R. v. Watson, 2024 ONSC 6781

COURT FILE NO.: CR-23-30000320-0000 DATE: 20241206

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – JOVANE WATSON

Counsel: D. Emani, counsel for the Crown C. Angelini, counsel for Mr. Watson

HEARD: September 9, 10, 11, 13, 16 2024

Reasons for Judgment

H. McArthur J.:

Introduction

[1] Zachary Cust murdered Malcom Ellis by shooting him in the head. Jovane Watson drove Mr. Cust away from the scene. As a result, Mr. Watson is now facing one count of accessory after the fact to murder.

[2] Mr. Watson testified that Mr. Cust directed him to drive him away, and that he feared for his life if he did not comply. The Crown concedes that there is an air of reality to the defence of duress. Thus, the key issue is whether the Crown has disproven beyond a reasonable doubt that Mr. Watson was acting under duress when he drove Mr. Cust away from the murder.

The Evidence

The Murder

[3] In the early morning hours of November 26, 2021, five young men were gathered in the garage of Jarren Des Vignes. Along with Mr. Des Vignes and his cousin Tristan Lue, were their friends Malcom Ellis, Zachary Cust, and Jovane Watson. The men were socializing and catching up. There was nothing to suggest anything was amiss. Then suddenly, and without any warning or provocation, Mr. Cust shot Mr. Ellis in the head, killing him instantly.

Events Leading to the Men Being in the Garage

[4] On November 25, 2021, Mr. Des Vignes and Mr. Lue were hanging out in Mr. Des Vignes’ garage. This was not unusual. Mr. Des Vignes often had friends over to his garage to drink or smoke marijuana.

[5] Just after midnight on November 26, 2021, Mr. Lue received a call from their mutual friend, Mr. Ellis. He asked to be picked up from a bar in Pickering, because he was having an argument with a woman there. Mr. Des Vignes and Mr. Lue went to pick up Mr. Ellis and they returned to the garage.

[6] At the same time, Mr. Watson and Mr. Cust were at a birthday party. They decided to leave. Mr. Watson intended to drive Mr. Cust to his home, which was close to the Des Vignes home. Mr. Watson, however, realized that he was out of marijuana and wanted some before he returned to his home in Ajax. He called Mr. Des Vignes, who had been his friend for about five to six years. Mr. Cust was also friends with Mr. Des Vignes – they had known each other since elementary school. Both Mr. Watson and Mr. Cust often socialized with Mr. Des Vignes in his garage.

[7] Mr. Watson told Mr. Des Vignes that he was close by, that Mr. Cust was with him, and asked if he could stop by to get some marijuana. Mr. Des Vignes agreed that Mr. Watson could come over with Mr. Cust and get some marijuana. He did not tell Mr. Watson that either Mr. Lue or Mr. Ellis were at his garage. When he got off the phone with Mr. Watson, he told Mr. Lue and Mr. Ellis that Mr. Watson was stopping by, but did not mention that Mr. Cust was with him. Mr. Des Vignes unlocked the door to his house, so that when Mr. Watson and Mr. Cust arrived, they could come in, and enter the garage through a door in the home.

Jovane Watson and Zachary Cust Arrive at the Garage

[8] A few minutes after Mr. Watson called, he pulled up outside of the Des Vignes home in his car. He and Mr. Cust got out of the car, went through the main door of the home, and into the garage. Mr. Watson and Mr. Cust greeted the three young men who were there. They were warmly received, and everyone seemed jovial.

[9] Mr. Watson was surprised and happy to see Mr. Ellis there. He has been friends with him since elementary school but had not seen him in a while. He gave Mr. Ellis a hug, and they asked each other about their families. Although Mr. Watson had initially planned on leaving after getting the marijuana, that changed when he saw his friend Mr. Ellis. Mr. Ellis offered Mr. Watson shots from a bottle of vodka and the two men caught up with each other. By all accounts, everyone seemed to be in good spirits.

Events Before the Shooting

[10] Shortly after Mr. Watson and Mr. Cust arrived, Mr. Des Vignes left the garage to use the bathroom. Mr. Cust followed him. Mr. Cust retrieved a small black satchel he had left at the Des Vignes home a few days earlier. Mr. Des Vignes did not know what was in the bag. Then, they both returned to the garage.

[11] After he returned to the garage, Mr. Des Vignes began scrolling through his Instagram. Mr. Cust was looking at his phone. Mr. Lue began to roll a joint on a table in the garage. Mr. Watson and Mr. Ellis continued with their amicable conversation. It seemed light-hearted and friendly. Everything seemed fine. No one was arguing. There did not seem to be animosity between any of the young men. In particular, there did not seen to be any problem or issue between Mr. Cust and Mr. Ellis. It was a normal and enjoyable get together.

[12] Then, without any warning, Mr. Cust shot Mr. Ellis in the head.

The Reactions to the Shooting

[13] Mr. Des Vignes, Mr. Lue, and Mr. Watson were all friends with the victim. Each of them testified about the shock and horror of seeing their friend gunned down in cold blood. Mr. Des Vignes’ mother and sister also saw Mr. Des Vignes and Mr. Lue minutes after the shooting. They confirmed that both men were distraught.

[14] It was clearly a traumatic event. Not surprisingly, the witnesses all provided somewhat different accounts of what occurred.

Mr. Des Vignes’ Account

[15] According to Mr. Des Vignes, as he was looking at his Instagram, he suddenly heard a loud bang and looked up. He saw that Mr. Cust had a gun and that Mr. Ellis was on the floor, clearly shot. Mr. Des Vignes froze at first, and then he yelled, “What the Fuck are you doing?” He heard Mr. Lue yell, “No!” He heard Mr. Watson say something like, “What the fuck!”

[16] Mr. Watson, who had been standing right beside Mr. Ellis when Mr. Cust shot him, seemed frozen. Mr. Watson had a shocked and surprised look on his face. Mr. Lue began to scuffle with Mr. Cust. Mr. Des Vignes then jumped in to help his cousin. As the men struggled, Mr. Cust pointed a gun in Mr. Des Vignes’ face and told him to move and “Get the fuck out of the way”. Mr. Des Vignes put his hands up and backed away, as he did not want to get shot. While he was good friends with Mr. Cust, he had just seen him kill one of their mutual friends, and at that point he had no idea what he was capable of. He also saw Mr. Cust point his gun to Mr. Lue’s waist area, causing him to also back off.

[17] Mr. Cust was waving the gun around. Mr. Cust then looked at Mr. Watson and said, “Come on, let’s fucking go.” Mr. Watson seemed to be in shock and did not respond right away. He remained rooted in place. To Mr. Des Vignes, it seemed as if Mr. Watson did not know what to do. Mr. Cust said again to Mr. Watson, “Let’s fucking go.” At that point, Mr. Watson finally began to move.

[18] Mr. Des Vignes’ evidence regarding whether Mr. Cust pointed the gun directly at Mr. Watson evolved as he testified. In cross-examination, he said that as Mr. Cust told Mr. Watson to go, he had the gun pointed in his direction. He did not mention this in his evidence-in-chief. When asked why he did not volunteer that evidence when the Crown was asking questions, he said at that time he did not recall but that the questions in cross-examination assisted his memory.

[19] According to Mr. Des Vignes, as Mr. Cust moved from the garage into the home, Mr. Des Vignes and Mr. Lue began to “scuffle” with him again. Once again, Mr. Cust pointed his gun towards their faces and they both backed off. Mr. Cust ran outside. Mr. Des Vignes and Mr. Watson followed him out.

Tristan Lue’s Account

[20] According to Mr. Lue, he decided to roll a joint, and turned his back to Mr. Ellis and Mr. Watson to do so. He could hear them chatting, catching up with each other. He heard the door from the home into the garage open and assumed that it was Mr. Des Vignes and Mr. Cust returning. He was in the process of rolling the joint when he heard a loud bang.

[21] Mr. Lue said, “What the fuck?” He turned around and saw Ellis on the floor and once again cried out, “What the fuck?” and “No!” It took Mr. Lue a moment to process what had happened. Mr. Lue was startled and scared. He saw Mr. Cust and one other person run towards the door. He could not say if the other person running was Mr. Des Vignes or Mr. Watson. He did not recall if Mr. Cust said anything.

[22] Mr. Lue grabbed Mr. Cust as he was trying to leave and pushed him through the door leading into the home. He scuffled with Mr. Cust inside the home, pushing him up against the wall. Mr. Lue has no memory of Mr. Des Vignes jumping in to join in the scuffle with Mr. Cust. As he fought with Mr. Cust, Mr. Lue felt something “poke” against his hip, and Mr. Cust told him to let him go. Mr. Lue believed it was a gun, so he put his hands up and backed away.

[23] Mr. Lue said that he has no memory of Mr. Cust pointing the gun at Mr. Des Vignes or Mr. Watson. While he agreed that Mr. Cust may have pointed or waved the gun at them, he explained that because of his emotional state after the shooting, he could not say. Mr. Lue explained that he essentially “blacked out” from the shock of what had happened and that things did not seem real.

[24] In cross-examination, several issues emerged with respect to Mr. Lue’s evidence. He initially testified that he did not know the shooter and described him only as the man wearing a mask. However, he was confronted with his evidence from the preliminary hearing where he admitted that he knew that the shooter was Mr. Cust. He agreed that he had not been truthful in his initial evidence before me when he said he did not know the shooter. Similarly, Mr. Lue at first said he did not see a gun in Mr. Cust’s hands. But in cross-examination he was again confronted with his evidence from the preliminary hearing and ultimately admitted that he did see Mr. Cust with a gun. He agreed he was concerned about potential repercussions if he testified that he saw the gun in Mr. Cust’s hand.

Jovane Watson’s Account

[25] Mr. Watson testified that he was standing “arms distance” from Mr. Ellis, catching up with his long-time friend. He drank a shot from a bottle that Mr. Ellis offered him. As they were talking, Mr. Watson heard a loud bang. Mr. Ellis dropped to the ground. Mr. Watson was shocked and confused. It took him about 10 to 15 seconds to process that Mr. Ellis had been shot. He could not wrap his mind around what was going on. As he was staring down at Mr. Ellis, he saw Mr. Cust run towards the door into the home. While still in the garage, Mr. Lue grabbed Mr. Cust and pushed him through the door and into the home. Mr. Des Vignes ran into the home. Mr. Watson felt like a “chicken with its head cut off”. He could not “think straight” and did not know what to do. As the other three men went into the home, Mr. Watson simply followed the crowd.

[26] Once in the home, Mr. Cust tripped and both Mr. Lue and Mr. Des Vignes were over him, struggling. Mr. Watson was standing just behind the three men, watching the struggle. He then saw Mr. Lue and Mr. Des Vignes back away from Mr. Cust with their hands up, as Mr. Cust told them to “Get away.” It was at that point that Mr. Watson saw the gun in Mr. Cust’s hands for the first time.

[27] Mr. Cust was waving the gun around. As Mr. Cust gestured with the gun, he told Mr. Watson “Get me the fuck out of here. Let’s go to the car.” Mr. Watson did not respond. Mr. Cust again told him to get him out of there. Mr. Cust then ran for the door. Mr. Des Vignes followed him out. Mr. Watson then ran out the door as well. He was still in shock and was just moving without much thought.

Outside of the Des Vignes Home

[28] A video clip filed at trial showed Mr. Cust, Mr. Des Vignes, and Mr. Watson running out of the home. The video depicts Mr. Watson initially running to the left, away from the direction of his car. He can then be seen changing directions and running towards the car. Mr. Watson got in the driver’s seat and Mr. Cust got in the passenger side. Mr. Watson then drove away.

[29] According to Mr. Des Vignes, he followed Mr. Cust outside to ask him why he had shot Mr. Ellis. He saw Mr. Watson run outside, but it seemed like he did not know which way to go. Mr. Cust yelled at Mr. Watson, “Let’s get the fuck out of here”, while he still had the gun in his hand. Mr. Watson seemed hesitant, but he got in the driver’s seat, and drove away with Mr. Cust.

[30] Mr. Watson testified that when he first ran out of the home, he did not know what he was doing. As he ran away from the direction of the car, he heard Mr. Cust aggressively yell, “Get in the fucking car.” He took that as a direction. He did as Mr. Cust directed because he was scared and did not know what Mr. Cust would do if he did not comply. He had just seen Mr. Cust shoot his friend Mr. Ellis. He had seen Mr. Cust threaten Mr. Des Vignes, whom he had known longer than Mr. Watson, with the gun. Mr. Watson testified that he did not want to push Mr. Cust “over the edge” and wind up being shot. Because he was afraid of what Mr. Cust would do, he got into his car and drove Mr. Cust away from the scene.

The Car Ride

[31] Mr. Watson testified that when he began to drive, he had no idea where he was going. Mr. Cust told him to drive towards the highway and directed him where to go. Mr. Cust had the gun he had just used to shoot Mr. Ellis in his lap as he directed Mr. Watson where to drive. Mr. Watson felt “very scared and very worried.”

[32] As Mr. Watson drove, Mr. Cust was on the phone, speaking to someone, perhaps his mother. Eventually Mr. Cust had Mr. Watson drive to an apartment building in the Mississauga area. Once they arrived, Mr. Cust got out of the car and put the gun in a black bag. He then walked toward the building.

[33] Mr. Watson drove away. He stopped for gas, and then drove to his girlfriend’s home in Ajax.

The Phone Calls by Jovane Watson the Morning of November 26

[34] According to Mr. Watson, after he dropped Mr. Cust off, and before he drove to Ajax, he tried to call his brother, Roshane Webster, who lived with their mother in Bowmanville. Mr. Watson was thinking about going there instead of Ajax and wanted to ask his brother to unlock the door to the home. However, he got Mr. Webster’s voicemail. Since he did not get to speak to his brother, he drove to Ajax as he had originally planned to do before the shooting, and then went to sleep.

[35] Mr. Watson testified that when he woke up in the morning, he tried to call his brother again. This time his brother picked up and Mr. Watson asked him to open the door to the Bowmanville home.

[36] Mr. Webster recalled the phone calls differently. According to him, Mr. Watson called him in the early morning hours and woke him up. He could not recall the exact time that he got the call. When the Crown asked if the call was around 3:00 a.m. he said he could not recall. When the Crown asked if was before 6:00 a.m., he said “I would say so, but I am not sure.” Whatever the time of the conversation, Mr. Webster recalled that Mr. Watson said he was going to come to the Bowmanville home and asked him to open the door. He recalled that the conversation took about 10 seconds. He only recalled one conversation with Mr. Watson.

[37] Phone records filed as Exhibit 9 reflect that Mr. Watson made a call to a phone number ending in 4289 at 2:59 a.m. and that this number went to the voicemail system. This number is associated with a person named K.T. I have no information about this person. Mr. Watson said he did not know this person, and that he believed the phone number was an old one of his brother’s that he pressed by accident.

[38] The phone records confirm that Mr. Watson spoke with his brother in the morning of November 26 as he testified. There were two calls between Mr. Webster and Mr. Watson, at around 9:28 a.m. and again at 9:50 a.m. However, the records show that Mr. Webster called Mr. Watson, not the other way around.

The Days Following the Shooting

[39] After speaking with Mr. Webster in the morning of November 26, Mr. Watson drove out to the Bowmanville home. He stayed there for several days. He was feeling shaken and scared.

[40] On November 28, 2021, someone shot and killed Mr. Cust in a hotel room in Windsor. Mr. Watson heard about the killing from a friend. He was scared for his life.

[41] On November 30, 2021, the police contacted Mr. Watson’s mother, and told her that he was wanted for first-degree murder and that the police had concerns for his safety and well-being. On December 1, 2021, Mr. Watson went to the police station with his mother and was charged with murder.

[42] On December 7, 2021, the car that Mr. Watson had been driving was found parked by the side of a road about 10 minutes distance from the Bowmanville home. At the start of the trial, the Crown had no information as to who moved the car or why they moved it. In his opening, he advised that he intended to rely upon the fact the car was moved as post-offence conduct to support an inference of guilt.

[43] However, Mr. Webster testified that a few days after Mr. Watson turned himself in, he decided to move Mr. Watson’s car because of the concerns the police had expressed to their mother. He was worried that his family might be in danger. He decided to move the car on his own, without being asked to by Mr. Watson. After hearing Mr. Webster’s testimony, the Crown fairly conceded that he could not establish that Mr. Watson was involved in moving the car. As a result, he agreed that the car being moved should essentially play no role in the analysis.

Analysis

[44] The starting point of my analysis is that Mr. Watson is presumed to be innocent. This presumption remains with him at all times, unless and until the prosecution has proven the offence against him beyond a reasonable doubt. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is logically derived from the evidence or absence of evidence.

[45] Proof beyond a reasonable doubt is a very high legal standard. It is not enough for me to believe that Mr. Watson is possibly or even probably guilty. I must be convinced of his guilt beyond a reasonable doubt. As a standard, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

[46] As noted above, the Crown concedes that there is an air of reality to the defence of duress. Thus, the key issue in this case is whether the Crown has disproven that when Mr. Watson drove Mr. Cust away from the murder scene, he did so under duress.

[47] The defence of duress is properly characterized as an excuse, animated by the rationale of moral involuntariness: R. v. Ryan, 2013 SCC 3, at para. 23. Excuses absolve the accused of personal accountability by focussing, not on the wrongful act, but rather on the circumstances of the act and the accused’s personal capacity to avoid it. Duress provides a defence to what would otherwise be criminal conduct because the accused acted in response to an external threat. The act remains wrong, but the accused will not be punished because the act was committed in circumstances in which there was realistically no choice: R. v. Ruzic, 2001 SCC 24, at para. 24. As articulated in Ruzic, at para. 40, the defence of duress is characterized as a “concession to human frailty” in the face of “agonizing choice.”

[48] While the defence of duress is grounded in both statute and the common law, the essential elements of the two duress defences are "largely the same": R. v. Aravena, 2015 ONCA 250, leave to appeal refused, [2015] S.C.C.A. No. 497. In Ryan, at para. 81, the court set out the following six elements for the defence of duress:

1. There must be an explicit or implicit threat of present or future death or bodily harm. This threat can be directed at the accused or a third party.
2. The accused must reasonably believe that the threat will be carried out.
3. There must 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 must not be a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association.

[49] The Crown does not have to prove that all elements of the defence do not apply. If the Crown proves that any one of the elements of the defence is inapplicable, the defence of duress fails.

[50] I will consider each element in turn.

1) Threat of Death or Bodily Harm

[51] Mr. Cust did not directly threaten Mr. Watson. The question is whether he implicitly threatened to cause Mr. Watson death or bodily harm.

[52] There were three witnesses to the shooting and the aftermath, each of whom saw things differently. The defence argues I should have concerns about the reliability and credibility of Mr. Lue’s evidence. Similarly, the Crown argues I should have concerns about Mr. Des Vignes’ account. At the end of the day, however, I am not going to delve into the various issues that could impact on an assessment of their evidence. In my view, neither witness really helps in the analysis.

[53] Mr. Lue could not say, one way or the other, whether Mr. Cust waved or pointed his gun at Mr. Watson. And while Mr. Des Vignes testified that Mr. Cust waved the gun at Mr. Watson when they were in the garage, Mr. Watson did not recall seeing that. Even if I accepted Mr. Des Vignes’ evidence that Mr. Cust had waved the gun at Mr. Watson in the garage, Mr. Watson could not have felt threatened, explicitly, or implicitly, since he did not see Mr. Cust take that action.

[54] Instead, it is the evidence of Mr. Watson and what he saw and perceived that is key to assessing whether there was an implicit threat. In general, I thought that Mr. Watson came across well. He seemed to be genuinely answering the questions posed as best he could. He did not come across as evasive. His evidence was clear, coherent, and mostly consistent. While there were differences between his recollection and those of Mr. Lue and Mr. Des Vignes, given the chaos and trauma of the shooting, that is not surprising.

[55] There were some issues with respect to the phone calls made by Mr. Watson in the morning of November 26. Mr. Watson’s recollection that he called his brother in the early morning hours and got the voicemail does not seem to be reflected on the records. Instead, the number called at 2:59 a.m. appears to be a wrong number. His brother’s recollection of speaking with Mr. Watson in the early morning hours, also does not seem to be borne out. Further, Mr. Watson’s recollection that he called his brother after 9:00 a.m. is not borne out in the records. Rather, it appears that his brother called him. But at the end of the day, the issues as to precisely when Mr. Watson and Mr. Webster spoke, and who called whom does not cause me a great deal of concern. The calls all took place after Mr. Watson had already dropped Mr. Cust off. And the phone records generally support Mr. Watson’s memory that he spoke with his brother after he woke up the morning of November 26.

[56] Apart from the issues with the phone calls there was little that undermined Mr. Watson’s account. Despite a lengthy and vigorous cross-examination, Mr. Watson never wavered in his evidence that Mr. Cust waved the gun in his direction, and that he believed that Mr. Cust would shoot him if he did not drive him away from the scene. I accept Mr. Watson’s evidence on this point. The context is important. Mr. Cust had just murdered Mr. Ellis. There had been no warning. Nothing to suggest that Mr. Cust had a problem with Mr. Ellis. The shooting was sudden, savage, and shocking. Mr. Cust yelled, “Lets go” at Mr. Watson, while still holding the gun he had used to execute Mr. Ellis. When Mr. Watson did not immediately respond, Mr. Cust repeated his demand. Again, while holding the gun. Mr. Cust’s words and actions could reasonably be seen as an implicit threat to cause significant harm to Mr. Watson if he did not do what he was told to do – get Mr. Cust out of there.

[57] Moreover, during the time that he had Mr. Cust in the car after the shooting, Mr. Cust kept his gun out and on his lap. That action could reasonably be seen as a ongoing implicit threat that Mr. Cust would cause Mr. Watson significant harm if he did not continue to follow Mr. Cust’s demands and take him wherever he directed. As Mr. Watson said, “the person with the gun has all the power.”

[58] The Crown has not disproven beyond a reasonable doubt that Mr. Cust implicitly threatened to cause death or bodily harm to Mr. Watson if he did not drive Mr. Cust away from the scene. This element of the defence of duress has been made out.

2) Reasonable Belief that the Threat Will be Carried Out

[59] The Crown argues that I should reject Mr. Watson’s testimony that he believed that Mr. Cust would shoot him if he did not drive him away from the scene for two reasons. First, he points out that Mr. Watson did not lead any evidence to suggest that Mr. Cust had a propensity for violence. That is distinct from cases such as R. v. Norman, 2021 ONCA 321.

[60] But this submission ignores the important context. Mr. Watson had just witnessed Mr. Cust execute Mr. Ellis. Only moments earlier. Whether or not Mr. Cust was a member of a gang, or had been involved in violence previously, he had just acted in a shocking, savage, and deadly way. Mr. Watson’s testimony that he was afraid because Mr. Cust had only minutes earlier murdered his friend Mr. Ellis strikes me as eminently reasonable.

[61] Second, the Crown argues since Mr. Watson and Mr. Cust were friends, he could not have reasonably believed that Mr. Cust would shoot him. But by all accounts, Mr. Cust was on friendly terms with Mr. Ellis, the man he had just murdered. Moreover, Mr. Cust also threatened both Mr. Lue and Mr. Des Vignes, even though they had been friends for a long time. And despite the fact that they were friends with Mr. Cust, it seems clear that both men believed he might shoot them. They both backed away and put their hands up when Mr. Cust pointed the gun at them.

[62] Looking at the totality of the circumstances, I find that the Crown has not disproven beyond a reasonable doubt that Mr. Watson reasonably believed that he would be seriously harmed or killed if he did not drive Mr. Cust away from the scene. This element of the defence of duress has been made out.

3) No Safe Avenue of Escape

[63] The defence of duress does not apply to persons who could have legally and safely extricated themselves from the situation of duress. An objective-subjective standard is used to assess whether a safe avenue of escape existed. The test requires that the situation be examined from the point of view of a similarly situated reasonable person. The court should consider the particular circumstances facing the accused and their ability to perceive a reasonable alternative to committing a crime, and do so with an awareness of their background and essential characteristics: Ruzic, at para. 61. The process involves a “pragmatic assessment of the position of the accused, tempered by the need to avoid negating criminal lability on the basis of a purely subjective and unverifiable excuse”: Ruzic, at para. 61.

[64] The Crown argues that Mr. Watson had several safe avenues of escape, but he failed to take them. For example, the Crown argues he could have remained in the garage when the other men moved into the main home. The Crown also argues that Mr. Watson could have stayed in the Des Vignes home after Mr. Cust ran outside and locked the door to the home. Or, he argues, Mr. Watson could have continued to run away from the direction of the car after he went outside, instead of veering back and getting in the car with Mr. Cust.

[65] When these potential avenues of escape were put to Mr. Watson in cross-examination, he maintained that they were not safe. As he explained, there was nothing stopping Mr. Cust from kicking in the door to the home and coming back in with his gun, thereby endangering not just Mr. Watson, but Mr. Lue and Mr. Des Vignes as well. There also was nothing stopping Mr. Cust from shooting him if he tried to run away.

[66] In my view, Mr. Watson’s responses to the questions posed about safe avenues of escape were plausible and reasonable. It may well be that, as the Crown argued, Mr. Watson had a safe avenue of escape in that he could have remained in the home. On the other hand, Mr. Cust had acted in a stunning, unpredictable, and brutal fashion. Mr. Watson had the car keys. Mr. Cust wanted to get away quickly. It is an objectively reasonable possibility that he would have reacted in a violent and deadly way if Mr. Watson had attempted to lock himself in the home or run away from the direction of the car.

[67] Looking at the totality of the evidence, I find that the Crown has not disproven beyond a reasonable doubt that Mr. Watson had no safe avenue of escape. This element of the defence of duress is made out.

4) Close Temporal Connection

[68] The Crown reasonably concedes that if the first three elements have been established, that there was a close temporal connection. I agree.

[69] Mr. Watson drove Mr. Cust away from the scene moments after he was implicitly threatened. This element of the duress defence has been made out.

5) Proportionality Between the Harm Threatened and the Harm Done

[70] The Crown also concedes that the act of driving Mr. Cust away from the scene was a proportionate response to the implicit threat. Again, I agree.

[71] The criminal act of assisting Mr. Cust by driving him from the murder scene did not cause significant harm. On the other side, was Mr. Watson’s reasonable belief that Mr. Cust would shoot him if he did not do so. This element of the duress defence has been made out.

6) Participation in a Conspiracy or Criminal Organization

[72] The final element of the defence of duress, requires that the accused not be a party to a conspiracy or association whereby they are subject to compulsion and knew that threats and coercion to commit an offence were a possible result of the criminal activity, conspiracy, or association: Ryan, at para. 78.

[73] Once again, the Crown reasonably concedes this element. I agree with this concession. While the police initially charged Mr. Watson with first-degree murder, those charges were downgraded to accessory after the fact. The Crown does not allege that Mr. Watson was a party to the murder of Mr. Ellis, or that he had any prior knowledge that Mr. Cust was going to shoot Mr. Ellis. This element of the defence of duress has been made out.

Conclusion

[74] The Crown has not disproven beyond a reasonable doubt that Mr. Watson was acting under duress when he drove Mr. Cust away from the scene of the murder.

[75] As a result, I find Mr. Watson not guilty.

Justice Heather McArthur

Released: December 6, 2024