![](/scc-csc/scc-csc/en/12807/279993/res.do)
SUPREME
COURT OF CANADA
Between:
Her
Majesty The Queen
Appellant
and
Nicole
Patricia Ryan
Respondent
-
and -
Attorney
General of Ontario, Canadian Association of Elizabeth Fry Societies, Women’s
Legal Education and Action Fund and Criminal Lawyers’ Association of Ontario
Interveners
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein,
Cromwell, Moldaver and Karakatsanis JJ.
Reasons for
Judgment:
(paras. 1 to 85)
Reasons
Dissenting in Part:
(paras. 86 to 90)
|
LeBel and Cromwell JJ. (McLachlin C.J. and Deschamps,
Abella, Rothstein, Moldaver and Karakatsanis JJ. concurring)
Fish J.
|
R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14
Her Majesty The Queen Appellant
v.
Nicole Patricia Ryan Respondent
and
Attorney General of Ontario, Canadian
Association of
Elizabeth Fry Societies, Women’s Legal
Education and
Action Fund
and Criminal Lawyers’ Association of Ontario Interveners
Indexed as: R. v. Ryan
2013 SCC 3
File No.: 34272.
2012: June 14; 2013: January 18.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella,
Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
on appeal from the court of appeal for nova scotia
Criminal Law — Defences
— Duress — Abused wife paying “hit man” to murder husband who has threatened
her life — Whether duress is available in law as a defence where the threats
made against the accused were not made for the purpose of compelling the
commission of an offence — Statutory and common law parameters of defence of
duress — Whether stay of proceedings is appropriate in circumstances of case.
R
was the victim of a violent, abusive and controlling husband. She believed
that he would cause her and their daughter serious bodily harm or death and
that she had no safe avenue of escape other than having him killed. She spoke
to an undercover RCMP officer posing as a hit man and agreed to pay him $25,000
to kill her husband. She gave $2,000, an address and a picture of her
husband to the officer. She was arrested and charged with counselling the
commission of an offence not committed contrary to s. 464 (a) of the
Criminal Code . The trial judge was satisfied beyond a reasonable doubt
that the requisite elements of the offence were established. The only issue at
trial was whether the defence of duress applied. The trial judge accepted R’s
evidence that the sole reason for her actions was intense and reasonable fear
arising from her husband’s threats of death and serious bodily harm to herself
and their daughter. The trial judge found that the common law defence of duress
applied and acquitted R. On appeal, for the first time, the Crown argued that
duress was not available to R in law. The Court of Appeal upheld the acquittal.
Held (Fish J. dissenting in part): The
appeal should be allowed and the proceedings should be stayed.
Per
McLachlin C.J. and LeBel, Deschamps, Abella, Rothstein, Cromwell, Moldaver
and Karakatsanis JJ.: The
defence of duress is only available when a person commits an offence while
under compulsion of a threat made for the purpose of compelling him or her to
commit the offence. This was not R’s situation and the defence of duress was
not available to her. If an accused is threatened without compulsion, his or
her only defence is self‑defence.
The Court of Appeal erred in law
in finding that there was no principled basis upon which to exclude R from
relying on the defence of duress. Although the defences of duress and self‑defence
are both based on the idea of normative involuntariness and both apply where
the accused acted in response to an external threat, significant differences
between these defences justify maintaining a meaningful juridical difference
between them. The rationale underlying each defence is profoundly distinct. Duress,
like the defence of necessity, is an excuse. The act, usually committed
against an innocent third party, remains wrong but the law excuses those who
commit the act in a morally involuntary manner, where there was realistically
no choice but to commit the act. Self‑defence, in contrast, is a
justification based on the principle that it is lawful in defined circumstances
to resist force or a threat of force with force. The victim, also the
attacker, is the author of his or her own misfortune. Generally, the
justification of self‑defence ought to be more readily available than the
excuse of duress. Thus, if infliction of harm on
a person who threatened or attacked the accused is not justified by the law of
self‑defence, it would be curious if the accused’s response would
nonetheless be excused by the more restrictive law of duress. Duress, which is an amalgam of statutory
and common law elements, cannot be extended to apply where the accused meets
force with force in situations where self-defence is not available. Duress is, and must remain, an applicable defence only in situations
where the accused has been compelled to commit a specific offence under threats
of death or bodily harm.
This
appeal underlines the need for further clarification of the law of duress. The
statutory version of the defence applies to principals and the common law to
parties. The statutory version of the offence also excludes a long list of
offences from its operation. Nonetheless, the defence of duress, in its
statutory and common law forms, is largely the same and both forms share the
following common elements: there must be an explicit or implicit threat of
present or future death or bodily harm — this threat can be directed at the
accused or a third party; the accused must reasonably believe that the threat
will be carried out; there must be no safe avenue of escape,
evaluated on a modified objective standard; there must be a close temporal
connection between the threat and the harm threatened; there must be proportionality
between the harm threatened and the harm inflicted by the accused, also
evaluated on a modified objective standard; and the accused cannot be a party
to a conspiracy or association whereby he or she is subject to compulsion and
actually knew that threats and coercion to commit an offence were a
possible result of this criminal activity, conspiracy or association.
The circumstances of this case are
exceptional and warrant a stay of proceedings. Although the appeal should be
allowed, it would not be fair to subject R to another trial. The abuse she
suffered and the protracted nature of these proceedings have taken an enormous
toll on her. The law of duress was unclear which made resort to the defence at
trial unusually difficult. Furthermore, the Crown changed its position about
the applicable law between the trial and appeal process, raising a serious risk
that the consequences of decisions made during the
conduct of R’s defence cannot be undone in the context of a new trial.
Per Fish J. (dissenting
in part): The defence of duress was not available to R and the acquittal must
be set aside. However, a judicial stay of proceedings is not warranted on the
record. A stay is a drastic remedy of last resort and available only in the
clearest of cases. These criteria are not satisfied. A new trial should be
ordered, leaving it to the Crown to decide whether the public interest requires
a new trial in the particular circumstances of the case.
Cases Cited
By LeBel and Cromwell JJ.
Explained:
R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687; referred to: R.
v. Hibbert, [1995] 2 S.C.R. 973; Perka v. The Queen, [1984] 2 S.C.R.
232; R. v. Hinse, [1995] 4 S.C.R. 597; R. v. Provo, [1989]
2 S.C.R. 3; R. v. Power, [1994] 1 S.C.R. 601; Canada (Minister of
Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. Fraser (2002), 3 C.R. (6th) 308; Paquette v. The
Queen, [1977] 2 S.C.R. 189; R. v. Howe, [1987] A.C. 417; R. v. Mena (1987), 34 C.C.C. (3d) 304; R. v. McRae (2005), 77 O.R. (3d) 1; R. v. Langlois (1993), 80 C.C.C. (3d) 28; R. v. Latimer, 2001 SCC 1, [2001] 1
S.C.R. 3; R. v. Li (2002), 162 C.C.C. (3d) 360; R. v. Poon, 2006
BCSC 1158 (CanLII); R. v. M.P.D., 2003 BCPC 97, [2003] B.C.J. No. 771
(QL); United States v. Burnes, 666 F.Supp.2d 968 (2009); United
States v. Gamboa, 439 F.3d 796 (2006); United States v. Montes, 602
F.3d 381 (2010).
By Fish J. (dissenting in part)
Charkaoui
v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326; R.
v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; Canada (Minister of
Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v.
O’Connor, [1995] 4 S.C.R. 411.
Statutes and Regulations Cited
Canadian
Charter of Rights and Freedoms, ss. 1 , 7 .
Criminal
Code, R.S.C. 1985, c. C‑46, ss. 2 “bodily harm”, 8(3), 17, 34(1),
464(a), 695.
Authors Cited
Baker, Dennis J. Textbook of Criminal Law, 3rd ed.
London: Sweet & Maxwell, 2012.
Coughlan, Stephen G. “Duress, Necessity, Self‑Defence
and Provocation: Implications of Radical Change?” (2002), 7 Can. Crim. L.R.
147.
Fletcher, George P. Rethinking Criminal Law.
Boston: Little, Brown, 1978.
Manning, Morris, and Peter Sankoff. Manning Mewett &
Sankoff: Criminal Law, 4th ed. Markham, Ont.: LexisNexis, 2009.
Paciocco, David M. “No‑one Wants to Be Eaten: The Logic
and Experience of the Law of Necessity and Duress” (2010), 56 Crim. L.Q.
240.
Parent, Hughes. Traité de droit criminel, t. 1, L’imputabilité,
2e éd. Montréal: Thémis, 2005.
Roach,
Kent. Criminal Law, 4th ed. Toronto:
Irwin Law, 2009.
Stuart, Don. Canadian Criminal Law: A Treatise, 6th ed.
Scarborough, Ont.: Thomson Reuters, 2011.
Yeo, Stanley. “Defining Duress” (2002), 46 Crim. L.Q. 293.
APPEAL
from a judgment of the Nova Scotia Court of Appeal (MacDonald C.J.N.S. and Saunders and
Oland JJ.A.), 2011 NSCA 30, 301 N.S.R. (2d) 255, 953
A.P.R. 255, 269 C.C.C. (3d) 480, 84 C.R. (6th) 249, [2011] N.S.J. No. 157
(QL), 2011 CarswellNS 177, affirming an acquittal entered by Farrar J., 2010
NSSC 114, 289 N.S.R. (2d) 273, 916 A.P.R. 273, [2010] N.S.J. No. 154 (QL),
2010 CarswellNS 182. Appeal allowed, Fish J. dissenting in part.
William D. Delaney, Q.C., and Jennifer A. MacLellan, for the appellant.
Joel E. Pink,
Q.C., Brian H. Greenspan, Andrew Nielsen and Naomi M.
Lutes, for the respondent.
John Corelli and
Holly Loubert, for the intervener the Attorney General of Ontario.
Christine Boyle, Q.C.,
for the interveners the Canadian Association of Elizabeth Fry Societies and the
Women’s Legal Education and Action Fund.
Susan M. Chapman and Howard Krongold, for the intervener the Criminal Lawyers’
Association (Ontario).
The judgment of McLachlin
C.J. and LeBel, Deschamps, Abella, Rothstein, Cromwell, Moldaver and
Karakatsanis JJ. was delivered by
LeBel
and Cromwell JJ. —
I. Introduction
[1]
This appeal raises a novel question: may a wife,
whose life is threatened by her abusive husband, rely on the defence of duress
when she tries to have him murdered? The Nova Scotia courts concluded that she
may and acquitted the respondent, Nicole Ryan, of counselling the commission of
her husband’s murder. The Crown appeals.
[2]
As we see it, the defence of duress is available
when a person commits an offence while under compulsion of a threat made for
the purpose of compelling him or her to commit it. That was not Ms. Ryan’s
situation. She wanted her husband dead because he was threatening to kill her
and her daughter, not because she was being threatened for the purpose of
compelling her to have him killed. That being the case, the defence of duress
was not available to her, no matter how compelling her situation was viewed in
a broader perspective. It is also our view, however, that the uncertainty
surrounding the law of duress coupled with the Crown’s change of position
between trial and appeal created unfairness to Ms. Ryan’s defence in this case.
As a result, we would allow the appeal and enter a stay of proceedings.
[3]
The appeal presents an opportunity to bring more
clarity to the law of duress in Canadian criminal law. Some of the relevant law
is statutory, but aspects of the provisions have been found to be
unconstitutional. Other aspects of the relevant law are judge-made. The
patchwork quilt nature of the present law has given rise to significant
uncertainty about the parameters of both the statutory and common law elements
of the defence and the relationship between them. In relation to this larger
issue, our view is that the common law and statutory versions of the defence
may be substantially harmonized in the manner we will set out in detail later in
our reasons.
II. Overview of Facts and
Proceedings
A. Facts
[4]
The respondent, Nicole Ryan, has been the victim
of a violent, abusive and controlling husband. She believed that he would
cause her and their daughter serious bodily harm or death as he had threatened
to do many times.
[5]
In September of 2007, she began to think about
having her husband murdered. Over the course of the next seven months, she
spoke to at least three men whom she hoped would kill him. In December 2007 or
January 2008, she paid one man $25,000 to carry out the killing, but he then
refused, demanding more compensation. She approached another person and was
contacted by a third, an undercover RCMP officer, posing as a “hit man”. On
March 27, 2008, she met with this individual and agreed to pay him to kill her
husband. The agreed upon price was $25,000, with $2,000 paid in cash that day.
The killing was to take place the coming weekend. Later that same night, she
provided an address and a picture of her husband to the “hit man”. Shortly
after, she was arrested and charged with counselling the commission of an
offence not committed contrary to s. 464 (a) of the Criminal Code,
R.S.C. 1985, c. C-46 .
[6]
At trial, there was no issue that the elements
of the offence had been proved and the trial judge, Farrar J. (as he then was),
indicated that he was satisfied beyond a reasonable doubt that the requisite
elements of the offence of counselling the commission of an offence had been
established. He based this conclusion on the respondent’s admission that the
Crown had proved a prima facie case and on the audio and video tapes of
recorded conversations with the undercover officer and a statement made on
arrest (trial judge’s reasons, at paras. 4-6). The only issue at trial was
whether the respondent’s otherwise criminal acts were excused because of
duress. The accused had raised that the common law defence of duress applied.
The Crown argued that on the facts of this case, the components of
duress were not present. But it did not argue at trial, as it did later on
appeal, that the defence of duress was not available in law to the
respondent (transcript, at pp. 22-23; trial judgment, 2010 NSSC 114 (CanLII), at
paras. 7-8).
[7]
The trial judge accepted the respondent’s
evidence that the relationship and the events she had described relating to
that relationship were true. For example, Mr. Ryan’s violent and threatening
behaviour included outbursts at least once a week, where he would throw things
at the respondent’s head, physically assault her and threaten to kill her (trial
judgment, at para. 17). The respondent testified that Mr. Ryan often told
her that he would kill her and their daughter if she ever tried to leave him
(para. 33), and that he would “burn the fucking house down” while she and her
daughter were inside (para. 45).
[8]
The trial judge had no difficulty in concluding
that Mr. Ryan was a manipulative, controlling and abusive husband who sought to
control the actions of the respondent, be they social, familial or marital. The
judge found that the respondent’s sole reason for her actions was her fear of
her husband which arose from his threats of death and serious bodily harm to
herself and their daughter (paras. 149-52). He also was satisfied that the
respondent had led evidence to the requisite standard that she reasonably
believed that Mr. Ryan would cause her and her daughter serious bodily injury
and that there was no safe avenue of escape other than having him killed.
[9]
The judge concluded that the respondent was in a
very vulnerable state, had lost a considerable amount of weight, was
dissociated and despondent. She had an intense and reasonable fear of Mr. Ryan,
was feeling helpless, felt she had lost control and felt she was threatened
with annihilation. While she had engaged the police and other agencies in an
effort to assist her in the past, the evidence was that her problems were
viewed as a “civil matter”. She felt so vulnerable that the phone call of the
undercover police officer appeared to her as the solution to all her problems
(para. 73). On the basis of these findings, the trial judge found that the
common law defence of duress applied, and acquitted the accused.
[10]
The Crown appealed but the Court of Appeal
unanimously upheld the trial judge’s verdict of acquittal. On the appeal, for
the first time, the Crown took the position that duress was not available in
law as a defence to the respondent on these facts. Duress, the Crown contended,
applies only when an accused is forced by threats to commit an offence against
a third party (2011 NSCA 30, 301 N.S.R. (2d) 255, at para. 56). MacDonald
C.J.N.S. (Saunders and Oland JJ.A. concurring) rejected the Crown’s submission.
Simply put, the Court of Appeal found that the focus of the defence of duress
is to absolve an accused of criminal liability when his or her conduct is
morally involuntary. Therefore, the analysis should focus on the accused’s
predicament and not on who did what to whom in who’s presence. It followed that
the respondent should not be denied the defence of duress simply because the
victim was not a third party, but the aggressor. The court saw no principled
basis to justify a distinction between the aggressor as opposed to a third
party being the targeted victim.
[11]
The court reviewed the case law in this area
which emphasizes the need for triers of fact to fully understand the plight of
battered spouses who, having reacted to threats from their abusive partners,
rely on the defence of duress. MacDonald C.J.N.S. also highlighted the need for
the defence to be sufficiently flexible, when appropriate, to accommodate the
dark reality of spousal abuse.
III. Analysis
A. Issues
[12]
The appeal raises three issues:
1. Is
duress available in law as a defence where the threats made against the accused
were not made for the purpose of compelling the commission of an offence?
2. If
not, and the appeal must therefore be allowed, what order should be made and,
in particular, in the unusual circumstances of this case, should a stay of
proceedings be entered?
3. Can
the law of duress be clarified and how?
B. Is Duress a Possible Defence?
[13]
The Crown asserted that the defence of duress is
not open to the accused, on the facts of this case. The Court of Appeal
reasoned that, if the respondent had herself attacked her husband, self-defence
would represent a potential avenue of defence (para. 99). The court saw “no
principled basis to justify a distinction between the aggressor as opposed to a
third party being the targeted victim” (para. 99). In other words, while duress
has traditionally applied where the person making the threat and the victim are
different, this fact does not justify restricting duress to that sort of
situation. As the Court of Appeal commented, it would be “ironic” that the
respondent might have a defence of self-defence if she had attacked her husband
herself, but no defence where she responded to the same threat by hiring
someone else to kill him (para. 99). In short, the Court of Appeal thought it
appropriate to develop the common law of duress in order to fill a gap in the
law of self-defence.
[14]
The Crown argues that the Court of Appeal
wrongly held that there was no principled basis for refusing to extend the
defence of duress to cover these facts. In order to address this argument, we
need to review the state of the common law defence of duress.
[15]
We begin our analysis with R. v. Hibbert,
[1995] 2 S.C.R. 973, which touched on the question of the differences and
relationship between duress, necessity and self-defence. One of the issues in
Hibbert was whether the common law defence of duress incorporated the
requirement that no “safe avenue of escape” be available to the accused. Lamer
C.J. approached this question by examining the juristic nature of the defence
of duress and its relationship to other common law defences (para. 46). This
led him to consider the relationship between self-defence, duress and
necessity.
[16]
In this case, unlike in Hibbert, we must
resolve the question of whether the differences between duress and self-defence
justify maintaining a meaningful juridical difference between them. In our
view, and with great respect to the contrary view of the Court of Appeal, they
do. In other words, we conclude that the Court of Appeal erred in law when it
found that there is “no principled basis” upon which the respondent should be
excluded from relying on the defence of duress.
[17]
With respect to the relationship between duress
and necessity, Lamer C.J. in Hibbert concluded that the “the
similarities between the two defences are so great that consistency and logic
require that they be understood as based on the same juristic principles” and
that to do otherwise “would be to promote incoherence and anomaly in the
criminal law” (para. 54). Their common foundation is that both are excuses,
“based on the idea of normative involuntariness” (para. 54), as Dickson J. (as
he then was) had found in the case of the defence of necessity in Perka v.
The Queen, [1984] 2 S.C.R. 232. The relationship among duress and necessity
on one hand and self-defence on the other was less clear. All three apply in
“essentially similar” situations: each is concerned with providing a defence
to what would otherwise be criminal conduct because the accused acted in
response to an external threat (para. 60). As the then Chief Justice explained
in Hibbert,
[t]he
defences of self-defence, necessity and duress all arise under circumstances
where a person is subjected to an external danger, and commits an act that
would otherwise be criminal as a way of avoiding the harm the danger presents.
[para. 50]
[18]
However, there are also significant differences
among the defences. As Lamer C.J. explained,
a distinction can be drawn between
self-defence, on the one hand, and duress and necessity, on the other, that
might well provide a basis for a meaningful juridical difference. In cases of
self-defence, the victim of the otherwise criminal act at issue is himself or
herself the originator of the threat that causes the actor to commit
what would otherwise be an assault or culpable homicide . . . . In this sense,
he or she is the author of his or her own deserts, a factor which arguably
warrants special consideration in the law. In cases of duress and necessity,
however, the victims of the otherwise criminal act . . . are third parties,
who are not themselves responsible for the threats or circumstances of
necessity that motivated the accused’s actions. [Emphasis in original; para.
50.]
[19]
In this passage, the Chief Justice alludes to
two differences that “[may] well provide a basis for a meaningful juridical
difference” between duress and self-defence (para. 50).
[20]
First, self-defence is based on the principle
that it is lawful, in defined circumstances, to meet force (or threats of
force) with force: “an individual who is unlawfully threatened or attacked must
be accorded the right to respond” (M. Manning and P. Sankoff, Manning
Mewett & Sankoff: Criminal Law (4th ed. 2009), at p. 532). The
attacker-victim is, as the Chief Justice put it, “the author of his or her own
deserts” (para. 50). On the other hand, in duress and necessity, the victim is
generally an innocent third party (see D. Stuart, Canadian Criminal Law: A
Treatise (6th ed. 2011), at p. 511). Second, in self-defence, the victim
simply attacks or threatens the accused; the motive for the attack or threats
is irrelevant. In duress, on the other hand, the purpose of the threat
is to compel the accused to commit an offence. To put it simply, self-defence
is an attempt to stop the victim’s threats or assaults by meeting force with
force; duress is succumbing to the threats by committing an offence.
[21]
However, these are not the only differences
between duress and self-defence. It seems to us that there are two other
significant differences which must be taken into account.
[22]
One is that self-defence is completely codified
by the provisions of the Criminal Code . Thus, Parliament has established
the parameters of self-defence in their entirety. They are no longer found,
even in part, in the common law. Duress, on the other hand, is partly codified
and partly governed by judge-made law as preserved by s. 8(3) of the Code.
[23]
Another is that the underlying rationales of the
defences are profoundly distinct. The rationale underlying duress is that of
moral involuntariness, which was entrenched as a principle of fundamental
justice in R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at
para. 47: “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.” It is upon this foundation that we build the defences of
duress and necessity. As Lamer C.J. put it in Hibbert, the
underlying concept of both defences is “normative involuntariness”, in other
words, that there is “no legal way out” (para. 55). While the test to be
met is not dictated by this generally stated rationale underlying the defence,
its requirements are heavily influenced by it. As was discussed in Perka,
defences built on the principle of moral involuntariness are classified as
excuses. The law excuses those who, although morally blameworthy, acted in a
morally involuntary manner. The act remains wrong, but the author of the
offence will not be punished because it was committed in circumstances in which
there was realistically no choice (Ruzic, at para. 34; Perka, at
p. 248). The principle of moral involuntariness is “[a] concessio[n] to human
frailty” in the face of “agonising choice” (Ruzic, at para. 40; Stuart,
at p. 490). The commission of the crime is “remorselessly compelled by normal
human instincts” (Perka, at p. 249). As LeBel J. put it in Ruzic:
“Morally involuntary conduct is not always inherently blameless” (para. 41).
[24]
Despite its close links to necessity and duress,
self-defence, on the other hand, is a justification (Perka, at pp. 246
and 269). It “challenges the wrongfulness of an action which technically
constitutes a crime” (Perka, at p. 246; see also H. Parent, Traité de
droit criminel (2nd ed. 2005), vol. 1, L’imputabilité, at pp. 587-88).
For different views, see S. G. Coughlan, “Duress, Necessity, Self-Defence and
Provocation: Implications of Radical Change?” (2002), 7 Can. Crim. L.R.
147, at p. 158; see also Manning and Sankoff, at p. 342, and K.
Roach, Criminal Law (4th ed. 2009), at p. 294. In determining
whether the defence is available, less emphasis is placed on the particular
circumstances and concessions to human frailty and more importance is attached
to the action itself and the reason why the accused was justified in meeting
force with force.
[25]
We do not, for the present purpose, need to
delve too deeply into the distinction between justifications and excuses and
questions of exactly how and when the distinction is to be drawn in all cases.
For the purposes of this appeal, the distinction simply expresses an underlying
difference in principle between the two defences: while in a case of duress we
excuse an act that we still consider to be wrong, the impugned act in a case of
self-defence is considered right. The question then, is whether these
differences support a principled distinction between duress and self-defence.
In our view they do, for two main reasons.
[26]
Given the different moral qualities of the acts
involved, it is generally true that the justification of self-defence ought to
be more readily available than the excuse of duress. And so it is. Unlike
duress, self-defence does not require that any course of action other than
inflicting the injury was “demonstrably impossible” or that there was “no other
legal way out”. Under the former self-defence provisions, for example, a person
who is the victim of an unprovoked unlawful assault is entitled to use as much
force as is necessary to defend himself, provided he does not intend to cause
death or grievous bodily harm (s. 34(1); see Parent, pp. 605-6). Under the
recently adopted provisions in Bill C-26, self-defence is available in
circumstances in which a person believes on reasonable grounds that force is
being used against him or her and responds reasonably for the purpose of
self-defence (s. 34(1)).
[27]
Thus, if infliction of harm on a person who
threatened or attacked the accused is not justified by the law of self-defence,
it would be curious if the accused’s response would nonetheless be excused by
the more restrictive law of duress. For the sake of the coherence of the
criminal law, the defence of self-defence ought to be more readily available,
not less readily available, than the defence of duress in situations in which
the accused responds directly against the source of the threat.
[28]
These distinctive underlying principles of self-defence
and duress take on added significance when we remember that in Canadian law,
self-defence is exhaustively codified, whereas duress is an amalgam of
statutory and common law elements. This means that the courts must take care
not to use the flexibility of the common law to develop duress in ways that
circumvent limitations and restrictions imposed by Parliament on the defence of
self-defence. This would amount to judicial abrogation of parts of the Criminal
Code . The courts intervene to interpret and apply the statutory rules
governing self-defence, not to set them aside in the absence of a
constitutional challenge.
[29]
Duress cannot be extended so as to apply when
the accused meets force with force, or the threat of force with force in
situations where self-defence is unavailable. Duress is, and must remain, an
applicable defence only in situations where the accused has been compelled to
commit a specific offence under threats of death or bodily harm. This clearly
limits the availability of the offence to particular factual circumstances. The
common law elements of duress cannot be used to “fill” a supposed vacuum
created by clearly defined statutory limitations on self-defence.
[30]
This is even clearer when one considers — as
explained above — the fundamental distinctions between both defences. Not only
is one a justification and the other an excuse, but they also serve to avoid
punishing the accused in completely different situations. If, for example, the
accused was threatened with death or bodily harm without any element of
compulsion, his or her only remedy is self-defence. If, on the other hand, the
accused was compelled to commit a specific unlawful act under threat of death
or bodily harm, the available defence is duress. In a case where there was a
threat without compulsion, the accused cannot rely on duress simply because he
or she did not employ direct force and thus, was excluded from relying on the
self-defence provisions of the Code. As Glanville Williams’ latest
editor, Dennis J. Baker, wrote about the availability of “pure” duress (as
opposed to duress of circumstances, which is an entirely different defence):
“On principle, the offence must be one expressly or impliedly ordered by the
villain, the order being backed up by his threat. (Or the defendant must have
believed that.) . . . As a matter of justice the defence should only be
available where the defendant commits a crime that he has been directly coerced
to commit” (Textbook of Criminal Law (3rd ed. 2012), at paras. 25-037
and 25-039).
[31]
Consider the result arrived at by the Court of
Appeal in this case. The respondent responded to threats against her and her
child of bodily harm and death in ways which, in the view of the Court of
Appeal, would not entitle her to rely on the defence of self-defence. We add
that the appeal to the Court was also presented on the assumption that
self-defence was not potentially open to the respondent on these facts. For
the purposes of these reasons, we do not need to decide this point. If this is
the case, the extension of the law of duress to meet the respondent’s situation
has made the law incoherent at the level of principle. Following the logic of
the Court of Appeal’s conclusions, duress, which deals with wrongful but
excused conduct would be more readily available than self-defence, which
addresses rightful conduct, in a situation in which the accused responded to
threats by trying to eliminate them. And yet, according to the underlying
rationale, excuses ought to be more restrictively defined than justifications (see,
e.g., Stuart, at p. 511).
[32]
The difficulty that this creates is not, in our
view, limited to a lack of analytical tidiness. The result of this case is in
effect a judicial amendment of the law of self-defence. This point is
underlined by the fact that neither in the sources cited by the parties nor in
our own research has duress been extended to a case in which the threat was not
made for the purpose of compelling the commission of an offence and the victim
was the person making the threat.
[33]
In our opinion, the Court of Appeal erred in law
in finding that duress is a legally available defence on these facts. Duress is
available only in situations in which the accused is threatened for the purpose
of compelling the commission of an offence.
C. Remedy
[34]
The next issue is what order should be made,
given our conclusion that the Court of Appeal erred in law and the appeal of
the Crown should be allowed. In our view, the interests of justice require that
a stay of proceedings be entered as the Court is authorized to do in the
clearest of cases by s. 695 of the Code (see, e.g., R. v. Hinse,
[1995] 4 S.C.R. 597, at para. 23; R. v. Provo, [1989] 2 S.C.R. 3, at pp.
18-23).
[35]
It is apparent that the law of duress was
unclear, which made resort to it as a defence unusually difficult. Coupled with
that consideration is the problem in this case that the Crown changed its
position about the applicable law between the trial and the appeal process. The
trial proceeded on the basis that duress was available as a matter of law to
Ms. Ryan if the facts supported it. She therefore went to trial on the basis
that the issues were mainly the factual ones relating to whether she had
pointed to evidence capable of raising a reasonable doubt about the various
components of duress. Presumably, decisions about the conduct of the defence
were made on this basis and might have been made differently had the legal
position later adopted by the Crown on appeal, that duress was not open to her
in law, been known at the time of trial. There is therefore a serious risk that
some of the consequences of those decisions could not be undone in the context
of a new trial and this raises concern about the fairness of ordering a new
trial. In addition, the abuse which she suffered at the hands of Mr. Ryan took
an enormous toll on her, as, no doubt, have these protracted proceedings,
extending over nearly five years, in which she was acquitted at trial and
successfully resisted a Crown appeal in the Court of Appeal. There is also the
disquieting fact that, on the record before us, it seems that the authorities
were much quicker to intervene to protect Mr. Ryan than they had been to
respond to her request for help in dealing with his reign of terror over her. A
stay of proceedings is warranted only in the clearest of cases (see R. v.
Power, [1994] 1 S.C.R. 601, at p. 615). In our opinion, Ms. Ryan’s
case falls into the residual category of cases requiring a stay: it is an
exceptional situation that warrants an exceptional remedy. In all of the circumstances,
it would not be fair to subject Ms. Ryan to another trial. In the interests of
justice, a stay of proceedings is required to protect against this oppressive
result (see Power, at pp. 615-16; Canada (Minister of Citizenship and
Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 91).
D. Can the Law of Duress be
Clarified?
[36]
This appeal underlines the need for further
clarification of the law of duress. The statutory version of the defence
applies to principals and the common law to parties. Important aspects of the
statutory version were found to be unconstitutional in Ruzic, and the
provision remains in place with two significant deletions as a result. The
statutory version of the defence excludes a long list of offences from its
operation, but various courts have found some of these exclusions to be
unconstitutional. For example, in R. v. Fraser (2002), 3 C.R. (6th) 308,
the Nova Scotia Provincial Court declared the following:
. . . s. 17 of the Criminal Code in so far as it
eliminates the defence of duress and/or necessity in offences concerning
robbery is of no force and effect as being contrary to the Canadian Charter
of Rights and Freedoms and in particular s. 7 of the Charter . [para.
5]
There is uncertainty
about the similarities and differences between the common law and the statutory
versions of the defence. Within the limits of the judicial role, in the
development of the law, additional clarification is needed.
[37]
In our view, after the decision of the Court in Ruzic,
some reappraisal and some adjustment of both the interpretation of the
statutory version of the defence and of the common law seems necessary. We
begin with a recapitulation of what was decided in Ruzic and then
address the various components of the statutory and common law versions of the
defence.
(1) An Overview of Ruzic
[38]
In Ruzic, the Court dealt with the constitutionality of
parts of the statutory defence of duress, located in s. 17 of the Criminal
Code . The accused in Ruzic admitted importing heroin from Serbia
into Canada. She argued that she should be excused from criminal liability
because a third party in Serbia had threatened to harm her mother unless she
committed the offence, and the Serbian police would not have been able to
protect her mother. The accused conceded that her claim of duress did not
satisfy the immediacy and presence preconditions of the statutory defence. She
challenged the constitutionality of s. 17 , which reads as follows:
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).
[39]
In upholding the accused’s acquittal based on
the defence of duress, a unanimous Court in Ruzic held that portions of
s. 17 violated s. 7 of the Canadian Charter of Rights and Freedoms and
were not saved by s. 1 .
[40]
In its analysis, the Court first addressed the
question of whether it is a principle of fundamental justice that morally
involuntary conduct should not be punished. The principle of moral
involuntariness recognizes that “[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” (Ruzic, at para. 29). In concluding
that the principle of moral involuntariness was indeed a principle of
fundamental justice, the Court noted that the treatment of criminal offenders
as autonomous and freely choosing agents is a key organizing principle of
criminal law. As a result, it is a violation of s. 7 of the Charter to
convict a person who has no realistic choice and whose behaviour is, therefore,
morally involuntary.
[41]
The Court then considered whether the immediacy
and presence requirements in s. 17 infringe the fundamental principle of moral
involuntariness by limiting the defence of duress to a person who commits an offence
under a threat of immediate bodily harm from a person present when the offence
is committed. The Court concluded that the immediacy and presence requirements,
taken together, preclude threats of future harm and thereby infringe the Charter .
The underinclusiveness of s. 17 violates the liberty and security interests
protected under s. 7 because of the potential to convict persons who, placed
under duress by threats of future harm, have not acted voluntarily. This
violation is not justifiable under s. 1 .
[42]
The Court clarified that s. 17 requires only
that the threat be made to the accused, not that the object of
the threatened harm be the accused herself. Therefore, under s. 17 , the threat
of harm need not be directed at the accused personally but may be directed
against a third party. Additionally, the Court confirmed its previous decisions
in Paquette v. The Queen, [1977] 2 S.C.R. 189, and Hibbert,
which held that s. 17 applies only to persons who commit offences as
principals, while the common law defence of duress remains available to parties
to an offence. Finally, the Court declined to address the question of whether
the list of excluded offences in s. 17 violates the Charter , as
none of the offences at issue in the appeal was contained in the list (para. 19).
(2) The Statutory Defence of Duress
Post-Ruzic
[43]
What, therefore, remains of s. 17 after Ruzic?
The Court did not strike down s. 17 in its entirety; it was found
unconstitutional only “in part” (para. 1). As a result, the following four
requirements of the statutory defence remain intact after the Court’s ruling in
Ruzic:
1. there
must be a threat of death or bodily harm directed against the accused or a
third party;
2. the
accused must believe that the threat will be carried out;
3. the
offence must not be on the list of excluded offences; and
4. the
accused cannot be a party to a conspiracy or criminal association such that the
person is subject to compulsion.
[44]
However, the Court in Ruzic did not leave
the statutory defence in place simply stripped of its unconstitutional
portions. The Court supplemented the interpretation and application of s. 17
with elements from the common law defence of duress, which it found to be “more
consonant with the values of the Charter ” (para. 56). In other
words, the Court in Ruzic used the common law standard to interpret the
affirmative requirements of the statute (see D. M. Paciocco, “No-one Wants to
Be Eaten: The Logic and Experience of the Law of Necessity and Duress” (2010),
56 Crim. L.Q. 240, at p. 273).
[45]
Where ambiguities or gaps exist in the partially
struck-down s. 17 , the common law defence of duress operates to clarify and
flesh out the statutory defence:
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. [Emphasis added; Ruzic, at para. 55.]
[46]
In Ruzic, the Court articulated and
analyzed the following three key elements of the common law defence of duress,
which now operate in s. 17 cases alongside the four requirements remaining in
the statutory defence: (1) no safe avenue of escape; (2) a close temporal
connection; and (3) proportionality (see Parent, at pp. 549-50).
(a) No Safe Avenue of Escape
[47]
The defence of duress “focuses on the search for
a safe avenue of escape” (Ruzic, at para. 61). Following the decision in
Hibbert, the Court in Ruzic concluded that the defence does not
apply to persons who could have legally and safely extricated themselves from
the situation of duress. In order to rely on the defence, the accused must have
had no safe avenue of escape, as measured on the modified objective standard of
the reasonable person similarly situated.
(b) A Close Temporal Connection
[48]
There must be “a close temporal connection
between the threat and the harm threatened” (Ruzic, at para. 96). The
close connection between the threat and its execution must be such that the
accused loses the ability to act voluntarily. The requirement of a close
temporal connection between the threat and the harm threatened is linked with
the requirement that the accused have no safe avenue of escape. As the Court in
Ruzic indicated, a threat that 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” (para. 65).
[49]
As long as the immediacy and presence
requirements in s. 17 remained intact, the safe avenue of escape and close
temporal connection factors had little relevance. A threat of immediate death
or bodily harm which the recipient believes will be carried out by a person
present ensured a close temporal connection and would most likely leave no safe
avenue of escape. However, once the immediacy and presence requirements were
struck from s. 17 , the common law requirements of no safe avenue of escape and
the close temporal connection became a critical means of assessing whether the
accused’s actions were morally involuntary.
[50]
In addition, once the immediacy and presence
requirements were struck, it followed that the accused’s belief that the threat
would be carried out must be evaluated on a modified objective standard of the
reasonable person similarly situated. Section 17 provides that a person will be
excused “if the person believes that the threats will be carried out”.
On its face, therefore, the section requires a purely subjective belief, a
lower standard that made sense when the threat was clearly immediate and the
threatener physically present on the scene. Once the immediacy and presence
requirements are removed, however, measuring the accused’s belief that the
threat will be carried out necessarily demands a higher standard of evaluation.
In other words, the accused’s actual belief must also be reasonable.
[51]
By reading in the requirements of safe avenue of
escape and close temporal connection, the purely subjective standard becomes an
evaluation based on a modified objective standard. These two elements, in
conjunction with the belief that the threat will be carried out, must be
analyzed as a whole: the accused cannot reasonably believe that the threat
would be carried out if there was a safe avenue of escape and no close temporal
connection between the threat and the harm threatened.
[52]
The addition of the common law requirements to
replace the now defunct immediacy and presence elements of s. 17 thus act to
temper the once purely subjective belief as to the threat. Furthermore, they
bring the statutory provision in line with the principle of moral
involuntariness. Considering that society’s opinion of the accused’s actions is
an important aspect of the principle, it would be contrary to the very idea of
moral involuntariness to simply accept the accused’s subjective belief without
requiring that certain external factors be present. Citing R. v. Howe,
[1987] A.C. 417 (H.L.), at p. 426, Baker agrees that “[t]he threat ‘must
involve a threat of such a degree of violence that “a person of reasonable
firmness” with the characteristics and in the situation of the defendant could
not have been expected to resist’” (para. 25-015). He specifically mentions
that there must be reasonable grounds for the accused’s belief that the threat
would be carried out (paras. 25-015 and 25-016).
(c) Proportionality
[53]
The defence of duress requires proportionality
between the threat and the criminal act to be executed. In other words, the
harm caused must not be greater than the harm avoided. Proportionality is
measured on the modified objective standard of the reasonable person similarly
situated, and it includes the requirement that the accused will adjust his or
her conduct according to the nature of the threat: “The accused should be
expected to demonstrate some fortitude and to put up a normal resistance to the
threat” (Ruzic, at para. 62).
[54]
Proportionality is a crucial component of the
defence of duress because, like the previous two elements, it derives directly
from the principle of moral involuntariness: only an action based on a
proportionally grave threat, resisted with normal fortitude, can be considered
morally involuntary. Furthermore, since the principle of moral involuntariness
was judged to be a principle of fundamental justice in Ruzic, it must be
read into s. 17 in order to comply with the statutory interpretation rule that
courts must prefer the constitutional interpretation of a statute.
(3) The Common Law Defence of Duress
Post-Ruzic
[55]
Following this Court’s analysis in Ruzic,
we can conclude that the common law of duress comprises the following elements:
•
an explicit or implicit threat of death or
bodily harm proffered against the accused or a third person. The threat may be
of future harm. Although, traditionally, the degree of bodily harm was
characterized as “grievous”, the issue of severity is better dealt with at the
proportionality stage, which acts as the threshold for the appropriate degree
of bodily harm;
•
the accused reasonably believed that the threat
would be carried out;
•
the non-existence of a safe avenue of escape,
evaluated on a modified objective standard;
•
a close temporal connection between the threat
and the harm threatened;
•
proportionality between the harm threatened and
the harm inflicted by the accused. This is also evaluated on a modified
objective standard;
•
the accused is not a party to a conspiracy or
association whereby the accused is subject to compulsion and actually knew that
threats and coercion to commit an offence were a possible result of this
criminal activity, conspiracy or association.
[56]
We will discuss these elements in turn.
(a) Threat
of Death or Bodily Harm
[57]
For an accused to be able to rely on the common
law defence of duress, there must have been a threat of death or bodily harm.
This threat does not necessarily need to be directed at the accused (Ruzic,
at para. 54). It can be either
explicit or implied (R. v. Mena (1987), 34 C.C.C. (3d) 304 (Ont. C.A.),
at p. 320; see also R. v. McRae (2005), 77 O.R. (3d) 1 (C.A.)).
[58]
The strict immediacy or imminence requirement
found in the defence of necessity was not imported into the common law defence
of duress. Rather, this immediacy requirement 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” (Ruzic, at
para. 65). This position was also held in Langlois, where Fish J.A. (as
he then was) held that the issue is not the immediacy or imminence of the
threat, but whether “the accused failed to avail himself or herself of some
opportunity to escape or to render the threat ineffective” (R. v. Langlois (1993), 80 C.C.C. (3d) 28 (Que. C.A.), at p. 50). The lack of a strict immediacy requirement not only strengthens
the assertion that threats can be made to third parties, but also supports the
conclusion in Ruzic, at para. 86, that the threats made can be of future
harm.
[59]
The harm threatened must be death or bodily
harm. Traditionally, courts have qualified this bodily harm as needing to be
“grievous” or “serious” (see, e.g., Hibbert, at paras. 21 and 23). However, this higher threshold
is not necessary in light of the existence of the proportionality requirement —
inherent in the principle of moral involuntariness — which acts as the ultimate
barrier for those who seek to rely on the defence.
[60]
At section 2, the Criminal Code defines
the term “bodily harm” as “any hurt or injury to a person that interferes with
the health or comfort of the person and that is more than merely transient or
trifling in nature”. Removing the “grievous” or “serious” element of the bodily
harm requirement and dealing with the requisite degree of harm at the
proportionality stage will not unduly broaden the common law defence of duress.
The two-pronged nature of the proportionality requirement, a concept which we
will more fully develop below, will prevent such an outcome. First, the harm
caused must be measured against the harm threatened. Second, the accused must
meet society’s standards for the reasonable person similarly situated, which
includes a capacity to resist the threat to some degree.
[61]
Theoretically, it could be possible to have
caused less harm than threatened, yet still not be afforded the defence of
duress because the behaviour and reaction of the accused as a whole is judged
unacceptable for that individual in that particular circumstance. For example,
inflicting quite minor harm in reaction to the threat of quite minor harm might
fulfill the “equal or lesser harm” requirement, but would certainly not
constitute a situation where society would be ready to excuse the act as
morally involuntary.
[62]
If the threat is of insufficient seriousness,
the offence committed in reaction to that threat cannot be proportional. The
voluntariness of an act depends on its proportionality: an individual cannot
claim to have lost the ability to act freely when the harm threatened does not
meet society’s threshold. For these reasons, the degree of bodily harm that
will make the defence available is best dealt with at the proportionality
stage.
[63]
Therefore, in order to fulfill this first
requirement of the common law defence of duress, there must have been an
explicit or implicit, present or future threat of death or bodily harm,
directed at the accused or a third person.
(b) Reasonable Belief that Threat Will
Be Carried Out
[64]
In addition, the accused must have reasonably
believed that the threat would be carried out. This element is analyzed on a
modified objective basis, that is, according to the test of the reasonable
person similarly situated.
(c) No Safe Avenue of Escape
[65]
This element of the common law defence was
specifically addressed in Ruzic, at para. 61. Once again, the test,
evaluated on a modified objective basis, is that of a reasonable person
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.
In other words, a
reasonable person in the same situation as the accused and with the same
personal characteristics and experience would conclude that there was no safe
avenue of escape or legal alternative to committing the offence. If a
reasonable person similarly situated would think that there was a safe
avenue of escape, the requirement is not met and the acts of the accused cannot
be excused using the defence of duress because they cannot be considered as
morally involuntary.
(d) Close Temporal Connection
[66]
The element of close temporal connection between
the threat and the harm threatened, mentioned above, serves to restrict the
availability of the common law defence to situations where there is a
sufficient temporal link between the threat and the offence committed.
[67]
This requirement in no way precludes the
availability of the defence for cases where the threat is of future harm. For
example, the accused in Ruzic was able to rely on the defence even
though the threat was to harm her mother in the event that she did not smuggle
the drugs from Belgrade to Toronto as ordered, a task that would take several
days to accomplish.
[68]
The first purpose of the close temporal
connection element is to ensure that there truly was no safe avenue of escape
for the accused. If the threat is too far removed from the accused’s illegal
acts, it will be difficult to conclude that a reasonable person similarly
situated had no option but to commit the offence. The temporal link between the
threat and the harm threatened is necessary to demonstrate the degree of
pressure placed on the accused.
[69]
The second purpose of the close temporal
connection requirement is to ensure that it is reasonable to believe that the
threat put so much pressure on the accused that between this threat and the
commission of the offence, “the accused los[t] the ability to act freely” (Ruzic,
at para. 65). It thus serves to determine if the accused truly acted in an
involuntary manner.
(e) Proportionality
[70]
Proportionality is inherent in the principle of
moral involuntariness. “[T]his involuntariness is measured on the basis
of society’s expectation of appropriate and normal resistance to pressure” (Perka,
at p. 259). Part of the analysis involves making a determination of whether the
harm threatened is equal to or greater than the harm caused.
[71]
The test for determining whether an act was
proportional is therefore two-pronged, and was set out by Dickson J. in Perka,
at p. 252:
There must
be some way of assuring proportionality. No rational criminal justice system,
no matter how humane or liberal, could excuse the infliction of a greater
harm to allow the actor to avert a lesser evil. . . . According to
Fletcher, this requirement is also related to the notion of voluntariness [(G.
P. Fletcher, Rethinking Criminal Law (1978), at p. 804)]:
. . . if the gap between the
harm done and the benefit accrued becomes too great, the act is more likely to
appear voluntary and therefore inexcusable. . . . Determining this threshold is
patently a matter of moral judgment about what we expect people to be able
to resist in trying situations. A valuable aid in making that judgment is
comparing the competing interests at stake and assessing the degree to which
the actor inflicts harm beyond the benefit that accrues from his action. [Emphasis added.]
[72]
In other words, the “moral voluntariness” of an
act must depend on whether it is proportional to the threatened harm. To
determine if the proportionality requirement is met, two elements must be
considered: the difference between the nature and magnitude of the harm
threatened and the offence committed, as well as a general moral judgment
regarding the accused’s behaviour in the circumstances. These elements are to
be evaluated in conjunction on a modified objective basis.
[73]
The first element of proportionality requires
that the harm threatened was equal to or greater than the harm inflicted
by the accused (Ruzic, at para. 62; see also R. v.
Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, at
para. 31). The second element of proportionality requires a more
in-depth analysis of the acts of the accused and a determination as to whether
they accord with what society expects from a reasonable person similarly
situated in that particular circumstance. It is at this stage that we examine
if the accused demonstrated “normal” resistance to the threat. Given that the defence of duress “evolved
from attempts at striking a proper balance between those conflicting interests
of the accused, of the victims and of society” (Ruzic, at para. 60),
proportionality measured on a modified objective standard is key.
[74]
The evaluation of the proportionality
requirement on a modified objective standard differs from the standard used in
the defence of necessity, which is purely objective. While the defences of
duress and necessity share the same juristic principles, according to Lamer
C.J. in Hibbert, this does not entail that they must employ the same
standard when evaluating proportionality. The Court in Ruzic noted that
the two defences, although both categorized as excuses rooted in the notion of moral or normative
involuntariness, target different types of situations.
Furthermore, the temporality requirement for necessity is one of imminence,
whereas the threat in a case of duress can be carried out in the future. It is
therefore not so anomalous that the courts have attributed differing tests for
proportionality, especially when we consider that the defences may apply under
noticeably different factual circumstances.
(f) Participation in a Conspiracy or
Criminal Association
[75]
This statutory element has been recognized as
also relevant to the common law. Recent jurisprudence has concluded that those
who seek to rely on the common law defence of duress cannot do so if they knew
that their participation in a conspiracy or criminal association came with a
risk of coercion and/or threats to compel them to commit an offence (see R.
v. Li (2002), 162 C.C.C. (3d) 360 (Ont. C.A.), at paras. 20-33; R. v.
Poon, 2006 BCSC 1158 (CanLII), at para. 7; R. v. M.P.D., 2003 BCPC
97, [2003] B.C.J. No. 771 (QL), at para. 61).
[76]
In Li, the Ontario Court of Appeal stated
that voluntarily joining a conspiracy or criminal organization also has an
impact on whether there was a safe avenue of escape. In that case, the accused
persons had approached a criminal organization of their own volition and had
later been threatened by this same group. In its analysis on the presence of an
air of reality, the court stated the following:
As can be
seen, the Supreme Court [in Ruzic] recognized the juxtaposition
between a safe avenue of escape and the voluntary assumption of the risk in the
first place. Both are front and centre in the case in appeal. In
considering the appellants’ claim that calling the local police would have been
ineffective because they not only feared for themselves but also for their
families in China and elsewhere, the court should be reminded of their
initiative in approaching the Snakeheads in the first place, and the fact that
the threats of retaliation against them and their families was sweetened by the
inducement of retiring their debts to this organization. [Emphasis added; para.
32.]
[77]
The Court of Appeal’s conclusion stands for the
proposition that courts must take into account the accused’s voluntary
assumption of risk, a natural corollary of the unavailability of the defence of
duress to those who wilfully engage in criminal conspiracies or organizations.
This is consistent with the principle of moral involuntariness. An accused
that, because of his or her criminal involvement, knew coercion or threats were
a possibility cannot claim that there was no safe avenue of escape, nor can he
or she truly be found to have committed the resulting offence in a morally
involuntary manner.
[78]
Therefore, to rely on the common law defence of
duress, the accused must not be a party to a conspiracy or association whereby
he or she is subject to compulsion and actually knew that threats and
coercion to commit an offence were a possible result of this criminal activity,
conspiracy or association. In Ruzic, at para. 70, LeBel J. states:
“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))” (emphasis
added).
[79]
There is division of
opinion as to whether the accused’s knowledge of potential threats or coercion
is evaluated on a subjective or objective standard. According to Yeo,
the above-cited conclusion in Ruzic is consistent with Australian law,
which only denies the defence of duress to those who were actually aware of the
risk of being coerced by the criminal association (S. Yeo,
“Defining Duress” (2002), 46 Crim. L.Q. 293, at p. 315). A subjective
standard is also applied in the United States (United States v.
Burnes, 666 F.Supp.2d 968 (D. Minn. 2009); United States v. Gamboa,
439 F.3d 796 (8th Cir. 2006); United States v. Montes, 602 F.3d 381 (5th
Cir. 2010)). Baker, however, seems to reject a purely
subjective standard. According to him, the test should be whether the accused “[r]ecklessly
or negligently placed himself in a situation in which it was probable that he
would be forced to commit a criminal act” (para. 25-044).
[80]
We think that the subjective standard is more in
line with the principle of moral involuntariness. If the accused voluntarily
puts him or herself in a position where he or she could be coerced, then we
cannot conclude that there was no safe avenue of escape and that the ensuing
actions were morally involuntary.
IV. Summary
[81]
The defence of duress, in its statutory and common law forms, is
largely the same. The two forms share the following common elements:
•
There must be an explicit or implicit threat of present or future
death or bodily harm. This threat can be directed at the accused or a third
party.
•
The accused must reasonably believe that
the threat will be carried out.
•
There is no safe avenue of escape. This element
is evaluated on a modified objective standard.
•
A close temporal connection between the threat
and the harm threatened.
•
Proportionality between the harm threatened and
the harm inflicted by the accused. The harm caused by the accused must be equal
to or no greater than the harm threatened. This is also evaluated on a modified
objective standard.
•
The accused is not a party to a conspiracy or
association whereby the accused is subject to compulsion and actually knew that
threats and coercion to commit an offence were a possible result of this
criminal activity, conspiracy or association.
[82]
Certain differences remain.
[83]
The first is that, as was established in Paquette
and confirmed in Ruzic, the statutory defence applies to
principals, while the common law defence is available to parties to an offence.
The second is that the statutory version of the defence has a lengthy list of
exclusions, whereas it is unclear in the Canadian common law of duress whether
any offences are excluded. This results in the rather incoherent situation that
principals who commit one of the enumerated offences cannot rely on the defence
of duress while parties to those same offences, however, can.
[84]
This is an unsatisfactory state of the law, but
one which we think we are not able to confront in this case. Although we had
the benefit of extensive argument about the parameters of the common law and
statutory defences of duress, understandably no argument was presented about
the statutory exclusions. In addition, some courts have found some of these
exclusions to be constitutionally infirm. We accordingly leave to another day
the questions of the status of the statutory exclusions and what, if any,
exclusions apply at common law.
V. Disposition
[85]
We would allow the appeal and enter a stay of
proceedings.
The following are the reasons delivered by
[86]
Fish J. (dissenting in part) — I agree with Justices LeBel and Cromwell,
for the reasons they have given, that the defence of duress was not available
to the respondent in this case. As a result, the respondent’s acquittal must
be set aside.
[87]
With respect, however, I am not persuaded that a
judicial stay of proceedings is warranted on the record before us.
[88]
The criteria for granting a stay ― a
drastic remedy of last resort ― are well established (see Charkaoui v.
Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326, at paras. 75-76; R. v. Regan,
2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 53-54; Canada (Minister of
Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at paras. 53
and 86; and R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 82). The
Court has made clear that a stay of proceedings is available only in “the
clearest of cases” (Charkaoui, at para. 76; O’Connor, at para. 82).
[89]
These criteria, in my view, are
not satisfied in this case.
[90]
Accordingly, I would instead order a new trial,
leaving it to the Crown to determine, in the exercise of its discretion,
whether the public interest requires that a new trial be had. In making this
determination, the Crown should bear in mind the particular circumstances of
the case: On one hand, the trial judge’s factual findings favourable to the
respondent; on the other, uncontested evidence that the respondent considered
for seven months having her husband killed, paid a “hit man” $25,000 to do the
job and, when that failed, attempted twice more to arrange for her husband’s
demise.
Appeal
allowed, Fish J.
dissenting in part.
Solicitor
for the appellant: Public Prosecution Service of Nova Scotia,
Halifax.
Solicitors
for the respondent: Pink Larkin, Halifax; Greenspan Humphrey Lavine,
Toronto.
Solicitor
for the intervener the Attorney General of Ontario: Attorney General
of Ontario, Toronto.
Solicitors
for the interveners the Canadian Association of Elizabeth Fry Societies and the
Women’s Legal Education and Action Fund: University of British
Columbia, Vancouver.
Solicitors for the
intervener the Criminal Lawyers’ Association (Ontario): Ursel
Phillips Fellows Hopkinson, Toronto; Webber Schroeder Goldstein Abergel,
Ottawa.