R. v. Poon and Wong

2006 BCSC 1158 R. v. Poon and Wong

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Poon and Wong, 2006 BCSC 1158 Date: 20060614 Docket: 23635 Registry: Vancouver Regina v. Bosco Hing Cheung Poon and Jeff Chi Hang Wong Before: The Honourable Madam Justice Stromberg-Stein Ruling on Whether Defence of Duress Should be Left with the Jury June 14, 2006 Counsel for the Crown: Marjorie E. Munkley and Lorna Hemming Counsel for the Accused, Bosco Hing Cheung Poon: R.C. Dickey Counsel for the Accused, Jeff Chi Hang Wong: Marina C. Morgan Place of Trial: Vancouver, B.C. [1] THE COURT: The issue is whether the defence of duress should be left with the jury. [2] In R. v. Ruzic (2001), 153 C.C.C. (3d) 1 (S.C.C.) procedurally the Court confirmed that the accused bears the evidentiary burden of introducing evidence sufficient to meet the air of reality test. [3] In R. v. Cinous, [2002] 2 S.C.R. 3 at para. 60, the Court articulated this test as follows: [T]he trial judge must determine if the evidence put forward is such that, if believed, a reasonable jury properly charged could have acquitted. The onus then shifts to the Crown to prove beyond a reasonable doubt that the accused was not acting under duress. [4] The elements of the defence of duress are set out in Ruzic as follows: (1) the accused acts solely as a result of threats of death, or serious bodily harm to him or herself or another person; (2) the threats

were of such gravity or seriousness that the accused person believed that the threats would be carried out; (3) the threats were of such gravity that they might well have caused a reasonable person, placed in the same situation as the accused, to act in the same manner as he or she did; in other words, would a person of reasonable firmness, sharing the characteristics of the accused, such as his or her age and his or her background, have responded to the threats; and (4) the accused must not have had an obvious safe avenue of escape. [5] The Supreme Court of Canada added that in future trial judges should instruct the jury on the components of this defence and the need for a close temporal connection between the threat and the harm threatened. The jury's attention should also be drawn to the need for the application of an objective/subjective assessment of the safe avenue of escape test. A jury must assess the defence and in particular the safe avenue of escape requirement on a modified objective or subjective/ objective analysis. That means that they should decide how a reasonable person, taking into account the personal circumstances, background and essential character of the accused, would have perceived the situation. The accused is not required to seek the protection of the police in every circumstance. [6] Subsequent cases have emphasized the need for the jury to assess

the proportionality of the accused's response, again, on a subjective/objective analysis, and the requirement for the accused to show reasonable fortitude in resisting the threats: R. v. Williams (2002), 168 C.C.C. (3d) 67 (B.C.C.A.). [7] A recognized exception to the defence of duress was considered in R. v. Li (2002), 162 C.C.C. (3d) 60 (Ont., C.A.). Li stands for the proposition that voluntary involvement in criminal activity negates both the common law and statutory defence of duress. [8] In Li, the accused were charged with three counts of kidnapping and forcible confinement. The accused and another individual, T., forced their way into the victims' apartment and took them to another location where they were held hostage for 22 days. T. was never apprehended. The accused admitted their involvement in the crimes, but claimed that they acted as they did because of threats against them and their families in China made by T. T. was part of a criminal organization known as the "Snakeheads". The accused had become indebted to the Snakeheads. Each accused entered Canada illegally with the assistance of the Snakeheads. Each accused claimed to have participated in the crime due to threats from T., but also because of their indebtedness to the Snakeheads. [9] In Li the accused had many opportunities to escape, both before and throughout the period of captivity. T. was not present

when the accused transported the hostages in the van. For almost the entire three weeks the only persons present in the apartment were the victims, the accused, and a woman who cooked for everyone. T. was away from the apartment most of the time and the accused came and went from the apartment from time to time. They had access to phones. They admitted to making phone calls to friends and family during that time. [10] The trial judge assumed that the more generous common law defence of duress may apply to the accused rather than the duress defence codified in s. 17 of the Criminal Code. The trial judge found there was no air of reality to the defence because the accused each had a safe avenue of escape, and the accused were convicted. The trial judge held that there was no air of reality to the claims because the situation failed to meet the no safe avenue of escape requirement. The parties from whom the defendants had allegedly received threats were rarely present during the three-week abduction, the defendants went out frequently for food and errands, and one even went to celebrate a birthday party in a karaoke bar. [11] In dismissing their appeals against conviction, the Court of Appeal upheld the trial judge's reasons and said it could have been justified on broader grounds. The court held that evaluation of the no safe avenue of escape claim has to take into account

alleged voluntary involvement with a group that takes part in criminal activity. At paragraph 20, the court stated: In my opinion, the voluntary activities of these appellants in approaching the Snakeheads for passage and illegal entry bring them within a recognized exception to the common law of duress that LeBel J. acknowledged in Ruzic at page 34: Like s. 17 of the Criminal Code, the English jurisprudence has precluded resort to the defence where the threats are made by a criminal organization which the accused voluntarily joined and knew might pressure him to engage in criminal activity. [12] In this case, the defence of duress is founded on a belief that Bosco Poon's and Jeff Wong's good friend from high school, Raymond Wong, had gang connections in high school; and although it was not known if he had ongoing gang connections or associations, there was a belief that he could call on his gangster buddies to carry through on his threats to harm Bosco Poon and Jeff Wong, their families and friends unless they cooperated in his kidnapping scheme. Bosco Poon and Jeff Wong testified they felt that the police could not protect them from Raymond Wong's ongoing threat. [13] Assuming the evidence to be true and considering the totality of the evidence, no reasonable jury properly instructed could find an air of reality to the defence of duress in this case. An accused person cannot

rely on the defence of duress if there exists an opportunity to safely extricate oneself. [14] Viewed objectively, the accused had many safe avenues of escape available to them. In addition to seeking police protection, there were many reasonable legal alternatives available to Bosco Poon and Jeff Wong over the eight days that Jackie Lee was held, bound and blindfolded, at Bosco Poon's house and in the trunk of cars while Bosco Poon and Jeff Wong for the most part were free to come and go about their daily activities. [15] In addition, the accused persons are precluded from relying on the defence of duress due to their voluntary involvement in criminal activity with Raymond Wong. Both accused voluntarily joined forces with Raymond Wong to help him in his money making scheme. In doing so, they knew that he might pressure them to engage in criminal acts despite their belief that Raymond Wong always had big plans which they claimed they did not take seriously. Both accused had been subjected to Raymond Wong's increasing pressure to lend money to pay off his gambling debts. Both were aware of his desperate need for money after he had borrowed money from Jeff Wong's friend, Bon, a loan shark. [16] Bosco Poon agreed to lend his house to Raymond Wong to store tons of cigarettes and expected to be paid a significant amount of money, from $2,000 to $5,000, although he would not agree

that the scheme might be illegal. Later, under pressure from Raymond Wong, he agreed to lend his house for the kidnapping scheme. Jeff Wong agreed to assist Raymond Wong in laundering money through Barry Yu for $5,000, of which he would get $2,500. More significantly, Jeff Wong agreed to forgive a $700 debt owed to him by Raymond Wong to have Raymond Wong beat up Jackie Lee, the kidnap victim. [17] As the court held in Li, the exception to the defence of duress for voluntary criminal involvement has a policy element. It would make a mockery of justice to put in front of the jury the claims of those who make deals with the devil, who claim they have no alternative, and who ask the court to insulate their illegal activities. [18] I agree with the Crown that there is no air of reality to the defence of duress. There is no evidentiary foundation to support the no safe avenue of escape element. Further, Bosco Poon's and Jeff Wong's voluntary involvement in criminal activity with Raymond Wong negates the defence of duress. [19] The defence of duress will not be left with the jury. "S.S. Stromberg-Stein, J." The Honourable Madam Justice S.S. Stromberg-Stein