Her Majesty the Queen v. McRae

Indexed as: R. v. McRae

77 O.R. (3d) 1

[2005] O.J. No. 3200

Docket: C40199

Court of Appeal for Ontario,

Weiler, Simmons and Gillese JJ.A.

July 28, 2005

Criminal law -- Defences -- Duress -- Accused charged with accessory after the fact to murder committed by his cousin at remote cabin -- Accused testifying that he witnessed his cousin shoot two hitchhikers and throw their bodies on fire and that he was terrified that cousin would kill him too if he did not help him dispose of evidence -- Cousin not threatening accused explicitly -- Sole issue at trial whether accused acted under duress -- Trial judge erring in finding that there was no air of reality to accused's claim of duress based on implied threat -- Trial judge failing to appreciate potential significance of witnessing execution to questions of whether there was implied threat and whether accused's belief in existence of threat was reasonable -- Nature of cousin's conduct combined with his instructions to accused to help him and his possession of gun capable of communicating serious threat to accused that cousin would kill him if he failed to carry out his wishes.

The accused was charged with being an accessory after the fact to murder. He admitted that he helped his cousin A destroy evidence and dispose of the bodies of two hitchhikers who were murdered by A while they were staying at A's remote cabin with A, the accused and A's brother and son. The accused testified that he was awakened in the early hours of the morning by A, who asked him for help and told him that he had shot one of the hitchhikers and put his body in a fire. A then woke up the other hitchhiker, told her to look in the fire, shot her and told the accused to help him put her body in the fire. The accused claimed that he was terrified and in shock, and that he feared that A would kill him if he did not help him. He testified that he was too afraid to leave because he believed that A would hunt him down and kill him. Moreover, the cabin was surrounded by dense bush and muck, and it would take an hour or two to walk to the nearest town. The sole issue at trial was whether the accused acted under duress. The trial judge rejected the defence after finding that there was no air of reality to the accused's claim of duress based on an implied threat. The accused was convicted. He appealed.

Held, the appeal should be allowed.

The trial judge correctly summarized the elements of the defence of duress as follows. (1) The accused must act solely as a result of the threats of death or serious bodily harm to himself or another person. (2) The threats must be of such gravity or seriousness that the accused believed that the threats would be carried out. (3) The threats must be of such gravity that they might well have caused a reasonable person in the same situation as the accused to act in the same manner. (4) The accused must not have had an obvious safe avenue of escape. In the course of addressing the first element of the defence, the trial judge noted that an implied threat can amount to duress and said that the issue of whether particular conduct can properly be construed as a threat must be determined on a subjective-objective standard. In addition, the trial judge stated that the accused's credibility was not in issue but that if the accused's belief in the existence of a threat was unreasonable, that was a factor going to the issue of whether a threat could be implied. The trial judge concluded that the circumstances surrounding the events at the cabin did not provide an air of reality to the existence of an implied threat. He then went on to make findings on a reasonable doubt standard concerning the existence of an implied threat and the third and fourth elements of the defence. The trial judge erred in law in holding that there was no air of reality to the accused's claim of duress based on an implied threat. This finding tainted the trial judge's subsequent conclusions concerning whether the Crown disproved that the accused acted under duress beyond a reasonable doubt. In conducting an air of reality analysis, the trial judge apparently merged the issues of whether there was any evidentiary basis for finding that there was an implied threat with the issue of whether the accused's belief in the existence of a threat was unreasonable. The trial judge failed to appreciate the potential significance of witnessing an execution to the questions of whether there was an implied threat and whether the accused's belief in the existence of a threat was unreasonable. The situation in which the accused found himself could reasonably be perceived as one of stark horror involving escalating levels of irrational violence. The very nature of A's conduct, when combined with his instructions to the accused and the accused's testimony concerning the presence of a gun, was capable of communicating a serious threat that A would kill the accused if the accused failed to carry out his wishes. In determining that there was no air of reality to the defence of duress based on an implied threat, the trial judge noted the absence of act or gesture by A "which on reasonable interpretation would convey a threat" and the fact that there was a firearm present but never at any time pointed at the accused or held in any way threatening to the accused. The trial judge focused incorrectly on the absence of a specific act or gesture that could be described objectively as amounting to a threat. Words or expressive gestures directed at the accused that would, in themselves, reasonably communicate a threat are not necessary to constitute an implied threat. When dealing with an implied threat involving ambiguous conduct, an accused is not required to show that he took reasonable steps to ascertain if he was, in fact, being threatened. The nature of A's conduct when combined with his instructions to the accused was capable of communicating a serious threat that A would kill the accused if the accused failed to carry out A's wishes. Further, to the extent that the trial judge also concluded that the accused's stated belief that the threats would be carried out had no air of reality because his belief was unreasonable, that too was an error of law. The trial judge failed to consider that it would not be unreasonable for a person in the accused's situation to expect A to behave or respond irrationally.

APPEAL from a conviction from the judgment of Noble J. of the Superior Court of Justice, dated January 29, 2003, on charges of being an accessory after the fact to murder.

R. v. Mena, 1987 2868 (ON CA), [1987] O.J. No. 392, 20 O.A.C. 50, 34 C.C.C. (3d) 304, 57 C.R. (3d) 172 (C.A.); R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, [2001] S.C.J. No. 25, 197 D.L.R. (4th) 577, 268 N.R. 1, 82 C.R.R. (2d) 1, 153 C.C.C. (3d) 1, 41 C.R. (5th) 1, consd Other cases referred to R. v. Armstrong, 2003 29258 (ON CA), [2003] O.J. No. 3610, 179 C.C.C. (3d) 37 (C.A.) [leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 554]; R. v. Cinous, [2002] 2 S.C.R. 3, [2002] S.C.J. No. 28, 210 D.L.R. (4th) 64, 285 N.R. 1, 162 C.C.C. (3d) 129, 49 C.R. (5th) 209, 2002 SCC 29

Brian H. Greenspan, for appellant. David Lepofsky, for respondent.

The judgment of the court was delivered by

[1] SIMMONS J.A.: -- The appellant appeals from convictions entered by Noble J. on January 29, 2003 on two counts of being an accessory after the fact to murder, and from the global sentence imposed of six years and eight months' imprisonment in addition to four months' credit for time served.

Overview

[2] On August 4, 1999, the appellant's cousin Robert Armstrong picked up three hitchhikers (Melody Lopez, Shawn Barrett and Chris Rogers) and Mr. Rogers' dog and took them to the Armstrong family cabin in northwestern Ontario. The appellant, who was 18 at the time, was staying at the cabin with 23-year-old Robert, Robert's five-year-old son, Dylan, and Robert's 19-year-old brother Richard.

[3] Ms. Lopez and Mr. Barrett stayed at the cabin until August 6, 1999, when they were shot and killed by Robert. On June 28, 2001, Robert was convicted of the first-degree murder of Ms. Lopez and of the second-degree murder of Mr. Barrett [See Note 1 at the end of the document]. The appellant testified at Robert's trial and confirmed that Robert killed the hitchhikers as well as their dog and that he (the appellant) assisted Robert in destroying evidence and in burning the deceased's remains.

[4] The appellant's trial on these offences began after Robert was convicted. The Crown did not call oral evidence but rather relied on an agreed statement of fact and two statements the appellant had given to the police in which the appellant admitted assisting Robert in burning the deceased's bodies and disposing of evidence.

[5] The sole issue at trial was whether the appellant acted under duress. The appellant testified and claimed that the only reason he assisted Robert was because he was afraid for his own safety and had no safe avenue of escape. He acknowledged that his actions would assist Robert in concealing the murders and that Robert did not explicitly threaten to kill him. However, given that Robert had a gun, that he had already killed Mr. Barrett and burned his body, and that he executed Ms. Lopez in the appellant's presence, the appellant claimed that he was afraid that Robert would kill him if he did not comply with Robert's demands or if he tried to escape. Moreover, the location of the cabin and the surrounding terrain would hamper his ability to escape safely.

[6] In his reasons for judgment, the trial judge held that there was no air of reality to the suggestion that Robert had impliedly threatened the appellant with death and that the defence of duress was not therefore available. In addition, the trial judge made findings on a reasonable doubt standard concerning several of the elements of duress.

[7] The main issues on appeal are whether the trial judge erred in holding that there was no air of reality to the defence of duress based on an implied threat and whether that finding tainted the remainder of the trial judge's conclusions.

[8] For the reasons that follow, I would allow the appeal and order a new trial.

Background

[9] The Armstrong family cabin is located on St. Joseph's Island, about 45 minutes from Sault Ste. Marie. Access to the cabin is via a bridge from Sault Ste. Marie. The island road is paved initially but then turns into a gravel road and, in the final two to three kilometres to the cabin, a dirt road. Although there are other cabins nearby, the closest community is some distance away.

[10] On the morning of the murders, in addition to Robert's truck, there was a van at the site that was not operational, an all terrain vehicle and at least one bicycle. Although the appellant testified that he could not operate a motor vehicle, he acknowledged that he drove the all terrain vehicle a little bit while at the cabin. There was no telephone at the cabin, but Robert did have a cellular phone.

[11] At the time of these events, the appellant was unemployed and had no employment skills; he had completed grade nine as well as a couple of grade ten courses. The appellant had a youth court record consisting primarily of break and enter and property related offences, but which also included findings of guilt for robbery and obstructing a peace officer.

[12] Although the appellant was not actively looking for work in the summer of 1999, he accepted an offer from Robert to go to the Armstrong family cabin to harvest trees on the property. However, it rained for about a week after they first arrived, and the group never became fully engaged in harvesting operations.

[13] According to the agreed statement of fact, following the arrival of the hitchhikers at the cabin on August 4, 1999, the group (consisting of Ms. Lopez, Mr. Barrett, Mr. Rogers, Robert, Richard and the appellant) began to drink and party and get to know each other. At some point on August 5, 1999, Robert Armstrong made a sexual advance towards Ms. Lopez who was then five months pregnant. Ms. Lopez informed her boyfriend, Mr. Barrett, about the incident and Mr. Barrett confronted Robert. While the two were arguing, Robert pulled out a .45 Colt handgun. However, Mr. Rogers intervened and eventually negotiated the handgun away from Robert.

[14] Later, the hitchhikers were in the cabin when the appellant became involved in an altercation with Richard. Robert confronted the appellant and beat him. The hitchhikers heard gunshots and feared that the appellant had been shot. However, the appellant had not been shot and the group resumed its partying. The hitchhikers decided that they would leave the cabin the next day. In the meantime, because the group was low on alcohol, Robert, Mr. Barrett and Mr. Rogers drove to Sault Ste. Marie to replenish their supply.

[15] While in Sault Ste. Marie, Robert and Mr. Rogers crossed the border into Michigan. Mr. Rogers was denied re-entry into Canada and therefore was unable to rejoin the group. Robert and Mr. Barrett had car trouble; accordingly, they returned to the island at about midnight when a cab dropped them off on a logging road.

[16] In the early morning of August 6, 1999, Richard was awakened by what he believed was his brother, Mr. Barrett and Mr. Rogers banging up against the side of the cabin in an altercation. Richard heard a gunshot; some time later he heard Robert come inside the cabin. Robert woke up the appellant and told the appellant to come outside and help him. Once outside, Robert told the appellant that he had shot Mr. Barrett and put his body in the fire.

[17] Richard heard Robert and the appellant working in the area of the fire pit and then come inside the cabin. Robert woke up Ms. Lopez and told her that Mr. Barrett wanted to talk to her. Once outside, Robert told Ms. Lopez to look in the fire and then attempted to shoot her in the back of the head at close range. However, the shot grazed Ms. Lopez and she began struggling with Robert and pleading with him not to kill her. Robert shot Ms. Lopez and then yelled at the appellant to help him put her body in the fire.

[18] According to the agreed statement of fact, the appellant attempted to help Robert but could not as he was in shock. Robert subsequently shot Mr. Rogers' dog and threw it on the fire. Robert spent the rest of the night putting wood on the fire to burn the victims' bodies. The next day, Robert instructed Richard to gather up the victims' belongings. After Richard had done so, Robert burned their belongings in the fire. Robert also gave the murder weapon to Richard, who cleaned it and hid it at the base of a tree.

[19] Robert and the appellant then proceeded to dispose of the victims' ashes and remains. They loaded the ashes and remains into a washtub on a wheelbarrow and dumped the contents into a creek. As some of the bones remained visible at the bottom of the creek, Robert covered them with rocks. He and the appellant then disposed of the rest of the ashes and remains in a hole they dug south west of the cabin. Robert advised Richard to keep his mouth shut about what had happened.

[20] The appellant testified in his own behalf and said that Robert beat him on the evening of August 5, 1999 in retaliation for the appellant's earlier altercation with Richard. The appellant said that Robert continued to beat him until he was finally able to retreat into the cabin, where he fell asleep.

[21] According to the appellant, Robert woke him up by kicking him and told him that he (Robert) needed help. The appellant said he tried to roll a cigarette, but Robert yelled at him to get outside. Once outside, Robert told the appellant that he and Mr. Barrett had been arguing when Mr. Barrett picked up a shovel. At that point Robert told Mr. Barrett "you're done" and shot him in the head. The appellant said he did not believe it until he looked into the fire and saw something that looked like a foot.

[22] After looking in the fire, the appellant said that he was terrified, shocked and felt sick. He described Robert's demeanour as being "creepy . . . like he didn't care". He said he did not run because Robert would have hunted him down and killed him before he could get anywhere.

[23] Robert told the appellant to go and wake up Ms. Lopez but the appellant said no. The appellant explained"I didn't want to, like I couldn't do it." Robert went inside, woke Ms. Lopez up and brought her outside. He told her to look into the fire, came up to her from behind, cocked the gun and shot at her. The shot missed and Ms. Lopez turned around. After a brief struggle, Robert shot her in the head.

[24] The appellant said Robert yelled at him to "come here". The gun was in the back of Robert's underwear or on a stool. Robert told the appellant to help him throw Ms. Lopez' body on the fire. The appellant said he felt that if he did not do what Robert told him to do, Robert was going to kill him right there. The appellant said he thought this "because [Robert] just showed me someone dead in a fire and killed someone in front of me".

[25] The appellant tried picking Ms. Lopez's body up, but her feet slipped out of his hands. Robert yelled at him"what the fuck are you doing", and threw her body on the fire himself. The appellant said he was scared out of his mind. Robert then grabbed Mr. Rogers' dog, shot it and threw it into the fire.

[26] Robert then told the appellant to put wood on the fire. When asked if he had told Robert that he did not want to do that, the appellant responded that he did not want Robert to think that he was against him in any way because Robert would shoot him. The appellant said both men threw wood on the fire until there was no chopped wood left around the camp. Once all the wood had been thrown on the fire, the appellant asked Robert if he could go inside and lay down; he said he asked if Robert was finished with him. Robert permitted him to go inside but told him to lie down in the deceased's room.

[27] The appellant acknowledged in his testimony that Robert did not threaten him explicitly. However, he said he was too terrified to leave because he believed that Robert would have hunted him down and killed him. Moreover, he was not wearing shoes and the area was surrounded by dense bush and muck; further, it would have taken an hour or two to walk or run to the nearest town.

[28] Later that morning, Robert woke the appellant up and instructed the appellant to come outside and help him. At the time, Robert had the murder weapon in the back of his jeans. Once outside, the appellant saw Robert beside the fire pit hitting the fire with a shovel and he told the appellant to do the same. They then shovelled the debris from the fire into metal buckets for "quite a while", which they dumped in a nearby stream. The appellant testified that he complied with Robert's demands because he was afraid that if he did not, Robert would kill him. He said that on one occasion Robert told him to "keep [his] fucking mouth shut" and "to forget about it".

[29] After he and the appellant had finished the clean-up, Robert drove the appellant, Richard, and his young son, Dylan, to Sault Ste. Marie to pick up the vehicle that he left behind the day before. When the vehicle would not start, Robert arranged to have it towed. He sent the appellant and Dylan back to the camp with the tow truck driver. The appellant said he did not tell the tow truck driver what had happened because he did not want the appellant or the appellant's father to find out and kill him or his family.

[30] Robert and Richard did not return to the cabin until later that evening. The appellant had no telephone. He said he did not try to leave because he did not want Robert to catch him leaving. Robert's parents arrived at the cabin unexpectedly that night. The appellant testified that at that point his fear of being killed escalated because he did not know whether Robert told his father about the incident. The appellant said that although he had never had any problems with Robert's father, he was aware that the father had a history of violence and he was afraid that the father would harm him if he found out what had happened.

[31] Robert and his son left the cabin about a week and a half later, following an altercation between Robert and Richard. A few days after Robert left, Robert's father drove the appellant home to Windsor. The appellant testified that he did not tell his mother what had happened because he was afraid that she would make him report the events to the police and that Robert's father would kill the appellant and his family.

[32] The appellant had to return to Sault Ste. Marie shortly after returning home to face a break and enter charge for which he was sentenced to 90 days custody. He testified that he did not report the incident while in custody because he was afraid someone would have killed him.

[33] Ultimately, the police learned of the appellant's and Robert's involvement in these events after speaking to Richard. After being arrested for the murders of Ms. Lopez and Mr. Barrett, the appellant provided two statements to the police, during the course of which he expressed fear of Robert and Robert's father.

The Trial Judge's Reasons

[34] At the outset of his reasons, the trial judge correctly summarized the elements of the defence of duress and the burden of proof as follows:

1. The accused must act solely as a result of the threats of death or serious bodily harm to himself or herself or another person;

2. The threats must be of such gravity or seriousness that the accused believed that the threats would be carried out;

3. The threats must be of such gravity that they might well have caused a reasonable person in the same situation as the accused to act in the same manner. To put it another way would a person of reasonable firmness sharing the ... characteristics of the accused such as age and background have responded to the threats. And lastly,

4. The accused must not have had an obvious safe avenue of escape.

If the evidence will support a reasonable doubt about each of these elements then the court must find [the appellant] not guilty. On the other hand if the court is satisfied beyond reasonable doubt that any of these elements is not available on the evidence and therefore does not apply, then [the appellant] is not excused from criminal liability for what he has done.

[35] In the course of addressing the first element of the defence, the trial judge noted that an implied threat can amount to duress and said that the issue of whether particular conduct can properly be construed as a threat must be determined on a subjective-objective standard. In addition, the trial judge stated that the appellant's credibility was not in issue but that if the accused's belief in the existence of a threat was unreasonable, that was a factor going to the issue of whether a threat can be implied.

[36] After setting out various evidentiary factors that he had considered, the trial judge concluded that the circumstances surrounding the events at the cabin did not provide an air of reality to the existence of an implied threat. The trial judge then went on to make findings on a reasonable doubt standard concerning the existence of an implied threat and the third and fourth elements of the defence.

Issues and Analysis

[37] The appellant's primary submission is that the trial judge erred in law in holding that there was no air of reality to the appellant's claim of duress based on an implied threat and that this finding tainted the trial judge's subsequent conclusions concerning whether the Crown disproved that the appellant acted under duress beyond a reasonable doubt. I agree.

[38] I begin by noting three matters. First, the question of whether there was an air of reality to the defence of duress is an issue of law involving an assessment of whether there is evidence on the record based upon which a properly instructed jury acting reasonably could acquit. In applying the air of reality test, the trial judge considers the whole of the evidence and assumes the evidence relied upon by the accused to be true: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, [2002] S.C.J. No. 28, at paras. 49-57.

[39] Second, in conducting an air of reality analysis in this case, the trial judge appears to have merged the issues of whether there was any evidentiary basis for finding that there was an implied threat with the issue of whether the appellant's belief in the existence of a threat was unreasonable.

[40] Third, the trial judge stated at least three times during his reasons that the appellant's credibility was not in issue. In interpreting his reasons, I accept that he proceeded on that basis.

[41] Before proceeding with my analysis, I will set out the relevant portions of the trial judge's reasons beginning with the air of reality issue and his finding on a reasonable doubt standard concerning the first element of duress:

One of the issues in this case is whether it be mandatory that the threat be expressed or in the alternative may be implied if the circumstances permit. That issue would seem to have been resolved by dicta in the decision of the Ontario Court of Appeal, R. v. Mena (1987), 34 C.C.C. (3d) at page 304. At page 320, we find this reference:

The threat required to invoke duress may be expressed or it may be implied ...

The first question then is under all the circumstances of this case is there an evidentiary foundation which will support that notwithstanding the declarations of [the appellant], that on an objective evaluation of the evidence would preclude a finding that the threats of death or serious bodily harm to [the appellant] by Armstrong can be implied.

The matter in my view must be viewed objectively and subjectively.

If the belief of [the appellant] that he is under threat is on a consideration of all of the evidence unreasonable then the unreasonableness of the accused's belief is an item of evidence going as to whether the threat can be implied.

Although I trust that it [is] clear that I have considered all of the evidence, in particular with respect to that issue, I reflect on

(a) the refusal of [the appellant] to deliver Lopez out of the cabin;

(b) the absence of act or gesture by Robert Armstrong which on reasonable interpretation would convey a threat;

(c) the lacklustre and failed attempt to respond to direction to [the appellant] by Armstrong to throw Lopez on the fire;

(d) that [the appellant] relies on and only on the fact of the unseen and the witnessed murder of two relative strangers as the foundation of his belief of implied threat.

Against consideration of these facts,

(e) the fact that Robert Armstrong had bested [the appellant] in a fight the evening before;

(f) the fact that Robert Armstrong was five years older than [the appellant];

(g) the fact that there was a firearm present but never at any time pointed at [the appellant], or held in anyway threatening to [the appellant];

(h) the fact that even when opportunity presented itself repeatedly in August, September, October, November and up to December 15, 1999, [the appellant] took no advantage but continued to conceal the murders and his feeling that he had been compelled to participate under threat, or at least fear of his life.

I have concluded that to suggest that Robert Armstrong threatened by implication, that is that there was an implied threat of death has no air of reality. On the evidence as I have summarized it, I am satisfied beyond a reasonable doubt that the evidence does not support threat by implication. That conclusion having been reached, the defence of duress is not available to the accused.

[42] The trial judge then went on to deal with the third and fourth elements of duress as follows:

While it is unnecessary to reflect or provide opinion on the other elements of the defence of duress in the event that this matter is subject to further review, I should indicate that I have considered the evidence against the other elements of the defence, and I am convinced beyond a reasonable doubt that the evidence does not support that a person of reasonable firmness sharing the characteristics of the accused, his age and background, would have responded to the threats invited to be implied by the court.

And, finally, on the evidence, I am not satisfied beyond a reasonable doubt on the evidence which I trust are clear that the accused had no safe means of escape. Withdrawal would have been accompanied by discomfort and perhaps difficulty but it was not impossible.

[43] Interpreting the trial judge's reasons poses some difficulties. Although the trial judge expressed the conclusion that there was no air of reality to the existence of an implied death threat, his reference to the unreasonableness of the appellant's belief more properly relates to the question of whether the appellant genuinely believed the threats would be carried out [See Note 2 at the end of the document]. In addition, factors (a), (c), (d) and (h) appear to relate at least in part to the appellant's claim that he believed he was being threatened and, in particular, to the credibility of that claim.

[44] However, accepting that the trial judge viewed the reasonableness of the appellant's belief as the issue, factors (a) and (c) can also be read as meaning that because the appellant was left unharmed after failing to follow Robert's instructions concerning Ms. Lopez, his belief that he would be harmed if he failed to help Robert in disposing of the victims' remains was unreasonable. Similarly, factors (d) and (h) can be read as meaning that the appellant's fear, or continuing fear, was simply unreasonable.

[45] In my view, factors (b), (d) and (g), together with the trial judge's assessment of factors (a), (c) and (h) demonstrate two errors in the trial judge's air of reality analysis concerning the first element of duress.

[46] First, factor (d), in particular, indicates that the trial judge failed to appreciate the potential significance of witnessing an execution to the questions of whether there was an implied threat and whether the appellant's belief in the existence of a threat was unreasonable.

[47] In my view, the situation in which the appellant found himself could reasonably be perceived as one of stark horror involving escalating levels of irrational violence. In this respect, it is important to remember that after awakening the appellant, Robert told the appellant that he shot Mr. Barrett during an argument after Mr. Barrett picked up a shovel. Robert then directed the appellant's attention to what appeared to be a body in the fire, executed Ms. Lopez in the appellant's presence, threw her body in the fire, shot Mr. Rogers' dog and threw the dog in the fire. Looked at in the context of this series of events, the very nature of Robert's conduct, when combined with his instructions to the appellant and the appellant's testimony concerning the presence of a gun, was capable of communicating a serious threat that Robert would kill the appellant if the appellant failed to carry out his wishes.

[48] Second, factors (b) and (g) indicate that, in determining that there was no air of reality to the defence of duress based on an implied threat, the trial judge focused incorrectly on the absence of a specific act or gesture that could be described objectively as amounting to a threat. In this regard, I reject the Crown's submissions that words or expressive gestures directed at the appellant that would, in themselves, reasonably communicate a threat are necessary to constitute an implied threat and that when dealing with an implied threat involving ambiguous conduct an accused must show that he took reasonable steps to ascertain if he was in fact being threatened.

[49] In R. v. Mena, supra, at p. 320 C.C.C. this court held that "the threat required to invoke duress may be express or implied". Further, this court stated at p. 322 C.C.C.:

Mere fear does not constitute duress in the absence of a threat, either express or implied. Where an implied threat is relied upon to constitute duress either under s. 17 or under the common law, the threshold question is whether the acts, conduct or words of the person alleged to have made the threat could reasonably be construed as a threat of the required kind. On this threshold question, an objective standard must necessarily be met. If the judge at the conclusion of the evidence is of the opinion that no reasonable jury could find that the words or conduct constituted a threat of the kind required, the judge will withdraw the defence of duress from the jury.

[50] I acknowledge the comments in R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, [2001] S.C.J. No. 25, 153 C.C.C. (3d) 1, at p. 719 S.C.R., p. 30 C.C.C. to the effect that verification of spurious duress claims may be difficult and that courts should apply reasonable but strict standards to the defence. Nevertheless, in my view, the relevant question is properly set out in Mena, i.e. "whether the acts, conduct or words of the person alleged to have made the threat could reasonably be construed as a threat of the required kind".

[51] In this case, it is the conduct of Robert together with his instructions on which the appellant relies. As already noted, in my view, the very nature of Robert's conduct when combined with his instructions to the appellant was capable of communicating a serious threat that Robert would kill the appellant if the appellant failed to carry out Robert's wishes.

[52] I conclude that the trial judge erred in law in holding that there was no air of reality to the defence of duress based on an implied threat.

[53] Further, to the extent that the trial judge also concluded that the appellant's stated belief that the threats would be carried out had no air of reality because his belief was unreasonable, in my view, that too was an error in law. In particular, factors (a), (c) and (h) indicate that, in concluding that the appellant's belief in the existence of a threat was unreasonable, the trial judge failed to consider that it would not be unreasonable for a person in the appellant's situation to expect Robert to behave or respond irrationally.

[54] As I read his reasons, the trial judge concluded that, as compared to Ms. Lopez and Mr. Barrett, there was little if any real possibility that Robert would have harmed the appellant because unlike Ms. Lopez and Mr. Barrett, the appellant was related to Robert and his family knew exactly where he was. However, this form of reasoning does not take account of the fact that Mr. Rogers would know where he had last seen the victims; nor does it take account of the fact that particularly in the face of Robert's explanation of why he shot Mr. Barrett, Robert's subsequent conduct was impulsive, cold blooded and not necessarily capable of being rationally predicted.

[55] In the circumstances, I conclude that the trial judge erred in holding that the appellant's stated belief that he was being threatened was unreasonable. As was noted in Mena at p. 321 C.C.C."[t]he unreasonableness of the accused's belief is an item of evidence going to whether he genuinely believed the threats would be carried out" (emphasis added). In other words, the unreasonableness of an accused's belief is not determinative. Moreover, even if the unreasonableness of an accused's belief was a determining factor in the air of reality analysis concerning the second element of duress, as I have explained, the trial judge erred in his assessment of that issue. Further, because this error affected the outcome of his air of reality analysis, it amounts to an error in law.

[56] I accept the appellant's submission that the trial judge's finding that there was no air of reality to the appellant's claim that he acted under duress taints his subsequent findings on a reasonable doubt standard. I observe initially that the trial judge's reasons relating to his reasonable doubt findings are conclusory. Further, given the trial judge's finding that there was no air of reality to the existence of an implied threat, in the absence of an explanation of the specific threat he was hypothesizing, I fail to see the basis for the trial judge's findings on a reasonable doubt standard that there was no threat and that the threat was not of such gravity that it would have caused a person of reasonable firmness to respond in the same manner.

[57] While the same reasoning may not apply as forcefully to the fourth element of duress, in my view, it would be difficult, if not impossible, to assess whether an avenue of escape is safe without appreciating the nature and extent of the threat. Further, I accept the appellant's submissions that the trial judge made two additional errors in his findings concerning the fourth element of duress and that the cumulative effect of these errors constitutes reversible error.

[58] The appellant contends that the trial judge erred by misstating the burden of proof relating to the fourth element of duress and that he erred further by requiring that the appellant demonstrate that escape was impossible. I agree. I will repeat the trial judge's reasons in this respect for ease of reference:

And, finally, on the evidence, I am not satisfied beyond a reasonable doubt on the evidence which I trust are clear that the accused had no safe means of escape. Withdrawal would have been accompanied by discomfort and perhaps difficulty but it was not impossible.

[59] While I acknowledge that the trial judge set out the correct test and burden of proof concerning all of the elements of duress at the outset of his reasons, in my view, the foregoing misstatement of both the fourth element of duress and the applicable burden of proof support the conclusion that the trial judge's findings on this element are conclusory and fail to reflect proper consideration of the relevant issues.

Disposition

[60] Based on the foregoing reasons, I would allow the appeal, set aside the appellant's convictions and order a new trial.

Appeal allowed.

Notes

Note 1: These convictions were upheld on appeal: see R. v. Armstrong, 2003 29258 (ON CA), [2003] O.J. No. 3610, 179 C.C.C. (3d) 37 (C.A.), leave to appeal refused [2003] S.C.C.A. No. 554.

Note 2: In R. v. Mena, 1987 2868 (ON CA), [1987] O.J. No. 392, 34 C.C.C. (3d) 304, at p. 321 C.C.C., this court noted that"The unreasonableness of the accused's belief is an item of evidence going to whether he genuinely believed the threats would be carried out: see Stuart, Canadian Criminal Law: A Treatise (1982), p. 388." I note as well that the trial judge's statement"The matter in my view must be viewed objectively and subjectively" appears to relate to the question of whether there was an implied threat. However, in Mena at p. 322 C.C.C. this court stated that"On this threshold question [of whether the acts, conduct or words of the person alleged to have made the threat could reasonably be construed as a threat of the required kind] an objective standard must necessarily be met." No specific issue was raised on appeal concerning the trial judge's apparent approach of merging the air of reality analysis on relation to the first and second elements of duress, nor his description of the standard to be met in relation to the various elements of the defence. Nothing in these reasons should be construed as endorsing the trial judge's approach.