R. v. Ruzic

R. v. Ruzic Collection Decisions of the Court of Appeal Date 1998-08-28 Docket numbers C20580 Judges McMurtry, Roy; Catzman, Marvin Adrian; Laskin, John Ivan Subject Criminal Decision Content DATE: 19980828 DOCKET: C20580 COURT OF APPEAL FOR ONTARIO McMURTRY C.J.O., CATZMAN and LASKIN JJ.A. BETWEEN: ) ) ) HER MAJESTY THE QUEEN ) Croft Michaelson for ) the appellant Appellant ) ) - and - ) Frank Addario, Leslie Pringle ) and Jonathan Dowe for the ) respondent MARIJANA RUZIC ) ) Respondent ) Gary Trotter for the intervenor, ) the Attorney General of Ontario ) ) ) Heard: June 17, 1997 LASKIN J.A.: [1] Section 17 of the Criminal Code provides a statutory defence of duress for persons who have been compelled by threats of death or bodily harm to commit a criminal offence that they would not otherwise have committed. But s. 17 imposes restrictions on the defence not found at common law. The statutory defence is available only if the threats are of immediate death or bodily harm and the threatener is present when the offence is committed; and it is not available if a person commits any one of 22 excluded offences. The main issue on this appeal is whether these statutory restrictions violate the principles of fundamental justice under s. 7 of the Canadian Charter of Rights and Freedoms because they permit the conviction of persons whose actions are morally involuntary. [2] The respondent, Marijana Ruzic, was tried before Herold J. and a jury on charges of unlawfully importing 2 kilograms of heroin into Canada on April 29, 1994, contrary to s.5(1) of the Narcotic Control Act, R.S.C. 1985, c.N-1 and of possession and use of a false passport contrary to s.368 of the Criminal Code. The respondent admitted importing the heroin and using a false passport but claimed that she had done so under duress. She said that a man named Mirko Mirkovic had threatened to harm or kill her mother in Serbia unless she brought the heroin to Canada. She also said that the Serbian police could not protect her mother. Her claim of duress did not meet the "immediacy" or "presence" requirements of s. 17 of the Code. Therefore, during her trial she asked for a declaration that s.17 of the Code violated s.7 of the Charter and was of no force or effect. The trial judge ruled that s.17 of the Code did violate s.7 of the Charter and was not saved by s.1. He therefore declined to charge the jury on the statutory defence. Instead he charged the jury on the common law defence of duress. On December 9, 1994, the jury acquitted the respondent on both charges. [3] The appellant, the Attorney General of Canada, appeals the acquittal on the charge of importing heroin. It submits that the trial judge erred in ruling that s.17 was unconstitutional and in removing the statutory defence of duress from the jury. In the alternative, the appellant submits that the trial judge misdirected the jury on the elements of the common law defence of duress. The intervener, the Attorney General of Ontario, supports the position of the appellant. A. Background Facts (a) The Respondent's Importation of Heroin [4] The Crown's case on importing heroin was put in by an agreed statement of facts, which was read to the jury. The following is the summary of the agreed statement. [5] On April 25, 1994, the respondent, then 21 years old, took a bus from Belgrade, Yugoslavia where she lived with her mother, to Budapest, Hungary. The following day, April 26, she flew from Budapest to Athens, Greece. Three days later on April 29, 1994, she flew from Athens to Toronto. She travelled alone. [6] When the respondent arrived in Canada she was carrying over 2 kilograms of heroin with a street value of about $1 million. The heroin was in three separate packages strapped to the respondent's waist under her clothing. The respondent also had a false Austrian passport in the name of "Roswitha Mirkovic" and a return ticket to Athens with a departure date of August 10, 1994. [7] Although the respondent was examined and searched on arrival in Canada, Canadian immigration officials did not initially discover the heroin. The respondent was first briefly interviewed by an immigration officer. She presented her false passport and said that she knew a couple of people in Canada. The officer decided that an in depth secondary examination was needed. A few minutes later another immigration officer, Nicole Laporte, began the secondary examination of the respondent. During this examination the respondent lied to immigration officials and gave an implausible account of why she had come to Canada. The respondent's lies and the implausibility of her story were quickly detected by Laporte and the other immigration officers. At trial the respondent admitted her lies and claimed they supported her evidence that she was acting under duress. [8] During the examination Laporte discovered that the respondent had only $80 U.S. and $22 Canadian in her possession. The respondent said that she intended to leave Canada on May 10 or 11. She claimed that her parents paid for her airline ticket and she said that she was going to visit two friends of her parents in Canada: Nicolas Kodinakis and Vladimir Jankovic. The respondent told Laporte that she planned to stay at a hotel for two nights and then take a taxi to Jankovic's house. However, the telephone number she gave for Jankovic was not in service. The respondent then said that she would stay only one night in Canada and would return to Athens the following evening. [9] The secondary examination was then adjourned to be completed the next day. The respondent was detained at a detention centre overnight. When she arrived at the detention centre she was searched by Punam Mangat, a security officer. Mangat asked the respondent to remove her coat, conducted a pat-down search and felt a "very strange" bulge on the respondent's right hip. Mangat asked the respondent what it was and the respondent replied "something that nature has done to me." The respondent had tears in her eyes. Mangat took the respondent to the washroom and asked her to pull down her tights. Mangat touched the bulge and, believing it to be an overgrown bone or some other abnormality, did not examine it further. The respondent's luggage was also searched but nothing unusual was found. [10] The following morning April 30, 1994, Laporte resumed her secondary examination and obtained a statement from the respondent with the assistance of an interpreter. The respondent admitted that she had only just met Nicolas Kodinakis on the plane and that she had lied earlier when she said he was a friend of her parents. She also said that she knew only one person in Canada "Ivan", a name given to her by her girlfriend. She corrected herself and said the name given to her was "Vladimir". She said she had never met Vladimir. The respondent told Laporte that while she was at the detention centre she had telephoned her girlfriend. She expected her girlfriend to get in touch with Vladimir and then contact her. She also told Laporte that she came to Canada because she "wanted to do something crazy" and "just had the urge to travel now." She said that she now wanted to go home. When the secondary examination was completed Laporte recommended that the respondent not be admitted to Canada. [11] A second immigration official, Brent MacWilliam, then interviewed the respondent. During the interview he found the respondent evasive and nervous. MacWilliam decided to hold an inquiry under the Immigration Act R.S.C. 1985, c.I-2. into the respondent's immigration status. The respondent would be detained in custody pending the completion of the inquiry. MacWilliam told the respondent, however, that she could withdraw her application for admission to Canada and that she could leave on the next available flight to Athens. The respondent was then returned to the detention centre. When the respondent arrived at the centre Mangat conducted another pat- down search of her and felt the same unusual bulge she had felt the day before. Later, while the respondent was on the telephone, another security officer searched the respondent's room. This officer picked up the respondent's black leather coat and discovered the three packages of heroin. The respondent was then arrested. (b) The Respondent's Evidence of Duress [12] After the respondent was arrested she gave a statement to the police in which she admitted bringing the heroin into Canada but explained that if she had not done so her mother would have been harmed. She said that she brought the heroin into Canada for the mafia and she identified the person who sent her as Mirko Mirkovic. In her statement the respondent repeatedly stressed her concern for her mother's safety. The relevant portion of her statement is as follows: Q. Who was it that you were bringing the heroin into Canada for? A. The mafia. The mafia is everywhere. They said they would do something to me and my mom if I don't do it. I going to check here and going to America. ... Q. Do you use heroin? A. No. Q. Who gave it to you? A. A boy in Belgrade. He will hurt my mother. He will do it. ... Q. Who would have met you at the airport? A. That guy. I was to call the Majestic Restaurant. Q. Weren't you scared? A. No, not when you must work something. Q. You mean people get killed easily in Belgrade? A. Yes. Boys 15 years old get killed in as Marines. You have mafia in Belgrade. Strong mafia. You have war, guns. People change economic places. They don't have money. Bad people live good. They have power. I know they doing this to me. My mother doesn't know anything. Now maybe he doing something. Q. We have lawyers in this country. I can give you a phone number for a lawyer to speak to now. It won't cost you anything. I think you should talk to a lawyer. A. I don't know what to say. I kill my mom. If I don't do it he kill me mom. Q. How old is he? The person in Yugoslavia? A. 34, 35. Q. How did you meet him? A. I born in Belgrade Centre. My parents born in Belgrade. They are good people. I'm worried about them. We speak together. He gives me telephone numbers and we meet. He's not a normal person. I think I am first he send. I have no address in Toronto. I have no money. ... Q. Were you going to get money for this? A. No. They are going to kill my mom now. (She begins crying) I work. I go to university. You don't go every day. You have two months to work. I will tell you something, I like to travel. Q. Have you spoken with your mom? A. I called her today (she is again crying). I don't know how to look these people in the eyes. I was here and they didn't find it. They trust me you know. I can't look into their eyes [cries]. Q. What is the name of the person in Belgrade who sent you here? A. Mirkvoic, Marko. Q. Has he ever been to Canada? A. I don't think so. The police officer who took her statement felt that the respondent was genuinely trying to answer his questions. He testified that she was visibly upset and was genuinely crying when referring to her mother and her mother's safety. [13] The respondent testified at trial and gave a fuller explanation of why she had brought the heroin into Canada. She testified in English, though her first language is Serbian. The trial judge told the jury that "her statements as you read them and as you consider them in her evidence, should be read and considered with an awareness that often she does not fully appreciate the question, nor does she through her words, properly express her position from time to time." [14] The respondent testified that she was an only child and that she and her mother lived alone in an apartment in Belgrade, as her parents had separated. In 1994 the respondent was 21 and her mother was 44. The respondent testified that she had a very good relationship with her mother and was very close to her. [15] In 1992 and 1993 the respondent worked for a French company acting as a model, selling cosmetics and giving professional instruction in make-up. She also went to university part-time, studying economics. When the war started she lost her job because of an embargo on products from France, but she continued to go to university. [16] The respondent testified about living in Belgrade. She said "[p]eople die in the streets. We don't have a law; it's corruption. And the crime it's very high and so people are afraid." She said that in the last two or three years she no longer trusted the authorities in her country. An expert witness who testified for the defence about living in Belgrade in 1994 said that people did not feel safe. Large paramilitary groups of paid soldiers engaged in mafia-like activities such as extortion and threats to get goods and money. People in Belgrade perceived that the police had lost control. Correspondingly, the people had lost faith in the ability of the police to protect them. A person with a problem would live with it instead of going to the police. [17] The respondent first met Mirko Mirkovic in late February 1994, about two months before the date of the alleged offence. Mirkovic approached her while she was walking her dog and said: "Hi, how are you? Is that your dog? It's a sweet dog. You are a pretty girl." The respondent replied: "Yes, it is nice to meet you" and left. She explained that she was trying not to be too nice but also not to be too rude, because she felt Mirkovic was the kind of man who could hurt her. She described him as a very big man, very tall and strong. She believed that he was a "bad man", a "warrior" who was paid to kill people in the war. [18] A few days after their first encounter Mirkovic approached the respondent again. This time he knew her name, although she had not told it to him. Mirkovic then began approaching the respondent once or twice a week, each time when she walked her dog. He knew many details of her personal life though she had not told him anything. He knew that she did not live with her father and that she lived alone with her mother. He began to call her, though she had not given him her telephone number. He observed how young her mother looked and that her mother "looked good". Mirkovic told the respondent that he knew her every move. [19] Mirkovic began threatening the respondent. He told her that he liked to "cut people" with a knife. Although he never cut her, he did show her his knife. She also knew that he carried a gun because she felt it once when he tried to grab her. [20] In late March Mirkovic started approaching the respondent more often. She testified that he treated her as if she was "his property". In April he made sexual advances toward her. He touched her body, and on a few occasions tried to remove her clothes. She resisted. Mirkovic told her that he would like to have sex with her mother. He threatened to hang her dog and a few times he hit the dog on its legs. [21] The respondent testified that she did not discuss Mirkovic with anyone including her mother because she believed he would hurt anyone she told. He said that he had people everywhere. She did not tell the police in Belgrade about Mirkovic because she believed that the police were corrupt. At the end of March the respondent decided to run away to stop anything more from happening. She told her mother that she wanted to leave Belgrade because she couldn't watch the war anymore. Her mother arranged for the respondent to go to Crete where she could stay with friends who would help her find work. The respondent was supposed to depart for Greece around April 15. However, she changed her mind about going to Greece after Mirkovic began to make threats about her mother. She was afraid to leave her mother alone. [22] On April 21, Mirkovic approached her while she was walking her dog. He pushed her against the wall and stuck a needle in her arm. She began to bleed. Mirkovic laughed and tried to "suck her blood". [23] The next day, April 22, Mirkovic grabbed the respondent, again while she was walking her dog, and burned her arm with a lighter. He told her that he would do anything he wanted with her. He warned her not to run away and told her that if she was "not good" he would hurt her mother. Dr. Philip Berger, Chief of the Department of Family Medicine at Wellesley Hospital and an expert in burn marks and deliberate burns testified for the defence. On May 6, 1994, Dr. Berger examined two burn marks on the respondent's left shoulder. In his opinion, the burns were 10 to 14 days old, which was consistent with the respondent's evidence that the burns were caused on April 22. Dr. Berger also testified that the burn marks were consistent either with the respondent's description of how they were caused or with self-inflicted burns. [24] On April 23 the respondent left her apartment to go buy something. Mirkovic accosted her and took her into an alleyway where he injected a substance into her. He told her "you see, you are my property, I can do whatever I want with you." The respondent returned home and became ill. She testified that when she was injected she smelled an odour similar to the odour of the heroin seized from her possession. [25] On April 25, 1994 Mirkovic called the respondent and told her to meet him in 30 minutes at the Slavia Hotel. He told her "to pack [her] stuff and to be there." She packed up some things and left for the hotel without telling her mother where she was going. When she met Mirkovic at the hotel he took her into a women's washroom and strapped the three packages of heroin to her body using an elastic bandage. He told her she would be travelling to Canada and not to "joke with him." She said that she could not do it but he told her he did not care what she thought. He said that if she did not do what he wanted he would "do something to her mother." [26] Mirkovic gave the respondent a bus ticket from Belgrade to Budapest. He also gave her the false passport and some money. He instructed the respondent to travel to Budapest, buy a plane ticket to Athens and then travel to Athens. When she arrived in Athens she was to buy a plane ticket to Toronto. When she arrived in Toronto she was to take a taxi to the Majestic Restaurant. [27] The respondent arrived in Budapest early in the morning on April 26. She thought of returning home but did not do so because she believed that Mirkovic would kill her. She bought a plane ticket to Athens, spent the day in a cheap hotel and late that evening boarded the plane to Athens. Mirkovic had not followed the respondent. She testified that she was not concerned for her own safety; she was concerned only for the safety of her mother. [28] She arrived in Athens at 2:00 a.m. on April 27. She testified that she did not know anyone in Athens. She said that she could not go to the police in Athens because the only way to help her mother was to do what Mirkovic wanted. She followed Mirkovic's instructions and purchased a plane ticket to Toronto but she went to the wrong airport, missed her flight and had to exchange her ticket for the next available flight. Two days later, on April 29, 1994, the respondent left for Toronto. [29] The respondent acknowledged that she knew what she was doing was illegal. She testified that she would never have come to Canada if she had another choice. She believed that the only way to help her mother was to do what Mirkovic asked. She admitted, however, that she lied to Canadian immigration officers. She also acknowledged that she had ample opportunity on April 30, before she was caught, to return to Athens with the body packs of heroin. She testified that she doubted Mirkovic would believe she had been denied entry into Canada. The respondent also explained that she could not get rid of the drugs because Mirkovic would kill her or kill her mother if he found out. She was asked by the Crown if she felt safer once she was out of Mirkovic's presence and she answered: "from him? My mom was in danger. I didn't think about me anymore. How to feel safe? That's not normal situation." (c) The Theories of the Crown and the Defence [30] The Crown's theory was that the respondent became attracted to Mirkovic because of his money and power. The Crown alleged that the respondent started shooting up heroin and burned herself with the lighter while she and Mirkovic were stoned. The Crown also alleged that the respondent volunteered to bring the heroin into Canada. [31] The respondent denied these allegations. She claimed that she brought the heroin into Canada under duress, because she feared her mother would be harmed if she did not comply with Mirkovic's demands. By their verdict the jury obviously rejected the Crown's theory and agreed that Ms. Ruzic's story at least raised a reasonable doubt. (d) The Trial Judge's Ruling and Charge to the Jury [32] At trial the respondent challenged the constitutionality of s.17 of the Criminal Code. The trial judge ruled that s.17 violated s.7 of the Charter and could not be saved under s.1. He gave the following reasons. ... I could give reasons at great length but the reasons are really very simple. They are the reasons Mr. Justice Thomas gave in Parris, the reasons that Mr. Justice Fish gave in Langlois, and the duty in my view - not compulsion but duty of the trial judges in courts of similar jurisdiction - to be consistent with their rulings until a higher court has told them they are in error. That being the case I have charged the jury on the basis of the common law defence of duress as I understand it, and not on s.17. In R. v. Langlois (1993), 80 C.C.C. (3d) 28, Fish J.A. of the Quebec Court of Appeal held that s. 17 was unconstitutional because the statutory defence was restricted to threats of immediate death or bodily harm by a person who was present when the offence was committed. In Fish J.A.'s opinion, these restrictions permitted the conviction of a person who was "morally blameless" contrary to the principles of fundamental justice in s. 7 of the Charter.1 In R. v. Parris (1992), 11 C.R.R. (2d) 376 (O.C.G.D.), Thomas J. applied similar reasoning in finding s. 17 unconstitutional. [33] Once s. 17 was ruled unconstitutional, Ms. Ruzic was entitled to rely on the common law defence of duress because of s. 8(3) of the Criminal Code. Section 8(3) preserves common law defences unless they are inconsistent with a federal statutory provision. The trial judge therefore charged the jury on the common law defence of duress. He instructed the jury that the common law defence contained four elements. There are four ingredients that must be met before the law will excuse a crime because the accused was acting under duress.... One: acts solely as a result of threats of death, or serious bodily harm to herself or another person. Two: the threats were of such gravity or seriousness that the accused believed that the threats would be carried out. Three: the threats were of such gravity that they might well have caused a reasonable person in the same situation as the accused, to act in the same manner she did. To put that another way, would a person of reasonable firmness, sharing the characteristics of the accused, such as her age and her background, have responded to the threats. Finally, the accused must not have had an obvious safe avenue of escape. The trial judge repeated and elaborated on these elements several times during his charge. Neither the trial Crown nor defence counsel objected to his statement of the common law elements of duress. The jury acquitted Ms. Ruzic. B. The Defence of Duress [34] To put the constitutional issue in context, I will first discuss the rationale for the defence of duress and the restrictions on the availability of the defence under s. 17 of the Criminal Code and at common law. (a) The Rationale for the Defence of Duress [35] The defence of duress has been described as a concession to human frailty. It reflects the law's compassion for those who have been forced by threats of death or bodily harm to commit a criminal act that they would not otherwise have committed. In D.P.P. v. Lynch, [1975] A.C. 653 at 670 (H.L.), Lord Morris eloquently explained this basis for the defence: ... it is proper that any rational system of law should take fully into account the standards of honest and reasonable men. By those standards it is fair that actions and reactions may be tested. If then someone is really threatened with death or serious injury unless he does what he is told to do is the law to pay no heed to the miserable, agonizing plight of such a person? For the law to understand not only how the timid but also the stalwart may in a moment of crisis behave is not to make the law weak but to make it just. In the calm of the court-room measures of fortitude or of heroic behaviour are surely not to be demanded when they could not in moments for decision reasonably have been expected even of the resolute and the well disposed. [36] In Canada, the rationale for the defence of duress emerges from two important Supreme Court of Canada cases: R. v. Perka, [1984] 2 S.C.R. 232 and R. v. Hibbert (1995), 99 C.C.C. (3d) 193 (S.C.C.). Neither was a Charter case. Perka discussed the rationale for the defence of necessity. Hibbert applied this rationale to the defence of duress. [37] Dickson J., who wrote the majority judgment in Perka, relied on the work of the American legal theorist, George Fletcher, to make two points. First, Dickson J. adopted Fletcher's distinction between defences that are "excuses" and defences that are "justifications." Dickson J. viewed necessity as an excuse. A person commits a wrongful act but the act is excused because, realistically, it was unavoidable. Punishing unavoidable violations of the law would be unjust. [38] Second, Dickson J. agreed with Fletcher that excuses like necessity rest on the notion of "moral or normative involuntariness." In using the word involuntariness, Dickson J. was not referring to the principle that, for criminal liability, the actus reus of the offence must be voluntary. Instead, he meant that persons acting under necessity are acting involuntarily because realistically they had no choice but to break the law. In his view, the law should not punish actions that are morally involuntary. Dickson J. discussed this rationale in a long passage at pp. 249-50: George Fletcher, Rethinking Criminal Law (1978), describes this view of necessity as "compulsion of circumstance" which description points to the conceptual link between necessity as an excuse and the familiar criminal law requirement that in order to engage criminal liability, the actions constituting the actus reus of an offence must be voluntary. Literally this voluntariness requirement simply refers to the need that the prohibited physical acts must have been under the conscious control of the actor. Without such control, there is, for purposes of the criminal law, no act. The excuse of necessity does not go to voluntariness in this sense. The lost alpinist who on the point of freezing to death breaks open an isolated mountain cabin is not literally behaving in an involuntary fashion. He has control over his actions to the extent of being physically capable of abstaining from the act. Realistically, however, his act is not a "voluntary" one. His "choice" to break the law is no true choice at all; it is remorselessly compelled by normal human instincts. This sort of involuntariness is often described as "moral or normative involuntariness". Its place in criminal theory is described by Fletcher at pp. 804- 05 as follows: The notion of voluntariness adds a valuable dimension to the theory of excuses. That conduct is involuntary - - even in the normative sense -- explains why it cannot fairly be punished. Indeed, H.L.A. Hart builds his theory of excuses on the principle that the distribution of punishment should be reserved for those who voluntarily break the law. Of the arguments he advances for this principle of justice, the most explicit is that it is preferable to live in a society where we have the maximum opportunity to choose whether we shall become the subject of criminal liability. In addition, Hart intimates that it is ideologically desirable for the government to treat its citizens as self-actuating, choosing agents. This principle of respect for individual autonomy is implicitly confirmed whenever those who lack an adequate choice are excused for their offences. I agree with this formulation of the rationale for excuses in the criminal law. In my view this rationale extends beyond specific codified excuses and embraces the residual excuse known as the defence of necessity. At the heart of this defence is the perceived injustice of punishing violations of the law in circumstances in which the person had no other viable or reasonable choice available; the act was wrong but it is excused because it was realistically unavoidable. Punishment of such acts, as Fletcher notes at p. 813, can be seen as purposeless as well as unjust: ... involuntary conduct cannot be deterred and therefore it is pointless and wasteful to punish involuntary actors. This theory ... of pointless punishment, carries considerable weight in current Anglo-American legal thought. [39] Significantly, Dickson J. strictly limited the defence of necessity to ensure that it would succeed only when a person's conduct truly was morally involuntary. He imposed three limitations on the availability of the defence: a person must act "in urgent situations of clear and imminent peril"; compliance with the law must be "demonstrably impossible," that is, there must be "no legal way out"; and, because people should be expected to withstand some pressure, the harm inflicted in breaking the law must be less than the harm sought to be avoided. [40] In Hibbert, the accused was charged with attempted murder for his role in the shooting of one of his friends. He claimed that he was forced by an armed man whom he knew to be a drug dealer to lure his friend to the lobby of an apartment building where the dealer shot his friend several times. The accused testified that he did not want to help the drug dealer but he did so because he feared for his life. Because the accused knew that the drug dealer intended to kill his friend, he would have been guilty of attempted murder as a party but for his defence of duress. At trial, the accused was acquitted of attempted murder but convicted of the included offence of aggravated assault. This court dismissed the accused's appeal but the Supreme Court of Canada allowed his further appeal and ordered a new trial because the trial judge had misdirected the jury on mens rea and duress. [41] Hibbert established two propositions. First, ordinarily duress does not negate the mens rea of an offence. Duress is a true defence. It relieves a person of criminal liability after that person has committed the actus reus of the offence with the necessary mens rea. According to Lamer C.J.C., at p. 205: "As a practical matter, though, situations where duress will operate to "negate" mens rea will be exceptional, for the simple reason that the types of mental states that are capable of being "negated" by duress are not often found in the definitions of criminal offences." [42] Second, Hibbert established that the defence of duress, like the defence of necessity, is an excuse based on the rationale of moral involuntariness. The court was of the view that "the similarities between the two defences are so great that consistency and logic requires that they be understood as based on the same juristic principles" (at p.224). The main difference between the two defences is the source of the threat: in duress, the threat comes from a third party; in necessity, the threat comes from another cause. Thus, as Lamer C.J.C. observed, duress is a particular application of the defence of necessity. [43] Just as the court in Perka limited the availability of the defence of necessity, the court in Hibbert similarly limited the availability of the defence of duress. It did so by holding that the defence is unavailable if the accused had a safe avenue of escape. If the accused had a safe avenue of escape or a legal way out, the accused's conduct was not morally involuntary. As Lamer C.J.C. explained at pp. 224-25: The rule that the defence of duress is unavailable if a "safe avenue of escape" was open to the accused is simply a specific instance of this general requirement -- if the accused could have escaped without undue danger, the decision to commit an offence becomes, as Dickson J. observed in the context of necessity, "a voluntary one, impelled by some consideration beyond the dictates of necessity and human instincts". [44] Hibbert, which dealt with duress at common law, therefore focuses on whether a realistic choice or a safe avenue of escape existed as the measure of moral involuntariness. This focus on a safe avenue of escape highlights a key difference between the statutory and the common law defence. (b) Duress under Section 17 of the Criminal Code and at Common Law [45] A statutory defence of duress was included in Canada's first Criminal Code in 1892, S.C. 1892, c.29, s.12. The statutory defence has changed little over the years. The current provision, s. 17, states: 17. 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). Professor Stuart has commented that s. 17 is one of the most restrictive duress provisions found any where in the world. See Stuart, Canadian Criminal Law, 3rd ed. (1995), at pp. 427- 28. [46] The restrictions most relevant to this appeal are: (i) the accused must be compelled by threats of immediate death or bodily harm; (ii) the threatener must be present when the accused committed the offence; (iii) s. 17 cannot be relied on as a defence to any one of twenty-two listed offences; this third restriction, however, does not arise directly in this case because the offence with which Ms. Ruzic was charged C importing heroin under the Narcotic Control Act C is not an excluded offence under s. 17. (iv) a fourth possible restriction is that the statutory defence may not be available to a person acting in response to threats directed at third parties, such as a child or other member of the family; this issue has not been resolved by an appellate court and remains an open question. [47] The Supreme Court of Canada has interpreted the first two restrictions C the "immediate" and "present" requirements C narrowly and also has limited the applicability of s. 17 to persons charged as principals, leaving the common law defence of duress for persons charged as parties. The two main cases are R. v. Carker (No. 2), [1967] 2 C.C.C. 190 (S.C.C.) and R. v. Paquette, [1977] 2 S.C.R. 189. [48] The accused in Carker was an inmate who participated in a prison riot and was charged with mischief for wilfully damaging public property. He relied on the defence of duress, claiming that he had committed the offence because other inmates threatened to kill or seriously injure him. The Supreme Court said he could not rely on s. 17 for two reasons: he was not threatened with immediate death or bodily harm because the threatening inmates were locked up in separate cells when they made the threats; and the threatening inmates were not in the accused's cell and therefore were not present when he committed the offence. Professor Stuart has commented that "only an extreme literalist would suggest that the interpretation in Carker was demanded by the wording of the section": Stuart at pp. 430-31. [49] The court did say in Carker that s. 17 "codified and exhaustively defined" the law of duress. But the court retreated from that position in Paquette. In Paquette, two men robbed a convenience store and, during the robbery, one of the men shot and killed an innocent bystander. Mr. Paquette was not present during the robbery and the shooting but the Crown claimed that he was an accomplice and he was charged as a party to non-capital murder. He said that he only participated in the robbery because he had been threatened with death. He could not, however, rely on s. 17 because murder and robbery are excluded offences. But the court held that s. 17 applies only to persons who commit offences themselves, that is, as principals. It does not apply to persons who commit offences as parties. Persons charged as parties can rely on the common law defence which, in Canada, does not exclude any offence from its reach. See also R. v. Curran (1977), 38 C.C.C. (2d) 151 (Alta. C.A.), leave to appeal to S.C.C. refused, January 24, 1978. [50] The decision in Paquette might well have been intended to blunt the harsh effect of s. 17, but, together with Carker and the language of s. 17 itself, it has produced a law of duress in Canada that has been severely criticized by many legal scholars. Several of the criticisms are collected and referred to by Fish J.A. in Langlois at p. 37 C our law of duress has been described as irrational, anomalous, perverse, illogical and fundamentally wrong. [51] Whether or not these criticisms are justified, under our current law the statutory defence, as interpreted by the Supreme Court of Canada, cannot be invoked by persons whose conduct might well be thought to raise a legitimate claim of duress. Section 17 will not protect a person who acts under threats of future harm even though the threat acts on the person's mind and deprives the person of any realistic choice but to commit the offence. Nor will s. 17 ordinarily protect a person who commits a criminal offence for fear of harm or death to a child or other member of the family. Even if s. 17 embraces threats to harm third parties, in the typical hostage case, the threatener is not present when the criminal offence is committed. Usually, the threatener has taken the child hostage at a location far removed from the scene of the offence and threatens to kill the child unless the parent commits the crime. Although the pressure to commit the offence is overwhelming and understandable when one's child is threatened, s. 17 is unavailable to the parent. [52] On the evidence of Ms. Ruzic, the present case is similar. Although Ms. Ruzic's mother was not physically restrained, she was threatened with future harm or death unless her daughter imported the drugs to Canada. The threat was not of immediate harm and the threatener was not present when Ms. Ruzic committed the offence. But according to Ms. Ruzic she committed the offence because the police in Serbia could not protect her or her mother and she had no other realistic option. Although her evidence raised a defence of duress, s. 17 was not available to her. [53] The common law defence of duress, with its focus on the safe avenue of escape test, is less restrictive and more flexible. The common law defence is available though the threatener is not present when the offence is committed, though the threat is of future, not of immediate harm and though the threatened harm is directed at a family member, not at the accused. See R. v. Hudson, [1971] 2 Q.B. 202 (C.A.), Hibbert, Langlois, R. v. Morrison (1980), 54 C.C.C. (2d) 447 (Ont. D.C.) and Kent Roach, Criminal Law (1996) p.188. Indeed, in Hibbert, at p. 205, Lamer C.J.C. uses the case of a person who is told that his or her child is being held hostage at another location and will be killed unless the person robs a bank as an example of duress at common law. [54] Admittedly, if the threat is not of immediate harm and if the threatener is not present when the offence is committed, the accused will more likely have a safe avenue of escape by, for example, seeking the protection of the police. But the hostage example and Ms. Ruzic's plight show that the immediacy and presence requirements are not invariably substitutes for the lack of a safe avenue of escape or the lack of a realistic choice. As Martin J.A. observed in R. v. Mena (1987), 34 C.C.C. (3d) 304 at 319-23 (Ont. C.A.), "the existence of a safe avenue of escape is the operative test" and "whether the accused had failed to avail himself of an opportunity to escape, which was reasonably open to him, is a question for the jury." Martin J.A. noted that "the common sense of a jury may be relied upon to reject spurious defences of duress" (at p.319). C. Is Section 17 of the Criminal Code Unconstitutional? [55] The constitutionality of s. 17 of the Code raises several issues, most of them difficult. A threshold issue is whether s. 17 should be subjected to constitutional review or whether the scope of the defence should be left to Parliament and to statutory interpretation by the courts. If the restrictions in s. 17 are reviewable under the Charter, a second issue is whether the proposition that Parliament may not limit defences to permit the conviction of persons whose conduct is morally involuntary should be treated in the same way as the accepted principle of fundamental justice that Parliament may not define offences to permit the conviction of the morally innocent or morally blameless. If convicting persons whose conduct is morally involuntary violates a principle of fundamental justice, a third issue is whether s. 17 of the Code permits such convictions. A fourth issue C and a possible alternate ground of unconstitutionality C is whether the restrictions in s. 17 are so arbitrary or unfair that they violate s. 7 of the Charter. A fifth issue is whether any violation of s. 7 can be justified under s. 1 of the Charter. The final issue is what remedy the court should order if s.17 contravenes the Charter. I will address each of these issues. (a) Constitutional Review of a Statutory Defence under the Charter. [56] The federal Crown, supported by the provincial Crown, urged this court to resist the temptation to subject s. 17 of the Code to Charter scrutiny. Their argument has two branches: the first, made by the federal Crown, is that the language of s. 17 can be broadly interpreted by the courts to conform to the common law elements of duress; the second branch of the argument, made by both Crowns, is that although the definition of a criminal offence may be reviewed under s. 7 of the Charter, the scope of a statutory defence is a matter solely for Parliament. [57] The federal Crown submits that the immediacy and presence restrictions in s. 17 of the Code are proxies for the safe avenue of escape test at common law. Mr. Michaelson, on behalf of the Attorney General of Canada, argued that, if broadly interpreted, s. 17 conforms to the common law defence and the court should strive for an interpretation that avoids a declaration of unconstitutionality.2 Mr. Trotter, on behalf of the Attorney General of Ontario, parts company with the federal Crown on this question. He acknowledges that the scope of the duress defence under s. 17 and at common law are not the same, and that the common law is more favourable to the accused. I agree with Mr. Trotter. The Supreme Court of Canada's interpretation of s. 17 in Carker and Paquette precludes at least a provincial appellate court from interpreting the section more broadly or more flexibly: see Langlois, supra, at pp. 37-38. A more expansive interpretation of s. 17 must come from the Supreme Court itself. But, in my view, interpreting s.17 to conform to the common law defence would strain the words of the section. [58] Moreover, the facts of this case prove Mr. Trotter's point. All parties to this appeal acknowledge that if the jury was charged on s. 17 of the Code, they could not acquit Ms. Ruzic. Neither she nor her mother was threatened with immediate harm or death and her threatener was not present when she committed the offence of importing heroin. Although the threatened harm was not immediate or imminent, Ms. Ruzic testified that it was nonetheless a real threat, which profoundly affected her. Although her threatener was not present when she committed the offence, she testified that he was still in a position to carry out his threat. Ms. Ruzic believed that neither she nor the police could protect her mother. Ms. Ruzic's circumstances show that the immediacy and presence restrictions in s. 17 of the Code cannot always be equated with the lack of a safe avenue escape. Thus, Ms. Ruzic could not raise a defence of duress under s. 17; she could, however, plead this defence under common law principles. Whether her defence was believed was a question for the jury. [59] A more troubling question is whether the scope of s. 17 C no matter how narrow or broad C should be for Parliament to decide and not for the court to review under the Charter. Beginning with the decision in Reference Re s. 94(2) of the Motor Vehicle Act (1985), 23 C.C.C. (3d) 289 (S.C.C.) ("the B.C. Motor Vehicle Reference"), the Supreme Court of Canada has not hesitated to review the definitions of criminal offences to ensure their conformity with the Charter. See R. v. Vaillancourt (1987), 39 C.C.C. (3d) 118 (S.C.C.), R. v. Martineau (1990), 58 C.C.C. (3d) 353 (S.C.C.); R. v. DeSousa (1992), 76 C.C.C. (3d) 124 (S.C.C.). Criminal fault C the actus reus and mens rea of an offence C has a constitutional dimension. But duress is a defence which excuses criminal liability after a person has committed the actus reus of the offence and ordinarily with the necessary mens rea. The courts have consistently called for deference to Parliament's determination of the scope of statutory defences because defences have a large policy component. I will briefly review the main authorities. [60] In R. v. Holmes (1988), 41 C.C.C. (3d) 497 (S.C.C.), the Supreme Court held that s. 309(1) of the Criminal Code, which provides that "everyone who, without lawful excuse, the proof of which lies upon him, has in his possession any instrument suitable for house-breaking, ... under circumstances that give rise to a reasonable inference that the instrument had been used or is or was intended to be used for house-breaking ... is guilty of an indictable offence ..." did not violate the guarantee of the presumption of innocence in s. 11(d) of the Charter. In a minority judgment, Dickson C.J.C. discussed Parliament's role in defining the meaning of an "excuse" at pp. 508-9: "Lawful excuse" is a very general term. It normally includes all of the defences which the common law considers sufficient reason to excuse a person from criminal liability. It can also include excuses specific to particular offences. The word "excuse" is used in this broad meaning in s. 7(3) of the Criminal Code, which provides that all common law justifications and excuses continue to be available under the Code. This provision has been interpreted to mean that the common law defences are not frozen in time. They can be developed and tailored to fit changes in the law and new offences. There is no doubt that Parliament can redefine the meaning of "excuse", for example by expanding it to provide new excuses or excuses specific to a particular offence, or by narrowing it to include only certain excuses. The important point is that Parliament should give some indication, express or implied, that it has changed the meaning of "excuse" when it uses it in a statute. Otherwise, the word will be understood to have the meaning of "excuse" under the common law and as used by s. 7(3), a broad term that allows for the development of defences in relation to changes in the law and in the context of particular offences. If Parliament does not give some indication that it has assigned a particular meaning to "excuse", the word will be taken to have the same meaning as "excuse" under the common law and in s. 7(3). [61] Chief Justice Dickson, however, was considering the statutory definition of an "excuse". Indeed, he measured s. 309(1) of the Criminal Code against the Charter and concluded that it offended s. 11(d) because the words "the proof of which lies upon him" placed a persuasive burden on an accused to establish a "lawful excuse" on a balance of probabilities. I do not think that Chief Justice Dickson's comments in Holmes preclude Charter review of s. 17 of the Code. [62] The Crown also relies on the judgment of this court in R. v. Cameron (1992), 71 C.C.C. (3d) 272 (Ont. C.A.). Mr. Cameron was convicted of second degree murder. His defence was provocation. On appeal, he argued that the statutory defence of provocation in s. 232 of the Code infringed ss. 7 and 11(d) of the Charter because it imposed an objective standard on the availability of this defence. This court rejected his argument. Doherty J.A. differentiated statutory provisions that impose liability from provisions that limit defences, at p. 274: The appellant also argues that, even if the statutory defence of provocation stands apart from the mens rea required for murder, ss. 7 and 11(d) of the Charter render the section inoperative in so far as it imposes an objective standard on the availability of the defence. He argues that for constitutional purposes there could be no distinction between a statutory provision which imposes liability for murder on an objective basis (e.g., s. 230(d)) and a statutory provision like s. 232 which limits the availability of a defence to murder according to an objective criterion. I disagree. The former imposes liability in the absence of a constitutionally mandated minimum level of fault. The latter provides a partial excuse despite the existence of the constitutionally required level of fault. Section 232 does not impose liability where subjective fault does not exist but reduces the liability even when that fault exists. The objective component of the statutory defence of provocation serves a valid societal purpose (see R. v. Hill (1986), 25 C.C.C. (3d) 322 at pp. 330-1, 27 D.L.R. (4th) 187, [1986] 1 S.C.R. 313), and cannot be said to be contrary to the principles of fundamental justice. [63] Cameron is distinguishable on two grounds. First, the defence of provocation, unlike duress, does not raise an issue of moral blamelessness because, even if successful, it does not lead to an acquittal. Second, Cameron attacked the objective component of the defence of provocation. Ms. Ruzic does not make a similar attack on the defence of duress. She acknowledges that an objective standard in a defence is not fundamentally unjust. An accused can validly be required to withstand pressure to the point where a person of reasonable firmness would be unable to resist. Therefore, Cameron does not stand in the way of the review of s. 17 under s. 7 of the Charter. [64] The strongest authority supporting the Crown's argument for deference to Parliament is the Supreme Court of Canada's decision in R. v. Finta (1994), 88 C.C.C. (3d) 417 (S.C.C.). Finta was charged under the Criminal Code with unlawful confinement, robbery, kidnapping, and manslaughter of over 8,000 Jews in Hungary during the Second World War. Under the Code, these offences were crimes against humanity and war crimes. Section 7(3.74) of the Code permitted the removal of the defence of obedience to de facto law or authority. Finta argued that this section violated the principles of fundamental justice under s. 7 of the Charter. Both Cory J., who wrote for the majority, and La Forest J., who dissented, rejected this argument. Both judges emphasized that Parliament's determination of the existence and scope of a statutory defence ordinarily will not violate s. 7. Cory J. wrote, at p. 536: When the Criminal Code provides that a defence is to be expressly excluded it is because Parliament has determined that the criminal act is of such a nature that not only is the disapprobation of society warranted, but also the act cannot be justified by the excluded defence. Such a legislative provision will not generally violate s. 7 when a defence is inconsistent with the offence proscribed, in that it would excuse the very evil which the offence seeks to prohibit or punish. Similarly, La Forest J. observed, at pp. 471-72: It must be remembered that "the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked": see Lyons, supra, at p. 45 C.C.C, p. 237 D.L.R. I would agree with Callaghan A.C.J.H.C. that "there is no statutory or common law rule that supports the proposition that all defences are applicable to all offences" (p. 264 C.C.C., p. 114 D.L.R.). In R. v. Bernard (1988), 45 C.C.C. (3d) 1, [1988] 2 S.C.R. 833, 67 C.R. (3d) 113, a majority of this court agreed that the removal of a particular defence does not violate the principles of fundamental justice in s. 7 of the Charter even when that defence, drunkenness, arguably concerns the existence of mens rea. This is particularly the case where the exculpatory defence would undermine the entire purpose of an offence; for example, the defence of drunkenness cannot be used as a defence to impaired driving because it constitutes the very nature of the offence: R. v. Penno (1990), 59 C.C.C. (3d) 344, [1990] 2 S.C.R. 865, 80 C.R. (3d) 97. Less controversially, justifications and excuses are commonly restricted in their application, and there is no suggestion that this violates the principles of fundamental justice. For example, s. 14 of the Code prevents the operation of the defence of consent in relation to offences of causing death. [65] These passages should be viewed in their context. The court was considering the permissive, not the mandatory, removal of a defence to crimes against humanity. Moreover, the majority in Finta recognized a much broader defence of obedience to superior orders, which even allowed a defence of obedience to manifestly illegal orders if the accused had no moral choice but to comply. I read these passages from Finta to call for deference to Parliament's determination to limit or remove a statutory defence but not to foreclose altogether review under s. 7 of the Charter. [66] Other s.7 cases from the Supreme Court suggest at least a limited right of review. For example, in Morgentaler, Smoling and Scott v. The Queen (1988), 37 C.C.C. (3d) 449 at 476 (S.C.C.), Dickson C.J.C., after noting that "the principles of fundamental justice are to be found in the basic tenets of our legal system," wrote that "one of the basic tenets of our system of criminal justice is that when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory." I do not suggest that s. 17 of the Code meets this stringent test. Harsh though it is, the statutory defence of duress is not "practically illusory." The importance of Morgentaler lies in its recognition that the content of statutory defences may be reviewed under s. 7 of the Charter. Similarly, in Rodriguez v. British Columbia (Attorney General) (1993), 85 C.C.C. (3d) 15 at 68-69 (S.C.C.) at 68, Sopinka J. wrote that a breach of fundamental justice will be made out if an individual's rights are deprived or limited arbitrarily or unfairly. [67] More generally, in 1985, in the B. C. Motor Vehicle Reference, the Supreme Court of Canada adopted the principle that s. 7 of the Charter requires the court to review the substantive content of legislation. The court has consistently affirmed this principle since 1985. Even acknowledging that this substantive review should be more deferential for a statutory defence than for the definition of a criminal offence, it seems to me that the court would be abdicating its duty and rejecting the principle in the B. C. Motor Vehicle Reference if it held that s. 17 of the Code cannot be scrutinized under s. 7 of the Charter. Sopinka J. said as much in Rodriguez at p. 65: ... On the other hand, the court has not only the power but the duty to deal with this question if it appears that the Charter has been violated. The power to review legislation to determine whether it conforms to the Charter extends to not only procedural matters but also substantive issues. The principles of fundamental justice leave a great deal of scope for personal judgment and the court must be careful that they do not become principles which are of fundamental justice in the eye of the beholder only. (Emphasis in original.) [68] Finally, the Supreme Court has already rejected any distinction between the elements of an offence and an excuse when considering whether a statutory provision violates the presumption of innocence in s.11(d) of the Charter. In R. v. Whyte (1988), 42 C.C.C. (3d) 97 (S.C.C.), the court considered whether the reverse onus provision in s.237(1)(a) of the Code violated s.11(d). The Crown argued that because the reverse onus clause did not deal with an element of the offence, s.11(d) was not infringed. The court rejected this argument. Dickson C.J.C. said the distinction was irrelevant at p.109: The short answer to this argument is that the distinction between elements of the offence and other aspects of the charge is irrelevant to the s.11(d) inquiry. The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence. The exact characterization of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. [69] The same reasoning should apply to the question whether an excuse infringes s.7. What is decisive is the effect of the statutory excuse. See also R. v. Chaulk (1990), 62 C.C.C. (3d) 193 at 212-13 (S.C.C.) and Grant et al., The Law of Homicide (1994) pp.4-70 to 4-72. [70] I turn to consider whether s. 17 violates the Charter. (b) Does Convicting a Person Whose Conduct is Morally Involuntary, Violate the Principles of Fundamental Justice in s. 7 of the Charter? [71] Section 7 of the Charter provides: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [72] These proceedings unquestionably engage Ms. Ruzic's liberty interest under s. 7. She may go to jail if she is convicted. Therefore, the constitutional issue turns on whether the restrictions in s. 17 of the Criminal Code violate the principles of fundamental justice. [73] In R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299 at 1310 Dickson J. stated the principle that "there is a generally held revulsion against punishment of the morally innocent." In the B.C. Motor Vehicle Reference, the Supreme Court gave this principle constitutional status. The court held that the principles of fundamental justice in s. 7 of the Charter preclude Parliament from defining criminal offences to permit the conviction of the morally innocent. Instead, criminal liability depends on the "moral blameworthiness" of the offender. In Martineau, the court refined this principle by holding that, under s. 7, certain offences, because of their special stigma in society, require a specific level of moral blameworthiness. As I have already stated, the B.C. Motor Vehicle Reference, and the cases applying it, have all dealt with criminal fault, with the definition of a criminal offence. [74] Duress, however, is a defence, an excuse that rests not on moral innocence but on moral involuntariness: see P. Healy, "Innocence and Defences" (1993) 19 C.R. 4th 121. The Supreme Court has not considered the relationship between moral innocence and moral involuntariness; and it has not considered whether convicting those whose conduct is morally involuntary also violates the principles of fundamental justice in s. 7 of the Charter. [75] Only a handful of Canadian courts have addressed this latter question. Langlois, the judgment of the Quebec Court of Appeal holding s. 17 unconstitutional, is the only appellate authority.3 At least two trial judges in Ontario have reached the same result, Thomas J. in Parris and Herold J. in the present case. Philp J. in R. v. Keegans (1993), [unreported, O.C.G.D.] and, more recently, Wein J. in R. v. Zhao (1997) [unreported, O.C.G.D.], reached the opposite result, holding s. 17 constitutional. [76] The facts in Langlois are similar to the facts in the present case. In Langlois, the accused, a penitentiary employee, was charged with trafficking, illegally selling drugs, and conspiracy. He testified that he had received anonymous telephone calls telling him that if he were ordered to do something, he should not go to the police unless he wished to jeopardize the safety of his wife and children. The accused received a message from an inmate instructing him to go to a particular location where he received drugs, which he was then instructed to deliver to an inmate at the penitentiary. The drugs were discovered when the accused was searched on entering the penitentiary. The accused said that he acted under duress, but he could not rely on s. 17 of the Code because he had committed the offences and he had not acted under threats of immediate death or injury from a person who was present when the offences were committed. The trial judge, however, held that s. 17 was unconstitutional and permitted the accused to rely on the common law defence of duress. The trial judge's decision was upheld on appeal. [77] Fish J.A. noted at p. 43 "that conviction for a criminal offence requires, as a principle of fundamental justice, an element of moral blameworthiness." He recognized that the Supreme Court had not yet dealt with this principle in the context of compulsion by threats. But, in his view, a person whose conduct is morally or normatively involuntary is morally blameless (at p.33): In my view, a person is morally blameless if he or she commits a wrongful act that is "normatively involuntary" within the meaning of R. v. Perka (1984), 14 C.C.C. (3d) 385, 13 D.L.R. (4th) 1, [ 1984] 2 S.C.R. 232 (S.C.C.). An accused whose offence is normatively involuntary cannot, in a criminal law context, be said to be personally at fault and, as the Supreme Court of Canada has recently again recognized, it "is axiomatic that in criminal law there should be no responsibility without personal fault": per Sopinka J., speaking for the court in R. v. DeSousa (1992), 76 C.C.C. (3d) 124 at p. 134, 95 D.L.R. (4th) 595, [1992] 2 S.C.R. 944 (S.C.C.). In effect, Fish J.A. concluded that convicting a person whose actions are morally involuntary violates the principles of fundamental justice in s. 7 of the Charter. [78] I agree with Fish J.A. Persons whose conduct is morally involuntary are not morally blameworthy of the harm they have caused. At least moral blamelessness and moral involuntariness are sufficiently similar that just as convicting a person whose conduct is morally blameless violates the principles of fundamental justice, so, too, does convicting a person whose conduct is morally involuntary. I find persuasive Professor Martha Shaffer's discussion of this issue in "Scrutinizing Duress: The Constitutional Validity of Section 17 of the Criminal Code" (1998), 40 C.L.Q. 444 at 454: .. regardless of whether the Supreme Court defines moral blameworthiness as limited to the fault element or accords it a broader definition, the rationale underlying the principle that the morally innocent not be convicted should also preclude conviction on the basis of morally involuntary conduct. This argument can be cast in two ways, depending upon the understanding of moral blameworthiness the court ultimately adopts. One way of framing the argument is to claim that a person whose conduct was involuntary in the normative sense is not morally blameworthy of the harm he or she caused. This argument obviously hinges on the acceptance of a broad definition of moral blameworthiness. The other way of framing the argument is to say that even if moral involuntariness is not the same as moral innocence, the two are sufficiently similar such that conviction on the basis of morally involuntary conduct contravenes the principles of fundamental justice. [79] Like Professor Shaffer, I do not see why the notion of moral blameworthiness should be restricted to the mens rea of a criminal offence. Actions taken in defence can make a person morally blameless despite the presence of mens rea. A conviction does not automatically follow a finding that the accused committed the actus reus of the offence with the necessary mens rea. For example, persons who act in self- defence inflict harm intentionally but are entitled to an acquittal because they are justified in protecting themselves from aggression. Persons who act in self-defence are not morally blameworthy. [80] The defence of duress is similar to the defence of self- defence. Duress forms part of the law of necessity and according to Professor Glanville Williams "self-defence can be regarded as a part of necessity that has attained relatively fixed rules": see Williams, Criminal Law, The General Part, 2nd ed. (1961), at p.733. I acknowledge that duress is an excuse and self-defence is a justification, and that in Hibbert, at p. 221, Lamer C.J.C. distinguished the two in a way "that might well provide a basis for a meaningful juridical difference." However, it seems to me that duress, like self-defence, can negate moral blameworthiness. [81] Professor Shaffer observed, supra, at pp. 457-58, that self-defence and moral blameworthiness are linked because self- defence is "rooted in one of criminal law's core values, the protection of autonomy ... the criminal law recognizes that in some very limited circumstances, one is entitled to commit what would ordinarily be a criminal offence in order to protect autonomy." In Chaulk McLachlin J. made the same point at p. 262: "[a]t the heart of our criminal law system is the cardinal assumption that human beings are rational and autonomous ... [t]his is the fundamental condition upon which criminal responsibility reposes." [82] Persons acting in self-defence are allowed to use force, even to kill, to protect their autonomy. They do not have a realistic choice but to act aggressively. Thus their actions are not morally blameworthy. Similarly, persons who commit criminal offences under duress are not acting autonomously because they do not have a realistic choice. They, too, are not morally blameworthy and therefore punishing them for their actions would be unjust. Professor Shaffer makes this point at p. 458 of her article: ... the defences of duress and necessity C rooted as they are in moral involuntariness C also negate moral blameworthiness. The dire circumstances a person under duress is facing can be seen to implicate simultaneously the law's concern with ensuring that persons subject to punishment have acted autonomously and the recognition that aggression is sometimes necessary for autonomy to be protected. As both Fletcher and Hart argue, the highly constrained choice facing an accused under duress C commit a criminal offence or be subject to bodily harm or death C effectively removes any meaningful choice from the accused. Under these circumstances, the accused who yields to the threat is not acting autonomously, at least where reasonable people facing the same circumstances would have made the same choice. Yet at the same time as the accused may be seen to be deprived of autonomy because of the nature of the choice she is facing, the accused is acting to protect his or her autonomy. [83] Admittedly C and this is the distinction drawn by Lamer C.J.C. in Hibbert C in self-defence the victim exerted unlawful force, while in duress the victim is often an innocent third party. This distinction argues for limiting the defence of duress to balance the interests of the victim and of the accused or for defining self-defence less restrictively. But the accused's actions under duress remain morally involuntary and therefore, as Fish J.A. found, morally blameless. [84] That persons whose conduct is morally involuntary should not be found criminally liable is a principle of fundamental justice finds support in the words of Chief Justice Dickson in Perka even though Perka is not a Charter case. He wrote at p. 250: Relating necessity to the principle that the law ought not to punish involuntary acts leads to a conceptualization of the defence that integrates it into the normal rules for criminal liability rather than constituting it as a sui generis exception and threatening to engulf large portions of the criminal law. Such a conceptualization accords with our traditional legal, moral and philosophic views as to what sorts of act and what sorts of actors ought to be punished. In this formulation it is a defence which I do not hesitate to acknowledge and would not hesitate to apply to relevant facts capable of satisfying its necessary prerequisites. [85] These words foreshadow the Supreme Court's subsequent s. 7 jurisprudence on the meaning of the principles of fundamental justice. Those principles are found in the basic tenets of our legal system; they reflect rules of the common law and of the international community; they conform to the basic precepts of our justice system. As McLachlin J. wrote in R. v. Seaboyer; R.v. Gayme (1991), 66 C.C.C. (3d) 321 at 384-5 (S.C.C.):" the principles of fundamental justice are the fundamental tenets upon which our legal system is based. We find them in the legal principles which have historically been reflected in the law of this and other similar states ...". [86] For over two hundred years the common law has recognized a defence of duress for accused persons who have acted under compulsion by threats. Indeed the defence has its roots in antiquity. See Rosenthal, "Duress in the Criminal Law" (1990), 32 C.L.Q. 199 at 200-202. Underlying this common law defence is the historically recognized tenet of our criminal justice system that the law should not punish persons whose actions are morally involuntary. This tenet is, therefore, a principle of fundamental justice. Convicting persons whose actions are morally involuntary violates this basic principle. (c) Does s. 17 of the Criminal Code Permit the Conviction of Persons Whose Conduct is Morally Involuntary? [87] Even if Parliament's determination of the scope of a statutory defence should be accorded deference, restrictions on the defence that undermine a core principle of our criminal justice system should be reviewable by the courts under s.7 of the Charter. The immediacy and presence restrictions in s.17 of the Code do strike at a core principle of our criminal law. They permit convictions for morally involuntary conduct. Morally involuntary conduct is equivalent to or so similar to morally blameless conduct that in my view, s. 17 of the Code contravenes the principles of fundamental justice in s. 7 of the Charter. The mother whose child is abducted and threatened with death unless she delivers drugs to a designated spot within two hours, has no defence under s. 17, at least as that section has been interpreted in Carker and Paquette. Mr. Langlois' evidence and Ms. Ruzic's evidence raised similar plights and they too had no defence under s. 17. The statutory provision all but forecloses a duress defence for threats to family members or others at a place separate from where the offence is committed, because either or both of the immediacy and presence requirements will not be met. Even Mr. Hibbert could not satisfy the requirements of s.17. Prof. Shaffer, supra, at p. 461, provides another example where these requirements will not be met: the battered spouse who is required by her male partner to issue false cheques to support his drug habit. Again, the accused, in this example the battered spouse, is threatened with future harm and her threatener, her abusive partner, is not present when she commits the offences. This example parallels the Supreme Court's decision in R. v. Lavallee (1990), 55 C.C.C. (3d) 97 (S.C.C.). [88] The underlying problem with the immediacy and presence restrictions is that they do not adequately capture all morally involuntary conduct. Perka and Hibbert hold that the essence of involuntary conduct is the absence of a realistic choice or a safe avenue of escape. The mother whose child is abducted, or Mr. Langois whose family is threatened, or Ms. Ruzic who lives where the police cannot help her or her mother, or the battered spouse who cannot leave her abusive relationship, do not have a realistic choice but to commit a criminal offence, even though the threatened harm is not immediate and the threatener is not present when the offence is committed. In all of these cases, the accuseds claim that the police could not prevent the threatened harm under which they acted. To use the words of Lord Griffiths in Howe, [1987] 1 A.C. 417 at p. 443 (H.L.): "if duress is introduced as a merciful concession to human frailty it seems hard to deny it to a man who knows full well that any official protection he may seek will not be effective to save him from the threat of death under which he has acted..." Therefore, as Fish J.A. wrote in Langlois at p. 48: "the requirements of s. 17 that respondent is unable to satisfy create a real risk of criminal conviction for normatively involuntary acts. They expose to penal consequences behaviour that may well be morally blameless. Section 17 therefore violates principles of fundamental justice venerated equally by ancient and contemporary philosophers". [89] The respondent also submits that s. 17 is unconstitutional because it makes the defence of duress unavailable for many offences. Ms. Ruzic, however, was not charged with an excluded offence. I think it preferable that this issue be resolved in a case where it arises directly. [90] I conclude that the immediacy and presence restrictions in s. 17 of the Code contravene the principles of fundamental justice under s. 7 of the Charter because they permit the conviction of persons whose conduct is morally involuntary. (d) Are the Restrictions on the Defence of Duress under s. 17 of the Code so Arbitrary or Unfair that they Violate s. 7 of the Charter? [91] An alternative basis for finding s. 17 violates s.7 rests on the principle that a statutory restriction which is arbitrary or unfair because it is inconsistent with the government's objective, violates the principles of fundamental justice. This principle was summarized by Sopinka J. in Rodriguez, supra, at pp. 68-69: Where the deprivation of the right in question does little or nothing to enhance the state's interest (whatever it may be), it seems to me that a breach of fundamental justice will be made out, as the individual's rights will have been deprived for no valid purpose. This is, to my mind, essentially the type of analysis which E. Colvin advocates in his article "Section Seven of the Canadian Charter of Rights and Freedoms", 68 Can. Bar Rev. 560 (1989), and which was carried out in Morgentaler. That is, both Dickson C.J.C. and Beetz J. were of the view that at least some of the restrictions placed upon access to abortion had no relevance to the state objective of protecting the foetus while protecting the life and health of the mother. In that regard the restrictions were arbitrary or unfair. It follows that before one can determine that a statutory provision is contrary to fundamental justice, the relationship between the provision and the state interest must be considered. One cannot conclude that a particular limit is arbitrary because (in the words of my colleague, McLachlin J.) "it bears no relation to, or is inconsistent with, the objective that lies behind" the legislation without considering the state interest and the societal concerns which it reflects. [92] The restrictions in s. 17 should be assessed against Parliament's intent in providing a statutory defence and against the rationale for the defence. Parliament has tried to codify a defence for persons whose conduct was morally involuntary because they had no other reasonable choice but to commit the criminal offence. But by making the defence inapplicable if the threat is not of immediate death or bodily harm, or if the threatener is not present when the offence is committed, Parliament has denied the defence to many persons whose conduct is just as morally involuntary as those who can rely on s. 17. The state has a legitimate interest in restricting the defence to ensure that it cannot be relied on by those who do have a safe avenue of escape or do have a reasonable choice other than to commit a criminal offence. But the immediacy and presence restrictions in s. 17 are poor substitutes for the lack of a safe avenue of escape or the lack of a realistic choice. In my view, these restrictions conflict with Parliament's objective in providing the defence in the first place. They arbitrarily and unfairly exclude many who may legitimately seek the compassion of the law for committing a criminal offence under duress. [93] I agree with Professor Paul Robinson's observation in his treatise on Criminal Law Defences, Vol. 2 (1984), at 358, that requiring the harm to be immediate or imminent arbitrarily invites punishment of blameless victims of coercion. He wrote, at p. 358: But while proximity may be an important evidentiary factor in determining whether the defendant is actually coerced and whether his degree of resistance is legally sufficient, the adoption of an arbitrary temporal limit beyond which duress will never be recognized is to invite punishment of blameless victims of coercion. If legal or other protection from a less than imminent harm is not accessible, and the coercer shows a clear ability and determination to effectuate his threat, the actor's exercise of free will might well be severely impaired. Anonymous threats by one who shows that he has access to the defendant's home and family, for example, may well have a strong coercive effect upon a person, especially if the police are unwilling or unable to stop the threats. In any case, this possibility cannot be conclusively disregarded. His observation also applies to the requirement that the threatener be present when the offence is committed and, though not directly in issue in this appeal, may apply to the automatic unavailability of the statutory defence if one of the 22 excluded offences is committed. [94] Measuring the statutory defence against the common law defence of duress further supports the notion that s. 17 is sufficiently arbitrary or unfair to violate the principles of fundamental justice. The Supreme Court has often said that the common law is a helpful indicator of the principles of fundamental justice. See, for example, Sopinka J. in Rodriguez at p. 66. The common law defence focuses on whether the accused had a safe avenue of escape. It does not restrict the defence to threats of immediate harm (as that phrase was narrowly interpreted in Carker); it does not require that the threatener be present when the offence was committed; and it does not automatically exclude a list of offences from the reach of the defence. It seems to me illogical and arbitrary that this broader common law defence of duress should be available to persons who commit an offence as a party but not as a principal. [95] Therefore, on this alternate ground, at least for those offences s.17 does not exclude, I find it is a principle of fundamental justice that the defence of duress be available to persons who act under threat of death or bodily harm to themselves or others when it would be unreasonable to have expected them to have behaved differently. By its immediacy and presence restrictions s. 17 of the Criminal Code denies this defence arbitrarily and unfairly and therefore infringes s. 7 of the Charter. (e) Is Section 17 Saved by Section 1 of the Charter? [96] Having concluded that s. 17 of the Criminal Code violates s. 7 of the Charter, I now consider whether the violation can be justified under s. 1. In my view, it cannot be so justified for three reasons. First, the Crown has the onus to justify an infringement of the Charter and, in this case, neither the federal nor the provincial Crown offered a s. 1 justification. [97] Second, although in principle s. 7 violations may be justified under s. 1, I am not aware of any Supreme Court of Canada case in which a deprivation of the right to life, liberty or security of the person not in accord with the principles of fundamental justice has been held to be justified under s. 1. Indeed, in R. v. Heywood (1994), 94 C.C.C. (3d) 481 at 523 (S.C.C.), Cory J., for the majority, doubted whether a s. 7 violation could ever be justified under s. 1, except, perhaps, during a war or other national emergency. [98] Third, the restrictions on the defence of duress in s. 17, which violate s. 7 of the Charter, do not satisfy the proportionality component of the Oakes test for s. 1. I will assume that the objective of the "immediacy" and "presence" restrictions in s. 17 is to limit the defence of duress to cases of moral involuntariness. That is a "pressing and substantial" objective, which meets the first component of Oakes. But the "immediacy" and "presence" restrictions fail the proportionality component. They are not rationally connected to the objective and they do not impair an accused's s. 7 rights as little as possible. Limiting the defence to cases where the accused had no safe avenue of escape is a less restrictive alternative. Therefore the violation of s.7 is not justified under s.1. (f) The Remedy [99] For these reasons I agree with the trial judge and with Fish J.A. in Langlois that s. 17 of the Criminal Code contravenes the Charter. Instead, however, of striking down the section, I would declare s.17 of no force or effect to the extent that it prevents an accused from relying on the common law defence preserved by s.8(3) of the Code. See s.52(1) of the Constitution Act, 1982. D. Did the Trial Judge Misstate the Common Law Principles of Duress in his Charge to the Jury? [100] Upholding the trial judge's finding that s. 17 is unconstitutional does not end this appeal, because the Crown also attacks the trial judge's charge to the jury. The trial judge charged the jury on common law duress. He was entitled to do so because of s. 8(3) of the Code, which, as I have said, preserves common law defences not inconsistent with a federal statutory provision. But the Crown submits that the trial judge made three errors in his instructions to the jury on the common law defence of duress. None of these three errors alleged on appeal was raised at trial. [101] As I stated earlier in these reasons, the trial judge charged the jury that the common law defence of duress contained four elements: There are four ingredients that must be met before the law will excuse a crime because the accused was acting under duress. In accordance with our law a person may be excused by reason that they were acting under duress where that person C and you have heard all these before and I am simply going to repeat them for you: One: acts solely as a result of threats of death, or serious bodily harm to herself or another person. Two: the threats were of such gravity or seriousness that the accused believed that the threats would be carried out. Three: the threats were of such gravity that they might well have caused a reasonable person in the same situation as the accused, to act in the same manner she did. To put that another way, would a person of reasonable firmness, sharing the characteristics of the accused, such as her age and her background, have responded to the threats. Finally, the accused must not have had an obvious safe avenue of escape. [102] He repeated and explained these elements several times in his charge and he referred to the evidence the jury should consider in determining whether the Crown had proved beyond a reasonable doubt that the defence of duress did not arise. [103] According to the appellate Crown, the trial judge first erred by failing to tell the jury that the threat to Ms. Ruzic had to be a threat of immediate or imminent death or serious bodily harm. The trial judge did not use the word "immediate" or the word "imminent." Instead, he instructed the jury that the threat had to have been "operating on the mind of the accused" when she committed the offence. He directed the jury: Returning then to the four ingredients that we are going to look at. The first ingredient, as I mentioned, is that the person acts solely as a result of the threats of death or serious bodily harm. These threats may be against that individual or another, but, either way, the threats must be such that they are operating on the mind of the accused at the time that she does what she has been charged with doing. [104] I find no error in this instruction. The trial judge was not required to use the word "immediate" or "imminent." He brought home to the jury that the threat had to be a real threat affecting the accused, and his instruction reflected the reasoning in Hudson, Langlois and Hibbert. Moreover, as Martin J.A. observed in Mena, the operative test is whether the accused had a safe avenue of escape. The trial judge stressed this point for the jury when he instructed them that: Finally, the fourth ingredient is that the accused must not have had a safe means of escape, an obvious safe means of escape. Typically, the means of escape may mean flight from the maker of the threats, or often the seeking of assistance from police or other authorities. [105] The Crown next submits that the trial judge erred by instructing the jury that the defence of duress could be established if "the threats might well have caused a reasonable person placed in the same situation as the accused to act in the same manner as she did" (emphasis added). The Crown argues the objective aspect of the defence of duress required the trial judge to tell the jury that the threat must be one that a person of reasonable firmness could not have been expected to resist. The phrase used by the trial judge C "the threats might well have caused a reasonable person" to act in the same way C was approved by Lord Mackay in Howe at p.459 as "entirely correct." Moreover, even if the phrase was wrong, the trial judge cured the error by subsequently explaining the standard expected of a reasonable person and by instructing the jury to consider whether a reasonable person in the accused's situation would have had a choice. He directed the jury: The threats must be of such sufficient gravity or seriousness to cause a reasonable person to commit the acts that Ms. Ruzic is alleged to have committed and, indeed, what she acknowledges doing. The circumstances must be such that the threats overbear the ordinary powers of human resistance. In considering this ingredient, you look at the seriousness of the threat in comparison to the seriousness of the offence, and you will look at the circumstances of Ms. Ruzic as you understand it from the evidence. This ingredient, while somewhat similar to the last, requires you to look at Ms. Ruzic's response not from the perspective of Ms. Ruzic alone and what you know of her, but from the perspective of a reasonable person, but in her circumstances. Would that reasonable person in those circumstances, in your assessment, have concluded that he or she had no choice but to do what Mirko said to do. I therefore would not give effect to this submission. [106] Finally, the Crown submits that, in instructing the jury that the accused must not have had a safe means of escape, the trial judge erred by failing to emphasize the objective aspect of the defence. Instead, the Crown submits, the trial judge blended the subjective and objective aspects. The trial judge discussed the safe avenue escape component of the defence in the following passage, which I have already partly reproduced: Finally, the fourth ingredient is that the accused must not have had a safe means of escape, an obvious safe means of escape. Typically, the means of escape may mean flight from the maker of the threats, or often the seeking of assistance from police or other authorities. You should consider, in the circumstances that have been brought forward in the evidence that you have heard, whether Ms. Ruzic may reasonably have availed herself of the assistance of the authorities in Belgrade or between Belgrade and Toronto or in Toronto. You must consider the knowledge that Ms. Ruzic had and whether it was such that she was aware of the possibility of escape. Again, in looking at that, you will consider and do it against the background of her age and other relevant characteristics and the evidence as you have heard it and as you assess it. [107] The trial judge might have stated the objective aspect of the defence more clearly, but I am not persuaded that this passage amounts to reversible error. At common law, the defence of duress should be assessed against a modified objective standard. The jury should determine whether a safe avenue of escape existed by considering the perceptions of a reasonable person, but taking into account the personal circumstances of the accused. As Lamer C.J.C. said in Hibbert, at p. 227: The defences of self-defence, duress and necessity are essentially similar, so much so that consistency demands that each defence's "reasonableness" requirement be assessed on the same basis. Accordingly, I am of the view that while the question of whether a "safe avenue of escape" was open to an accused who pleads duress should be assessed on an objective basis, the appropriate objective standard to be employed is one that takes into account the particular circumstances and human frailties of the accused. [108] In the impugned passage, the trial judge invited the jury to consider Ms. Ruzic's personal circumstances, which were highly unusual and highly relevant. Later in his charge, the trial judge emphasized that the existence of a safe avenue of escape must be looked at objectively, though taking into account Ms. Ruzic's circumstances, when he instructed the jury: When considering this question of duress and whether duress, if you find there was duress, will excuse what is otherwise an unlawful act, or acts, you will ask yourselves whether, looked at both objectively and from the point of view of Ms. Ruzic, knowing what she did, she had but did not avail herself of an obvious, safe avenue of escape. In my view, his instruction conformed to the Supreme Court's decision in Hibbert. Therefore, I would not give effect to this final objection to the charge. E. Conclusion [109] For these reasons, I agree with the trial judge and with the Quebec Court of Appeal in Langlois that s. 17 of the Criminal Code violates the Charter because it infringes s. 7 and is not saved by s. 1. I would declare s.17 of no force or effect to the extent that it prevents an accused from relying on the common law defence of duress preserved by s.8(3) of the Code. I also find no error in the trial judge's charge to the jury on the common law of duress. Accordingly, I would dismiss the Crown's appeal. Released: August 28, 1998 _______________________________ 1 Fish J.A. also concluded that s. 17 was unconstitutional because certain offences were excluded from the reach of the defence. 2 Of course, common law rules themselves may be reviewable under the Charter. But the respondent, Ms. Ruzic, did not challenge the constitutionality of the common law elements of the defence of duress. See R. v. Salituro, [1991] 3 S.C.R. 654 and R. v. Daviault (1994), 93 C.C.C. (3d) 21 (S.C.C.). 3 In R. v. Nelson (1994), [unreported], the Manitoba Court of Appeal implicitly disagreed with Langlois.