COURT OF APPEAL FOR ONTARIO

DATE: 20000719

DOCKET: C29052

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.

AUSTIN J.A.:

[1] The 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.

[2] On 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.

[3] The 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.

[4] Dealing 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.

[5] I 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.

[6] The 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.

[7] The 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.

[8] In 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.

[9] The 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.).

[10] In 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.

[11] In 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;

[12] It 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.

[13] The 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.

[14] In 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.

[15] Accordingly, 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.

[16] The 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.

[17] Notwithstanding 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.

[18] Defence 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.

[19] In 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.”