COURT OF APPEAL FOR ONTARIO
MORDEN, WEILER AND AUSTIN JJ.A.
B E T W E E N : )
) Leslie Pringle
HER MAJESTY THE QUEEN ) Scott K. Fenton
) for the appellant
Respondent )
)
and ) D.D. Graham Reynolds, Q.C.
) for the respondent
JAVED AHMAD )
)
Appellant )
)
Heard: May 31, 2000
On appeal from the conviction by Thomas J., sitting with a jury,
dated January 14, 1998 in Brampton.
Introduction
1The appellant appeals his conviction on January 14, 1998 on
one count of importing heroin contrary to s.5 of the Narcotic
Control Act, R.S.C. 1985, c.N-1 after a trial before Thomas J.
with a jury in the Ontario Court (General Division) in Brampton,
Ontario. As I conclude that there must be a retrial, the
statement of facts will be necessarily brief.
2On December 10, 1992, the appellant and his wife arrived at
Pearson International Airport in Toronto on a flight originating
in Lahore, Pakistan. While being processed by Customs they were
found to have in their carry-on luggage and on their persons, 9.9
kilograms of heroin. They were both charged under s.5 of the
Narcotic Control Act. They were tried together and the appellant
was convicted while his wife, Mrs. Naheed Ahmad, was acquitted.
On March 13, 1998, the appellant was sentenced to five years
imprisonment. The Crown applied for leave to appeal that sentence
but then abandoned that application.
3The appellant raises three grounds of appeal, which may be
summarized as improper refusal to permit a challenge of the jury
for cause, inconsistent verdicts, and improper cross-examination
of the appellant.
Challenge for Cause
4Dealing with these grounds in that order, the Crown concedes
that on the basis of this Court’s decisions in R. v. Koh (1998), 1998 6117 (ON CA), 131 C.C.C. (3d) 257 (Ont. C.A.) and R. v. P. (V.) (1999) 124
O.A.C. 54, the trial judge’s failure to permit a Parks challenge
for cause under s.638(1)(b) of the Criminal Code constitutes
reversible error and that a new trial is therefore warranted in
this case.
Inconsistent Verdicts
5I turn to the issue of inconsistent verdicts. The appellant
and his wife were tried together. They were separately
represented, but their common defence was duress. In particular,
they alleged that while attending the funeral of a relative in
Pakistan, they and their children, who were in Canada, were
threatened by a group of persons as a result of which, when they
returned to Canada they brought with them 9.9 kilograms of heroin
on their persons and in their carry-on luggage, intending to turn
it over in accordance with the instructions of those who were
threatening them.
6The appellant’s position is that husband and wife were
treated and dealt with in identical fashion and that there was no
reasonable ground for distinguishing between them and that,
accordingly, the verdicts are inconsistent. The appellant argued
that the verdict against him should therefore be set aside and an
acquittal entered.
7The Crown’s position is that although the accused were
husband and wife, they were separate persons and the jury was
bound to consider them separately and that in the circumstances
shown in the evidence the jury was entitled to distinguish
between them.
8In accordance with the law as set out in R. v. Hibbert
(1995), 1995 110 (SCC), 99 C.C.C. (3d) 193 (S.C.C.) and R. v. Ruzic (1998), 128
C.C.C. (3d) 97 (Ont. C.A.) the trial judge instructed the jury
that the common law defence of duress contained four elements:
i) The person acts solely as a result
of threats of death or serious bodily
harm to himself, herself or to others he
or she is bound to protect;
ii) The threats were of such gravity
that the accused person believed that
the threats would be carried out
immediately, or very soon, or
imminently;
iii) The threats might well have caused
an ordinary reasonable person, placed in
the same situation as the accused, to
act in the same manner as he or she did.
Would the threats, you will ask
yourself, overcome the will of an
ordinary person of reasonable firmness,
sharing the characteristics of the
particular accused, such as his or her
age and background. It is an objective
standard – that of the ordinary
reasonable person – but the personal
circumstances of the particular accused
should be taken into account in
determining the gravity of the threats
to that particular accused;
iv) The person must not have had an
obvious safe avenue of escape. Whether
or not a safe avenue of escape existed,
is determined according to an objective
standard. However, when you are
considering the perceptions of a
reasonable person, an ordinary
reasonable person, the personal
circumstances of the accused should be
taken into account. The defence would
fail if an ordinary reasonable person of
his or her age, sex, background and
other relevant personal characteristics
or circumstances, would have realized
there was an obvious safe avenue of
escape and would have taken an
opportunity to escape.
9The common law defence of duress is a personal plea for
exemption from the generally applicable criminal law. In effect,
an accused invoking duress asks to be excused from conforming
with those standards. The fourth element of the duress defence
entails a determination of whether the person would have had an
obvious avenue of escape from the person or persons making the
threats. An assessment of this element requires an objective
standard which is modified by the particular personal
circumstances and human frailties of the accused who invokes it.
Hibbert supra, R. v. Ruzic, supra, R. v. Canhoto (1999), 140
C.C.C. (3d) 321 at p. 332 (Ont. C.A.).
10In this case the jury was properly instructed as to the
elements of this defence, and the respondent’s position is that
its verdict is entirely consistent with a recognition of the
circumstances and frailties of each of the accused tried. The
jury was properly entitled to consider the sex, background, and
other relevant personal characteristics of the appellant and his
wife in the assessment of the fourth element of the defence.
While the events surrounding the importation of the heroin did
not differ as between the Appellant and his wife, this does not
mean, as the appellant puts it, that they stood “in the same
shoes” in so far as the defence of duress is concerned.
11In considering the applicability of this defence to each of
the appellant and Naheed Ahmad, it is necessary to consider their
respective personal characteristics and circumstances. The jury
had ample grounds upon which to distinguish the culpability of
the appellant from that of Naheed Ahmad. It is clear from the
evidence led at trial that the cultural background of the
appellant and his wife led to significant differences in their
personal characteristics and circumstances:
(a) the appellant came to Canada following
the lead of his brother and seeking
opportunities; Naheed came to Canada to join
her husband following an arranged marriage;
(b) Naheed testified that women follow their
husbands’ lead in Pakistan culture; the
appellant testified that the culture in
Pakistan is that the men may do all the work
for the women.
(c) Naheed completed a grade 11 education and
speaks little English and no French; the
appellant is an experienced business person
involved in the operation of four businesses,
in which he deals exclusively in English.
(d) Naheed had no relatives in Canada; the
appellant had 55 relatives in Canada as well
as a large circle of friends and business
associates.
(e) Naheed, like the women in her family, did
not work outside of the home; the appellant
is involved in supplies, machinery, and
purchasing both within Canada and
internationally;
12It is not only this evidence but other features of the case
which could have led to the jury’s differentiation between the
appellant and his wife. The appellant was forthright and calm at
the Customs counter whereas his wife was nervous, required
repeated requests to attend at the counter, and the appellant
responded to a question from the inspector that in Pakistan the
“gentleman may do all the work for the ladies”. As well, the
entire chain of events in Pakistan as related by the appellant
and his wife shows the appellant to be taking a dominant role in
dealings with “Jumma Khan”, the leader of the threatening group.
As well, there were occasions where the appellant was alone and
having conversations with “Jumma Khan” and the other abductors.
It is submitted that these additional features of the evidence
support the ultimate view of the trial Judge that there was a
basis in the evidence upon which the jury could have
differentiated the appellant from his wife.
13The assessment of this evidence in the fourth element of the
defence of duress does not, as the appellant submits, entail
impermissible discriminatory analysis, but is rather a mandated
examination of the personal circumstances and human frailties of
each of the accused invoking the defence, along an objective
standard. The appellant’s position would effectively negate the
assessment of personal characteristics and other relevant factors
in any case of cross-cultural or cross-ethnic circumstances. The
appellant cannot have it “both ways” – seeking to rely upon
evidence of events in Pakistan and particular cultural features
(such as alleged police corruption in Pakistan) in support of his
defence – but deny the ability of the trier of fact to examine
other evidence of personal circumstances relative to the fourth
element of duress. This is not a proper application of the duress
defence.
14In R. v. Hibbert, supra, Lamer C.J.C. expressed the
appropriate approach to the fourth aspect of the defence of
duress as follows at p.227, para. 60:
Accordingly, I am of the view that while the
question of whether a “safe avenue of escape”
was open to an accused who pleads duress
should be assessed on an objective basis, the
appropriate objective standard to be employed
is one that takes into account the particular
circumstances and human frailties of the accused.
15Accordingly, the jury in the instant case not only could,
but should have, considered the frailties of husband and wife on
an individual basis. Because, on the evidence, those frailties
were quite different there was room for differing verdicts and a
rational legal basis for different verdicts.
Improper Cross-Examination
16The third ground, improper cross-examination of the
appellant involves pre-trial events. The appellant is a person
of substantial wealth. Before the trial the Royal Canadian
Mounted Police investigated him with a view to calling evidence
to establish that his wealth had its origin in whole or in part
in the drug trade. The investigation was unsuccessful in this
respect.
17Notwithstanding this lack of success, a Mr. Brydon was
called on behalf of the Crown to testify about the investigation.
He was cross-examined on behalf of the appellant to such an
extent that counsel for the Crown objected but the objection was
not sustained. That however was not the end of the matter. When
the appellant testified on his own behalf, the Crown used the
opportunity to renew the inquiry into the source of the
appellant’s wealth. When the appellant’s counsel objected, his
objection was rejected with a reminder of defence counsel’s cross-
examination of Mr. Brydon.
18Defence counsel now renews that objection as irrelevant and
tending to disparage the appellant for no legitimate purpose. It
is also argued that the unsupported suggestion that the
appellant’s wealth is ill-gotten may be the real reason why the
jury acquitted the wife and convicted the husband. To so decide
would be, of course, quite improper. Assuming, without deciding
that this is what the jury did, the appellant would be entitled
not to an acquittal but to a new trial.
Conclusion
19In the circumstances, it is not necessary to resolve the
questions raised by the third ground of appeal. On none of the
grounds argued is there a basis for the granting of an acquittal.
The appeal however is allowed and the matter referred back to the
Superior Court to be retried.
Released: July 19, 2000
“Austin J.A.”
“I agree J.W. Morden J.A.”
“I agree K.M. Weiler J.A.”