ONTARIO COURT OF JUSTICE

CITATION: R. v. Norman, 2019 ONCJ 51

DATE: 2019 02 01

COURT FILE No.: Lindsay 180348

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

FRANCIS NORMAN

Before Justice S. W. Konyer

Heard on September 7, 19, October 15, 2018; January 18, 28, 2019

Reasons for Judgment released on February 1, 2019

Mr. D. Wilson ....................................................................................... counsel for the Crown

Ms. S. Samet ................................................... counsel for the accused Francis Norman

KONYER J.:

[1] Francis Norman is charged with trafficking marijuana, hashish and fentanyl on March 23, 2018. He is also charged with breaching two separate probation orders that required him to keep the peace and be of good behaviour. At trial, he conceded that he engaged in the act of trafficking by smuggling the substances in question into the Central East Correctional Centre (C.E.C.C.) after having secreted them inside his body. He also conceded that he was bound by the probation orders in question. He relies on the defence of duress, however, as an excuse for his actions. I need to decide, first, if there is an air of reality to his claim of duress. If there is not, that is the end of the matter, and he must be found guilty of all charges. If there is an air of reality to his claim of duress, however, I must go on to decide whether the Crown has proven beyond reasonable doubt that he did not act under duress.

[2] To answer these questions, I will briefly summarize the evidence and make findings of fact. Then I will set out the law of duress, and apply that law to the facts as I find them.

[3] During the course of this trial, I heard testimony from eight different correctional officers who worked at the C.E.C.C. during the relevant period, as well as the investigating officer from the City of Kawartha Lakes Police Service. Counsel made a number of admissions concerning non-contentious facts, such as the nature and quantities of the substances that were seized during the investigation. In addition, Mr. Norman testified in his own defence.

[4] Mr. Norman was arrested in Oshawa on unrelated matters in late February 2018 and held in custody pending a bail hearing. He has a short criminal record, was unemployed and homeless at the time, and did not feel he was likely to get released on bail. He also believed that his charges were not particularly serious, and would likely only result in a short jail sentence. He therefore decided to forego a bail hearing, and expected to resolve his charges in exchange for a favourable sentence. In the meantime, he was held at the C.E.C.C. on remand.

[5] Mr. Norman had served numerous periods of custody previously at the C.E.C.C. He said that the first time he was incarcerated, he was held in segregation due to mental health concerns following a suicide attempt. Being held in isolation was a miserable experience, and not something that he ever wanted to repeat.

[6] In 2017, Mr. Norman served a period of time in general population at the C.E.C.C. He described how a male known as “Big Newf” was transferred onto his unit. Big Newf was known to have biker gang affiliations, had a reputation for violence, and was known to carry and use weapons. Immediately after transferring onto the unit, he asked the unit cleaners to resign so that he and a friend could take over as cleaners for the unit. A number of witnesses at trial described how being a 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. When the cleaners on Mr. Norman’s unit refused to cede this role to Big Newf, he quickly convinced half the inmates on the unit to beat up the cleaners, resulting in their removal from the unit. The correctional staff then appointed Big Newf and his associate as the new cleaners. As a result of this experience, Mr. Norman formed a belief that Big Newf enjoyed tremendous power and influence at the C.E.C.C., amongst both inmates and staff.

[7] When Mr. Norman was brought to the C.E.C.C. in February 2018 to await disposition of his Oshawa charges, he knew that his older brother Jason was also in custody there. Although Jason had a minor criminal record, he had never been in custody before. Shortly after arriving at the C.E.C.C., Mr. Norman asked to be transferred to his brother’s unit. He did so to make sure that his brother was coping with being incarcerated, that he was safe and not being taken advantage of, and to pass on his knowledge about surviving inside jail to his brother. He was transferred to his brother’s unit on February 26, 2018. When he arrived, the unit was on lockdown and he was placed in a cell with an unknown inmate.

[8] Mr. Norman said that Big Newf came to his cell shortly after his arrival, for the purpose of collecting meal trays in his role as cleaner. Big Newf spoke to him through the meal hatch in the cell door, and asked Mr. Norman if he was interested in doing “a run” in exchange for payment. Mr. Norman declined because he was not interested in “stuffing himself full of drugs”. He said that Big Newf asked him to reconsider, but he declined once again. At this point, Big Newf became upset and slammed the hatch closed. Mr. Norman understood that he was being asked to participate in a scheme to smuggle drugs into the jail by secreting them inside his body.

[9] The next day, Mr. Norman and his brother were permitted by staff to share a cell. That same day, Big Newf and an associate cornered Mr. Norman in the unit’s common area. Big Newf said he knew of Mr. Norman’s relationship to his brother, and told him that unless he agreed to perform the task requested, he and his brother would be “poked up”. Mr. Norman understood this to mean they would be stabbed. He took this threat seriously because of Big Newf’s reputation for violence and his known affiliation with the Hell’s Angels. He had also personally seen Big Newf use violence against other inmates and had seen him in possession of a homemade shank. Other witnesses agreed that inmate on inmate violence is a regular occurrence at the C.E.C.C., and that inmates are known to make, carry and use homemade weapons.

[10] Shortly after this conversation, Big Newf explained to Mr. Norman how the plan would be carried out. He would arrange for a surety for Mr. Norman, who would then seek bail. Once he was released, he would ingest pellets containing drugs and then commit an offence in order to get re-arrested, smuggling the drugs back into the C.E.C.C. in the process. Mr. Norman agreed to cooperate, and a bail hearing was scheduled for March 12 in Oshawa.

[11] Mr. Norman remained in custody for roughly two weeks, on the same range as his brother and Big Newf after agreeing to comply. He never told his brother about the threats that had been made, or the plan to smuggle drugs that he had agreed to facilitate. He was not asked to explain why he did not tell his brother. He made no effort to report the threats to correctional staff or other professionals that he had access to, like counselors, social workers, nurses or chaplains. He believed that reporting the threats to anyone within the institution would lead to repercussions against himself or his brother. Because of the power and influence that Big Newf appeared to exercise within the C.E.C.C., Mr. Norman did not think that he could be protected within the institution. The only safe option would have been for him to request a placement within the segregation unit, which he did not feel was an acceptable option due to the psychological harm that he knew would result from prolonged isolation. Furthermore, if he suddenly asked to be placed in segregation rather than complying with Big Newf’s request, he believed that his brother would suffer harm in retaliation. For these reasons, Mr. Norman said he did not feel he had any realistically safe option but to agree to comply with Big Newf’s request.

[12] On March 12, Mr. Norman was transported to court in Oshawa for a bail hearing. A woman he had never previously met presented herself as a surety, and he was released from custody. Once he was released, he accompanied this woman to a residence in Keswick, which he described as a “trap house” – a place where drugs were stored, purchased and consumed. Mr. Norman agreed that he could have reported his predicament to any number of people at the courthouse, including special constables, duty counsel, the court clerks who prepared his release documents, or court security officers within the building. He also agreed that once released, he could have simply walked away from his surety and reported his situation to the police. He explained that he did not take any of these steps because he was concerned about repercussions to his brother, who was still in custody on the same range as Big Newf.

[13] Mr. Norman spent the next nine days at the trap house in Keswick, though he was taken to another nearby home at night by his surety. He agreed that there were many opportunities where he could have walked away. He did not because he was afraid that harm would come to his brother. At the trap house, he frequently saw a male with Hell’s Angels tattoos who openly carried a firearm. This reinforced his belief that the danger to both himself and his brother was real.

[14] Mr. Norman complied with the plan, which involved him compressing small quantities of marijuana and hashish, and then wrapping the pressed material with layers of latex and electrical tape. In the early morning hours of March 21, 2018, he followed instructions to swallow as many pellets as he could before and during a trip back to Oshawa. He also inserted a total of three larger pellets that he was given by inserting them in his rectum. He did not know what these pellets contained, but naturally assumed they also contained drugs. He was accompanied on this trip by four other people, including the armed and tattooed male described above. He agreed that he made no efforts to avoid ingesting the drugs by, for example, feigning an inability to swallow the pellets.

[15] Once Mr. Norman arrived in Oshawa and had inserted the last of the drugs inside his body, he was instructed to commit the offence of mischief by breaking a store window, so as to trigger his arrest and presumably his return to the C.E.C.C. with the drugs. He protested, because he did not want to incur further charges unnecessarily, and instead told the others that he would get himself arrested for aggressive panhandling. He borrowed a cell phone, made a 911 call reporting an aggressive panhandler at the chosen location, and waited for police to arrive. When police arrived, he pretended to be the aggressive panhandler and successfully attracted the attention of the officers. He was not arrested for panhandling, but the police informed him that he had a warrant for his arrest on an unrelated matter, so he was arrested in any event and taken to the local detachment.

[16] Mr. Norman remained in custody in Oshawa for over 24 hours before being taken before a justice, at which point he was remanded back into custody at the C.E.C.C. During this period he had contact with numerous police officers, including an officer who interviewed him about the new charges for which he had been arrested. At one point Mr. Norman soiled the pants he was wearing when at least one of the pellets he had inserted slipped out of his body. He was able to clean himself, was given fresh pants, and successfully reinserted the pellet inside his rectum. He did not tell the police or anyone else about his predicament, which he again blamed on a fear of repercussions to his brother inside the jail.

[17] When Mr. Norman was returned to the C.E.C.C., he set off an alarm in the admission and discharge area of the jail during a routine body scan. Correctional staff suspected that he was in possession of drugs secreted inside his body, and placed him in a segregation cell with a dry toilet and monitored him. On March 23, 2018, correctional officers collecting Mr. Norman’s meal tray noticed that he was behaving strangely. He told officers that there was a fire in his cell and that his body was on fire. He also tried to climb through the small meal tray hatch in his cell door.

[18] Staff monitored Mr. Norman more closely from this point forward. Paramedics were ultimately called and he was removed from his cell and transported to hospital. He was accompanied by correctional staff, who continued to observe bizarre behaviour and utterances from Mr. Norman. Once he was removed from his cell, several pellets were recovered from the sink in his cell. Over the course of the next day or so, Mr. Norman excreted many more pellets, some at the hospital and some after his return to the C.E.C.C. In total, 22 packages of marijuana weighing 86.87 grams, 13 packages of hashish weighing 49.58 grams, and 1 package of fentanyl weighing 9.38 grams were recovered. The weights included the packaging materials, and the substances were damp from cleaning at the time they were weighed. Mr. Norman denied knowingly ingesting or inserting a package containing fentanyl.

[19] Mr. Norman had little recollection of his time spent in segregation. He formed the belief that one of the packages inside his body had burst, and that he was hallucinating as a result. His conduct was consistent with this belief.

[20] On his return to the C.E.C.C. from hospital, Mr. Norman became increasingly agitated. Although he was still somewhat incoherent, he made utterances suggesting he was afraid for his own life and that of his brother if he were returned to the institution. On arrival at the C.E.C.C., he was so agitated that a senior officer had to be called in order to talk him down and convince him to leave the transport vehicle and return to the jail. Although the utterances made by Mr. Norman during this process were not tendered to prove the truth of the things he said, the fact he made these statements, together with his demeanour, is evidence that is relevant to his state of mind at the time.

[21] Mr. Norman was eventually charged with the offences that are before me. At some point, he provided some information to correctional authorities and the police about the manner in which he claims he was pressured into bringing the drugs into jail. As a result, he was kept in segregation at the C.E.C.C. until the spring of 2018, when he was transferred to general population at the Quinte Detention Centre in Napanee, Ontario. These steps were taken to ensure his safety.

[22] A judicial pre-trial hearing was scheduled for this case on June 25, 2018 in Lindsay. On June 23, Mr. Norman was the victim of a serious assault at Quinte, which left him with a large gash on his forehead that required medical treatment in hospital. Mr. Norman says he was jumped by other inmates who beat him and gave him a warning to watch what he said and not to be a “rat”. In cross-examination, Mr. Norman denied the suggestion that he was beaten up because he owed a debt for losing the drugs that he had voluntarily chosen to smuggle into the C.E.C.C. for profit. He believed that he was being sent a message not to disclose any information about the manner in which he came to be in possession of the drugs he was now charged with trafficking.

[23] This completes my summary of the relevant facts. I will now turn to a brief consideration of the law of duress.

[24] 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”: R. v. Ruzic, 2001 SCC 24, at para. 30. In this case, there is no dispute that Mr. Norman committed the prohibited act of trafficking by transporting the drugs, or that he possessed the requisite intent for this offence. As a result of the Supreme Court decision in Ruzic, supra, and R. v. Ryan, 2013 SCC 3, the statutory defence of duress under s.17 of the Criminal Code has been supplemented by the common law defence of duress.

[25] There are four elements to the statutory defence of duress:

• There must be a threat of death or bodily harm to the accused or a third party;

• The accused must believe the threat will be carried out;

• The offence must not be excluded [trafficking is not excluded]; and,

• The accused cannot be a party to a conspiracy or criminal association such that the person is subject to compulsion.

[26] There are three additional elements incorporated from the common law defence of duress:

• There must be no safe avenue of escape;

• There must be a close temporal connection between the threat and the harm threatened; and,

• There must be proportionality between the harm threatened and the harm inflicted by the accused in committing the offence.

[27] In order for the defence to be considered by the trier of fact, there must be an air of reality to the claim of duress. There is an evidentiary burden on the accused to lead sufficient evidence to put the defence in play by establishing an air of reality to the claim of duress: R. v. D.B.M., 2016 ONCA 254, at para. 8. To 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: R. v. Keller, 1998 ABCA 357, at paras. 13-16. If the accused meets this burden, the onus shifts to the Crown to prove beyond reasonable doubt that the accused did not act under duress.

[28] In Mr. Norman’s case, the Crown argues that there is no air of reality to his claim that he had no safe avenue of escape. In the alternative, the Crown argues that it has proven beyond reasonable doubt that Mr. Norman did not act under duress because he had other safe alternatives available to him. The Crown concedes that if I find there is an air of reality to this aspect of the duress claim, and if I am not satisfied that the Crown has proven beyond reasonable doubt that there was a safe avenue of escape, then Mr. Norman’s claim of duress has been made out. I will therefore limit my analysis to the issue of whether Mr. Norman had a safe avenue of escape.

[29] In D.B.M., supra, the Ontario Court of Appeal adopted, at para. 7, the following test set out in Keller, supra, 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.

[30] In R. v. Li, 2002 CanLII 18077 (ON CA), [2002] O.J. No. 438, the Ontario Court of Appeal held, at para. 29, that “[i]n applying this 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.”

[31] In my view, Mr. Norman 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. Mr. Norman’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.

[32] It therefore falls to the Crown to prove beyond reasonable doubt that Mr. Norman did not act under duress by proving that he had a safe avenue of escape. In determining whether the Crown has met this onus, I must of course consider all of the evidence and apply a modified objective standard.

[33] While it is true that, objectively speaking, Mr. Norman had alternatives available to him other than complying with the demand that he smuggle drugs back into the jail, I am left with a reasonable doubt that a realistically safe alternative existed in his particular circumstances. Mr. Norman was in a vulnerable position in relation to Big Newf and his associates by virtue of his status as a non-affiliated inmate, and by his connection to his brother, who was similarly vulnerable within the jail. I believe Mr. Norman that he considered any course of action other than complying with the demand made of him to be potentially dangerous, and I find that his belief was reasonable in the circumstances. His decision not to go to the authorities due to a fear of repercussions was rational, and is bolstered by the fact that serious violence was later inflicted upon him as a result of the discovery of the drugs. Mr. Norman was, in effect, caught between a rock and a hard place with no easy way out. His decision – that the only way to protect both himself and his brother was to comply with the demands made by Big Newf – was reasonable in the circumstances.

[34] I believe the essence of Mr. Norman’s testimony. I believe him that he was coerced by Big Newf and his associates to engage in a plan to smuggle drugs into the C.E.C.C. I believe him that he agreed to comply out of fear for the safety of himself and his brother, and I find that his fears were reasonable in the circumstances. I believe his explanations for why he did not report his predicament to the authorities, and why he continued with this endeavour even when he had the option to escape. He was an articulate and thoughtful witness, and his testimony made sense.

[35] The Crown argued that I ought to reject Mr. Norman’s testimony as implausible for a number of reasons. First, the Crown says that it makes no sense that Mr. Norman did not warn his brother about the danger they were in if his motivation in following the plan was to protect his brother. Although this argument has some attraction, I have no explanation from Mr. Norman as to why he failed to tell his brother. It would be unfair to speculate why Mr. Norman did not tell his brother. The Crown may be correct that he did not tell because he never was being coerced. Or he may have had a legitimate reason in his mind for not disclosing the true state of affairs to his brother – for example, a fear that his brother might tell someone else or confront Big Newf, or simply so that his brother would not also have the burden of worrying about their safety. I simply don’t know why he did not tell his brother, and in my view it would be unfair to reject Mr. Norman’s account on the basis of a suggestion to which he was never given an opportunity to respond.

[36] The Crown also argues that Mr. Norman’s refusal to comply with a direction that he commit the offence of mischief is inconsistent with his stated fear of his captors, and that I should reject his version of events as implausible. The Crown also argues that his alternative plan made no sense, as there was no guarantee that the police would arrest him for aggressive panhandling. In my view, however, Mr. Norman’s testimony on this point does make sense. He was still complying with the overall objective, which was to ensure that he was taken back into custody. From a strictly logical perspective, the easiest way to achieve the desired result would have been for his surety to simply remove herself and for Mr. Norman to turn himself in. Neither the plan to break a window nor Mr. Norman’s alternate had any guarantee that the end result would be an arrest and return to the C.E.C.C. Had he broken a window, the police may have released Mr. Norman from the scene on a Promise to Appear or Appearance Notice, or from the station on an Undertaking to an Officer in Charge. All that either plan guaranteed was a police response, and the decision as to whether to lay charges or arrest Mr. Norman would be left to the police. He achieved that same result. It is understandable that Mr. Norman would seek to achieve the desired result without incurring an additional criminal charge. The fact that he was able to persuade his captors to let him try his method first does not, in my view, mean that he was not still acting under duress to transport the drugs he was carrying.

[37] My conclusion that Mr. Norman’s testimony was generally truthful is bolstered by some aspects of the evidence as a whole. In particular, his demeanour and conduct when he was returned to the jail from the hospital, supports the conclusion that he had a genuine fear for the safety of himself and his brother as a result of returning to the jail without the drugs. The fact that he received a beating at the hands of other inmates on the eve of his judicial pre-trial on the charges laid as a result of his attempt to smuggle in drugs also bolsters his assertion that he was acting at the direction of other, more powerful, inmates. At the end of the day, I tend to believe Mr. Norman. At a minimum, his evidence leaves me with a reasonable doubt that he had no safe avenue of escape.

[38] I agree with counsel that the remaining elements of the duress defence are made out. Mr. Norman acted in response to a threat of serious bodily harm to himself and his brother. He reasonably believed that those threats would be carried out if he did not comply. He was not a party to a conspiracy or criminal association. There was a close temporal connection between the threat and the harm threatened. The harm caused by his compliance was not disproportionate to the harm threatened.

[39] It follows that I am left with a reasonable doubt that he did not act under duress. Accordingly, he is found not guilty of all charges.

Released: February 1, 2019

Signed: Justice S. W. Konyer