Her Majesty the Queen v. Yolanda Meecham, 2019 ONSC 561

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 18-90000210-0000

DATE: 20190122

ONTARIO

BETWEEN:

HER MAJESTY THE QUEEN

– and –

YOLANDA MEECHAM

S. Egan, for the Crown

W. G. Orr , Q.C. and S. O’Neill, for Ms. Meecham

HEARD: November 28-30, December 3-6, 10, 13, 2018.

REASONS FOR JUDGMENT

SCHRECK J.:

1Yolanda Meecham knowingly stored multiple kilograms of cocaine, heroin, fentanyl and marijuana in a condominium unit she rented. She says that she did so because a man with whom she had been having a relationship and who was acting as her “pimp” had threatened to kill her and her family unless she agreed to store his drugs.

2The police found the drugs when they executed a search warrant. As a result, Ms. Meecham was charged with four counts of possession of controlled substances for the purpose of trafficking. Each count relates to the different controlled substances, which were cocaine (Count 1), fentanyl (Count 2), heroin (Count 3) and marijuana (Count 4).

3The Crown does not dispute that Ms. Meecham was threatened, or that the man who threatened her had been violent to her in the past. The Crown submits, however, that Ms. Meecham is disentitled from relying on the defence of duress because she had a safe avenue of escape available to her, because she had voluntarily associated with the man who threatened her in circumstances where coercion to commit an offence was foreseeable, and because the threats were not the sole reason that she committed the offences.

4Ms. Meecham was tried by me without a jury.¹ At the conclusion of the trial, I gave relatively brief oral reasons finding her not guilty on Counts 1, 2 and 3 but guilty on Count 4. At the time, I indicated that I would provide more detailed written reasons at a later date. Those reasons follow and should be viewed as taking precedence over my oral reasons should they conflict.

I. EVIDENCE

A. The Case for the Crown

5On June 4, 2016, police officers executed a search warrant at Unit 2001, 2212 Lakeshore Boulevard West in Toronto. This was a sparsely furnished two-bedroom condominium unit. There was a bed in each bedroom, a television, some chairs and some clothing in the closets. In the closet of the master bedroom, the police found a red suitcase, a blue carry-on bag and a black shopping bag. The three bags contained a total of 12 brick-shaped packages of what the police believed to be a controlled substance. Elsewhere in the unit the police found a cardboard box containing three bags of what the police believed to be marijuana. Later testing revealed the total of what was seized was approximately 10 kilograms of cocaine, two kilograms of heroin mixed with fentanyl, and 1.5 kilograms of marijuana.

6Unit 2001 had been leased by Ms. Meecham in April 2016. No other name was on the lease.

7The police also obtained security video from various areas of the building. It showed that earlier in the day on June 4, 2016, Ms. Meecham retrieved what appeared to be the same three bags that were found in the closet from a vehicle and carried them into the building.

B. Ms. Meecham’s Testimony

(i) Childhood

8Ms. Meecham was born in 1987. Her father died when she was very young and she was raised by her mother and grandmother. She grew up in Hamilton and left school before completing Grade 10.

9When Ms. Meecham was 17 years old, her mother moved to Toronto, where the family was originally from. Ms. Meecham stayed in Hamilton and lived with friends.

(ii) Beginning of the Relationship With Richard Brewster

10In 2006, when Ms. Meecham was 18 years old, she met Richard Brewster through mutual acquaintances. He was 24 years old at the time and she understood that he had recently been released from prison. They became involved in a relationship. He was Ms. Meecham’s first boyfriend.

11After the relationship began, Mr. Brewster told Ms. Meecham and the women she was living with that they could make a lot of money if they agreed to sell drugs for him in the building where they lived. Mr. Brewster provided them with a phone and some crack cocaine and instructed them to sell the crack cocaine to people who called the phone. Ms. Meecham testified that she agreed to do this because she wanted Mr. Brewster to like her, but also because she wanted to make some money.

12Mr. Brewster lived in Toronto and would come to Hamilton a few days each week to supply them with drugs. He later suggested that Ms. Meecham rent her own apartment, which she agreed to do. Mr. Brewster provided her with first and last month’s rent. She continued to sell drugs from that apartment, but turned all of the proceeds over to Mr. Brewster.

(iii) First Incidents of Violence

13In the spring of 2006, Ms. Meecham told Mr. Brewster that she did not want to sell drugs any more. He became angry at her and spat in her face. She agreed to continue selling drugs so that he would not be angry at her.

14Ms. Meecham testified that Mr. Brewster expected her to answer the phone at all times in case prospective buyers called. If Mr. Brewster caught her sleeping when he came to the apartment, he would drag her out of bed by her hair or her clothes, choke her, and throw her around. She began to use cocaine to keep herself awake and would stay awake for days.

15According to Ms. Meecham, whenever she disagreed with Mr. Brewster about anything, she would receive a beating. This happened about once a week. Whenever she expressed reluctance to continue selling drugs, he would say “I don’t give a shit what you want”.

16Mr. Brewster showed Ms. Meecham a handgun that he owned and which he described as a Glock. She testified that he carried the gun in his waistband at all times.

17On one occasion in the summer of 2006, Ms. Meecham was in a car with Mr. Brewster when they were pulled over by the Hamilton police. One of the police officers took her aside and told her that Mr. Brewster was a very dangerous person who had been charged with murder in the past and that she should not be around him. She later asked Mr. Brewster about this. He told her that the police were lying because they were racist and hated him.

(iv) First Arrest and Imprisonment

18Later in 2006, Ms. Meecham was arrested for trafficking cocaine. She was released on bail, with her mother as her surety. Mr. Brewster came to her mother’s house and picked her up. He told her not to speak to the police and not to tell them that he had supplied the drugs to her or else he would kill her. He told her that contrary to what he had said earlier, he had killed somebody before and had “walked” on the “body charge” and could do so again.

19It was an agreed fact that Mr. Brewster had been charged with murder in 2005. He was tried on that charge but the jury was unable to reach a verdict. The charge was later withdrawn by the Crown.

20Ms. Meecham resumed selling drugs at Mr. Brewster’s direction. She was arrested again and this time did not get bail. A few months later, she pleaded guilty and was sentenced to imprisonment for a year.

(v) Release From Prison and Resumption of the Relationship

21Ms. Meecham was released from jail in April 2007. Mr. Brewster picked her up from the jail and immediately drove her to Owen Sound. He told her to stay with a woman he knew and provided her with a phone and some drugs to sell. Ms. Meecham told Mr. Brewster that she had to contact her probation officer in person within 48 hours of being released, but he ignored her. After two days, she decided to use some of the money she had made from selling drugs to take a taxi back to Toronto so that she could see her probation officer. When Mr. Brewster found out about this, he beat her, kicked her and stomped on her. She testified that he would make sure not to hit her face so that nobody would notice her bruises. He told her that it was her fault for not listening to him.

22At around this time, Mr. Brewster began to introduce Ms. Meecham to associates of his whom she understood to be members of the Driftwood Crips street gang. Mr. Brewster referred to them as his “soldiers”. Ms. Meecham observed that these people took direction from Mr. Brewster and would sell drugs for him. All of them were armed with handguns and she sometimes overheard them and Mr. Brewster talking about shootings they had been involved in. Mr. Brewster told Ms. Meecham that he was not worried about being arrested for being involved in any shootings because he would pay “top dollar” for a lawyer who would ensure that he would “walk” on any charges.

23Later in 2007, Mr. Brewster gave Ms. Meecham money to rent another apartment in Hamilton from which she was to sell drugs. He would leave drugs for her to sell. Sometimes, some of his associates stayed at the apartment.

(vi) Second Arrest and Imprisonment

24Some time later, Ms. Meecham, Mr. Brewster and some of his associates were in a car together when they were stopped by the police. Mr. Brewster immediately threw a bag of cocaine at Ms. Meecham, which she was still holding when the police entered the car. The police later searched the car and located a handgun. Everybody in the car was arrested.

25While Ms. Meecham was in custody, Mr. Brewster arranged to communicate with her through three-way calls with other people. He also wrote her letters, but did not use his own name. He instructed her not to apply for bail so that she would accumulate “dead time”. He told her that she should plead guilty and take sole responsibility for possessing both the drugs and the gun.

26Ms. Meecham went to court represented by a lawyer that Mr. Brewster had retained for her. As instructed, she attempted to plead guilty to possession of the gun, but the judge would not accept her plea. She did plead guilty to possessing the cocaine and received an intermittent sentence. Mr. Brewster was sentenced to a penitentiary term.

(vii) Hiatus in the Relationship

27While Mr. Brewster was in prison, Ms. Meecham became involved in a relationship with another man and became pregnant. She also enrolled in school.

28At some time in 2010, Ms. Meecham was visiting a friend in Hamilton when she bumped into Mr. Brewster on the street. He told her that he was living in a nearby halfway house. She told him that she was involved with somebody else and was pregnant. He became very angry and told her that but for the fact that he was in a halfway house, he would “fuck her up”. He told her to leave the man she was in a relationship with and to “put the baby’s name to his name” so that everybody would think that the baby was his. She agreed in order to calm him down. He provided her with a phone number to contact him at but she never did so. Soon after, she heard that Mr. Brewster had returned to prison.

29Ms. Meecham saw Mr. Brewster again in 2011 or 2012 when she was walking on the street in Hamilton and he suddenly pulled up next to her in a car. He told her that he wanted her in his life again. Ms. Meecham told him that she now had a daughter and was not interested in selling drugs as she did not want to go to jail. He told her that he needed to make money and did not trust anybody else. He asked her to think about getting back together with him and told her that he would always be able to find her.

30Ms. Meecham did not see Mr. Brewster again for some time and heard that he had again returned to prison. She became involved with a program called “Homeward Bound” which assisted abused women. She left her daughter’s father, who had also been abusive to her, and the Homeward Bound program helped her to find an apartment and to enroll in a law clerk program at Centennial College. Ms. Meecham had almost completed the program when she learned that she would not be able to do the internship part of the program as she would not pass the criminal record check. As a result, she dropped out of the program.

(viii) Resumption of the Relationship

31Ms. Meecham and her daughter later moved in with her mother in Toronto. One day, she noticed one of Mr. Brewster’s “soldiers” near her mother’s apartment. This man approached her and told her that Mr. Brewster was very sorry for all of the things he had done to her and that he wanted her to visit him at the jail in Lindsay. He said that Mr. Brewster had promised that he would not treat her badly any more.

32Ms. Meecham agreed to visit Mr. Brewster at the jail. She testified that she did so partly because she was afraid of him now that he appeared to know where she lived and partly because she believed that he really was sorry. During the visit, Mr. Brewster was very nice to her and told her that he was sorry. They began to write to each other.

33At around the same time, Ms. Meecham began to work as an escort in order to support herself and her daughter.

34Mr. Brewster was released from prison in 2015 and he and Ms. Meecham resumed their relationship. At first, he was very nice to her and she came to believe that he would treat her better from now on. He was aware she was working as an escort and sometimes asked her for some of the money she had made. He told her that he needed it for his music business and his career as a rapper. He told her that if she invested in the business, she would receive royalties later on. As time went on, Mr. Brewster stopped being as nice to Ms. Meecham and became increasingly rude to her.

(ix) The Cartel

35Mr. Brewster began to take frequent trips to Mexico. He told Ms. Meecham that he had become connected with “cartels” in Mexico. He showed her pictures of himself on a yacht in Mexico. Mr. Brewster bragged that he was able to “move” 10, 20 or 30 “bricks” (which Ms. Meecham understood to mean kilograms) of cocaine per week. Mr. Brewster told her that the people in the cartel were “the real deal” and that they “rip off people’s fingernails” and torture people to death. He told her that the cartel had contacts in the police force and if she ever told the police about his activities, the cartel would find out and would “deal with her.”

(x) Rental of the Condominium

36In 2016, Mr. Brewster suggested that Ms. Meecham rent a condominium where she could work as an escort as this would be safer. He provided her with money to do so and at the beginning of April she rented the condominium unit on Lakeshore Boulevard West. After she did so, Mr. Brewster began to demand that she give him all of the money that she earned as an escort. He provided her with money to pay the rent and bought her food and clothing.

(xi) Ms. Meecham’s Plan to Leave

37Ms. Meecham testified that before renting the condominium, she had concluded that the only way to get away from Mr. Brewster would be to leave Ontario with her family and for all of them to change their names. She decided to save up money to do this by keeping some of her escort earnings without telling Mr. Brewster and by working on days when he believed that she was not working. She concluded that in order to pay off the lease on the condominium, move and establish her family elsewhere, she would need $50,000. She estimated that it would take her about six months to earn this much. Ms. Meecham testified that she did not believe that she had any other option. She was scared to contact the police because Mr. Brewster had told her that the people from the cartels had connections within the police department. She did not tell her family about her plan because she was worried that her mother would panic and call the police.

38Within about eight weeks, Ms. Meecham had saved $24,460, which she knew because she had counted it a few days before the search warrant was executed. She kept the money in a brown Gucci shoe bag in a closet in the condominium. She kept it there because Mr. Brewster did not have a key to the condominium and had said that he would never go there because it was a “whore house” and because he did not want to be charged with human trafficking.

39All but one of the police officers who searched the condominium unit testified. They denied seeing any money during the search.

(xii) Further Violence

40Ms. Meecham testified about an occasion in May 2016 when she was at Mr. Brewster’s condominium on Singer Court. She found a text message from a woman on Mr. Brewster’s phone and asked him about it. He became angry, punched her in the face, grabbed her by the hair and dragged her to his bedroom. He threw her to the floor, kicked her in the back and stomach, choked her and spat in her face. He produced a handgun and then struck her on the head with it. Ms. Meecham testified that the beating went on for several minutes, although it felt to her like hours at the time. She believed that she was going to die.

41After the beating was over, Mr. Brewster began to cry and told her that he was sorry. He said that he was “under a lot of pressure” and told her that he would never “hurt her for real”. He promised to take care of her and told her to call her mother and tell her that she had decided to spend a week at Mr. Brewster’s condominium. She did so. He later bought her Gucci sunglasses and expensive make up to cover her bruises.

(xiii) Storage of the Marijuana

42A few weeks after Ms. Meecham rented the condominium, Mr. Brewster asked her to store 10 pounds of marijuana there. She told him that she was reluctant to do so. He responded by choking her and throwing her around. He told her not to “fuck with him” or else the cartel would “wipe out” her entire family and nobody would miss them. Ms. Meecham agreed to store the marijuana. She acknowledged that part of the reason she did so was because she would be able to consume some of it herself and sell some of it to her clients.

(xiv) Possession of the Cocaine, Heroin and Fentanyl

43On June 1, 2016, Ms. Meecham and a friend of hers decided to go to Peterborough to work as escorts. She did not tell Mr. Brewster that she was going as she planned to keep her earnings from him. She and her friend drove to Peterborough in a Mazda she had rented and stayed at a motel. At trial, Ms. Meecham produced a receipt confirming that she had rented a motel room on that date.

44The following morning, Ms. Meecham received a message from Mr. Brewster on a phone he had provided to her to use when communicating with him. He had explained to her that the phone used encrypted messages which the police could not intercept. He asked her where she was and she told him. He told her that a place belonging to a friend of his, whom Ms. Meecham knew as “Bambino”, had been raided by the police. This place was in the same area as Ms. Meecham’s condominium, so Mr. Brewster wanted Ms. Meecham to go to the condominium to make sure that it had not been raided and that the marijuana was still there. If it was, she was to pick up some other drugs and store them there. Ms. Meecham told Mr. Brewster that she would check on the marijuana but that she did not want to store any other drugs. He told her to stop “pissing him off” or else he would “body” her and nobody would miss her and nobody would care. She understood this to be a threat to kill her.

45Ms. Meecham testified that she believed that Mr. Brewster would really kill her if she did not do as he said, so she told her friend that she had to return to Toronto. She drove back to Toronto, dropped her friend off, and went to the condominium. She was nervous about doing so as she did not want to be arrested. She entered the condominium and confirmed that the marijuana and her savings were still there. She messaged Mr. Brewster and told him that everything was okay. He told her to come to his condominium on Singer Court.

46Ms. Meecham went to Mr. Brewster’s condominium. He told her to go to the parking garage, where she was to receive drugs from a man. He told her that the packages of drugs would have numbers on them and gave her a list of packages that he wished her to bring up to his condominium. Ms. Meecham went to the garage, where a man gave her multiple bricks of drugs. She put them in the trunk of the Mazda. She removed the bricks Mr. Brewster wanted, put them in a bag, and took them up to his condominium. Mr. Brewster was in the kitchen with his gun on the counter. He opened some of the packages and weighed some of the drugs on a scale that he had in the kitchen. He then returned a couple of the bricks to her and told her to store them with the others.

(xv) Ms. Meecham’s Movements After Taking Possession of the Drugs

47Ms. Meecham put the drugs in the trunk and then left. Later, she accompanied a friend of hers on an “outcall”, following which she and her friend returned to the condominium on Lakeshore Boulevard. It was by then the early morning hours of June 3. Ms. Meecham parked the Mazda next to a Mercedes which Mr. Brewster had provided to her for her use but which she did not like using as it was unreliable. She moved the drugs from the Mazda to the Mercedes because she did not want them in her condominium. She and her friend then went into the building. Security video shows Ms. Meecham and another woman in the elevator lobby.

48Soon after arriving at the condominium unit, Ms. Meecham received a message from Mr. Brewster instructing her to bring him a pound of marijuana. She took the marijuana from a box in the hallway closet, put it in a red suitcase, and left the apartment. Although Ms. Meecham was not sure, she believed that her friend had left by then. Security video shows Ms. Meecham leaving with a red suitcase and another bag. She testified that the other bag contained personal effects as it was her intention to return to her mother’s house after dropping off the marijuana.

49Ms. Meecham drove in the Mazda to where Mr. Brewster had told her to meet him. He took the marijuana out of the bag and then put two bricks of something into it. He told her to put this with the rest of the drugs. She asked him how long she would have to hold onto the drugs as she did not want to have them around her. He replied that “nobody gives a fuck about you” and that he could “wipe her out” and her family and then there would be “no issue”. Ms. Meecham took the drugs. However, she maintained her original plan and drove to her mother’s home. She left the drugs in the trunk of the Mazda.

50In the early morning hours of June 4, Ms. Meecham returned to the condominium to see a client. She moved the red suitcase from the Mazda to the Mercedes and then went upstairs. Security video shows her going upstairs at around 12:30 a.m. not carrying anything.

(xvi) Placement of the Drugs in the Condominium

51After Ms. Meecham’s client left, she fell asleep. When she woke up at around 8:00 a.m., she messaged Mr. Brewster on the encrypted phone to ask him when somebody would pick up the drugs. When he did not respond, she sent several more messages. When he finally responded, he asked where the drugs were. She told him that they were in the Mercedes as she was scared of lying to him. He told her that she must immediately put the drugs into the condominium as the Mercedes could be traced back to him. She replied that she would do so, but asked how long she would have to hold the drugs. He told her to stop “pissing him off” or else he would “beat the crap out of her” or kill her.

52Ms. Meecham went down to the P1 parking level, where she discarded some recycling. The video shows that she took the elevator down from there. She testified that she went to P3 to drive the Mercedes to P1 so that she could park it near the elevator and avoid having to carry the drugs through the parking garage. The video shows her taking three bags out of a car on P1 and taking them to the elevator. The bags appear to be the same as those in which the police found drugs. Ms. Meecham testified that she put the bags into the bedroom closet and left.

(xvii) The Search

53Ms. Meecham then went to her mother’s place. She texted Mr. Brewster throughout the day to inquire when somebody would come for the drugs. She received no response. She later texted Mr. Brewster’s mother to inquire where he was. The mother responded with a text that said “police run”.

54Ms. Meecham immediately returned to the condominium building. This was confirmed by the security video. She testified that she went up the elevator but got off at a different floor and then took the stairs to her own floor. There, she heard voices that she believed to belong to police officers. She heard somebody say “I’m in a building but I have no reception, I can’t hear you” and “Holy shit, man, we’re going to need more bags over here.” Ms. Meecham then walked down the stairs and left the building.

(xviii) After the Search

55Later, Ms. Meecham met one of Mr. Brewster’s associates, who told her to give him the encrypted phone. He gave her $5000 and told her that she had to “go on the run” and that Mr. Brewster would contact her. She then went to Hamilton and lived there until she was arrested about a year later.

C. Evidence of the Effects of Post-Traumatic Stress Disorder

(i) Dr. Julian Gojer

56Dr. Julian Gojer is a forensic psychiatrist who was asked to assess Ms. Meecham. He reviewed the Crown disclosure and interviewed Ms. Meecham in custody on one occasion for over two hours. During this interview, Ms. Meecham provided him with information consistent with her trial testimony. Dr. Gojer also interviewed Ms. Meecham’s mother and a close friend of hers. Dr. Gojer was qualified to give opinion evidence respecting the effects of post-traumatic stress disorder (“PTSD”) resulting from ongoing domestic violence, or what is sometimes referred to as “battered woman syndrome”.

(ii) “Battered Woman Syndrome”

57Dr. Gojer testified that the term “battered woman syndrome” was not a term used in any psychiatric diagnostic text but was commonly understood to refer to a type of PTSD resulting from domestic violence. The term was initially used by a psychologist, Dr. Lenore Walker, in a text she had written on the topic. Dr. Gojer had experience treating and assessing patients who suffered from PTSD of this type.

58According to Dr. Gojer, while some women leave abusive relationships, many do not for a variety of reasons, including fear of retribution. Such women will sometimes have distorted views about relationships and suffer from low self-esteem. Others will stay out of some hope that the relationship will improve, or because of financial restraints or social isolation.

59Dr. Gojer testified that women suffering from the type of PTSD he described may be prone to following directions from their abusers. Again, this may be for a variety of reasons, including fear, low self-esteem, or a lack of decisiveness arising from feelings of inadequacy.

60According to Dr. Gojer, in some cases fear will lead to “learned helplessness”. The victim will come to conclude that there is “no way out” and gives up trying to leave her abuser.

(iii) Dr. Gojer’s Opinion Respecting Ms. Meecham

61Dr. Gojer testified that in his opinion, Ms. Meecham appeared to be suffering from PTSD, although he could not confirm this without more collateral information. He testified that it was not unusual for there to be a lack of such information as victims of domestic violence are often reluctant to disclose details of it to anybody. He did note that Ms. Meecham exhibited some features of anxiety and depression.

62Ms. Meecham reported to Dr. Gojer that she had a history of depression and anxiety and experienced flashbacks. In his opinion, these symptoms were consistent with PTSD.

II. ANALYSIS

A. Overview – The Elements of the Defence of Duress

63Ms. Meecham admits the essential elements of the offences with which she is charged but maintains that she committed them while under duress. The defence of duress has the following elements, as explained in R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14, at para. 81:

(1) There must be an explicit or implicit threat of present or future death or bodily harm directed at the accused or a third party.

(2) The accused must reasonably believe that the threat will be carried out.

(3) There can be no safe avenue of escape. This element is evaluated on a modified objective standard.

(4) There must be a close temporal connection between the threat and the harm threatened.

(5) There must be 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.

(6) The accused cannot be a party to a conspiracy or association whereby she 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.

See also R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at paras. 56-67; R. v. Hibbert, 1995 110 (SCC), [1995] 2 S.C.R. 973, at paras. 18-25.

B. The Crown’s Position

64The Crown accepts that there is an air of reality to the defence of duress in this case. As a result, the burden is on the Crown to disprove the defence. To do so, it must disprove the existence of at least one of the elements beyond a reasonable doubt. In this case, the Crown takes no issue with the first, fourth and fifth elements. With respect to the second element, it appears that the Crown accepts that Ms. Meecham reasonably believed that the threat would be carried out. However, the Crown takes the position that the threat must be the “sole” reason why the offence was committed and that it was not the sole reason in this case.

65The Crown’s position with respect to the third element is that Ms. Meecham had a safe avenue of escape. With respect to the sixth element, the Crown does not allege that the Ms. Meecham was a party to a conspiracy, but submits that when she decided to resume a relationship with Mr. Brewster in 2015 after not having seen him for several years, she knew that threats and coercion to commit an offence were a possible result and is therefore disentitled to rely on the defence of duress.

C. Assessment of Credibility

66The evidentiary basis for the defence of duress is the testimony of Ms. Meecham. Mr. Brewster’s criminal history provides some confirmation of her description of him and his activities. While there was some security video that was consistent with her account, it was equally consistent with the Crown’s theory. It showed that Ms. Meecham brought the drugs into the condominium unit, but not why she did so.

67Ms. Meecham’s evidence was not strenuously challenged in cross-examination. I do not make this observation to be critical of Crown counsel. To the contrary, the Crown was completely fair to Ms. Meecham throughout the trial. Crown counsel are ministers of justice and it is not their role to obtain a conviction at any cost: Boucher v. The Queen, 1954 3 (SCC), [1955] S.C.R. 16, at pp. 23-24; R. v. Roberts, 2018 ONCA 411, 360 C.C.C. (3d) 444, at para. 120. It follows that Crown counsel is afforded considerable discretion in determining how to cross-examine fairly and there is no obligation on the Crown to attack every aspect of an accused’s evidence.

68There are some portions of Ms. Meecham’s evidence which I find questionable. For example, I find it somewhat strange that she would leave Mr. Brewster’s valuable drugs in the trunk of the car unattended while she stayed at her mother’s house. Overall, however, I found her generally to be a credible witness. She was responsive to the questions she was asked and was not evasive. She was consistent and readily acknowledged weaknesses in her evidence. Some of her evidence respecting Mr. Brewster was confirmed by other evidence. For example, his criminal record supports her testimony that he is a violent individual and recidivist drug trafficker. None of this is in dispute, nor is the fact that he was a member of the “Driftwood Crips” and that he had “beaten a body charge” (i.e., been charged with but not convicted of murder) in the past.

69Ms. Meecham’s testimony is also supported by the testimony of Dr. Gojer, who testified that her behaviour was consistent with that of somebody who suffered from PTSD as a result of ongoing domestic violence.

D. Safe Avenue of Escape

(i) The Crown’s Position

70It is the Crown’s position that Ms. Meecham did not flee because she did not want to. The Crown submits that Ms. Meecham could have called the police or sought assistance from her family. The Crown points out as well that on Ms. Meecham’s own evidence, she had made plans to flee at a later date and she could have implemented those plans earlier had she wanted to. I accept Ms. Meecham’s evidence with respect to her reasons for not contacting the police. Of course, that does not resolve the issue, as her subjective beliefs are not determinative.

(ii) The Modified Objective Standard

71In determining whether the Crown has proven beyond a reasonable doubt that Ms. Meecham had a safe avenue of escape, I must apply a modified objective standard, as was explained in Ryan, at para. 65:

This element of the common law defence was specifically addressed in Ruzic, at para. 61. Once again, the test, evaluated on a modified objective basis, is that of a reasonable person similarly situated:

The courts will take into consideration the particular circumstances where the accused found himself and his ability to perceive a reasonable alternative to committing a crime, with an awareness of his background and essential characteristics. The process involves a pragmatic assessment of the position of the accused, tempered by the need to avoid negating criminal liability on the basis of a purely subjective and unverifiable excuse.

In other words, a reasonable person in the same situation as the accused and with the same personal characteristics and experience would conclude that there was no safe avenue of escape or legal alternative to committing the offence. If a reasonable person similarly situated would think that there was a safe avenue of escape, the requirement is not met and the acts of the accused cannot be excused using the defence of duress because they cannot be considered as morally involuntary.

(iii) The Failure to Call the Police

72Ms. Meecham testified that she did not contact the police because Mr. Brewster had told her that the members of the cartel with which he was affiliated had contacts within the police department and that he would find out if she spoke to the police. She believed that he had several “soldiers” in his employ who would do his bidding and that he would kill not only her, but her family as well if she did not follow his direction. She did not confide in her mother because she believed that her mother would contact the police and that Mr. Brewster would find out.

73In applying the modified objective test, I must consider what would have been reasonable to a person with “the same personal characteristics and experience” as Ms. Meecham, a woman who did not complete Grade 10 and who had been in a longstanding abusive relationship. Doing so is not without its challenges. It requires me, a male without PTSD, to consider what would or would not be reasonable in circumstances which I have not and never will experience. This type of difficulty was recognized in R. v. Lavallee, 1990 95 (SCC), [1990] 1 S.C.R. 852, at p. 874 in the context of evaluating a self-defence claim made by an accused with battered woman syndrome:

If it strains credulity to imagine what the “ordinary man” would do in the position of a battered spouse, it is probably because men do not typically find themselves in that situation. Some women do, however. The definition of what is reasonable must be adapted to circumstances which are, by and large, foreign to the world inhabited by the hypothetical “reasonable man”.

See also R. v. Malott, 1998 845 (SCC), [1998] 1 S.C.R. 123, at para. 20.

74For this reason, I must have regard for the evidence of Dr. Gojer, which I accept. It was his evidence that Ms. Meecham likely suffers from the form of PTSD that is often referred to as “battered woman syndrome” and that individuals in such circumstances often develop what he referred to as “learned helplessness”, leading them to conclude that there is “no way out”.

75Ultimately, the real question is whether the Crown has proven beyond a reasonable doubt that a person with Ms. Meecham’s characteristics and experience would have reasonably perceived a safe avenue of escape. Ms. Meecham testified that she did not have any such perception, which, according to Dr. Gojer, would not be unusual for a person suffering from PTSD. In these circumstances, I am far from satisfied that a reasonable person with Ms. Meecham’s characteristics and experience would have perceived a safe avenue of escape.

(iv) Implementation of the “Escape Plan”

(a) Evidence Respecting the Money

76The Crown also submits that Ms. Meecham could have implemented her “escape plan” prior to taking possession of the drugs. With respect, I am somewhat puzzled by this submission. Ms. Meecham’s escape plan was predicated on her having saved enough money to be able to move out of the province with her family. She testified that she had saved a considerable sum of money, which she kept in the closet of the condominium. All but one of the police officers who were involved in the search testified and all denied seeing any money. It was the defence theory that one or more of the officers had stolen the money, which the officers denied. If I accept that Ms. Meecham had enough money to implement her escape plan, then I would almost certainly also have to conclude that one of the officers had stolen it. Not surprisingly, the Crown made it clear that it does not seek to have me make such a finding.

77Ultimately, I have concluded that it is not necessary for me to make any findings with respect to the existence of the money and what happened to it and I decline to do so. Even if Ms. Meecham had the money, implementing the plan was simply not a reasonable option and the law does not require her to go to such extremes.

(b) The Plan Was Not a Reasonable Alternative

78The defence of duress is closely related to the defence of necessity. That defence, which was explained in R. v. Perka, 1984 23 (SCC), [1984] 2 S.C.R. 232, also has as a requirement that there be no safe avenue of escape. The relationship between the two defences and the “no safe avenue of escape” requirement was explained in Hibbert, at para. 55:

The so-called “safe avenue of escape” requirement in the law of duress is, in my view, simply a specific example of a more general requirement, analogous to that in the defence of necessity identified by Dickson J. [in R. v. Perka] -- the requirement that compliance with the law be “demonstrably impossible”. As Dickson J. explained, this requirement can be derived directly from the underlying concept of normative involuntariness upon which the defence of necessity is based. As I am of the view that the defence of duress must be seen as being based upon this same theoretical foundation, it follows that the defence of duress includes a similar requirement -- namely, a requirement that it can only be invoked if, to adopt Dickson J.’s phrase, there is “no legal way out” of the situation of duress the accused faces.

79The “safe avenue” requirement in the context of necessity was explained In R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, where the Court made it clear that a safe avenue of escape will be found to exist if the accused had a reasonable legal alternative to committing an offence (at para. 30):

If there was a reasonable legal alternative to breaking the law, there is no necessity. It may be noted that the requirement involves a realistic appreciation of the alternatives open to a person; the accused need not be placed in the last resort imaginable, but he must have no reasonable legal alternative. If an alternative to breaking the law exists, the defence of necessity on this aspect fails. [Emphasis added].

80Given the close relationship between the two defences, the same approach should be taken to the defence of duress. The issue is not whether the accused had any conceivable safe avenue of escape but, rather, whether she had a reasonable one available to her.

81Ms. Meecham’s “escape plan” was not a reasonable legal alternative. In my view, the law does not require somebody in Ms. Meecham’s circumstances to devise and implement her own home-made witness protection program before being allowed to rely on the defence of duress. I accept that Ms. Meecham had planned to do just that, but the reality is that the plan was completely unrealistic. She, her mother, her grandmother and her daughter would have had to leave their home, their jobs, their friends and any other family. They then would have had to somehow change their names and establish a new life in another province. Even if this was something Ms. Meecham could have accomplished, the law did not require her to go to such lengths.

82For these reasons, on a modified objective standard, the Crown has failed to prove that there was a safe avenue of escape.

E. The Criminal Conspiracy or Organization Bar to the Defence of Duress

(i) The Issue

83It is well established that a person who joins a criminal conspiracy or organization knowing that there is a possibility that doing so will result in a risk that he or she will be compelled to commit a criminal offence cannot later rely on the defence of duress if that coercion occurs: Ryan, at paras. 75-80; R. v. Li (2002), 2002 18077 (ON CA), 162 C.C.C. (3d) 360 (Ont. C.A.), at para. 32.

84The Crown submits that this bar to the defence of duress is not restricted to criminal conspiracies and organizations and applies in any situation where the accused voluntarily associates with somebody in circumstances where there is a possibility that that person will compel him or her to commit a criminal offence. In this regard, the Crown relies on R. v. Taylor, 2012 ONSC 6675. In that case, the accused was charged with various firearm possession offences and testified that he had committed them because another person called Martin had threatened him. The duress defence was unsuccessful for several reasons. In addition to concluding that the accused had a safe avenue of escape, the Court also noted that he had cultivated a close relationship with Martin and knew that Martin was likely to pressure him to engage in criminal acts at some point (at paras. 52-54).

(ii) The Scope of the Criminal Organization Bar

85With respect, I do not agree that the criminal organization bar to the application of the defence of duress is as broad as the Crown submits. In my view, it is only those who voluntarily choose to engage in criminal conduct who cannot rely on the defence of duress when they later find themselves unable to withdraw from the criminal conduct as a result of threats by those whom they chose to engage in crime with. This is because the defence of duress is based on the concept of moral involuntariness: Ryan, at para. 23; Ruzic, at para. 47. The criminal conspiracy bar to the defence is closely related to and arises from this concept, as was made clear in Ryan, at para. 77:

The Court of Appeal’s conclusion [in R. v. Li] stands for the proposition that courts must take into account the accused’s voluntary assumption of risk, a natural corollary of the unavailability of the defence of duress to those who wilfully engage in criminal conspiracies or organizations. This is consistent with the principle of moral involuntariness. An accused that, because of his or her criminal involvement, knew coercion or threats were a possibility cannot claim that there was no safe avenue of escape, nor can he or she truly be found to have committed the resulting offence in a morally involuntary manner. [Emphasis added].

86An accused who chooses, through the exercise of free will, to engage in criminal conduct which he knows creates the risk of later coercion loses the right to make a claim of moral involuntariness because the foreseeable involuntariness is the result of his own immoral choice to engage in criminal conduct. The same rationale does not apply in the case of non-criminal voluntary association with another individual, even if coercion is a likely consequence of that association.

87Taylor does not, in my view, support the Crown’s position. The accused in that case had voluntarily engaged in criminal conduct (an attempt to move Martin’s car to avoid the police) in circumstances where coercion was foreseeable. I do not read Taylor as standing for the proposition that any association with an individual that may foreseeably result in coercion to commit an offence disqualifies an accused from relying on the defence of duress. If I am wrong and Taylor does stand for such a proposition, then I must respectfully disagree with it.

(iii) Application of the Subjective Standard

88Even if I am wrong with respect to the scope of the criminal association bar to the defence of duress, I am not satisfied beyond a reasonable doubt that it applies in this case. The knowledge of potential threats or coercion is to be evaluated on a purely subjective standard: Ryan, at para. 80. Ms. Meecham testified that she resumed her relationship with Mr. Brewster partly out of fear and partly because she believed that he was sorry for his past behaviour and his assurances that he would treat her well in the future. The latter belief is consistent with Ms. Meecham having battered woman syndrome, as individuals who suffer from that form of PTSD often have distorted views of relationships and suffer from low self-esteem.

89I accept Ms. Meecham’s evidence that she resumed the relationship partly out of fear and partly out of a belief in Mr. Brewster’s sincerity. As a result, I am far from satisfied that she resumed the relationship voluntarily or that she subjectively appreciated the risk of future coercion. To the contrary, her distorted views led her to believe that Mr. Brewster was sincere in his promise that he would treat her well and not coerce her into engaging in criminal conduct.

90Ms. Meecham’s decision to return to a relationship that had in the past resulted in terrible abuse is all too familiar to those who have any experience in dealing with longstanding domestic violence. I see absolutely no parallel between her situation and that of somebody who voluntarily joins a criminal organization, as was the situation in Li and other cases where reliance on the defence of duress was precluded by the accused’s voluntary participation in a criminal organization or conspiracy.

F. Whether the Offence Was “Solely” the Result of the Threats

(i) The “Sole Reason” Requirement

91The remaining element is whether Ms. Meecham’s decision to commit the offence is “solely” the result of the threats. Professor Paciocco (as he then was) expressed some doubt as to whether this is truly a requirement of the defence of duress. In D.M. Paciocco, “No-one Wants to Be Eaten: The Logic and Experience of the Law of Necessity and Duress” (2010), 56 Crim. L.Q. 240, he suggested that it is sufficient if the threat is a necessary condition of the crime (at pp. 279-280):

An accused person can plead duress only if it was the threat of death or bodily harm that caused the accused to commit the crime. That much is clear. There are decisions, however, that go even farther. They hold that the threat must be the “sole” reason for the offence. Cases that employ “sole” reason thinking find authority for it in the direction by the trial judge in Ruzic. The better view, however, is that there is no “sole” reason requirement. So long as the threat is the operative cause of the offence, it need not be the sole factor influencing the accused. … More importantly, the Supreme Court of Canada did not comment directly on the trial judge’s “sole” reason direction because it was not an issue in the Ruzic case but when Justice Lebel described the relevant requirement he said only that the threat must be “affecting the accused at the time of the offence” [at para. 99]. As a matter of principle the existence of ancillary reasons for a crime should not matter if there remains reasonable doubt about whether the threat was a necessary condition of the crime. To do otherwise would deprive individuals of the defence who would not have committed the offence but for the threat.

See also S. Coughlan et al., “Reform of the Defence of Duress (and Necessity)” (2018), 66 Crim. L.Q. 230.

92I find Professor Paciocco’s reasoning persuasive and note that the “sole cause” requirement is not mentioned in Ryan, which is the latest explanation of the law of duress by the Supreme Court of Canada.

(ii) Binding Jurisprudence

93That said, in R. v. McRae (2005), 2005 26592 (ON CA), 77 O.R. (3d) 1 (C.A.), at para. 34, the Court of Appeal described the elements of the defence of duress which had been applied by the trial judge in that case as having been “correctly summarized”. The first of those elements was that “[t]he accused must act solely as a result of the threats of death or serious bodily harm to himself or herself or another person.” Similarly, in R. v. Yumnu, 2010 ONCA 637, 260 C.C.C. (3d) 421, at para. 197 (aff’d without reference to this point 2012 SCC 73, [2012] 3 S.C.R. 777), the Court of Appeal’s list of the elements of the defence of duress included “the accused committed the offence only because of the threats of death or serious bodily harm”. While Ryan does not affirm the existence of this requirement, it does not contradict it either. In these circumstances, I consider myself bound by McRae and Yumnu.

(iii) Application to This Case

(a) Counts 1, 2 and 3

94The Crown submits that Mr. Brewster’s threats were not the sole reason that Ms. Meecham committed the offences in Counts 1, 2 and 3. The Crown points out that during cross-examination, Ms. Meecham was asked whether one of the reasons she agreed to store the drugs was that she believed that she would only have to do so for a short time and she agreed. The Crown also submits that Ms. Meecham had other “complicated” reasons for storing the drugs, including that she wanted to continue her relationship with Mr. Brewster.

95In my view, the fact that Ms. Meecham believed that the drugs would be stored for a short time was not a reason for storing the drugs. It was, at best, a hope on her part. When her evidence is considered as a whole, it is clear that she did not want to store the drugs and did so only because of Mr. Brewster’s threats. I accept her evidence in this regard.

96With respect to there being other “complicated” reasons, Ms. Meecham testified that at some time before June 2, she had decided that she wanted to get away from Mr. Brewster and was making plans to do so. I accept her evidence. I am not satisfied beyond a reasonable doubt that she agreed to take possession of the drugs on June 2, 2016 and to maintain possession of them thereafter for any reason other than the threats made by Mr. Brewster.

(b) Count 4

97The situation with respect to Count 4, however, is different. Ms. Meecham testified that she agreed to store the marijuana partly because of threats from Mr. Brewster, but also partly because she wanted to sell the marijuana to her clients and consume some of it herself. Applying McRae and Yumnu, as I feel I must, I am satisfied beyond a reasonable doubt that Ms. Meecham’s decision to possess the marijuana was partially, but not solely as a result of the threats. It follows that her claim on duress with respect to this count must fail.

III. DISPOSITION

98For the foregoing reasons, Ms. Meecham is found not guilty on Counts 1, 2 and 3 and guilty on Count 4.

Footnotes

1. 1The trial began as a jury trial. Because of sudden tragic family circumstances that arose during the trial, senior defence counsel was unable to continue. The parties agreed that the matter should continue as a judge-alone trial so that his co-counsel had an adequate opportunity to take over. As a result, a mistrial was declared. Ms. Meecham was re-arraigned, re-elected her mode of trial and the parties agreed that the evidence heard up to that point would apply.