DATE: 20020211 DOCKETS: C27869, C27523 and C27522

COURT OF APPEAL FOR ONTARIO

FINLAYSON, CARTHY and WEILER JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

• and -

BIAO LI, DA ZHONG CHEN and DE LONG LIU Appellants

Counsel: M. David Lepofsky, for the respondent Timothy E. Breen, for the appellants

Heard: January 14, 2002

On appeal from the conviction imposed by Justice Victor Paisley, sitting with a jury, dated December 6, 1996 and from the sentence imposed by Justice Paisley dated February 6, 1997.

FINLAYSON J.A.:

[1] The three appellants were each convicted on three counts of kidnapping and sentenced to life imprisonment on each of the counts. They were also convicted of forcible confinement and received concurrent five-year sentences. They all appeal their convictions and sentences. The issue in this appeal relates to the applicability of the defence of duress.

Facts

[2] On November 24, 1995, Fei Wing Tsang (also called Ah Fai) and the three appellants forced their way inside a house in Scarborough. The residence was divided into two apartments. Eva Yang and her parents Li Yang and Zin Chan occupied the main floor apartment, while Choi Kong occupied the basement apartment. The appellants Chen and Liu bound the basement tenant, Mrs. Kong, and she was left with her hands tied to a pipe. The appellants took Yang and her parents (the hostages) into a van and drove them to an apartment. Apart from one brief trip to another location the day of the kidnapping, the appellants held the three hostages in the apartment for some 22 days. Their captivity came to an end when the police mounted a surprise rescue operation, freed the hostages and arrested the three appellants and a woman who had cooked for them during the captivity. Tsang was not in the apartment at the time of the rescue and he has not been apprehended.

[3] Eva Yang’s older brother, Lok, had acted as an informant against a criminal organization in Hong Kong. As a result of his information, a shipment of drugs had apparently been seized in Vancouver. The organization thus lost the money it anticipated receiving from the sale of the illegal drugs. The family was abducted as part of a scheme to force Lok to come forward and to extract a ransom from the victims’ family in China. The appellants testified and acknowledged their involvement in the abduction. They claimed that their participation in the kidnappings and confinement came about as a result of threats of violence against themselves and their families by Tsang. Tsang was a “Snakehead”, a member of the criminal organization that had smuggled the appellants out of China. The appellants were indebted to the Snakeheads, and testified that Tsang had forced them to participate in the abduction and had agreed to forgive their debts in return.

[4] It was not disputed at trial that the appellants had many opportunities to escape, both before and throughout the period of the captivity. On November 24, the date when the kidnapping began, the appellants Li and Liu were staying in an apartment provided by Tsang. Tsang approached them and stated that he wanted them to participate in a kidnapping. No detailed plans were discussed. While these appellants claimed they were threatened if they did not participate, it was undisputed that Tsang left the two alone for a period of up to an hour and a half to think it over. They could have escaped at that time. Instead of escaping while Tsang was away or contacting the police, they agreed to participate in the kidnapping.

[5] In addition, it was not disputed that Tsang was in another car and was not present when the appellants were transporting the hostages in the van. It was open to the appellants at that time to escape with or without the van, either with the hostages or after releasing them. The treatment of the bound and gagged Mrs. Kong borders on the heartless. A simple anonymous telephone call to the police would have secured her early release.

[6] For nearly the entire three weeks of their confinement, the only people present in the apartment with the hostages were the appellants, and an unnamed woman who assisted the appellants with cooking. It was not suggested that the woman prevented the appellants from escaping or contacting the police. Tsang was away from the apartment most of the time. After the first day of the captivity, Tsang’s visits were only about one or two hours long, and he was not present for the final days of the captivity.

[7] The appellants had access to at least two telephones, one located down the hall in the superintendent’s apartment, and at least one cell phone, which was kept in the apartment during the captivity. There was no evidence to suggest that the appellants were unable to get access to the phones to call for help, particularly at times when Tsang was not in the apartment. Each of the appellants had relatives in either the United States, Canada or China whom they could reach by telephone if they tried. The appellants each testified that they knew the whereabouts of their family members in China. Furthermore, the appellant Chen admitted that he and Liu made phone calls to friends or family during the period of the hostages’ captivity.

[8] According to the uncontradicted evidence of the appellants, they were at liberty to go out when they chose, in order to run errands such as purchasing food. They each did so, either alone or in combinations. According to Liu, he usually took a couple of hours to do such errands. He testified that he walked from the apartment to Chinatown to purchase medicine for one of the hostages. The appellant Chen returned home at one point to get a change of clothing. On one occasion, Chen went out for the entire day from 10:00 a.m. until around 11:00 p.m. to celebrate a friend’s birthday. This included going to a restaurant and then to a karaoke bar. Chen persuaded the appellant Liu to join him at the celebration partway through, telling the others that Liu was his friend. Chen drank until he was under the influence of alcohol, participated in the karaoke singing, and had a good time. Liu went home, leaving Chen with the others at the bar. When Tsang found out from Liu that Chen was at the bar, he came to the bar, confronted Chen and assaulted him. Only after this did Chen return to the apartment.

[9] The three appellants deliberately entered Canada illegally. Each freely and knowingly contracted with the Chinese smuggling operation, loosely called the Snakeheads, to bring them to North America in exchange for money. Each knowingly did not pay the full fee to the Snakeheads in advance. Each knew that on arriving in North America, they would owe the balance to the Snakeheads. Liu claimed that he had previously availed himself of the Snakeheads’ services to gain illegal entry to the U.S. four years before this offence, worked off his debt to them, and opted to return to China. In 1994, he then freely chose to use the Snakeheads’ services again to return to North America. There is no suggestion on this record that the appellants were not aware of the nature of the organization they hired to assist them and that those belonging to it were not the sort of people to be trifled with when they sought payment for their services.

[10] The appellants each testified that they did not want to participate in this kidnapping. They said that Tsang, whom they had not met until after arriving here, forced them to do so, and that he had threatened them or their families in China or elsewhere if they did not participate or if they escaped or notified the police. Each also testified that Tsang demanded their involvement in this kidnapping because of their outstanding debt. Tsang told each that their debt would be forgiven if they participated in the kidnapping. Li also testified that the Snakeheads had been holding his wife for two years, and that she would be released if he participated in this kidnapping. While each appellant claimed that he participated in this kidnapping due to these threats, they also admitted in substance that they did so because of the debt they owed to the Snakeheads.

[11] The defence at trial was that the appellants were entitled to be excused because they committed the crimes with which they were charged (kidnapping) under compulsion of threats of death or immediate bodily harm to themselves or their families. This is the defence of duress that the appellants said was available to them on the facts of this case. It is codified in s. 17 of the Criminal Code 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).

The development of the duress issue at trial

[12] The appellants filed a joint application challenging the constitutionality of s. 17 of the Criminal Code as contrary to the provisions of s. 7 of the Canadian Charter of Rights and Freedoms. Prior to the cross-examination of Eva Yang, one of the victims, counsel made submissions as to the admissibility of evidence concerning her knowledge of the criminal organization alleged to be the source of coercion applied to the appellants. In the course of submissions the question of admissibility was subsumed by the larger issue of the availability of the defence of duress. It was the position of the defence that “kidnapping” was not an excluded offence under s. 17 of the Criminal Code. Alternatively, the defence contended that the appellants were liable as parties to the offence and that the common law defence of duress governed. In the further alternative, it was the position of the defence that s. 17 of the Code was unconstitutional. It was the position of the prosecution that the appellants were “principals” and that the statutory defence was unavailable as it was specifically removed in a case of “forcible abduction”.

[13] In ruling on the admissibility of the proposed evidence the trial judge addressed the availability of the defence of duress:

While I am satisfied that at this point I cannot say that the accused are entitled to argue duress on the grounds of their not being co-participants in that, it could be said that if they were subject to a genuine threat which they believed limited their choice of participation, that they did not form an intention in common. At this point I cannot say that this issue is not reasonably open to the accused.

Counsel for the Crown accepts, for the purpose of this argument, that the common-law defence of duress would apply to the offence of kidnapping and while I am not going to agree or disagree with the Crown on this point, for the purpose of this submission I accept that proposition.

After reviewing the evidence the trial judge concluded:

This is the most clear case of an obvious means of escape that I can think of and accordingly it seems to me that the case is crystal clear that the common-law defence of duress does not apply to the facts of this case.

[14] Upon the completion of the evidence, in the absence of the jury, the trial judge inquired as to the status of the constitutional challenge to s. 17 of the Criminal Code. It was the position of the defence that if the common law defence of duress was not available on the evidence, there would be no point in proceeding with the constitutional challenge.

[15] On October 12 and 13, 2000, this appeal was argued before a differently constituted panel of this Court. In the course of the respondent Crown’s submissions, the Court directed that the appeal be adjourned and rescheduled following the release of the judgment of the Supreme Court of Canada in R. v. Ruzic [since released (2001), 2001 SCC 24, 153 C.C.C. (3d) 1]. The Court invited the parties to reconsider their positions regarding the availability of the common law defence of duress “without encumbrances of concessions at trial”.

[16] After listening to the full argument on this hearing I believe that the appeal should be decided on the same basis as did the trial judge in making his ruling. He proceeded from the assumption, most favourable to the defence, that these appellants had the right to invoke the more generous common law duress defence, and not the more exacting statutory s. 17 duress defence. He assumed, without deciding the matter, that kidnapping was not an excluded offence. As such, the judge considered the merits of the question whether the common law duress defence should be taken away from the jury on this record. He ruled that even on the more liberal common law duress defence, there was no air of reality to the appellants’ claims. Therefore, it is only necessary on this appeal to consider the legality of that ruling. The subsidiary issue of the admissibility of questions relating to the Snakeheads criminal organization need not be pursued if the trial judge’s ruling on a safe avenue of escape is correct. He was prepared to accept, as I am, that threats were made.

Analysis

[17] R. v. Ruzic, supra, holds that s. 17 of the Code is unconstitutional in so far as it restricts the defence of duress to circumstances where the threats are of immediate death or bodily harm and the threatener is present when the offences are committed. The common law defence of duress does not include such restrictions. The Supreme Court did not deal with the exceptions to s. 17 in its constitutional analysis since the offence in Ruzic was smuggling which, like kidnapping in the case in appeal, is not an enumerated exception.

[18] The analysis in Ruzic is interesting in that it places such emphasis on moral blameworthiness and moral involuntariness as an essential component of criminal liability, a component that is protected by s. 7 of the Charter: see the discussion by Lebel J. for the court commencing at p. 20. This conclusion is set out at pp. 26-27:

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.

[19] These appellants are not like Ms. Ruzic who was clearly innocent. She was not involved in any drug smuggling when she was selected by a bunch of thugs on the streets of Belgrade to be their instrument in bringing heroin illegally into Canada under threat of death or grievous bodily harm to her mother living in Serbia. The act that she was charged with was the act that she was coerced into performing by the threats. Compare this with the appellants who voluntarily approached a criminal organization and agreed to its terms for smuggling them into Canada. It is undisputed that these appellants knew they were purchasing the services of the Snakeheads before they left China. The appellant Liu even admitted that he previously used the Snakehead services to gain entry to the United States, and had returned to China before embarking on this effort at getting onto this continent. The appellant Chen testified that he knew the Snakeheads were “smugglers” and that their activity was illegal in China, but added that others use them and so it is perceived as legal. The appellant Li testified that he chose to use the Snakeheads to obtain passage to the United States, despite its high price. None claimed to be surprised on learning of the nature of the Snakeheads organization, nor did any of them claim to have laboured under some belief that it was a benign organization prior to availing themselves of its services. In fact, the defence at trial was eager to bring forward as much evidence as they could as to how much of a sweeping criminal organization the Snakeheads were, whether or not specific information was in the appellants’ personal knowledge. In evaluating the appellants’ claim that they had no safe avenue of escape, it is important to take into account their voluntary decision to get involved with the Snakehead organization in the first place. The two concepts are inter-related by the authorities.

[20] In my opinion, the voluntary activities of these appellants in approaching the Snakeheads for passage and illegal entry bring them within a recognized exception to the common law of duress that Lebel J. acknowledged in Ruzic at p. 34:

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) (C.A.)).

[21] The nature of this exception was explained by the English Court of Appeal in R. v. Sharp (1987), 85 Cr. App. R. 207. In Sharp, the appellant agreed to take part in a robbery, but insisted that he did not wish any weapons to be used. The appellant said that he wanted to withdraw from the conspiracy when he saw guns being taken along, but had carried on with the plan under duress from the gang leader, who had threatened to blow his head off if he did not participate. In dismissing Sharp’s appeal, Lord Lane C.J. said at p. 210:

No one could question that if a person can avoid the effects of duress by escaping from the threats, without damage to himself, he must do so ... It seems to us to be part of the same argument, or at least to be so close to the same argument as to be practically indistinguishable from it, to say that a man must not voluntarily put himself in a position where he is likely to be subjected to such compulsion.

And later at p. 214, he concluded:

…[W]here a person has voluntarily, and with knowledge of its nature, joined a criminal organization or gang which he knew might bring pressure to bear on him to commit an offence, and was an active member when he was put under such pressure, he cannot avail himself of the defence of duress.

[22] R. v. Lewis, supra, is a decision of the English Court of Appeal in which the appellant, a felon convicted for robbery, was held in contempt for refusing to testify against a fellow prisoner who had beaten him because he believed, without foundation, that it was Lewis who had given the police the information that led to the assailant’s conviction for the same robbery. Lewis said he was afraid of reprisals if he testified about the assault. In considering the availability of the defence of duress, Beldam L.J. quoted extensively from the judgment of Lord Lane C.J. in Sharp, supra, and then added the following qualification at p. 417:

In short, to preclude a defendant from relying on the defence, there must be evidence which satisfies the court that the defendant knew or was aware that he was exposing himself to the risk of threats of death or serious harm if he did not participate with, or conform to, the wishes of his criminal associates.

[23] In the Lewis case, the appellant’s assailant was also his co-perpetrator in the crime of robbery for which they both had been convicted. The theory of the Crown was that this was the association that negated the defence of duress. The appellate court said, however, that the violence directed against the appellant in jail and the fear of further reprisals if he gave evidence against his assailant was not so closely associated with his participation in the robbery that it could be said that he exposed himself to this violence by agreeing to take part in the original robbery.

[24] R. v. Heath, supra, is a case in the England and Wales Court of Appeal (Criminal Division) that is closer to the present case on the facts. The appellant was a heroin addict and had become indebted to his supplier in the amount of 1,500 pounds. The debt was assigned to a very hard man who demanded immediate payment. The appellant feared violence. As he said in evidence: “It’s the drugs world. It can be heavy. People collect their debts in one way.”

[25] The man offered a way to clear 1,000 pounds, leaving 500 pounds outstanding, which the appellant would get time to pay. The proposal was that the appellant would collect a consignment of “shampoo” and drive it back to Bristol. It was made clear to the appellant that in reality he had no choice, the man knew where he lived, and knew about his girlfriend. The appellant hesitated, but when he went to his supplier for more heroin on credit, he met the man again. By this time the appellant knew whom the man was and that he had a reputation for violence, including breaking legs. Accordingly he made the pick up and delivery of what turned out to be 98 kilograms of cannabis resin. He was later arrested. At trial he raised the defence of duress but the trial judge refused to let the issue of duress go to the jury. Heath appealed.

[26] The Court of Appeal was not sympathetic. Lord Justice Kennedy canvassed the authorities including, interestingly enough, s. 17 of our Criminal Code. He pointed out that while the appellant was not a member of any criminal organization or gang, he conceded that he knew he became indebted to a drugs supplier and by doing so he put himself in what he described as “a bad position” because in the drugs world “people collect their debts in one way”, i.e. by threatening and on occasion to inflict serious violence. Kennedy L.J. quoted from Sharp, supra, and from specimen directions published by the Judicial Studies Board as follows:

If someone puts himself in the position where he is likely to be subjected to threats of this kind, he cannot escape conviction if he is subject to threats.

[27] Kennedy L.J. then dealt with another reason the trial judge had refused to allow the defence of duress to go to the jury: the evidence of a safe avenue of escape. In dismissing the appeal he said at para. 31:

The evidence given by the appellant represented the high water mark of his case in relation to the issue of duress, but it also showed that for two reasons he could not rely on the threats which he claimed to have been made against him as an excuse for his criminal conduct:

(1) Because, as he recognized, by becoming indebted to a drug supplier (a voluntary act) he exposed himself to unlawful violence – in the drugs world “people collect their debts in one way”.

(2) Because, as he recognized, he had available to him between 18th March 1998 and the day of the offence more than one safe avenue of escape.

[28] On the basis of Ruzic, it must now be accepted that duress can arise from threats of future harm, not just immediate harm. It can arise from threats to third parties, not only threats to the accused himself or herself. It is not necessary that the threatener be present when the actual offence is committed: see R. v. Ruzic, supra, at pp. 29 and 40-41. However, there must be a close temporal connection between the threat and the harm threatened. The threat must be a real threat affecting the accused at the time of the offence: see p. 43. The duress defence is assessed by a mixed objective/subjective standard. It is available where a reasonable person having reasonable firmness, sharing the same characteristics as the accused such as his or her age or background, would have acted on the threats: see pp. 31-32.

[29] However, it is still the law that the duress defence is not available where the accused has a safe avenue of escape. In applying this defence, the law does not require an accused to seek the official protection of police in all cases. The requirement of objectivity must take into consideration the special circumstances in which the accused finds himself or herself as well as his or her perception of those circumstances (R. v. Ruzic, supra, at pp. 31 and 40).

[30] The Supreme Court of Canada recently decided that duress is a subset of necessity in R. v. Latimer (2001), 2001 SCC 1, 150 C.C.C. (3d) 129. According to Latimer, at pp. 143-144, necessity requires three ingredients. First, there must be an urgent situation of clear and imminent peril or danger that is virtually certain to occur. In this regard, the Court said at p. 144:

Where the situation of peril clearly should have been foreseen and avoided, an accused person cannot reasonably claim any immediate peril.

[31] Second, the accused must have had no reasonable legal alternative to the course of action undertaken. This involves a realistic appreciation of the available alternatives. Third, viewed objectively, there must be proportionality between the harm inflicted and the harm avoided. The harm avoided must be either comparable to, or clearly greater than, the harm inflicted.

[32] As can be seen, the Supreme Court 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.

[33] There must be an air of reality to the defence of duress before the trial judge can permit it to be considered by the jury: see Ruzic at p. 44. However, where as here the proposition put forward by the appellants is that they freely and without coercion placed themselves in the clutches of their alleged tormentors, it would be a mockery of justice to place the issue of the validity of the duress issue before the jury. We have a matter of policy here. The appellants made a deal with the devil and say that they had no alternative than to honour it. They ask this court to place their safety above the liberty and security of their innocent victims and thus encourage the Snakeheads to continue their campaign of extortion through the agency of persons similarly situated to the appellants.

[34] The appellants made no serious attempt to stand up to their oppressors, if such they were. They had ample opportunity to thwart Tsang both before and after he asked them to participate in these crimes. Their failure to seek a safe haven gives rise to no innocent explanation. It is more consistent with the carrying out of their original agreement with the Snakeheads than it is with succumbing to fear of the organization.

[35] Finally there is the issue of proportionality. This is not Ruzic where a woman smuggled some drugs to spare her mother a beating or worse. The appellants ask to be excused from the consequences of their criminal conduct because they feared for the safety of their families and themselves. But what about the family of three that they kidnapped and held for 22 days for ransom and the woman they bound and left chained to a pipe. Should the jury really be asked to weigh the victims’ terror in the scales of justice against the fears of the appellants and determine on that basis alone if the appellants should be punished?

[36] In my opinion the trial judge was correct in his ruling that there was no air of reality to the defence of duress in this case. He limited his reasons to the presence of a means of escape but he could have justified this decision on broader grounds.

Sentence

[37] The circumstances of the kidnappings in the case of all three appellants were very serious but they were not at a level which would justify the maximum sentences of life imprisonment. As to the appellants as offenders, none of them had been convicted of any offences in Canada and as far as the record before us indicates, anywhere else. In my view a stiff period of incarceration followed hopefully by deportation would be the more satisfactory disposition in the case for all three appellants. In my view that period should be 14 years in the penitentiary. I would not interfere with the 5 year sentences for forcible confinement.

Disposition

[38] Accordingly, for the reasons set out above, the appeals against convictions are dismissed. Leave to appeal the sentences is granted and the sentences of life imprisonment are reduced to 14 years in the penitentiary for all three appellants. In all other respects, the appeals against sentences are dismissed.

Released: FEB 11 2002 GDF

Signed: “G.D. Finlayson J.A.”

“I agree J.J. Carthy J.A.”

“I agree K.M. Weiler J.A.”