Court Information
Information #: 13-11962, 13-11961 Location: London, Ontario Date: May 14, 2014 Court: Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
-and-
Erron Kynock
Counsel
For the Crown: Glen Boyd
For the Accused: Wendy Harris Bentley
Judge
Justice Jonathon C. George
Reasons for Decision
The Charges
[1] Erron Kynock stands charged that on the 29th day of October, 2013 she possessed hydromorphone for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act. The trial in this matter proceeded over parts of three days. Three Crown witnesses testified. The accused testified and was the lone defence witness. There is a separate one count information alleging Ms. Kynock breached a recognizance by possessing non-prescribed drugs, contrary to section 145(3) of the Criminal Code of Canada. It is admitted she was, as at October 29th, subject to a recognizance with that condition.
[2] The parties jointly request that I apply the evidence presented at the drug trial to the breach offence.
[3] This case involves the possession of hydromorphone by the accused within the female unit of the Elgin Middlesex Detention Center (EMDC). The facts are not in dispute, the defence asserting the offence was committed under duress therefore relieving her from criminal liability.
The Duress Defence
Legal Framework
[4] Section 17 of the Criminal Code of Canada provides that:
- A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion……
[5] This section goes on to list those offences for which the section does not apply. Drug trafficking and breach offences are not excluded. The defence is available to Ms. Kynock.
[6] The Supreme Court of Canada has determined section 17 to be, in part, unconstitutional in that it violates the Charter by permitting findings of guilt for individuals who acted involuntarily. Notwithstanding that, the common law defence of duress, which is longstanding and which has not been replaced completely by section 17, remains available but only to parties to offences.
[7] In recognizing moral blameworthiness as an essential component of criminal liability, the Supreme Court of Canada, in R. v. Ruzic 2001 SCC 24, analogizes physical involuntariness with moral involuntariness, indicating the following at paragraph 46:
Punishing a person whose actions are involuntary in the physical sense is unjust because it conflicts with the assumption in criminal law that individuals are autonomous and freely choosing agents. It is similarly unjust to penalize an individual who acted in a morally involuntary fashion. This is so because his acts cannot realistically be attributed to him, as his will was constrained by some external force………In the case of morally involuntary conduct, criminal attribution points not to the accused but to the exigent circumstances facing him, or to the threats of someone else.
[8] It was in Ruzic that the Supreme Court partially struck down section 17, concluding that the common law defence of duress would continue to operate, not just as a live defence for parties, but to clarify and provide context to the statutory defence. In Ruzic, at paragraph 55, Justice Lebel states that:
The analysis of duress in common law will also be useful as it will shed some light on the appropriate rules which had to be applied to the defence of the accused in the case at bar and which will now be applied in all other cases, once section 17 of the Criminal Code is partially struck down.
[9] This has been revisited by the Supreme Court, most recently in R. v. Ryan 2013 SCC 3, wherein the full test is re-stated. In a post-Ruzic context, there is essentially an amalgamation of the statutory requirements and the common law, completely removing from the analysis any presence or immediacy requirements. With that backdrop, for this defence to succeed, the following must be established:
There must be a threat of death or bodily harm directed against the accused or a third party;
The accused must believe that the threat will be carried out;
The offence must not be on the list of excluded offences;
The accused cannot be a party to a conspiracy or criminal association such that the person is subject to compulsion;
There must have been no safe avenue of escape;
A close temporal connection between the threat and the harm threatened; and
There must be proportionality between the threat and the criminal act to be executed.
[10] Courts have examined in what way this is to be assessed, concluding ultimately that a blended objective-subjective approach is best. In rejecting a purely subjective test, the Supreme Court has adopted one consistent with Australian law, which is to deny the defence of duress when the accused was actually aware of the risk of being coerced by a criminal association. That is, if an accused voluntarily places him or her-self in a position where they could be coerced, then one cannot conclude there was no safe avenue of escape, which in turn fatally impacts the moral involuntariness aspect of the defence.
[11] It is well settled that, when the defence is raised and once some evidence is introduced respecting duress, the burden then shifts to the Crown to establish, beyond a reasonable doubt, that the accused did not act under compulsion of threats (see Ruzic, paragraph 100).
The Crown's Evidence
Actus Reus
[12] Respecting the actus reus, there is no dispute. EMDC correctional officer Jennifer O'Donnell testified about the admitting and discharge process at the facility, describing as well her interaction with Erron Kynock on October 29th. I don't believe she personally searched Ms. Kynock but she was present and observed another officer do it. After Ms. Kynock's admittance, Officer O'Donnell testified that at or around 6:50pm she was sitting in the unit 7 staff office, watching the monitors which capture the range. Her evidence is there were no blind spots and that there were several different shots from various angles. This surveillance video was played in court and admitted into evidence.
[13] In the video a female is seen approaching cell #8 where she has a conversation with another inmate who is in the cell. She is then observed leaving that cell and attending at the door to the laundry room, where she has a brief conversation before returning to cell 9 (which is connected to cell 8). She then bends down and retrieves objects from the floor. This same person then takes the retrieved items to the laundry room and pushes them under the door. This behaviour obviously raised concerns with the correctional officer who attended the area to investigate.
[14] Ms. Kynock is not the inmate moving about the range. She is one of the two inmates in the joint cell (8 and 9). The officer was unable to recall her cellmate's name, but the evidence was she was lying down and sleeping at the time. Upon the correctional officer attending the area, the inmate inside the laundry room handed to her what looked to be a "drug like substance". Officer O'Donnell and her partner then entered Ms. Kynock's cell to further investigate.
[15] The accused was ultimately taken into the washroom area of the cell where she was searched. Located and seized were two small baggies which had a white powdery substance inside. After being asked to remove her clothing, and upon her bra being removed, more baggies were located. More were located after she removed her underwear and socks. In total, 13 baggies of a white substance were seized from Ms. Kynock. The packaging of this substance was, in the officer's opinion, identical to the packaging found in the laundry room. The London Police were called.
Police Evidence
[16] London Police Officer Adam Douglas testified. Upon arrival at EMDC he received from the corrections officer what he described as various dime baggies, as well as what he believed to be two hydromorphone pills. In total, he described receiving 9 dime baggies each containing .2 grams of hydromorphone; five others each containing .3 grams of hydromorphone; and two full capsules. Neither of the two pills were analyzed, but the samples from the baggies tested to be hydromorphone.
[17] London Police Officer Matt Garwood testified, and was qualified to give expert evidence. His opinion, which wasn't contested by the defence, was that the drugs were possessed for the purpose of trafficking.
The Accused's Evidence
[18] The accused testified. Although the Crown bears the onus of proving each and every element of the offence beyond a reasonable doubt, her credibility is the key issue as I assess her pleading of duress.
Background and Prior Incidents
[19] Ms. Kynock described how, as at the date of the offence and for a considerable time prior, she had been involved in London's drug treatment court. She described how, after being admitted into the court, she was routinely tested for substances. She spoke of her ongoing involvement with service providers, and her weekly attendance in the court where she provided updates to the presiding judge.
[20] She described a series of violent incidents in her background, which I am being asked to conclude are relevant to my assessment of her fear and claim of compulsion. As to her background she gave unchallenged evidence about how at the age of 14, while living with her mother, three men forced their way into her home, forcing her to the ground and holding a sawed off shot gun to her head.
[21] She described a time when she had a male tenant residing in her home. She testified about how she learned he was involved in drug related activity, sometimes conducting it in her home. This led her to expel him from the house. She described his reaction which was to threaten her. She testified that, in the immediate aftermath of the eviction, a male entered her house, went into her bedroom and swung a bat at her fracturing her forearm. She believed this person to be a friend of the tenant, who was carrying out on the promised threat.
[22] A further incident occurred while her boyfriend was in jail, sharing a cell with a man by the name of Johnny Grebenchan. She discussed learning of Mr. Grebenchan's affiliations with gangs and how she became fearful when she found out about a $100 debt owed by her boyfriend to Grebenchan. This situation, according to Ms. Kynock, led to a threat being made by Grebenchan to do harm to Ms. Kynock and her family. Ms. Kynock testified that she ultimately paid off the debt.
[23] She described a violent encounter, when she was randomly attacked by a group of women. She speculates that this attack had something to do with Johnny Grebenchan because she recognized one of the attackers to be his friend.
[24] It's submitted Ms. Kynock's background is relevant as, if believed, it would inform her reaction to the events I am about to describe.
Events Leading to October 29th
[25] Ms. Kynock contends that both she and her daughter were threatened by Johnny Grebenchan, Marianne Grebenchan and Matt Dagnal, should she not accede to their request to take drugs into EMDC. The chronology of events, according to Ms. Kynock, is as follows:
She testified about, sometime prior to October 29th, living with a lady by the name of Fran Latrell. During this time, she was arrested (for unrelated offences). Upon being arrested, some of her personal items, including her purse and bus pass were left behind at Ms. Latrell's residence never being recovered. Left behind as well was a picture of her daughter and some information indicating she and her daughter would be attending a party at a local community centre during the weekend before Halloween.
After this arrest, and after spending 35 days in custody, the accused was released. She described shortly after her release running into Matt Dagnal. During this encounter she inquired about her belongings at Fran's house, as Matt and Fran were friends. His response was to request that Ms. Kynock take drugs into the jail, which she refused.
She testified about her attendance at the methadone clinic on Saturday October 26th. She testified that Johnny Grebenchan, Marianne Grebenchan, Matt Dagnal and his girlfriend Pam, were nearby and watching her upon arrival at the clinic. She attributes to Matt Dagnal a threat whereby he says if she doesn't do "it" (presumably take drugs into the jail) that she was going to get her face punched and head kicked and that he was going to get some girls to do it. She testified that as this was occurring, Marianne Grebenchan took out a picture of her daughter, one she believed was left behind at Fran's, saying that she was "going to get me and my daughter". Her fear was heightened because of the details of the upcoming Halloween party, which she believed they knew about.
On Sunday October 27th, again while at the methadone clinic, she testified about seeing Johnny Grebenchan. She described him looking at her in a menacing and "evil way", which she took as a threat.
Tuesday October 29th, the date of the offence, was a scheduled drug treatment court attendance. The accused testified about her trip to the London court building. She testified that after arriving in the general area, she walked through an adjacent building towards the court house. At some point, she says Matt Dagnal grabbed her by the back of her sweater. Johnny Grebenchan was with him. She says she was forcefully escorted to an area over a set of stairs, to a location near a picnic table, at which time they insisted she take drugs into the jail. They gave her a baggie which was put into her bra. She testified she didn't know what was in the bag. She then, while Matt and Johnny watched, proceeded to enter the court building and go through security. She described being shaky and scared and suggested she knew of no way out of the situation. Outside of courtroom 2, the location of the drug treatment court, the accused observed Marianne Grebenchan sitting in the waiting area. No threats were made and there was no conversation between the two, but Ms. Kynock perceived her presence to be threatening.
Ms. Kynock testified that it was at this time, immediately before court started, that she learned she had tested positive for drugs. The result of this was, during that court session, she was sanctioned and committed to custody. The drugs remained on her person during court, and as she was processed by court security and transported to the jail.
Defence Submissions
[26] Defence counsel, in urging me to accept Ms. Kynock's testimony, directs me to those aspects of the evidence which they say support the account. To start, it is suggested the mere fact the accused named those who were threatening her is a hallmark of the truth. That is, it is against her interests ultimately, and she is now putting herself and her family in peril by doing so. As the argument goes, why else would she do something so risky, were it not true? Second, that she was credible and was consistent throughout an effective cross examination that challenged her on the events of October 29th and the days immediately preceding it. Further, defence counsel characterized Ms. Kynock's account as a detailed one, and not simply a bald assertion that threats were made, and that the background evidence, which was unchallenged, makes her response to the threats understandable and reasonable. As it relates to any possible avenue of escape, defence counsel argues that I need to assess this and consider it from the point of view of a reasonable but similarly situated person, a clear reference to Ms. Kynock's past victimization.
Crown Submissions
[27] The Crown argues that I need not even entertain the analysis I set out earlier, as there is simply no air of reality to Ms. Kynock's account. Its position is this basic threshold has not been met, a step that is discussed in some detail in the 1998 Alberta Court of Appeal decision of R. v. Keller, 1998 ABCA 357. It asks that I flat out reject Ms. Kynocks's account, for several reasons, arguing that even though corroboration is not required one does need to look at how logical it is when viewing it in the context of all the evidence.
Analysis of the Duress Defence
Elements Established if Testimony Accepted
[28] If I were to believe Ms. Kynock, then clearly the following aspects of the test have been established.
First, that there was a threat of bodily harm directed against the accused and her daughter.
Second, if I believe her evidence generally, I would then be compelled to accept that she believed the threat would be carried out.
Third, that she was not a part of any conspiracy or criminal association such that she would, by virtue of that fact, be subject to compulsion.
Fourth, that there would indeed be a close temporal connection between the threat and the harm threatened.
And fifth, the harm Ms. Kynock caused (taking drugs into the jail) is not greater than the harm she says she was trying to avoid (bodily injury to her and her daughter).
Critical Credibility Issues
[29] With neither drug possession nor trafficking being excluded offences, where does that leave us? I have concerns about the availability of a safe avenue of escape. Ms. Kynock says there wasn't, her counsel urging me to assess that view in the context of her difficult history. The analysis, however, is not that simple. I have concerns in that prior to these events she, on her evidence, had confided in I believe two of the support people involved in the drug treatment court about difficulties she was having with Johnny Grebenchan, on one occasion it leading to some police involvement. In that same context, I know that she before had no problem in severing her ties with Grebenchan and associates, having done so as a result of the conflict over the $100 debt.
[30] I reject Ms. Kynock's evidence, concluding there is no air of reality to it. In addition to the points raised in the preceding paragraph, several other aspects of her evidence confused me, to the point that I couldn't make sense of it. I am simply unable to reconcile two things. First, there is no way, if I were to believe Ms. Kynock's chronology, that anyone would have known she was going into custody on October 29th. According to her, not even she knew, not learning of the failed drug tests until her attendance outside courtroom 2, after she had interacted with Mr. Grebenchan and Mr. Dagnal outside, and after going through court security. It defies all logic and common sense that someone intent on orchestrating the transfer of drugs into the jail (Grebenchan and Dagnal) would do so not knowing that the mule (kynock) was actually, or even with some likelihood, going to jail.
[31] Second, it is equally unbelievable that a drug trafficker would hand over their product to someone, without at least some direction as to what is to be done with it. If I am to believe Ms. Kynock, there was no instruction, which to my mind colours all of her evidence, especially so given the curious decision to give some of the drugs to someone she suspected wasn't to receive it. What this all tells me is that Ms. Kynock and Ms. Kynock alone was in control of those drugs and was able to distribute them as she saw fit. This diminishes every other aspect of her story. That is, she did not do what she did because she was compelled to do so by threats; rather that she knew because she used drugs in advance of her October 29th drug treatment court attendance that she was going to be sanctioned and incarcerated and that she, either alone or perhaps in conjunction with others, seized upon this opportunity to take drugs into the jail. Given she was able to move past court entrance security, court room security, and jail staff without the drugs being detected, and in light of her behaviour once inside the unit, one can only wonder how experienced she is at doing this. That skill and ability is not consistent with the profile of someone who was a shaken and scared pawn, which is what I'm being asked to believe.
Decision
[32] Although a duress defence is available to Ms. Kynock, I have rejected it. That being the case, I find her guilty of possessing hydromorphone for the purpose of trafficking, as well as the breach count contained in Information 13-11961.
Released: May 14, 2014
Justice Jonathon C. George