Nov 25, 2014

Facts: The accused was charged with importing heroin into Canada and possession and use of a fake passport. She claimed that she was acting under duress as a man in her hometown of Belgrade had been threatening her and was physically violent. The man, who somehow knew a lot about the accused, told her that if she did not take the drugs to Toronto he would harm her mother. She did not seek police assistance in Belgrade as the police force was extremely corrupt. The accused conceded that her claim of duress did not meet the immediacy and presence requirements of s. 17, but she challenged the constitutional validity of these requirements under s. 7 of the Charter

Issues: Whether restricting the defence of duress accords with Charter rights.


    ·Is it a principal of fundamental justice that only morally voluntary conduct can attract criminal liability


    ·Do the immediacy and presence requirements in s. 17 infringe the principle of involuntariness in the attribution of criminal responsibility?


Held: Appeal dismissed, acquittal confirmed

Ratio:


  • It is a principal of fundamental justice that only voluntary conduct – behaviour that is the product of a free will and controlled body, unhindered by external constraints – should attract the penalty and stigma of criminal liability

  • By the strictness of its conditions, s. 17 breaches s. 7 of the Charter because it allows individuals who acted involuntarily to be declared criminally liable
    • The immediacy and presence criteria of s. 17 continue to impose considerable obstacles to relying on the defence in hostage or third party situations


Analysis:


  • Duress, like necessity, involves the concern that morally involuntary conduct not be subject to criminal liability

  • Morally involuntary conduct is not always inherently blameless. Once the elements of the offence have been established, the accused can no longer be considered blameless

  • The undefinable and potentially far-reaching nature of the concept of moral blamelessness prevents us from recognizing its relevance beyond an initial finding of guilt in the context of s. 7 of the Charter

  • Unlike the concept of ‘moral blamelessness,’ duress in its ‘voluntariness’ perspective can more easily be constrained and can therefore more justifiably fall within the principles of fundamental justice, even after the basic elements of the offence have been established

  • Although moral involuntariness does not negate the actus reus or mens rea of an offence, it is a principle, which, similarly to physical involuntariness, deserves protection under s. 7 of the Charter

  • The common law of duress recognizes that an accused in a situation of duress does not only enjoy rights, but also has obligations towards others and society

    • The accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat

    • The threat must be to the personal integrity of the person, and must deprive the accused of any safe avenue of escape in the eyes of a reasonable person, similarly situated



  • The underinclusiveness of s. 17 infringes s. 7 of the Charter because the immediacy and presence requirements exclude threats of future harm to the accused or to third parties
    • The infringement cannot be saved under s. 1 (hard to save violations of s. 7)