition upon which criminal responsibility reposes.  Individuals have the capacity to reason right from wrong, and thus to choose between right and wrong.  Ferguson continues (at p. 140):

It is these dual capacities –  reason and choice – which give moral justification to imposing criminal responsibility and punishment on offenders.  If a person can reason right from wrong and has the ability to choose right or wrong, then attribution or responsibility and punishment is morally justified or deserved when that person consciously chooses wrong.

46                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: see Shaffer, supra, at pp. 449-50.  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.  As Dennis Klimchuk states in “Moral Innocence, Normative Involuntariness, and Fundamental Justice” (1998), 18 C.R. (5th) 96, at p. 102, the accused’s agency is not implicated in her doing.  In the case of morally involuntary conduct, criminal attribution points not to the accused but to the exigent circumstances facing him, or to the threats of someone else.  Klimchuk explains at p. 104:

In short, normatively involuntary actions share with actions that are involuntary in the sense relevant to negating actus reus the exculpatorily relevant feature that renders the latter immune from criminal censure, namely, that involuntary actions resist imputation to the actor putatively responsible for their commission.

47                Although moral involuntariness does not negate the actus reus or mens rea of an offence, it is a principle which, similarly to physical involuntariness, deserves protection under s. 7  of the Charter .  It is a principle of fundamental justice that only voluntary conduct – behaviour that is the product of a free will and controlled body, unhindered by external constraints – should attract the penalty and stigma of criminal liability.  Depriving a person of liberty and branding her with the stigma of criminal liability would infringe the principles of fundamental justice if the accused did not have any realistic choice.  The ensuing deprivation of liberty and stigma would have been imposed in violation of the tenets of fundamental justice and would thus infringe s. 7  of the Charter .

C.        Do the Immediacy and Presence Requirements in Section 17  Infringe the Principle of Involuntariness in the Attribution of Criminal Responsibility?

48                It remains to be seen whether s. 17  respects this guiding principle of criminal justice that demands that society refrain from punishing morally involuntary action.  The respondent argues that s. 17  of the Criminal Code  does indeed infringe s. 7  of the Charter  by reason of its underinclusiveness.  The strictness of the immediacy and presence requirements in s. 17  means that individuals could be found guilty of involuntary actions.

49                Section 17 limits the defence of duress to a person who is compelled to commit an offence under threats of immediate death or bodily harm from a person who is present when the offence is committed.  To counter the respondent’s arguments, the appellant’s key submission was that s. 17  is capable of being read down in a way that would make it less restrictive and more consistent with the Charter .  The appellant argues that the immediacy and presence requirements do not dictate that the threatener be physically present at the scene of the crime.  Rather, they require a temporal connection between the commission of the offence and the threatener’s presence, in the sense that the threatener must be able to execute the threat immediately should the accused fail to comply.  The respondent replies that the appellant’s proposed interpretation would stretch the language of s. 17  beyond recognition.  As counsel for one of the interveners put it during the hearing of this appeal, it would amount to construing presence as absence and immediate as sometime later. 

50                The plain meaning of s. 17  is quite restrictive in scope.  Indeed, the section seems tailor-made for the situation in which a person is compelled to commit an offence at gun point.  The phrase “present when the offence is committed”, coupled with the immediacy criterion, indicates that the person issuing the threat must be either at the scene of the crime or at whatever other location is necessary to make good on the threat without delay should the accused resist.  Practically speaking, a threat of harm will seldom qualify as immediate if the threatener is not physically present at the scene of the crime.

51                The Court has in the past construed s. 17  in a narrow fashion.  R. v. Carker, [1967] S.C.R. 114, and Paquette v. The Queen, [1977] 2 S.C.R. 189, are the two leading cases on the interpretation of s. 17 .  The accused in Carker was an inmate at a prison in British Columbia.  He damaged the plumbing fixtures in his cell during a prison riot and was charged with public mischief.  At trial, he conceded that he committed the offence, but asserted that he was acting under the compulsion of threats by other prisoners that he would be physically injured or killed if he did not participate in the riot.  Ritchie J. maintained that the defence of duress was not available to Mr. Carker, as the other prisoners were not present in his cell when he committed the offence but rather locked in their own cells.  In addition, Ritchie J. found the threat was of future harm, as the prisoners, who were locked in separate cells, were unable to carry out their threat immediately, had Mr. Carker resisted.

52                The Court’s reasons in Carker reveal that the words “immediate” and “present” impose both temporal and spatial limitations on the defence.  They indicate that the threat of harm must be contemporaneous with the commission of the offence, in the sense that it must be capable of immediate execution if the accused refuses to comply.  In addition, Carker clearly implies that the threatener must be present at the scene of the crime.  The following passage from Martland J.’s reasons in Paquette, at p. 193, appears to confirm this interpretation of s. 17  as requiring the threatener to be present both when and where the offence is committed:

In my opinion the application of s. 17  is limited to cases in which the person seeking to rely upon it has himself committed an offence.  If a person who actually commits the offence does so in the presence of another party who has compelled him to do the act by threats of immediate death or grievous bodily harm, then, if he believes the threats would be carried out, and is not a party to a conspiracy whereby he is subject to such compulsion, he is excused for committing the offence.  [Emphasis added.]

Carker and Paquette state clearly that s. 17  means the threatener must be physically present at the scene of the offence, at the time it takes place, otherwise the defence of duress is not available to the accused.

53                I agree with the respondent that a threat will seldom meet the immediacy criterion if the threatener is not physically present at or near the scene of the offence.  The immediacy and presence requirements, taken together, clearly preclude threats of future harm.

54                Neither the words of s. 17  nor the Court’s reasons in Carker and Paquette dictate that the target of the threatened harm must be the accused.  They simply require that the threat must be made to the accused.  Section 17  may thus include threats against third parties.  However, as discussed above, the language of s. 17  does not appear capable of supporting a more flexible interpretation of the immediacy and presence requirements.  Even if the threatened person, for example, is a family member, and not the accused person, the threatener or his accomplice must be at or near the scene of the crime in order to effect the harm immediately if the accused resists.  Thus, while s. 17  may capture threats against third parties, the immediacy and presence criteria continue to impose considerable obstacles to relying on the defence in hostage or other third party situations.  

55                Thus, by the strictness of its conditions, s. 17  breaches s. 7  of the Charter  because it allows individuals who acted involuntarily to be declared criminally liable. Having said that, it will be interesting to see how the common law addresses the problem of duress, especially with respect to the immediacy component.  In that regard, we will have the opportunity to see how the common law on duress in Canada, Great Britain, Australia, and even in some U.S. jurisdictions is often more liberal than what s. 17  provides and takes better account of the principle of voluntariness.  This will confirm the view that s. 17  is overly restrictive and therefore breaches s. 7  of the Charter .  We recall that the principles of fundamental justice may be distilled from the “legal principles which have historically been reflected in the law of this and other similar states” (Seaboyer, supra, at p. 603).  Examining the common law of other states like Great Britain and Australia to confirm our interpretation of s. 7  will therefore be relevant.  The analysis of duress in common law will also be useful as it will shed some light on the appropriate rules which had to be applied to the defence of the accused in the case at bar and which will now be applied in all other cases, once s. 17  of the Criminal Code  is partially struck down.

D.    The Common Law of Duress

1.    The Canadian Common Law of Duress

56                In Canada, the common law defence of duress has freed itself from the constraints of immediacy and presence and thus appears more consonant with the values of the Charter .  It was never completely superseded by the provision of the Criminal Code .  The Court held in Paquette and Hibbert, supra, that the common law defence remained available, notwithstanding s. 17 , to parties to an offence (as opposed to persons who committed an offence as principals).

57                In Hibbert, the Court reexamined and restated the rules governing the common law defence of duress.  Writing for a unanimous Court, Lamer C.J. found that the problem of the defence of duress arises when a person is subjected to an external danger, in this case, intentional threats of physical harm or of death from a person, and commits a criminal act to avoid the threatened harm.  In Lamer C.J.’s view, the defence of duress constitutes an excuse that does not ordinarily negate either criminal intent or actus reus.  When it is open to the accused, it relieves him of the penal consequences and stigma of a finding of criminal liability.

58                After a thorough canvassing of the jurisprudence, Lamer C.J. identified the   elements of the defence of duress.  But  prior to that, he pointed out that in Paquette, supra, the Court had already held that the common law defence of duress remained a part of the criminal law of Canada.  The adoption of s. 17  had not abrogated it and it applied to participants to a criminal act, who did not fall under s. 17 .  Lamer C.J. acknowledged that the law relating to duress has been plagued, nonetheless, with some uncertainties and inconsistencies since the beginning of its development. This is understandable.  Duress involves the resolution of conflicts between individual rights and duties to others or obligations as a citizen.  The analysis and determination of the rules governing duress should not take place in a vacuum where courts would focus only on the position and rights of the threatened party.  The rights of third parties, more particularly the intended victims, may also be involved.  The interest of the State or society in the preservation of public order and the proper application of laws will also be engaged. 

59                The assessment of a defence of duress at common law may carry with it a number of practical risks and problems relating to evidence.  At times, as in the case at bar, proof of the defence may rest on little more than the accused’s own evidence.  Verification of a spurious claim of duress may prove difficult.  Hence, courts should be alive to the need to apply reasonable, but strict standards for the application of the defence.  In the end, much will depend on the evaluation of the evidence and on the soundness of the instructions given to jurors during a jury trial.  In Perka, supra, and more recently in R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1, this Court outlined three essential elements which must be considered in assessing a defence of necessity.  It held that such a defence must meet three clear and strict conditions in order to be left to a jury.  These three conditions were identified as follows in Latimer:  clear and imminent danger (para. 29), absence of any reasonable legal alternative to breaking the law (para. 30) and proportionality between harm inflicted and harm avoided, in the sense that the harm avoided must be either comparable to or clearly greater than the harm inflicted (para. 31).

60                Like necessity, the common law rule of duress evolved from attempts at striking a proper balance between those conflicting interests of the accused, of the victims and of society.  It also sought to establish a hierarchy between them, as a full reconciliation appears problematic in this area of the law.  Operating so as to avoid imposing the burden of criminal responsibility on an accused for an involuntary act, as discussed above, the defence of duress does not negate either the mens rea or actus reus of the crime, and will excuse the accused although Lamer C.J. left open, in the case of some unspecified criminal offences, that it might also negate the criminal intent or raise doubts about its existence (see Hibbert, supra, at para. 45). 

61                This particular excuse focuses on the search for a safe avenue of escape (see Hibbert, supra, at paras. 55 and 62), but rejects a purely subjective standard, in the assessment of the threats. The courts have to use an objective-subjective standard when appreciating the gravity of the threats and the existence of an avenue of escape. The test requires that the situation be examined from the point of view of a reasonable person, but similarly situated.  The courts will take into consideration the particular circumstances where the accused found himself and his ability to perceive a reasonable alternative to committing a crime, with an awareness of his background and essential characteristics. The process involves a pragmatic assessment of the position of the accused, tempered by the need to avoid negating criminal liability on the basis of a purely subjective and unverifiable excuse. A similar approach is also to be used in the application of the defence of necessity (see Latimer, supra, at paras. 26 ff.).

62                The common law of duress, as restated by this Court in Hibbert recognizes that an accused in a situation of duress does not only enjoy rights, but also has obligations towards others and society.  As a fellow human being, the accused remains subject to a basic duty to adjust his or her conduct to the importance and nature of the threat.  The law includes a requirement of proportionality between the threat and the criminal act to be executed, measured on the objective-subjective standard of the reasonable person similarly situated.  The accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat.  The threat must be to the personal integrity of the person.  In addition, it must deprive the accused of any safe avenue of escape in the eyes of a reasonable person, similarly situated.

63                Lamer C.J.’s reasons in Hibbert followed closely the thrust of the analysis of the defence of necessity by Dickson J. in Perka, supra.  Dickson J.’s comments remain particularly relevant.  They emphasize the seriousness of the threat to the integrity of the person that is necessary to open the defence of necessity to an accused.  In the assessment of the nature of the circumstances that may trigger the defence of necessity, while writing for the majority of the Court, Dickson J. held that in order to apply the defence of necessity, evidence should be introduced of a clear and imminent peril at the point in time where complying with the law becomes demonstrably impossible (p. 251). 

64                According to Lamer C.J. in Hibbert, the defences of duress and necessity share the same juristic principles.  Nevertheless, they target two different situations.  In the case of necessity, the accused is a victim of circumstances.  Duress finds its origin in man’s wrongful acts.  Moreover, Lamer C.J. drew some distinctions between the conditions of the defences of duress and of necessity.  More particularly, Lamer C.J.’s reasons do not seem to have imported into the defence of duress an absolute immediacy requirement that would entirely duplicate the contents of s. 17  of the Criminal Code .

65                The analysis in Hibbert remains focused on the concept of a safe avenue of escape.  Although the common law defence traditionally covers situations of threats susceptible of “immediate” execution by the person present and uttering threats, this immediacy requirement has been interpreted in a flexible manner by Canadian jurisprudence and also as appears from the development of the common law in other Commonwealth countries, more particularly Great Britain and Australia.  In order to cover, for example, threats to a third person, the immediacy test is interpreted as a requirement of a close connection in time, between the threat and its execution in such a manner that the accused loses the ability to act freely.  A threat that would not meet those conditions, because, for example, it is too far removed in time, would cast doubt on the seriousness of the threat and, more particularly, on claims of an absence of a safe avenue of escape. 

66                A recent case on the problem of duress is Langlois, supra. Writing for the Quebec Court of Appeal, Fish J.A. interpreted the defence of duress at common law as excluding the strict requirements of immediacy and presence which form an essential part of s. 17  (p. 689).  Thus, in Langlois, the Quebec Court of Appeal upheld an acquittal based on the defence of duress in a drug trafficking case involving a prison guard.  Fish J.A. held that the common law defence was more flexible because it was not bound by the strict conditions imposed by s. 17  of the Criminal Code  on the availability of the defence (at p. 689):

Notably, at common law, there is no requirement that the threats be made by a person who is present at the scene of the crime.  It has been said that the threat must be “immediate” or “imminent” and that persons threatened must resort to the protection of the law if they can do so.  While the defence is not available to those who have “an obvious safe avenue of escape”, I agree with Martin J.A. that the operative test is “whether the accused failed to avail himself or herself of some opportunity to escape or render the threat ineffective.” [References omitted.]

67                Laskin J.A.’s reasons in the case at bar have adopted a similar approach.  Moreover, as we will see below, the judgments of the Quebec and Ontario Courts of Appeal on the question seem to describe correctly the state of the law in other Commonwealth countries.  At the hearing, the appellant asserted that, particularly in England, the law remains unsettled if not conflicting in respect of the defence of duress.  The law has evolved over time.  Questions were left open or revisited by courts.  In the end, though, we will see that the common law rules in England and Australia appear to  accord with the principles discussed in Hibbert by our Court, and by the Canadian jurisprudence referred to above.

2.         The English Common Law of Duress

68                The English common law formulation of the defence of duress now appears generally similar to its Canadian counterpart.  Since the 1980s, the English Court of Appeal has recognized two species of duress: “duress by threats” and “duress of circumstances” (J. C. Smith, Smith & Hogan:  Criminal Law (9th ed. 1999), at p. 242).  Nevertheless, the jurisprudence views the assessment of both forms of duress as being essentially the same (R. v. Martin, [1989] 1 All E.R. 652 (C.A.)).  Duress by threats is applicable where an accused is threatened by someone to commit a crime or else risk being physically injured or killed.  Duress of circumstances, which is analogous to our defence of necessity, is available where an accused commits a crime to avert death or serious injury, but no person is demanding that he do so.   The  Court of Appeal’s recent decision in R. v. Abdul-Hussain, [1998] E.W.J. No. 4183 (QL), indicates that the same principles apply to both varieties of duress (see also Re A (Children), also known as the Siamese Twins Decision, [2000] E.W.J. No. 4875 (QL) (C.A.), at para. 203 (per Lord Justice Ward)).

69                The defence is available in respect of all crimes except murder, whether as a principal or as an aider/abettor (R. v. Howe, [1987] 1 All E.R. 771 (H.L.)), attempted murder (R. v. Gotts, [1992] 1 All E.R. 832 (H.L.)), and most forms of treason (Lynch v. Director of Public Prosecutions for Northern Ireland, [1975] 1 All E.R. 913 (H.L.), and Gotts).  In extreme circumstances, the defence may be available even to a charge of murder (see the Siamese Twins Decision, supra, at para. 348-58, per Lord Justice Brooke).  The threat must be of death or serious physical harm to the accused or to a family member (Martin, supra;  Abdul-Hussain, at para. 46).  No modern case asserts that a threat of harm to an accused’s property is enough to invoke the defence.

70                Like s. 17 of the Criminal Code , the English jurisprudence has precluded resort to the defence where the threats are made by a criminal organization which the accused voluntarily joined and knew might pressure him to engage in criminal activity (R. v. Lewis (1992), 96 Cr. App. R. 412 ; R. v. Heath, [1999] E.W.J. No. 5092 (QL)).

71                The House of Lords recently confirmed that the test for duress is an objective one: did the accused reasonably believe that the threat would be carried out if he did not commit the crime, and would a person of “reasonable firmness sharing the [accused’s] characteristics” have succumbed to the threat? (Howe, supra, per Lord Mackay, at p. 800, where he endorses the English Court of Appeal’s decision in R. v. Graham, [1982] 1 All E.R. 801, at p. 806).  This test is arguably more stringent than s. 17  of the Criminal Code , which is entirely subjective and does not require that the accused’s belief be reasonable.  It is also arguably more stringent than the common law formulation of the defence in Canada,  which results in an objective-subjective standard, as in the case of the defence of necessity.  As in Canada, the accused bears an evidential burden of laying a factual foundation for the defence of duress (if no such foundation may be inferred from the Crown’s case).  Once the factual foundation is established, the Crown has the onus of disproving duress (Smith & Hogan: Criminal Law, supra, at p. 242).

72                The appellant and respondent voiced conflicting views about the existence of any immediacy requirement in the English law of duress.  English courts seem to have opted for a flexible test that requires that there be a close temporal connection between threat and harm.  The threat need not operate instantly, but must be a present one in the sense that it creates an immediate pressure to act (see R. v. Hudson, [1971] 2 Q.B. 202 (C.A.), at pp. 206-7).  Until now, that flexible test has never been set aside.  In Abdul-Hussain, supra, and in the Siamese Twins Decision, supra, it was reiterated that, although there must be an imminent peril of death or injury, this requirement does not require that the threat  be of immediate harm.  The common law accepts that there could be a lapse in time between the threat and its execution, provided it neutralizes effectively the will of the accused.

73                Thus, threats of future harm, depending on the circumstances, may be sufficient to raise the defence of duress.  The English common law’s approach to duress is somewhat different from its Canadian formulation in Hibbert.  The analysis is not confined to the criterion of the safe avenue of escape, although it remains an important component of the defence.  The crux of the English defence is whether the threat overbore the accused’s will at the time he or she committed the offence.  Did the threat actually cause the accused to act in the way he did, and would a reasonable person have acted similarly?  In addition, as cases like Abdul-Hussain indicate, there must be a close temporal connection between the threat and the criminal act.  However, the threat need not be capable of immediate execution in order to qualify.

3.         The Australian Common Law of Duress

74                There do not appear to be any Australian High Court decisions on the issue of duress.  Because competence over criminal law belongs to the states and territories, some differences arise from jurisdiction to jurisdiction regarding the formulation of the defence.  (See M. Findlay, S. Odgers and S. Yeo,  Australian Criminal Justice (2nd ed. 1999), at pp. 7-8.)  One textbook writer notes that there are relatively few reported cases dealing with the defence and that in some respects, the defence remains somewhat elusive in Australian common law.  (See P. Gillies, Criminal Law (4th ed. 1997), at p. 341.) 

75                Overall, the state courts appear to have followed quite closely the English courts’ approach to the defence.  (See R. v. Hurley and Murray, [1967] V.R. 526  (S.C.), at p. 543, adopted by some other state courts – e.g., R. v. McCafferty, [1974] 1 N.S.W.L.R. 89 (S.C.), at p. 90, and R. v. Dawson, [1978] V.R. 536 (S.C.), at p. 537.)

76                The accused must have been compelled to commit the crime under a threat of death or serious bodily harm.  Also, the accused must have had no safe means of preventing the execution of the threat. The case law suggests that a threat to a third party also qualifies.  (See R. v. Abusafiah (1991), 24 N.S.W.L.R. 531 (C.A.), at pp. 544-45;  R. v. Palazoff (1986), 43 S.A.S.R. 99 (S.C.), at p. 106.)  The accused must have “reasonably apprehended” that the threat would be executed.  The circumstances must be such that a person of ordinary firmness would have succumbed to the threat.  That reasonable person shall be considered as sharing the personal characteristics of the accused, such as age, sex and background.  (See Palazoff, supra, at p. 109.) 

77                The defence of duress is not available to a charge of murder in any of the Australian states.  (See D. O’Connor and P. A. Fairall, Criminal Defences (3rd ed. 1996), at pp. 154-55.) As in England, an accused who has voluntarily joined a criminal enterprise or organization that she knows might pressure her by violent means into participating in criminal activity may not raise that defence.  (See Hurley and Murray, supra, at p. 533;  R. v. Lawrence, [1980] 1 N.S.W.L.R. 122 (C.A.), at p. 130.  See also O’Connor and Fairall, supra, at p. 160.) 

78                As in Canada and England, where the defence of duress does not arise from the facts of the case the accused bears an evidentiary onus of introducing facts to support the defence.  The Crown must then establish that the accused was not acting under duress.  (See Gillies’ Criminal Law, supra, at p. 356.  See also O’Connor and Fairall, supra, at pp. 162-63.)

79                Much like in English jurisprudence, some controversy arose about the relevancy, definition and function of the immediacy requirement in Australian law.  The Full Supreme Court of Victoria in Hurley and Murray asserted that the threat of harm must be “present and continuing, imminent and impending” (p. 543).  Since then, however, three state appellate courts have specifically endorsed the ruling in Hudson that threats of future harm may suffice: the Full Supreme Court of South Australia in Palazoff, supra, at p. 109, and R. v. Brown (1986), 43 S.A.S.R. 33; the Full Supreme Court of Victoria in Dawson, supra;  and the New South Wales Court of Criminal Appeal in R. v. Williamson, [1972] 2 N.S.W.L.R. 281, at pp. 283 and 300.

80                Akin to the English Court of Appeal’s decision in Abdul-Hussain, at least one of the Australian cases suggests that proportionality is a component of the defence of duress.  In Osborne v. Goddard (1978), 21 A.L.R. 189, at p. 195, the full Supreme Court of South Australia intimated that the severity of the crime is an important consideration in determining whether the accused’s failure to pursue a safe avenue of escape was reasonable.

4.         The American Common Law of Duress

81                The appellant referred to some American authorities on the nature of the common law defence of duress, which according to him demonstrate that this defence is subject to stricter constraints in the United States, and in particular that a threat of future harm will not allow an accused to raise a defence of duress.  (See W. R. LaFave and A. W. Scott, Substantive Criminal Law (1986), vol. 1, at pp. 618-19;  United States v. Jennell, 749 F.2d 1302 (9th Cir. 1984), at p. 1305;  United States v. Contento-Pachon, 723 F.2d 691 (9th Cir. 1984), at pp. 693-94;  United States v. Marenghi, 893 F. Supp. 85 (D. Me. 1995), at p. 92;  J. Hall, General Principles of Criminal Law (2nd ed. 1960), at p. 447.)

82                It must be noted, however, that the situation is far from being as clear as what the appellant suggests.  In fact, several American cases have displayed a flexible view of the temporal criterion in the context of duress.  For instance in the case of Esquibel v. State, 576 P.2d 1129 (N.M. 1978), it was held that a threat which had occurred 48 to 72 hours before the commission of the offence was sufficient to trigger the application of the defence in the particular circumstances of that case.  The court underlined the need to analyse closely the facts of each case when assessing duress, rather than adopting a strict criterion of “immediacy”, in order to determine whether the accused’s actions were dictated by the threat when he committed the crime (see also People v. Harmon, 232 N.W.2d 187 (Mich. 1975); State v. Toscano, 378 A.2d 755 (N.J. 1977)).

83                Even the cases which the appellant has cited do not all suggest a strict criterion of immediacy in the context of duress.  For instance, consider the decision of the United States Court of Appeals for the Ninth Circuit in Contento-Pachon, supra.   The facts giving rise to that case were similar to the facts in the case at bar.  The accused had been coerced by an individual in Colombia to smuggle cocaine into the United States.  He was told that if he did not comply, his wife and child in Colombia would be harmed.   The accused complied with the request and did not seek police assistance in Colombia because he believed police there were corrupt.  We realize that even though the accused claimed he was being watched during the whole trip by his threatener’s accomplice, the threat could not, as in the case at bar, be considered immediate in the strict sense.  Indeed, had the accused not complied with the order, the accomplice would have had to take the time to contact the threatener in Colombia.  Then, the threatener would have had to get to the accused’s house and eventually carry out the threat.  There was therefore no more immediacy in Contento-Pachon than in the case at bar, where Mirkovic would have had to be contacted by his accomplice from the restaurant in Toronto if the heroin was not delivered by the accused as expected.  He would then have had to get to the accused’s mother and eventually carry out the threat.

84                In Contento-Pachon, the trial judge found that since the alleged threat was not immediate, the defence of duress could not be submitted to the jury.  The Court of Appeals reversed by stating a more flexible criterion (at p. 694): [t]he element of immediacy requires that there be some evidence that the threat of injury was present, immediate, or impending” (emphasis added).  Right after, the court adds, citing Rhode Island Recreation Center v. Aetna Casualty & Surety Co., 177 F.2d 603 (1st Cir. 1949), at p. 605, that immediacy means that a “veiled threat of future unspecified harm” (emphasis added) will not be sufficient to invoke duress.  Finally, holding that the criterion was satisfied, the court wrote (at p. 694):

Evidence presented on this issue indicated that the defendant was dealing with a man who was deeply involved in the exportation of illegal substances.  Large sums of money were at stake and, consequently, Contento-Pachon had reason to believe that Jorge would carry out his threats.  Jorge had gone to the trouble to discover that Contento-Pachon was married, that he had a child, the names of his wife and child, and the location of his residence.  These were not vague threats of possible future harm.  According to the defendant, if he had refused to cooperate, the consequences would have been immediate and harsh.

85                Although the court still uses the word “immediate”, the emphasis is more on the seriousness of the threat and its capacity to dominate the will of the accused when he committed the offence, rather than the strict immediacy of the threatened harm.  The standard applied therefore seems to be the more flexible criterion which we described earlier requiring that there be a “close temporal connection”, without requiring strictly speaking that the threat could be carried out immediately.

5.         Summary: Rejection of the Immediacy Requirement at Common Law

86                This review of the common law defence of duress confirms that, although the common law is not unanimous in the United States, a substantial consensus has grown in Canada, England and Australia to the effect that the strict criterion of immediacy is no longer a generally accepted component of the defence.  A requirement that the threat be “imminent” has been interpreted and applied in a more flexible manner.  The English Court of Appeal held in Hudson that depending on the circumstances, threats of future harm are sufficient to invoke the defence.  Hudson remains good law in England and has been adopted by the courts in three Australian states and one territory.  However, it is clear from the English cases that there must be a close temporal link between the threat of harm and the commission of the offence.  The operative test in the English and Australian cases is whether the threat was effective to overbear the accused’s will at the moment he committed the crime.  Moreover, the safe avenue of escape test and the proportionality principle also appear to be key elements of the defence. 

E.         The Breach of Section 7  of the Charter : Conclusion in the Case at Bar

87                At the heart of Laskin J.A.’s decision is a concern that the immediacy and presence requirements are poor substitutes for the safe avenue of escape test at common law.  In his view, their focus on an instantaneous connection between the threat and the commission of the offence misses the point in a number of special cases.  He highlights two situations in particular.  The first is the battered woman who is coerced by her abusive partner to break the law.  Even though her partner is not present when she commits the offence and is therefore unable to execute it immediately, a battered woman may believe nonetheless that she has no safe avenue of escape.  Her behaviour is morally involuntary, yet the immediacy and presence criteria, strictly construed, would preclude her from resorting to s. 17 .  There may also be other situations in which a person is so psychologically traumatized by the threatener that he complies with the threat, even though it was not immediate and to the objective observer, there was a legal way out. The second scenario described by Laskin J.A. is the case of a person like Ms. Ruzic, for whom effective police protection was unavailable.  Do the immediacy and presence requirements demand that a person go to the authorities if he has the opportunity to do so, even when he believes it would be useless or even dangerous to do so?  It should be noted that in this second scenario, a court might face a delicate task in assessing the validity of a claim that, in a foreign land, no police protection was available.  It illustrates some of the difficulties in the practical implementation of a defence of duress which involves a risk of abuse through unverifiable assertions of danger and harm.

88                Nevertheless, s. 17's reliance on proximity as opposed to reasonable options as the measure of moral choice is problematic.  It would be contrary to the principles of fundamental justice to punish an accused who is psychologically tortured to the point of seeing no reasonable alternative, or who cannot rely on the authorities for assistance.  That individual is not behaving as an autonomous agent acting out of his own free will when he commits an offence under duress.   

89                The appellant’s attempts at reading down s. 17, in order to save it, would amount to amending it to bring it in line with the common law rules.  This interpretation badly strains the text of the provision and may become one more argument against upholding its validity.

90                The underinclusiveness of s. 17 infringes s. 7  of the Charter , because the immediacy and presence requirements exclude threats of future harm to the accused or to third parties.  It risks jeopardizing the liberty and security interests protected by the Charter , in violation of the basic principles of fundamental justice.  It has the potential of convicting persons who have not acted voluntarily.

F.    Can the Infringement Be Justified Under Section 1?

91                Having found that the immediacy and presence requirements infringe s. 7  of the Charter , I turn now to consider whether the violation is a demonstrably justifiable limit under s. 1 .  The government, of course, bears the burden of justifying a Charter  infringement.  Consistent with its strategy in the courts below, the appellant made no attempt before this Court to justify the immediacy and presence criteria according to the s. 1  analysis.   I therefore conclude at the outset that the appellant has failed to satisfy its onus under s. 1 .

92                Moreover, it is well established that violations of s. 7  are not easily saved by s. 1:  New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 99.  Indeed, the Court has indicated that exceptional circumstances, such as the outbreak of war or a national emergency, are necessary before such an infringement may be justified: R. v. Heywood, [1994] 3 S.C.R. 761, at p. 802;  Re B.C. Motor Vehicle Act, supra.  No such extraordinary conditions exist in this case.  Furthermore, I am inclined to agree with Laskin J.A. that the immediacy and presence criteria would not meet the proportionality branch of the s. 1 analysis.  In particular, it seems to me these requirements do not minimally impair the respondent’s s. 7  rights. Given the appellant’s failure to make any submissions on the issue, the higher standard of justification for a violation of s. 7 , and my doubts concerning proportionality, I conclude that the immediacy and presence conditions cannot be saved by s. 1.

G.        Alternatively, Do the Immediacy and Presence Requirements in Section 17 Infringe the Principle That Rights Should Not Be Restricted in a Manner That Is Arbitrary or Unfair?

93                Laskin J.A. found, in the alternative, that s. 17 infringes s. 7  of the Charter  because the presence and immediacy requirements are arbitrary and inconsistent with the government’s objective of excusing morally involuntary behaviour. On the view I take of the interpretation of s. 17 , I need not address this argument.  I prefer to  ground the partial striking down of s. 17  on the fundamental principle that criminal liability should not be ascribed to physically or morally involuntary behaviour.

H.   The Jury Charge

94                I turn last to consider the trial judge’s instructions to the jury on the common law defence of duress.  Herold J. repeated the elements of the common law defence several times as follows: 

There are four ingredients that must be met before the law will excuse a crime because the accused was acting under duress.

. . .

One: acts solely as a result of threats of death, or serious bodily harm to herself or another person.

Two: the threats were of such gravity or seriousness that the accused believed that the threats would be carried out.

Three: the threats were of such gravity that they might well have caused a reasonable person placed in the same situation as the accused, to act in the same manner as she did.

To put that another way, would a person of reasonable firmness, sharing the characteristics of the accused, such as her age and her background, have responded to the threats.

Finally, the accused must not have had an obvious safe avenue of escape.

Later, the judge told the jury that “the threats must be such that they are operating on the mind of the accused at the time that she does what she has been charged with doing.”

95                The appellant points to four deficiencies in the trial judge’s charge to the jury, which, it must be said, were never raised by the Crown when Herold J. gave his instructions at trial.  First, the appellant argues that the trial judge failed to instruct the jury on the imminence requirement of the defence.  Second, the appellant argues that he erred in his explanation of the safe avenue of escape test.  The appellant maintains that he should have directed the jury to consider whether Ms. Ruzic had “any” legal way out of her predicament, not just an “obvious” safe avenue of escape.  Third, the appellant maintains that the trial judge introduced unduly subjective elements into his charge to the jury on the standard to assess duress.  Last, the appellant asserts that the trial judge misdirected the jury on the burden of proving duress.  In effect, the appellant is urging the Court to shift the legal onus of proof from the Crown onto the shoulders of the accused, who would be responsible for proving duress, on a balance of probabilities.

96                In the future, when the common law defence of duress is raised, the trial judge should instruct the jury clearly on the components of this defence including the need for a close temporal connection between the threat and the harm threatened.  The jury’s attention should also be drawn to the need for the application of an objective-subjective assessment of the safe avenue of escape test.

97                Nevertheless, the perusal of the charge reveals that the deficiencies raised by the appellant were nowhere to be seen.  Viewed in its entirety, the trial judge’s charge explained adequately the elements of the defence of duress at common law to the members of the jury.

98                The charge contained all the elements required by the common law rules on duress.  The criterion of the safe avenue of escape was well explained as was the objective component of this test.  Notwithstanding the argument of the appellant, the law does not require an accused to seek the official protection of police in all cases.  The requirement of objectivity must itself take into consideration the special circumstances where the accused found herself as well as her perception of them.  Herold J. drew the attention of the jury both to that objective component and to the subjective elements of the defence.  This argument must thus fail.

99                As to the immediacy of the threat, as Laskin J.A.’s reasons point out, Herold J. brought home to the jury the fact that the threat had to be a real threat affecting the accused at the time of the offence.  This instruction at least implied that the jury had to consider the temporal connection between the threat and the harm threatened, although it would have been preferable to say so in so many express words. 

100            There was no misdirection either on the burden of proof.  The accused must certainly raise the defence and introduce some evidence about it.  Once this is done, the burden of proof shifts to the Crown under the general rule of criminal evidence.  It must be shown, beyond a reasonable doubt, that the accused did not act under duress.  Similarly, in the case of the defence of necessity, the Court refused to shift the burden of proof to the accused (see Perka, supra, at  pp. 257-59), although the defence must have an air of reality, in order to be sent to the jury, as the Court held in Latimer, supra.

VI.  Disposition

101            The appellant’s submissions cannot be accepted.  The immediacy and presence requirements of s. 17  of the Criminal Code  infringe s. 7  of the Charter .  As the infringement has not been justified under s. 1 , the requirements of immediacy and presence must be struck down as unconstitutional.  The Court of Appeal and the trial judge were right in allowing the common law defence of duress go to the jury, and the trial judge adequately instructed the jury on the defence. 

102            I would dismiss the appeal and confirm the acquittal of the respondent.

103            I would answer the constitutional questions as follows:

1.         Do the requirements in s. 17  of the Criminal Code, R.S.C. 1985, c. C-46 , that a threat must be of immediate death or bodily harm and from a person who is present when the offence is committed infringe the rights of an accused person as guaranteed by s. 7  of the Canadian Charter of Rights and Freedoms ?

Answer:      Yes.

2.         If the answer to Question 1 is yes, is the said infringement of the s. 7  rights a reasonable limit that can be demonstrably justified under s. 1  of the Canadian Charter of Rights and Freedoms ?

Answer:      No.

3.         Does s. 17 of the Criminal Code, R.S.C. 1985, c. C-46 , infringe the rights of an accused person as guaranteed by s. 7  of the Canadian Charter of Rights and Freedoms  by precluding access to the defence of duress where the threat is to a third party?

Answer:      No. Section 17  of the Criminal Code  does not preclude access to the defence on the basis that the threat is directed to a third party.

4.         If the answer to Question 3 is yes, is the said infringement of the s. 7  rights a reasonable limit that can be demonstrably justified under s. 1  of the Canadian Charter of Rights and Freedoms ?

Answer:      No answer is necessary.

Appeal dismissed.

Solicitor for the appellant:  The Attorney General of Canada, Ottawa.

Solicitors for the respondent:  Sack Goldblatt Mitchell, Toronto;  Skurka & Pringle, Toronto.

Solicitor for the intervener the Attorney General for Ontario:  The Ministry of the Attorney General, Toronto.

Solicitors for the interveners the Canadian Council of Churches and the Canadian Council for Refugees:  Ruby & Edwardh, Toronto.