COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Berbeck, 2013 ONCA 241

DATE: 20130417

DOCKET: C54773

MacPherson, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Denroy Berbeck

Respondent

Howard Piafsky, for the appellant

Mark Halfyard and Breana Vandebeek, for the respondent

Heard: February 28, 2013

On appeal from the acquittal entered by Justice Kenneth A. Langdon of the Superior Court of Justice, sitting with a jury, dated October 5, 2011.

MacFarland J.A.:

A. overview

[1] This is a Crown appeal from the acquittal of the respondent on a charge of importing cocaine from Jamaica into Canada on July 28, 2009.

[2] The Crown’s case went in largely by way of an Agreed Statement of Admissions, wherein both parties accepted the following facts:

1. Jurisdiction – the cocaine at issue was imported into Canada via Pearson International Airport in the City of Mississauga, Ontario, from Jamaica;

2. Date – the cocaine at issue was imported into Canada on July 28, 2009;

3. Identity – the accused Denroy Berbeck who was arrested on the charge named in the indictment is the same Denroy Berbeck that is before the court;

4. Continuity and Nature of Substance – samples seized from the pellets swallowed and later expelled by Denroy Berbeck were submitted to Health Canada for analysis and determined to be cocaine;

5. Knowledge – Denroy Berbeck knew there was cocaine inside the pellets he swallowed in Jamaica and later expelled once in Canada on July 29, 2009.

[3] The respondent relied on the defence of duress and that was the sole issue at trial.

B. the facts

[4] The respondent testified that he travelled to Jamaica to speak to his father about taking his medication for prostate cancer properly. While he was there, his father told him that he was being harassed by the respondent’s half-brother, Delroy.[^1] The respondent asserted that his father owed Delroy $10,000, which his deceased mother had left to Delroy and which Denroy’s father had spent.

[5] The respondent testified that he called Delroy with the intention of telling him that he, the respondent, would repay his father’s debt. The telephone conversation with Delroy became acrimonious and the respondent hung up. However, Delroy called back later that day, apologized, and suggested the respondent come to his house. When the respondent arrived, he saw Delroy and a police officer sitting on the porch. Delroy asked the respondent to bring cocaine into Canada for him as repayment for his father’s debt. The respondent asserted that he refused, got in his car and left.

[6] On the morning the respondent was scheduled to return to Canada, Delroy and the same police officer showed up at the respondent’s father’s house. Delroy took cocaine pellets out of a bag he was carrying, pulled out a gun which he pointed at the respondent, and instructed the respondent to swallow the pellets. The police officer also pulled out a gun, which he pointed at the respondent’s head. Both Delroy and the police officer threatened to shoot him if he did not swallow the drugs. The respondent heard a click, which he believed to be the sound of Delroy racking the gun, preparing to fire it. Delroy took out some orange juice, and the respondent started swallowing the pellets. The officer left to stay with the respondent’s father outside. By the time the respondent had swallowed about thirty pellets, he began to vomit and was permitted to stop.

[7] According to the respondent, Delroy told him not to tell anyone, and that he would have people watching the respondent. Delroy did not specify what this meant, but the respondent took it to mean he would have people watching him at the airport in Jamaica, on the flight, and beyond. The respondent testified that he did not believe he could call the Jamaican police because he believed they were corrupt, and because a policeman was involved in the incident. He agreed that the police in Jamaica are not like the police in Canada.

[8] On July 28, 2009, the respondent flew from Jamaica to Toronto. After passing through the primary inspection, he was interviewed by Canada Border Services Agency Officer Kevin Dixon. Officer Dixon was tasked with locating people suspected of smuggling narcotics into Canada. He testified that he interviewed the respondent at 6:32 p.m. The respondent advised Officer Dixon that he had been in Jamaica for four days on vacation, and that he had purchased his ticket in cash. He was travelling alone, and Officer Dixon testified that he appeared nervous when being interviewed. Officer Dixon decided that further examination was warranted.

[9] The respondent attended at the secondary inspection counter where Officer Dixon conducted a further inspection. An ION scan test was performed on items in the respondent’s possession. It tested positive for cocaine. By this time, Officer Dixon was of the view that the respondent had ingested drugs. At 7:57 p.m., the respondent was detained for a personal search pursuant to s. 98 of the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.). He was read his rights to counsel and cautioned. The respondent consulted with duty counsel at 8:10 p.m., and again at 9:37 p.m.

[10] At around 11:00 p.m., prior to acknowledging that he had ingested cocaine, the respondent spoke to the CBSA officers. He advised them that he had stayed with his brother in Jamaica. He told the officers that his brother was a “bad dude” who had gotten into trouble trying to ship cocaine from Jamaica. He added that his brother would put cocaine in the poles of suitcases and have females smuggle them into the United Kingdom.

[11] CBSA officers Kyle Scrimgeour and Stephen Miller took over custody of the respondent at 3:00 a.m. The respondent told Officer Scrimgeour that he did not see anyone in his family doing drugs other than marijuana, but repeated that his brother imported cocaine into other countries using couriers.

[12] At 6:28 a.m., CBSA officers Chris Tilden and Kevin Armstrong took custody of the respondent. The officers advised the respondent of his options and noted the risks involved in prolonging the situation should a capsule break in his stomach. After reviewing these options for thirty to forty minutes, the respondent approached the officers, shook their hands, and stated that he had “fucked up” and confirmed that he had in fact ingested drugs. He was then arrested and cautioned.

[13] After his arrest, the respondent passed into the custody of Constables Jason Freeman and Scott Thompson of the RCMP. They re-arrested him and took him to the hospital to get checked out as a precaution. Shortly after his release from hospital, he commenced passing pellets of cocaine.

C. analysis

(1) The Crown’s Burden

[14] In R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, the majority of the Supreme Court of Canada set out the Crown’s burden when it appeals the acquittal of an accused. At para. 14 of his reasons, Fish J. for the majority stated:

It has been long established, however, that an appeal by the Attorney General cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown. It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different.

This burden on the Crown, unchanged for more than half a century (see Cullen v. The King, 1949 7 (SCC), [1949] S.C.R. 658), was explained this way by Sopinka J., for the majority, in R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345:

I am prepared to accept that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty. An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it. Any more stringent test would require an appellate court to predict with certainty what happened in the jury room. That it cannot do. [Internal citation omitted.]

Speaking more recently for a unanimous court in R. v. Setton, [2000] 2 S.C.R. 595, 2000 SCC 50, the Chief Justice stated:

The parties agree that acquittals are not lightly overturned. The test as set out in Vézeau v. The Queen, 1976 7 (SCC), [1977] 2 S.C.R. 277, requires the Crown to satisfy the court that the verdict would not necessarily have been the same had the errors not occurred. In R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, this Court emphasized that “the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty”. [Internal citation omitted.]

[15] It is clear from the authorities that the Crown’s burden in these circumstances is a heavy one.

(2) The Charge

[16] The trial judge did not, despite Crown counsel’s request that he do so, follow Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005) on the defence of duress. Instead, he used his own four-part version which essentially covered the same ground. He also provided the jurors with a decision tree framing each element of the duress defence as a question. The questions in the decision tree read as follows:

1. QUESTION ONE

Has the Crown proved beyond a reasonable doubt that, when Mr. Berbeck brought the drugs into Canada, threats of death or serious personal injury to himself or another person, were NOT the operative cause of his doing so?

If the answer to this question is YES, then you must find Mr. Berbeck guilty. Your deliberations are over. If the answer to this question is NO, then you must go on to question 2.

2. QUESTION TWO

Has the Crown proved beyond a reasonable doubt that the threats were NOT of such gravity or seriousness, that Mr. Berbeck believed they would be carried out?

If the answer to question 2 is YES, then you must find Mr. Berbeck guilty. Your deliberations are over. If the answer to question 2 is NO, then you must go on to consider question 3.

3. QUESTION THREE

Has the Crown proved beyond a reasonable doubt that the threats were such that they would NOT have caused a reasonable person, placed in the same situation as Mr. Berbeck, to act in the same way?

If the answer to question 3 is YES, then you must find Mr. Berbeck guilty. Your deliberations are over. If the answer to question 3 is NO, then you must go on to question 4.

4. QUESTION FOUR

Has the Crown proved beyond a reasonable doubt that a reasonable person in Mr. Berbeck’s situation could NOT conclude that he had no safe avenue of escape?

If the answer to this question is YES, you must find Mr. Berbeck guilty. Your deliberations are over. If the answer to this question is NO, then you must find Mr. Berbeck NOT guilty. Your deliberations are over.

[17] There is no serious issue with the judge’s charge to the jury; the Crown’s complaint arises from the manner in which the trial judge responded to the jury’s questions.

(3) The Jury Questions

[18] The jury was sent out to deliberate shortly after 11:00 a.m. It is unclear from the transcript at what time their first question was received, but they were recharged and sent back to deliberate at 2:25 p.m. That first question is not pertinent to this appeal. A second question was received at 5:05 p.m. The question read:

[A]fter much deliberation at this time we are unable to come to a [unanimous] decision. We are having some difficulty with #3 and #4 for the defence of duress. After your guidance earlier we were able to have a more focused [deliberation]. Our main difficulty with answering these questions is the term “reasonable” person. We are wondering if there is a legal definition of this term, or if we should agree to disagree and remain undecided…although not ideal.

[19] After a discussion with counsel, the trial judge answered the jury’s question as follows:

Sometimes it’s a pity that you haven’t been to law school because for three years of law school we heard debates about the reasonable man. This is such an ancient legal concept that poems and books have been written about it, somewhat humorous.The mythical reasonable man is what I would refer to as an “objective standard”. Now let’s say that you have a relative, a young man who is a little simple, okay? Very gullible. And he’s been looking up at the sky and his father has told him that the moon is made of green cheese. And he believes that, okay? And he makes a decision based on that fact which is obviously wrong.

If a jury is coming to assess that decision, not subjectively from his point of view, but objectively, you would say well the reasonable man wouldn’t premise a decision on the fact that the moon is made of green cheese.

In the case of duress, most of the tests that you’ve had to deal with have been a mix of subjective and objective tests. We have said what a reasonable man in the same situation as Mr. Berbeck with the same life experience, the same background, would he have made the same decision that Mr. Berbeck did?

Well, if Mr. Berbeck had come in and said you know, this fellow came into my house just after breakfast with my Dad and he pointed a water gun at me. He said if you don’t take the drugs, I’m going to squirt you, and maybe the fellow told him that the plastic water gun was full of sulphuric acid which, of course, it wouldn’t hold.

Now, if he was really stupid he might have believed that, but objectively a reasonable man wouldn’t have believed that. Okay.

Now, we’ve been trying to read sort of between the lines and I don’t want to guess how far along you are or where your verdict is, but you’ve come to some problems with three and four. Okay.

Assuming for the purpose of this discussion without in any way trying to decide it for you, I am going to assume, for the purpose of answering this question – just a minute now – that you’ve at least been in a state of reasonable doubt whether threats of death or serious personal injury to Mr. Berbeck or his Dad caused him to do this, and they were operating on his mind when he chose to do it.

I am also going to assume once again without trying to read your mind, that you’ve got past number two, that the threats were of such gravity or seriousness that he believed they would be carried out, i.e., he thought these people were genuine. They were going to do him in if he didn’t do it.

Okay so let’s go to question three. The threats must be such that they might well have caused a reasonable person, placed in the same situation as Mr. Berbeck to act in the same way.

Put another way, would a person of reasonable firmness sharing the characteristics of Mr. Berbeck such as age and background, act in the same manner that he did. That is to say, the threats must be such as to overbear ordinary powers of human resistance.

Now, normally if you’re getting into a legal discussion in the Court of Appeal, and the Court of Appeal will tell you well, that’s just precisely the kind of question you leave to a jury. I have to say, without wanting to influence your decision, I consider myself to be a reasonable person and each of you presumably would do the same. And if I had to choose between my father or myself being murdered, or bringing half a pound of cocaine into Canada, that would be a no brainer. Yes, bringing it into Canada would be a crime, but what’s the alternative? Dying? Hello, what’s the problem?

I think a reasonable person would decide that bringing the cocaine is a lesser of two evils. And that’s really all we’re asking. So I don’t see why you’re having a big problem with that particular question.

It’s a decision that you have to make but let me tell you, remember I told you earlier you have three hundred years of living experience amongst you, and you just have to apply your common sense. If it was your child or your mother and the fellow said I’m going to blow your mother’s brains all over the dining room wall unless you bring a half a pound of cocaine into Canada, I have to say, I would say, yeah, in the suitcase, let’s get on the plane, because I don’t want my mother’s brains laid all over Canada. I don’t think that’s unreasonable. That to me is the easiest part of the whole case.

I don’t want to take it away from you and the Court of Appeal if this ever gets there will probably say the learned trial judge, in question marks, took the case from the jury by saying what he did. It’s your decision, but would it be unreasonable? Every one of us might have made a different decision, but having made that decision could any of us say it was reasonable looking at it objectively? Pretty hard hearted Hannah’s if … Okay?

So I hope that will give you some help with number three.

The question number four is, did he have an obvious safe avenue of escape?

Well, I’ve reviewed the evidence on that for you. To some extent you have to understand that the question of obvious safe avenue of escape depends on what Mr. Berbeck believed. That isn’t necessarily an objective test. He might have believed that the police in Canada were more corrupt than they actually are, right? He might have believed that his half-brother had a watcher in the secure area. If he genuinely believed that, then that impacts on his decision. If he has a genuinely held belief it doesn’t necessarily have to be reasonable, but whether it’s reasonable will help you decide whether he genuinely believed it. Are you with me?

So, again, if I hold a genuine belief or I claim a general belief that the moon is made out of green cheese, you might say well, I don’t believe that was genuine because it’s so totally unreasonable. So the two play off against each other.

If you have got as far as number three, to me that’s a no brainer, it’s your decision. Then you have to make the fourth decision whether Mr. Berbeck himself genuinely believed he didn’t have a safe avenue of escape, that the Crown has not negated that beyond a reasonable doubt, then he gets the benefit of that part of it too.

[20] The Crown immediately objected, on two bases. First, the Crown argued that the trial judge’s examples of a reasonable person bordered on the absurd and distorted the appropriate legal standard. The examples suggested that unless a person believed the moon was made of green cheese or that a water gun pointed at one’s head posed a real threat, that person was “reasonable” for the purpose of the defence of duress.

[21] The Crown’s second objection was in relation to the trial judge’s direction on the safe avenue of escape. The Crown argued that the trial judge’s remarks had “taken out the reasonable person standard” and replaced it with a purely subjective test requiring only that “Mr. Berbeck really believed it in his mind”.

[22] The trial judge accepted this latter objection, called the jury back, and said:

I may have somewhat overstated the position with respect to the safe avenue of escape. I may have left you with the impression that the only thing that mattered was whether Mr. Berbeck believed that he had a safe avenue of escape. But the question is first, did he believe he had a safe avenue of escape? Or had no safe avenue of escape? And, secondly, would this mythical reasonable person similarly situated, also hold the same belief. In other words, the belief has to be a reasonable one on the facts that were before you.

So the question is, did he subjectively believe it and (b) objectively was his belief unreasonable?

If the Crown has not proved beyond a reasonable doubt that it was not, then he gets the benefit of that question.

[23] On appeal, the Crown again takes issue with both the trial judge’s response on the reasonable person issue and his response on the safe avenue of escape issue.

[24] On the first issue, the Crown submits, in essence, that the trial judge’s instruction signified to the jury that everything short of the patently ridiculous could be considered “reasonable” for the purposes of the reasonable person standard. In other words, the analogies placed the definition at the level of absurdity, not reasonableness.

[25] It would have been preferable had the trial judge used the standard jury charge in response to the jury’s question, which would have instructed the jury as follows:

A reasonable person is a person of the same age, sex, and background as [Denroy Berbeck], with average courage and the ordinary powers of resistance to external pressures that we expect of our fellow citizens. The twelve of you are the best judges of whether the threats could have caused a reasonable person in the same circumstances to do as [Denroy Berbeck] did.

[26] The trial judge did, when first outlining the elements of the defence of duress in his original charge, use language very similar to that of the model charge. It might have been better if he had simply repeated that language in response to the jury’s question.

[27] That said, I am not persuaded that what the trial judge did say amounts to a reversible error. While the examples he gave are extreme, I am of the view that the jury would not have been confused about the essential nature of the reasonable person standard. Clearly, the trial judge used strong language to let the jury know what he thought about the third element of the defence, as he had laid it out. He said, as far as he was concerned, it was a “no brainer” and he couldn’t understand why they were having difficulty with this question.

[28] Despite this strong language, he nevertheless made it clear it was for the jury to decide. A trial judge is entitled to express an opinion on the evidence as strongly as the circumstances permit, so long as it is clearly advice and not direction: R. v. Lawes(2006), 2006 5443 (ON CA), 80 O.R. (3d) 192, at paras. 21 and 35, leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 175. The trial judge did not, in my view, usurp the jury’s function and I would not give effect to this ground of appeal.

[29] On the second issue, the Crown submits that the trial judge misstated the test for safe avenue of escape in response to the jury’s question. The Crown accepts that the trial judge acknowledged his error and recharged the jury almost immediately that the test for safe avenue of escape had both a subjective and objective component.

[30] However, the Crown argues that the trial judge subsequently instructed the jury on safe avenue of escape several more times, each time using a different formulation and each time making material errors. In the Crown’s words, “[i]t is reasonable to infer given the number of different permutations of safe avenue of escape provided to the jury over the course of their deliberations that confusion would ensue.”

[31] In support of this argument, the Crown points to several interactions between the jury and the trial judge during the course of deliberations. After the trial judge responded to the second question, for instance, the jury sent two more notes indicating that they were deadlocked on question four – whether or not a reasonable person in Mr. Berbeck’s position could not conclude that he had a safe avenue of escape. The second note read:

After a good night’s sleep and much thought we appear to remain [deadlocked]. As before, #4 continues to [be] of difficulty for us to be in [agreement]. We have a few more questions that may help us reach a better understanding of what our thought process should/could be for this aspect of [duress]. Points of clarification are:

1. Clarify “safe avenue of escape” in this context.

2. In regards to coming to a decision, must we be “absolute”? If a juror is unsure of their response to #4, and are swayed either way, are they then required to give the benefit to the defendant?

To be more clear, if someone says they are 95% leaning to one side for this aspect, is this good enough to say you are on either side, or do you remain in the middle?

Thank you again for your support, and we apologize for our ignorance.

[32] In response to the jury’s request that he clarify safe avenue of escape, the trial judge outlined for the jury the subjective and the objective requirements of that aspect of the duress defence. He noted Mr. Berbeck’s testimony that the police in Jamaica were corrupt, and cautioned that “[w]hat is important is not whether they were or are corrupt, but whether Mr. Berbeck believed they might be, and whether a reasonable person might also share that belief” (emphasis added). The trial judge further instructed the jury that Mr. Berbeck was entitled to the benefit of the defence “[i]f Mr. Berbeck believed there was no safe avenue of escape, and if a reasonable person might have thought also that there was no safe avenue of escape” (emphasis added).

[33] The principal objection raised by the Crown to these formulations of the safe avenue of escape test is the trial judge’s use of the word “might” as opposed to the word “would”. I agree with the Crown that the word “would” ought to have been used throughout the trial judge’s response in reference to the belief of the reasonable person. In this respect, the advantage of using the standard charge becomes apparent. Repetition of the “tried and tested” language avoids the pitfalls that will arise where more off-the-cuff responses are given to jury questions.

[34] In my view, however, on the facts of this particular case, I do not accept that the jury would have been confused about the proper test for safe avenue of escape. The trial judge concluded his response with the following formulation:

To answer this question you must consider whether a reasonable person of the same age and sex and background as Mr. Berbeck, a reasonable person having been threatened, would think that no safe means of escape [existed] in the circumstances. It is for you to say. [Emphasis added.]

[35] Further, the trial judge repeated that language in his response to the jury’s final question, submitted several hours later, when he stated:

If Mr. Berbeck genuinely believed that he had no legal way out, and if a reasonable person standing in his shoes would find that he had no legal way out, then Mr. Berbeck is entitled to be acquitted.

However, if the Crown has proved beyond a reasonable doubt either that Mr. Berbeck did not genuinely believe he had no legal way out, or, that a reasonable person standing in his shoes would not think that he had a legal way out, then he doesn’t get the benefit of the defence. [Emphasis added.]

[36] In my view, the jury would have understood that they were required to determine whether Mr. Berbeck believed there was no safe avenue of escape, and if so, whether a reasonable person in his circumstances would have shared that belief. I would not give effect to this ground of appeal.

[37] The Crown raises two further objections to the trial judge’s responses to the jury’s questions. First, he points to the trial judge’s instruction on reasonable doubt in the context of safe avenue of escape. Although the Crown acknowledges that the trial judge initially properly explained the concept of reasonable doubt, he refers to the trial judge’s concluding admonition:

Again, if there is any doubt on this issue, you must give the benefit of that doubt to Mr. Berbeck. [Emphasis added.]

[38] The Crown objected after this instruction was given, arguing that the phrase “any doubt” was inconsistent with the concept of a reasonable doubt, and requested that the trial judge call the jury back to correct or modify his last statement. In response, the trial judge accepted the submission of defence counsel that it would be inconceivable after instructing the jury that a doubt has to be reasonable “half a dozen times” that the jury would now think he was referring to any doubt at all. He did not recall the jury.

[39] I agree with the trial judge on this point. He had already, in response to the third question, charged the jury quite extensively and thoroughly on reasonable doubt. It is highly unlikely the jury would have been confused by the mere failure to include the word “reasonable” before the word “doubt” on this one occasion.

[40] Finally, the Crown objects to the trial judge’s last formulation of the safe avenue of escape. As I said above, the jury submitted a final question shortly before acquitting Mr. Berbeck. Their note read:

Although your shared knowledge was greatly [appreciated] and helpful as it stands, we are still [deadlocked] 11-no 1-yes in regards to his guilt being proven. We need to ask the same question in a different [way]. Please [oblige] us one more time. What holds more weight? A [reasonable] person vs. what the Crown proved.

[41] The trial judge answered the jury’s question as follows:

The issue here is, did Mr. Berbeck have a safe avenue of escape, which I will even shorten further to make it easier and say a legal way out. A legal way out being a way in which he need not have brought the drugs to Canada. Legal way out.

If Mr. Berbeck genuinely believed that he had no legal way out, and if a reasonable person standing in his shoes would find that he had no legal way out, then Mr. Berbeck is entitled to be acquitted.

If you have a reasonable doubt whether that’s the case, Mr. Berbeck is entitled to be acquitted.

However if the Crown has proved beyond a reasonable doubt either that Mr. Berbeck did not genuinely believe he had no legal way out, or, that a reasonable person standing in his shoes would not think that he had a legal way out, then he doesn’t get the benefit of the defence.

I don’t think I can make it much more [clear] than that. You have to assess it from his personal point of view and you have to assess it from a point of view of a reasonable person standing in his shoes. It’s kind of a double-barrelled thing. [Emphasis added.]

[42] Again, after the jury retired, the Crown immediately objected to the use of the phrase “a way in which he need not have brought the drugs to Canada.” She argued that it “suggests that the safe avenue of escape stops as soon as he gets on the plane and [flies] through the air and [arrives] in Canada.” The trial judge did not accept the objection, responding that he had told the jury a number of times that the offence was a continuing one up until the “[s. 98] customs search”.

[43] I think it unlikely that the jury would be confused by this particular response from the trial judge. Their question and the trial judge’s response were addressed to the nature of the reasonable person standard. The jury had not expressed any difficulty with the continuing nature of the offence of importing. I would not give effect to this ground of appeal.

[44] Overall I find the answers to the jury’s questions were not confusing and the jury would not have had difficulty following those answers. Appellate courts must review jury charges as a whole, adopting a functional approach; although juries must be instructed properly, we do not require perfection: R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, at paras. 32 and 62; R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 69 and 71.

[45] The defence of duress is not an easy defence to explain to the legally trained, let alone a jury of twelve lay persons. I am satisfied that this jury knew that the defence of duress required the Crown to prove, beyond a reasonable doubt, that the accused did not believe he had no genuine safe avenue of escape and that a reasonable person in his circumstances would not think that there was no reasonable avenue of escape.

D. Conclusion

[46] In my view, the Crown has not met its heavy burden and I would dismiss the appeal.

Released: April 17, 2013 “JCM”

“J. MacFarland J.A.”

“I agree J.C. MacPherson J.A.”

“I agree S.E. Pepall J.A.”

[^1]: The two shared the same mother but had different fathers.