WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486(1), (1.1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486(1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may, on application of the prosecutor or a witness or own his or her own motion, order the exclusion of all or any members of the public from the court room for all or part of the proceedings, or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(1.1) The application may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or the justice who will preside at the proceedings or, if that judge or justice has not yet been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

(2) In determining whether the order is in the interest of the proper administration of judge, the judge or justice shall consider

(a) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system participants who are involved in the proceedings;

(f) whether effective alternatives to the making of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects of the proposed order; and

(h) any other factor that the judge or justice considers relevant.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1^st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4^th Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16, s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1, s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.B.M., 2016 ONCA 264

DATE: 20160411

DOCKET: C57953

MacPherson, MacFarland and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.B.M.

Appellant

D. Edwin Boeve, for the appellant

Sarah Shaikh, for the respondent

Heard: April 7, 2016

On appeal from the conviction entered on September 10, 2013 by Justice M. Block of the Ontario Court of Justice.

ENDORSEMENT

[1] The only issue facing the trial judge was whether there was any “air of reality” to the appellant’s assertion of the defence of duress to the charge of possession of about 7 lbs of marijuana for the purpose of trafficking.

[2] The evidence disclosed that the appellant was indebted to a “Mr. X” for about $40,000 that he had borrowed from Mr. X.

[3] Through a series of unfortunate circumstances, including the loss of his job, the appellant was unable to pay the debt. Mr. X as it turned out, was an unsavoury character who threatened the appellant and his family when the appellant was unable to pay.

[4] Mr. X proposed that the appellant could “work off” the debt by making deliveries and pick-ups of drugs. The appellant, whose credit was “maxed out” and had no other source of ready income, agreed to the proposal. He was caught on his 9th or 10th pick-up/delivery with seven lbs of marijuana in his vehicle.

[5] The trial judge reviewed the law of duress as it had been recently stated by the Supreme Court in R. v. Ryan; he itemized the six necessary elements for the defence to succeed. He found that the appellant was unable to satisfy the requirement that he had no safe avenue of escape. First, it was not clear to him on the evidence that the appellant lacked the resources to pay the debt, and second, he could have gone to the police.

[6] The facts here are not unlike those in R. v. Keller, 1998 A.J. No 1257, a decision of the Alberta Court of Appeal. Mr. Keller was arrested at the Calgary Airport where he’d picked up a package containing 240 hits of LSD. He was searched and 50 additional hits were found in his wallet. He admitted to picking up at least 10 similar packages in the four months preceding his arrest. He said he was compelled to do so under a threat of death or serious bodily harm made by a man he knew as “Shawn”, a known drug dealer. Keller was indebted to Shawn as the result of inadvertently destroying a quantity of Shawn’s drugs. Sometime later, Shawn appeared and demanded either payment or that Keller work off the debt. Keller couldn’t pay. He said he did not go to the police because he was afraid of Shawn and didn’t think the police could protect him. He felt he would be unsafe moving to B.C. where his mother, with whom he enjoyed a good relationship, lived; he told no one about the threats or his activities because he was embarrassed. He claimed his involvement was solely to pay off his debt to Shawn. Keller, like the appellant here, said he felt he had no choice but to comply with Shawn’s demands. As the court noted:

... while the common law defence of duress was potentially available to Keller it was, like any other defence, not actually available unless it had ‘an air of reality’.

[7] And at para 24:

... the existence of a safe avenue of escape is to be determined on an objective standard and is adjusted for subjective circumstances. The belief of the accused that he had no reasonable alternative is not sufficient to give an air of reality to the defence simply because the belief is asserted. The question is whether a reasonable person, with similar history, personal circumstances, abilities, capacities and human frailties as the accused, would, in the particular circumstances, reasonably believe there was no safe avenue of escape and that he had no choice but to yield to coercion.

[8] Contrary to the appellant’s assertion, the trial judge here did not reverse the onus of proof. There was an evidentiary burden on the appellant to lead sufficient evidence to establish an air of reality to the defence of duress – once satisfied, it remained for the Crown to establish guilt beyond a reasonable doubt.

[9] Whether there was a safe avenue of escape is a question of fact. Here the trial judge concluded on the evidence before him that he was not satisfied that the appellant had no safe avenue of escape, he could have gone to the police or paid off the debt by liquidating his RRSPs as he eventually did after he was charged with this offence. In other words, there was no air of reality to his claim of duress.

[10] We see no error in the trial judge’s findings. The appeal is dismissed.

“J. C. MacPherson J.A.”

“J. MacFarland J.A.”

“H.S. LaForme J.A.”