COURT FILE NO.: YC 11-10000007-0000
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN (Responding Party) – and – P.C. (a young person) Moving Party (Defendant)
Edward F. Hung and John R. Mann III, for the Moving Party (Defendant)
Susan Ientile and Kevin Stewart, for the Crown
HEARD: September 10 and 11, 2012
MOLLOY J.:
REASONS FOR DECISION
(Availability of Duress Defence)
Introduction
1P.C. is a young person charged with second degree murder. He seeks to raise the defence of duress. The sole issue on this application before me is whether, as a question of law, that defence is available in this case.
2The incident giving rise to this charge occurred on February 14 and 15, 2010. On the night of February 14, a 20-year-old man named Jin Tao Zhu was severely beaten in a park at Ashbridge’s Bay in Toronto over the course of about two hours. He had been taken there for that purpose at the behest of Xiao Ming Chen (“Allan”), who was angry because Mr. Zhu had been seeing a woman he (Allan) was interested in. Five young men, including Allan and P.C., were present at the time of the beating, and participated in the assault to varying degrees. They were all about the same age as their victim, except for P.C. who was only 15 years old. There is no question that Allan was the instigator, ringleader, and the one most involved in the beating.
3After the beating, the victim was still conscious and could walk with assistance. He wanted to go home, but instead he was taken to Allan’s apartment. The other four young men involved left him there with Allan and all went their separate ways. By the next morning, Jin Tao Zhu was dead. All five of the people who were present at the beating in Ashbridge’s Bay were charged with murder.
4One of the five persons charged pleaded guilty to aggravated assault at an early stage and was sentenced to three years. Three of the accused, all adults, were committed for trial on first degree murder after a preliminary hearing. Of those, Xiao Ming Chen (“Allan”) pleaded guilty to second degree murder and was sentenced to life, with 10 years before parole eligibility. The other two pleaded guilty to manslaughter and were sentenced to five years imprisonment.
5The only charge left outstanding is against P.C. for second degree murder. He has elected to be tried before a jury.
The Position of the Parties
6P.C. contends that everything he did in relation to the victim was entirely at the behest of Allan and as a result of threats by Allan to beat him or “bury him” if he did not do as he was instructed. He further alleges that Allan beat him up on two prior occasions and that he was afraid of him. Prior to trial, P.C. sought a ruling on the availability of the defence of duress in this situation. He argues that if s. 17 of the Criminal Code applies to his case, it is unconstitutional. He relies, in any event, on the common law defence of duress.
7The Crown is not alleging that P.C. actually committed the murder himself, but rather that he is guilty as a party who aided another to commit murder. The Crown takes the position that the duress defence set out in s. 17 does not apply, both because P.C. is a party as an aider of the offence, rather than the person who committed it, and because murder is specifically excluded from the defence provided under that section. The Crown further argues that the common law duress defence is also not available in a case of homicide.
The Statutory Duress Defence
8Section 17 of the Criminal Code provides:
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, but this section does not apply where the offence that is committed is high treason or treason, murder , piracy, attempted murder , sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault , unlawfully causing bodily harm , arson or an offence under sections 280 to 283 (abduction and detention of young persons). [Emphasis added.]
9Under the Crown’s theory of the case, P.C. would be a party to murder under s. 21(1) (b) of the Criminal Code . Section 21 of the Criminal Code states:
21 (1) Every one is a party to an offence who
( a ) actually commits it;
( b ) does or omits to do anything for the purpose of aiding any person to commit it; or
( c ) abets any person in committing it.
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
10The Supreme Court of Canada held in R. v. Paquette [1] that the s. 17 defence applies only to those who actually commit the offence charged. It does not apply to a person who merely aids or abets the person who committed the offence.
11The Crown does not allege that P.C. actually committed murder. Rather, the Crown’s position is that he assisted (or aided) Mr. Chen, who was actually responsible for committing the murder. On either scenario, it is clear that P.C. does not fall within the statutory defence. If he actually committed the offence as a principal, he would be excluded from s. 17 because it does not apply to murder. If, as alleged by the Crown, he is a party because he aided or assisted Mr. Chen, s. 17 still does not apply, as was held by the Supreme Court in Paquette .
12Given that s. 17 has no application in this case, I do not need to consider whether it is unconstitutional.
Duress at Common Law
13In 2006, the Supreme Court held in Paquette that s. 17 of the Criminal Code did not operate to replace the entire duress defence that had existed at common law prior to its enactment. Therefore, if a person does something to assist another to commit an offence and is thus a party to that offence under s. 21(1) (b) of the Criminal Code, the defence of duress is available, provided its requirements are met. This aspect of Paquette was confirmed in subsequent decisions, most notably in the 1995 case of R. v. Hibbert . [2]
14For a time, there was confusion in the case law as to whether the common law duress defence operated to negative the intent required for the offence at issue or whether it operated merely to excuse the conduct constituting the offence. However, in Hibbert the Supreme Court of Canada laid that debate to rest. The Court considered the meaning of the words “for the purpose of aiding” in s. 21(1) (b) of the Criminal Code and held that there is no requirement for the person to actually desire the result of the assistance he is providing. Rather, the intention for this offence is met if the person consciously performs an act knowing the consequences that will follow (or probably follow). Therefore, the fact that a person acted out of compulsion by another, does not operate to negative intention. Rather, it operates to excuse conduct that, but for the compulsion, would have constituted a crime. It follows that the defence only arises where the Crown has otherwise proven all requisite elements of the offence, including both the actus reus and the mens rea components.
15The Supreme Court has often emphasized the importance of strict requirements for the defence of duress. [3] Three elements must be established to give rise to the defence: (1) the accused must be subject to a threat of death or serious injury; (2) there must be no safe avenue of escape or of avoiding the threatened consequences; and (3) there must be proportionality, in that the threatened harm must be equal to or greater than the crime the accused is being compelled to commit. Before the defence can be put to the jury, the defence must establish an air of reality in respect of each of these three requirements. For purposes of the current application before me, the sufficiency of the underlying evidence is not at issue. That question may need to be addressed at a later stage in the case. For now, the only question is whether the defence exists at all in answer to a charge of aiding murder.
Can Duress Be a Defence to Aiding Murder?
16Before beginning this analysis, I note that there is considerable overlap in the case law between the defence of duress and the defence of necessity. Both involve situations in which the accused had no real option other than to commit the crime to save his own life. The only real difference is that for the necessity defence, the threat to life arises from circumstances, whereas for duress the threat comes from another person. Because of the similarity between the two defences, both legally and philosophically, principles from one defence are often applied in the other. [4]
17Although the law in Canada is far from clear, the English law on this point is now well-settled. Accordingly, I will start there. For many centuries, the common law did not recognize either duress or necessity as a defence to murder. That principle is illustrated in the famous 1884 case of cannibalism on the high seas: R. v. Dudley and Stephens. [5] The two accused in that case had been shipwrecked and were adrift in a lifeboat without food and water. In order to save their own lives, they killed and ate the cabin boy who was with them. Although it was accepted at trial that the cabin boy would likely have died first and that the two accused would have perished had they not killed and eaten the boy, they were convicted of murder. Necessity was held not to be an available defence for murder.
18For decades thereafter, the law in England remained that neither necessity nor duress could be used to excuse murder. The waters became somewhat muddied in 1975 as a result of the House of Lords decision in Lynch v. Director of Public Prosecutions for Northern Ireland. [6] The case involved the shooting of a police constable in Northern Ireland. Mr. Lynch and two others were charged with the murder. Mr. Lynch raised the defence of duress, maintaining that he had driven the perpetrators to and from the murder only because one of the perpetrators ordered him to do so and he believed he himself would be shot if he did not comply. The majority of the House of Lords drew a distinction between someone who actually commits murder by shooting somebody, as opposed to a person who merely aids the actual killer and thereby becomes what is known in English law as a “principal in the second degree.” The House of Lords maintained the traditional position that duress was not available as a defence for murder as a principal, but held that the defence was available for a person, such as Mr. Lynch, who merely aided the murder as a principal in the second degree. There were strong dissenting judgments in that case.
19The issue again came before the House of Lords in 1987 in R. v. Howe . [7] This time a unanimous court reversed the previous decision in Lynch and held that the defence of duress is not available for murder, regardless of whether the accused is a principal or someone who aided the principal. That is where the law now stands in England.
20Unfortunately, the law in Canada is not well-settled. Indeed, there are very few cases that have actually confronted the issue head-on. Neither the Supreme Court of Canada nor Ontario Court of Appeal has ruled directly on the precise point of whether duress is an available defence for a person who assisted in a murder and is charged as a party. However, in my view, it is implicit from one decision of the Ontario Court of Appeal ( R. v. Earhart ) [8] and two decisions of the Supreme Court of Canada ( Paquette and Hibbert ) [9] that those courts consider the common law defence to be available in those circumstances. There are also two decisions of this court dealing with whether duress can be a defence for a person charged with being a party to murder, each reaching a different conclusion. I will review each of these decisions in some depth.
21For decades our courts did not recognize duress as a defence to murder. This was based on s. 17 of the Criminal Code being applied to all persons charged, whether as a principal or as a party under s. 21(1) (b) or 21(2) . As I have already noted above, that changed with Paquette , in which the Supreme Court of Canada held that s. 17 only applied to a person who actually committed the offence and that other parties to an offence could avail themselves of the common law duress defence. It is important to note that Paquette was a murder case, involving an armed robbery at a Pop Shoppe, in the course of which an innocent bystander was shot and killed. The two robbers who were in the shop were charged with, and pleaded guilty to, murder. A third man (Paquette) was also charged, but his involvement was less direct. One of the robbers (Clermont) had told Paquette to drive them to the Pop Shoppe so that they could rob the place. Paquette initially refused, but agreed to do it when Clermont pulled a gun and threatened to kill him. Although Paquette did not go into the shop and was not present when the shot was fired, he was charged with murder based on s. 21(2) of the Criminal Code. The trial judge instructed the jury that if they were satisfied that Paquette only joined in the plot to commit robbery because of the threats of death or grievous bodily harm, that would negative intention and they should find him not guilty. The jury acquitted him, which was reversed by the Court of Appeal based on s. 17 of the Criminal Code not being available for murder . The Supreme Court of Canada reversed the Court of Appeal on this point, drawing a distinction between a principal and a party, as I have already discussed. Most importantly for present purposes, the Supreme Court restored the acquittal. I take from this that the Supreme Court was of the view that the duress defence was open to Paquette because he was not a person who actually committed murder as a principal.
22Indeed, the Supreme Court in Paquette made express reference to the English House of Lords decision in Lynch and adopted the reasoning in that case. Martland J. held, at p. 196-197:
I am in agreement with the conclusion reached by the majority that it was open to Lynch, in the circumstances of that case, to rely on the defence of duress, which had not been put to the jury. If the defence of duress can be available to a person who has aided and abetted in the commission of murder, then clearly it should be available to a person who is sought to be made a party to the offence by virtue of s. 21(2) . A person whose actions have been dictated by fear of death or of grievous bodily injury cannot be said to have formed a genuine common intention to carry out an unlawful purpose with the person who has threatened him with those consequences if he fails to co-operate.
23Paquette was decided after Lynch had changed the law in England on this point, but before the subsequent House of Lords decision in Howe which reversed Lynch and restated the position that duress was not available in a murder case, regardless of whether the person was an aider, abettor, or principal. However, by the time this issue again came before the Supreme Court of Canada in Hibbert , the House of Lords decision in Howe was in place and the Supreme Court was aware of it, noting that Lynch had been reversed on the issue of whether the common law defence of duress was available to persons charged with aiding or abetting murder. [10] Notwithstanding this, the Supreme Court endorsed the finding in Paquette that the common law defence of duress was available. The main focus in Hibbert was to clarify the nature of the defence, particularly the fact that it does not negative intent, but rather functions to excuse the conduct that would otherwise constitute the underlying offence. The Supreme Court in Hibbert did not directly address whether duress was available as a defence, other than to note that the law in England had changed in that respect. It is implicit in the decision that the Supreme Court must have been of the view that the defence was still available in Canada.
24The accused in Hibbert was charged with attempted murder. He drove the gunman to the location where the shooting occurred, lured the victim to the spot, and then drove the gunman away after the shooting. However, he testified that he had only participated because the main perpetrator had assaulted him and threatened him and he believed he would be shot himself if he did not go along. The duress defence was left to the jury, but with instructions related to duress negativing intention based on some of the language in Paquette . The jury acquitted on attempted murder, but convicted on the lesser included offence of aggravated assault. As I have noted, the bulk of the Supreme Court’s decision deals with the issue of whether duress creates an excuse as opposed to negating intention. However, at the end of that line of reasoning, the Supreme Court turned to the actual charge to the jury and assessed the impact of the legal errors on the outcome. The Court concluded that it could not be said that these errors had no impact on the verdict, and therefore ordered a new trial. It is clear from the Court’s reasoning on this point, that the defence of duress was properly left to the jury. The only difficulty was with respect to how the defence actually operated. For example, Lamer C.J. (who authored the unanimous decision) stated at para. 64:
Thirdly, and most importantly, the jury was not told that even if the appellant possessed the requisite mens rea his conduct could be excused by operation of the common law defence of duress, if the jurors were of the view that the necessary conditions for this defence’s application were present.
25And further, at para.65:
The jurors might have thus concluded that the appellant’s mens rea was not "negated" by duress, under circumstances in which they might well have concluded that his conduct could be excused if they had been aware of the existence of the common law defence of duress, properly conceptualized.
26In my view, it is clear from the Court’s reasoning in this regard that the only issue was whether the jury was properly instructed on how to approach the defence of duress. There was no issue with respect to whether the defence should have been before the jury at all. It follows that the Supreme Court of Canada considered duress to be an available defence to a charge of being a party to attempted murder under s. 21(1) (b) of the Criminal Code . The Court was also of the view that duress was available as a defence in Paquette where the charge actually was murder.
27In R. v. Latimer , [11] the Supreme Court of Canada considered whether a Saskatchewan trial judge was correct in not permitting the jury to consider the defence of necessity in a charge of second degree murder. Robert Latimer had killed his 12-year-old daughter Tracy and sought to excuse his conduct on the basis that Tracy was severely disabled, frequently in pain, and was facing protracted and difficult surgery. The Supreme Court of Canada held that the trial judge was correct in holding that there was no air of reality to the necessity defence and in refusing to permit the defence to be left to the jury. The Supreme Court came to that conclusion by looking at the three elements required to meet the defence and finding that there was no air of reality to any of them. The first element considered was “clear and imminent peril.” The Court held that the surgery Tracy was facing did not fall within this description and it could not be said that she was so imperiled that death was an appropriate alternative. On the second element, no reasonable alternative to breaking the law, the Supreme Court held that there was another alternative, which was to carry on with measures to alleviate pain. While recognizing that this was an “unbearably sad and demanding” option for her parents, the Court held this was nevertheless an available alternative short of murder. Finally, the Court considered the third element of proportionality, again determining that the steps taken could not be said to be proportional as compared to ending Tracy’s life. On this issue, however, the Court appeared to leave the door open on whether necessity could ever be established as a defence to murder. The Court wrote, at para. 40:
The third requirement for the necessity defence is proportionality; it requires the trial judge to consider, as a question of law rather than fact, whether the harm avoided was proportionate to the harm inflicted. It is difficult, at the conceptual level, to imagine a circumstance in which the proportionality requirement could be met for a homicide. We leave open, if and until it arises, the question of whether the proportionality requirement could be met in a homicide situation. In England, the defence of necessity is probably not available for homicide: R. v. Howe , [1987] 1 A.C. 417 (H.L.), at pp. 453 and 429 ; J. Smith, Smith & Hogan: Criminal Law (9th ed. 1999), at pp. 249-51. The famous case of R. v. Dudley and Stephens (1884), 14 Q.B.D. 273 , involving cannibalism on the high seas, is often cited as establishing the unavailability of the defence of necessity for homicide, although the case is not conclusive: see R. Card, Card Cross and Jones: Criminal Law (12th ed. 1992), at p. 532; Smith & Hogan: Criminal Law , supra , at pp. 249 and 251. The Law Reform Commission of Canada has suggested the defence should not be available for a person who intentionally kills or seriously harms another person: Report on Recodifying Criminal Law (1987), at p. 36. American jurisdictions are divided on this question, with a number of them denying the necessity defence for murder: P. H. Robinson, Criminal Law Defenses (1984), vol. 2, at pp. 63-65; see also United States v. Holmes , 26 F. Cas. 360 (C.C.E.D. Pa. 1842) (No. 15,383). The American Model Penal Code proposes that the defence of necessity would be available for homicide: American Law Institute, Model Penal Code and Commentaries (1985), Part I, vol. 2, at § 3.02, pp. 14-15; see also W. R. LaFave and A. W. Scott, Jr., Substantive Criminal Law (1986), vol. 1, at p. 634. [Emphasis added.]
28It must be recognized that the Court in Latimer was dealing with the necessity defence, rather than duress, and also with the principal actor, rather than an aider or abettor. For a person actually committing a murder, the defence of duress is already removed by s. 17 of the Criminal Code . Accordingly, I do not see the decision in Latimer as any indication that the Supreme Court had altered its previous position on the common law of duress and its applicability to a person who has aided another in the commission of a homicide.
29The defence in the case before me relies on two decisions of the Ontario Court of Appeal as supporting the position that the duress defence is at least theoretically available in this case: R. v. Almarales and R. v. Earhart . [12] Both cases involved individuals charged with murder in situations where they did not actually commit the killing, but aided the person who did so, and where the defence of duress was raised and left with the jury. There was no discussion in either case as to whether the defence of duress was available at all. In that sense, the issue was not directly raised. In Almarales , although duress had been before the jury as a defence at trial, at the Court of Appeal counsel for the accused abandoned that position and conceded there was no air of reality to the duress defence. In those circumstances, there was no reason for the Court of Appeal to turn its mind to whether there was any basis in law for the defence, since it was conceded there was no factual basis in any event. Any reference by the Court of Appeal to duress was merely in passing, and I therefore do not consider anything said by the Court in respect of duress to have any binding authority on the question of law as to whether the defence of duress is available in a charge of aiding murder.
30Unlike the situation in Almarales , the Court of Appeal in Earhart was called upon to consider a question directly relevant to a duress defence in a murder case. In Earhart , two men (Earhart and Kirk) were charged with first degree murder. Each pointed the finger at the other. Kirk took the position at trial that Earhart committed the murder unassisted, and alternatively, if Kirk was found to have aided murder, it was only because of duress from Earhart. At the close of the evidence, the Crown abandoned its position that Kirk was the perpetrator of the murder, but argued that he assisted Earhart in committing murder. There was considerable evidence admitted with respect to Earhart’s propensity for violence and bad character. Kirk was acquitted. Earhart was convicted of first degree murder and appealed. Earhart argued on appeal that the bad character evidence ought not to have been admitted. The Court of Appeal dismissed the appeal, stating at a number of points in the decision that one of the bases upon which the evidence was admissible was because it was relevant to Kirk’s duress defence. [13] It does not appear that anyone raised an issue at trial or before the Court of Appeal as to whether the duress defence was available as a question of law given that the charge was first degree murder. However, it is implicit in the reasoning of the court of Appeal that the Court accepted that the defence was available and a basis for the admission of evidence that might not otherwise have been admissible.
31The Crown in this case relies on the decision of Heeney J. of this court in R. v. Sandham (sometimes referred to as the Bandidos trial) . [14] The case involved six individuals charged with first degree murder in relation to eight execution style killings. All of the accused and all of the victims were alleged to be members of the Bandidos Motorcycle Club. The Crown’s theory was that three of the accused were “shooters” (or principals) and the other three were aiders or abettors (or parties). The Crown sought a ruling that the three alleged aiders were not, as a question of law, entitled to rely on the common law defence of duress. Heeney J. ruled that duress was not an available defence, relying largely on the English case law (notably Howe ). Part of his reason for doing so is that Canadian law was inherited from England and given the “ancient and unbroken lineage of this body of authority, I must conclude that it formed part of the common law we inherited from England.” [15] I am not sure this is entirely correct. As can be seen from the Canadian authorities, our law did evolve in a somewhat different fashion, largely because of the statutory provisions inserted into our Criminal Code .
32Further, Heeney J. distinguishes Paquette on the basis that really the getaway driver was aiding a robbery rather than a murder, and was only a party to murder by virtue of s. 21(2) of the Criminal Code . Again, I am not sure that is correct. The Supreme Court in Paquette did not restrict its interpretation to s. 21(2), nor did the Court do so in Hibbert . It seems to me that both cases considered that both s. 21(2) and s. 21(1) (b) would be treated the same way in respect of a duress defence to a charge of murder.
33I agree entirely with Heeney J.’s conclusion that the Court of Appeal decision in Almarales was not binding. He did not, however, consider Earhart , as it was released by the Court of Appeal a year later.
34I also agree with the point made by Heeney J. that our law has consistently treated those who aid an offence on the same basis as those who actually commit it. [16] There is therefore much logical force to the argument that a person who aids in the commission of murder under duress should be treated in the same way as a person who actually commits murder under duress. Thus, it would follow that if there is no duress defence for someone who actually kills, then likewise there should be no such defence for someone who merely aids in the commission of that same offence. However, in my view, the Supreme Court of Canada has drawn that very distinction in Paquette , confirmed in Hibbert , and those decisions are binding.
35I find Heeney J.’s analysis on the issue of proportionality to be both thoughtful and compelling. However, in my view this does not compel a determination that the defence of duress is never available in a situation where the crime charged is a homicide. Rather, it permits the analysis to be conducted within the defence of duress, but based on the very specific fact situation of the individual case before the court. In this regard, I would echo the words of the Supreme Court in Latimer that it is difficult to conceptualize a murder as ever being proportional to threatened harm or even death to the individual. However, it takes greater ingenuity than I possess to imagine every bizarre set of facts that could ever arise in which this defence might be played out. The flexibility of engaging in the proportionality analysis as part of determining the air of reality to the duress defence, or whether the proportionality test itself is actually met, might be preferable to a blanket rule that the defence is simply unavailable in every conceivable situation.
Conclusion
36I find considerable force to the position taken in the House of Lords and to the reasoning of Heeney J. of this Court in R. v. Sandham , reaching the same conclusion. It is legally difficult to draw a legal distinction between murder and assisting murder, and philosophically difficult to condone killing another person no matter what the risk to one’s self. Permitting persons who act under compulsion to assist others in committing murder comes dangerously close to blessing a culture of gang intimidation.
37On the other hand, there is also much to be said for the opposing position. Is a person acting under such a compulsion truly as guilty as the main perpetrator, or a person assisting murder freely and voluntary? I think not. In my view, a person who commits murder under a “kill or be killed” compulsion does not come close to sharing the same moral blameworthiness as a person who kills another of his own volition and for his own purposes. It would make sense to find both guilty of the same offence, but to deal with them in a dramatically different fashion at the sentencing stage. However, first degree murder carries a mandatory minimum sentence that is understandably severe. That regime does not permit duress to be taken into account as a mitigating factor. Even in respect of second degree murder, there is only very limited flexibility in terms of the period of parole ineligibility. Without the ability to adjust sentences to take into account moral blameworthiness for those who assisted in murder to save their own lives, or the lives of their loved ones, it is difficult to justify denying the defence of duress altogether. In this regard, I share the observations of Heeney J. in Sandham (at para. 120) that legislative reform is sorely needed in this area.
38In the final analysis, I feel I am bound by the Supreme Court of Canada and Court of Appeal decisions to which I have referred. Accordingly, I find that as a question of law, the duress defence is available in the case before me.
Released: September 24, 2012
