Court of Appeal for Ontario

Date: 20210514 Docket: C66720

Fairburn A.C.J.O., Jamal and Coroza JJ.A.

BETWEEN

Her Majesty the Queen, Appellant

and

Francis Norman, Respondent

Counsel: Howard Piafsky, for the appellant Ingrid Grant and Sara Samet, for the respondent

Heard: October 28, 2020 by video conference

On appeal from the acquittal entered by Justice Stuart W. Konyer of the Ontario Court of Justice on February 1, 2019, with reasons reported at 2019 ONCJ 51.

Coroza J.A.:

A. OVERVIEW

[1] The respondent, Francis Norman, was tried in the Ontario Court of Justice on three counts of trafficking and two counts of breach of probation. At trial, he conceded that he smuggled drugs into the Central East Correctional Centre (the “C.E.C.C.”) by secreting them inside his body. He also conceded that he was bound by the probation orders in question. However, he claimed that he was acting under duress, due to another inmate’s threats made to him and his brother. The trial judge concluded that there was an air of reality to the defence of duress and that the Crown had failed to prove beyond a reasonable doubt that the defence did not apply. The respondent was acquitted of all charges.

[2] On this appeal, the appellant Crown argues that the trial judge erred in finding that there was an air of reality to the duress defence. The Crown asks this court to allow the appeal, set aside the acquittal, and order a new trial. For the following reasons, I would dismiss the appeal.

B. THE EVIDENCE

[3] The respondent is no stranger to jails. He has a criminal record and, by the time of trial, had been in and out of jail for the past seven years. Between February 22 and March 12, 2018, he was in custody at the C.E.C.C. During this period, the respondent’s brother was also in custody at the C.E.C.C. This was his brother’s first time in custody. At some point, the respondent asked correctional officers to be placed in the same unit as his brother. He was worried about his brother’s inexperience, and he wanted to protect him from other inmates.

[4] According to the respondent, another inmate, known to him as "Big Newf," asked him on two occasions to smuggle drugs into the jail. The respondent initially declined, but Big Newf told him that the respondent and his brother would be stabbed if he did not comply. The respondent took this threat seriously, because he knew Big Newf by reputation and believed that he was affiliated with the Hells Angels. The respondent had previously been incarcerated in the same jail as Big Newf, and he witnessed him possessing make-shift weapons and assaulting other individuals.

[5] The respondent also testified to a specific instance where Big Newf used violence to achieve his goals. At some point, Big Newf decided that he wanted the job of unit cleaner. The evidence at trial was that the role of cleaner was a sought-after position within the institution, as cleaners enjoyed extra privileges like additional time outside their cells, even during periods of lockdown. Big Newf asked the then cleaners in the respondent’s unit to resign, so that he and an associate could take over in that role. When the cleaners refused to cede this role to Big Newf, he arranged for other inmates to assault the cleaners, resulting in their removal from the unit. The correctional staff then appointed Big Newf and his associate as the new cleaners.

[6] As a result of this experience, the respondent believed that Big Newf enjoyed tremendous power and influence at the C.E.C.C. Accordingly, after Big Newf made the threats, he feared for his and his brother’s safety and agreed to participate in Big Newf’s plan.

[7] Big Newf arranged for a surety for the respondent to help him obtain bail. On March 12, 2018, the respondent was released on bail under the supervision of his surety, a female associate of Big Newf. He was taken to what he described as a “trap house” – a place where drugs were stored, purchased, and consumed – in Keswick, Ontario. While there, he was watched by the female associate, as well as a separate, male associate of Big Newf. He was asked to help grind marijuana and package drugs. At one point, the male associate placed a gun on the table in front of the respondent while he told the respondent what to do. The respondent testified that this made him uncomfortable. He believed that it was an implicit threat to him, to ensure his compliance with the plan.

[8] The respondent stayed at this home until March 21, 2018. On that day, he was given packages of drugs to swallow or insert in his rectum. He was then taken to Oshawa where, on the instructions of Big Newf’s associates, he reported himself to the police. The respondent had an outstanding warrant and was arrested by the police.

[9] After his arrest, he was held in custody in Oshawa for over 24 hours. During this period, the appellant did not seek assistance from any of the police officers with whom he came into contact. Eventually, the respondent was taken to court for a bail hearing and, later, back to the C.E.C.C. Again, the respondent did not alert anyone to his situation. When he returned to the C.E.C.C., he set off an alarm during a routine body scan. Correctional staff suspected that there were drugs hidden in the respondent’s body and placed him in a segregation cell to monitor him.

[10] On March 23, 2018, correctional officers at the C.E.C.C. observed the respondent in distress. He was screaming that he did not want to die, burn, or blow up. He also appeared to be talking to his brother, who was not present. He said that there were packages inside him and he thought that one had burst. A nurse was called, who ultimately decided that the respondent should be taken to the hospital.

[11] Correctional officers searched the respondent’s cell, seizing packages of drugs found there. The respondent excreted more drug packages while at the hospital. On his return to the C.E.C.C., he became increasingly agitated and made statements suggesting that he was afraid for his and his brother’s life.

C. THE TRIAL JUDGE’S REASONS

[12] At trial, the respondent conceded that he trafficked drugs by smuggling them into the C.E.C.C. and that he was bound by the probation orders in question. Accordingly, the sole issue was whether his defence of duress succeeded.

[13] After discussing the facts, the trial judge reviewed the defence of duress as it exists under both s. 17 of the Criminal Code, R.S.C., 1985, c. C-46 and the common law. He referenced the principles established in the Supreme Court of Canada’s two leading duress decisions, R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687 and R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14.

[14] The trial judge observed that duress is an excuse “which operates to relieve a person of criminal liability only after he has been found to have committed the prohibited act with the relevant mens rea ”. He also noted that per Ruzic and Ryan, the statutory defence of duress under s. 17 is supplemented by the common law defence of duress.

[15] The trial judge also observed that in order for a defence to be considered by a trier of fact, they must first be satisfied that the defence has an air of reality. This meant that “[t]here [was] an evidentiary burden on the accused to lead sufficient evidence to put the defence in play by establishing an air of reality”. He explained that, in order “[t]o establish an air of reality, there must be some evidence on each element of the defence which, if believed by a reasonable jury, could result in an acquittal”. The trial judge then stated that if the accused were to meet this burden, the onus would shift to the Crown to prove beyond a reasonable doubt that the accused did not act under duress.

[16] The arguments at trial focused on the narrow question of whether there was an air of reality to the respondent’s claim that he had “no safe avenue of escape”, one of the elements of the defence. The trial judge recognized that the existence of a safe avenue of escape is to be determined on an objective standard and adjusted for subjective circumstances. Further, an accused’s asserted belief that they lacked a reasonable alternative is not sufficient, standing alone, to give an air of reality to the defence. The trial judge noted that the question is whether a reasonable person, with a 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.

[17] At para. 31 of his reasons, the trial judge concluded that the respondent had demonstrated that there was an air of reality to the no safe avenue of escape element of duress, stating:

[i]n my view, [the respondent] has tendered sufficient evidence to lend an air of reality to his claim that he had no safe avenue of escape. He cogently explained why he formed this belief, in large part due to his particular knowledge and experience within the C.E.C.C. It is beyond serious dispute that jails are inherently violent and dangerous environments, and that stronger inmates with networks prey on weaker inmates who lack such affiliations. [The respondent’s] claim that he felt there was no safe avenue that could afford adequate protection to both him and his brother while they remained in custody is, in my view, a reasonable one. His explanation for why he believed that approaching correctional staff would not protect him or his brother was sensible. Similarly, his explanations for why he failed to try and escape or alert authorities once he himself was released from custody – the fear of repercussions to his brother – was also sensible. I find there is an air of reality to his claim of duress in the particular circumstances of this case. [Emphasis added.]

[18] Accordingly, the trial judge went on to consider whether the Crown had proven beyond a reasonable doubt that the respondent did not act under duress. In his view, the Crown failed to do so. He concluded that, although the respondent had alternatives available to him other than complying with the scheme, he was left with a reasonable doubt that a realistically safe alternative existed in the circumstances. The trial judge was of the view that the respondent’s conclusion – that the only way to protect both himself and his brother was to comply with Big Newf’s demands – was reasonable in the circumstances.

D. THE GROUND OF APPEAL

[19] The Crown raises a single ground of appeal. The Crown argues that the trial judge erred in concluding that there was an air of reality to the "no safe avenue of escape" element of duress. The Crown submits that on the respondent’s own evidence, he had an obvious and safe means of escape and no trier of fact could reasonably come to any other conclusion.

[20] The respondent contends that the appeal should be dismissed because there was clearly an air of reality to his defence of duress. The defence was well supported in the evidence and the trial judge did not commit any error in deciding that he had met his burden.

E. DISCUSSION

(1) The Appellant’s Argument

[21] The Crown does not take issue with the trial judge’s recitation of the relevant legal principles. Nor does the Crown argue that the trial judge failed to provide sufficient reasons. The Crown’s argument on appeal is a narrow one, arguing that the trial judge erred in finding that there was an air of reality to the defence of duress. The Crown contends that the trial judge failed to address how the respondent’s numerous opportunities to seek help, available over the course of a month leading up to his apprehension for the subject offences, impacted his claim of duress. In particular, the Crown focuses in on the last 24-hour period that the respondent was in police custody. During that period of time, the respondent was away from the C.E.C.C., away from Big Newf, and away from Big Newf’s associates.

[22] In order to place the Crown’s submission in context, I will first briefly review the elements of duress. Next, I will review the air of reality inquiry and explain what is required for a defence to be considered by a trier of fact. Finally, I will assess the Crown’s argument on appeal that the trial judge erred by concluding that there was an air of reality to the duress defence.

(2) Duress

[23] The defence of duress is properly characterized as an excuse, animated by the rationale of moral involuntariness: Ryan, at para. 23. As the trial judge noted, it is a defence grounded in both statute and the common law. However, the essential elements of the two duress defences are “largely the same”: R. v. Aravena, 2015 ONCA 250, 323 C.C.C. (3d) 54, at para. 25, leave to appeal refused, [2015] S.C.C.A. No. 497; Ryan, at para. 81.

[24] The trial judge accurately summarized the elements of the defence of duress under both statute and common law. For ease of reference, I repeat the common elements of both forms of the defence, as discussed in Ryan, at para. 81:

a. There must be an explicit or implicit threat of present or future death or bodily harm. The threat can be directed at the accused or a third party. b. The accused must reasonably believe that the threat will be carried out. c. There is no safe avenue of escape. This element is evaluated on a modified objective standard. d. A close temporal connection between the threat and the harm threatened. e. Proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened. This is also evaluated on a modified objective standard. f. The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy, or association.

[25] Finally, “if the defence is available in law, and the evidence gives an air of reality to the defence, an accused is entitled to an acquittal unless the Crown disproves one or more of the essential elements of the defence on a reasonable doubt standard”: Aravena, at para. 27.

(3) The Air of Reality Inquiry and Duress

[26] When a trial judge is asked to conclude whether a defence has an air of reality, they must determine whether there is direct evidence upon which a properly instructed jury, acting reasonably, could base an acquittal if it believed the evidence to be true: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 82-83. Regardless of who elicited the evidence, if there is direct evidence on each element of the defence, the defence must be left with the trier of fact: Cinous, at para. 88. If circumstantial evidence is relied on, the trial judge must engage in a “limited weighing” to determine if the circumstantial evidence is “reasonably capable of supporting the requisite inferences” necessary to support the defence: at paras. 89-90. A trial judge “does not draw determinate factual inferences, but rather comes to a conclusion about the field of factual inferences that could reasonably be drawn from the evidence”: at para. 91.

[27] The inquiry into whether there is an air of reality to a defence is not intended to assess the likelihood of success for that defence: see R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at para. 21; R. v. Suarez-Noa, 2017 ONCA 627, 139 O.R. (3d) 508, at para. 41, leave to appeal refused, [2018] S.C.C.A. No. 142. Instead, this inquiry requires a determination of whether the accused can point to something in the evidence capable of reasonably supporting the factual inferences that would at least leave the trier of fact with a reasonable doubt about the existence of each of the essential factual elements of the defence: R. v. Ronald, 2019 ONCA 971, at para. 44.

[28] Finally, whether an air of reality exists for a potential defence is a question of law, reviewable on a standard of correctness: Cinous, at para. 55; R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 40.

(4) Did the Trial Judge Err in Concluding That There Was an Air of Reality to the Defence of Duress?

[29] The trial judge concluded, at para. 31 of his reasons, that the respondent had tendered evidence sufficient to lend an air of reality to his claim that he had no safe avenue of escape. This paragraph is reproduced earlier in my reasons. Although the trial judge’s reasons on this issue are brief, they must be read in light of the evidence that was before the trial judge, the submissions of counsel, and other portions of the reasons.

[30] At trial, both parties focused their submissions on the “safe avenue of escape” element of duress. Therefore, the trial judge decided to focus his analysis on this issue.

[31] The Crown’s primary complaint on appeal is that the trial judge misapplied the modified objective standard of the “no safe avenue of escape” element of duress. The Crown contends that the trial judge rendered the objective component of this element meaningless, as he failed to address how the numerous opportunities open to the respondent to safely extract both himself and his brother impacted the air of reality of his claim. In my view, a careful examination of the trial judge’s reasons dispels this argument.

[32] Importantly, this appeal is not about whether this court would have reached the same conclusion as the trial judge on whether there was an air of reality to the appellant’s suggestion that he had no safe avenue of escape. Rather, the question on appeal is whether the trial judge understood the operative modified objective test to be applied when determining whether there is an air of reality to this element of the defence of duress and whether that test was properly applied. I see no error in how the trial judge approached the matter.

[33] Paragraph 29 of the trial judge’s reasons demonstrates that he understood the modified objective component of the element of duress involving a safe avenue of escape. The trial judge specifically cited to this court’s decision in R. v. D.B.M., 2016 ONCA 264, which adopted, at para. 7, the Court of Appeal of Alberta’s commentary on this element in R. v. Keller, 1998 ABCA 357, 131 C.C.C. (3d) 59, 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.

[34] The trial judge then referenced this court’s decision in R. v. Li (2002), 162 C.C.C. (3d) 360, quoting from para. 29 of that decision:

[i]n applying [the duress 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).

[35] The trial judge’s reasons reflect that he understood that he had to focus on what a reasonable person would do, bearing in mind the respondent’s situation and personal characteristics: R. v. Willis, 2016 MBCA 113, 344 C.C.C. (3d) 443, at paras. 183-184, leave to appeal refused, [2017] S.C.C.A. No. 45. The trial judge’s reasons further reflect that this is how he approached the task.

[36] First, the trial judge found that the respondent cogently explained why he formed the belief that he lacked a safe avenue of escape, in large part due to the respondent’s knowledge of both the C.E.C.C. and Big Newf. While others may not have found the respondent’s evidence as compelling as the trial judge, it was open to him to conclude that there was an air of reality to the respondent’s claim that, for his brother’s and his sake, he believed that he lacked a safe avenue of escape. This is particularly true given that the respondent explained that he had been in and out of jail for over seven years and understood the politics of the inmate system. Both he and his brother were on the same range as Big Newf. He had previously witnessed Big Newf carry a homemade knife and assault other inmates. He also explained how Big Newf had used violence to assume the role of unit cleaner – a highly sought-after position in the jail – and that he was affiliated with others in the C.E.C.C. This evidence was not challenged.

[37] Second, the trial judge also observed that the respondent provided a sensible explanation for his belief that approaching correctional staff would not protect him or his brother. This finding was supported by the evidence of Cst. Benson, a police officer stationed at the C.E.C.C. Cst. Benson’s evidence was that violence causing injury is a daily occurrence in the C.E.C.C.; that there were gangs operating there, including the Hells Angels; and that inmates suspected of talking to the police, or otherwise acting as “rats”, are subjected to violence.

[38] The trial judge’s conclusion on this point was fortified by other evidence introduced at trial. Once the respondent was back at the C.E.C.C., he was intimidated by another inmate despite being in segregation. Furthermore, although he was transferred to Quinte Detention Centre, he was the victim of a serious assault there by other inmates who threatened him not to implicate anyone at his upcoming judicial pretrial. Therefore, there was objective, unchallenged evidence that placing the respondent in segregation or transferring him to another institution would not necessarily protect him from harm.

[39] Third, the trial judge’s finding about why the respondent did not attempt to escape the scheme or alert authorities once he was released from custody was also available on the evidence. The respondent’s evidence was that, although it was possible to attempt an escape from the “trap house”, he was threatened by Big Newf’s armed associate while there. The respondent also knew that his brother continued to be on the same range as Big Newf, and he feared the potential repercussions of non-compliance with the scheme. It was open to the trial judge to conclude that any attempt to flee, or to otherwise refuse to carry out the plan, would be communicated to Big Newf.

[40] During argument, the Crown pointed to portions of the respondent’s cross-examination where the respondent agreed that the police could have taken steps to protect his brother. Taken in isolation, these portions suggest that there was no air of reality to the defence. However, I agree with the respondent that those answers must be considered in the broader context of his evidence, namely that he believed that he and his brother would be harmed if he reported the scheme.

[41] In conclusion, I do not accept that the trial judge erred in his application of the air of reality test. I would dismiss the appeal.

[42] Before leaving this matter, I wish to comment on one aspect of the Crown’s submissions in this court on the broader concerns engaged here, should this court dismiss the appeal. The Crown argues that the respondent’s story reads like a recipe for other inmates to claim that they were coerced into similar schemes. The Crown contends that if the respondent’s argument succeeds, it will be due to the uncontroversial notion that jails are inherently violent places. On the trial judge’s analysis, therefore, there could be no avenue safe enough for the respondent to have removed himself from the situation, rendering the objective component of this analysis meaningless.

[43] In the circumstances of this case, I do not accept this argument. Nothing about this case changes the law of duress. Nor does anything in this case change the court’s remarks in Ruzic that courts must apply strict standards for the application of the defence to prevent its abuse: at para. 59.

[44] This appeal is not about whether this court would have reached the same conclusion as the trial judge. Instead, the appeal was argued on a very narrow ground, namely, whether there was evidence before the trial judge upon which he could reasonably infer that the claim of duress succeeded. The issue was not whether this court would have come to the same conclusion as the trial judge in this case.

[45] This was an unusual case. The respondent’s brother was in custody at the same time, and on the same range, as Big Newf. According to the respondent, his brother remained there while the respondent was on the outside, attempting to comply with Big Newf’s demands. The trial judge concluded that there was an air of reality to the defence of duress in the circumstances of this case. In my view, he did not err in reaching that conclusion.

F. DISPOSITION

[46] For these reasons, I would dismiss the appeal.

Released: May 14, 2021 “J.M.F.” “S. Coroza J.A.” “I agree. Fairburn A.C.J.O.” “I agree. M. Jamal J.A.”