Supreme Court Judgments

R. v. Hibbert, [1995] 2 S.C.R. 973

 

Lawrence Hibbert        Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

Indexed as:  R. v. Hibbert

 

File No.:  23815.

 

1995:  January 30; 1995:  July 20.

 

Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

 

on appeal from the court of appeal for ontario

 

                   Criminal law ‑‑ Duress ‑‑ Parties to offences ‑‑ Attempted murder -- Charge to jury ‑‑ Accused testifying that principal offender would have killed him if he had refused to cooperate ‑‑ Trial judge instructing jury that mens rea for parties to offence could be negated by duress and that common law defence of duress was unavailable if safe avenue of escape was open to accused ‑‑ Whether trial judge properly instructed jury on law of duress.

 

                   Criminal law ‑‑ Parties to offences ‑‑ Mens rea -- Duress ‑‑ Whether duress negates mens rea for parties to offence under ss. 21(1) (b) and 21(2)  of Criminal Code  ‑‑ Meaning of "purpose" in s. 21(1)(b) and of "intention in common" in s. 21(2) ‑‑ Whether interpretation of s. 21(2)'s mental element adopted in Paquette correct ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 21(1) (b), 21(2) .

 

                   Criminal law ‑‑ Defences ‑‑ Duress ‑‑ Safe avenue of escape ‑‑ Whether availability of common law defence of duress limited by "safe avenue of escape" rule ‑‑ If so, whether existence of safe avenue of escape to be determined objectively or subjectively.

 

                   C, a close friend of the accused, was shot by B, a drug dealer.  At the time of the incident, B was accompanied by the accused.  C survived the shooting and, as a party to the offence, the accused was charged with attempted murder.  At trial, the accused testified that on the night of the shooting he had accidentally run into B, who indicated to him that he was armed with a handgun and ordered the accused to take him to C's apartment.  When the accused refused, B punched him in the face several times.  The accused stated that he feared for his life and believed that B would shoot him if he did not cooperate with him.  B drove the accused to a telephone booth where the accused, following B's orders, called C to ask him to meet him in the lobby of C's apartment building in twenty minutes. Shortly thereafter, the accused called C from the intercom outside the lobby and asked him to "come down".  Before leaving his apartment C unlocked the building front door.  B and the accused went into the lobby and, when C arrived, he was grabbed by B.  After some discussion, B pushed C away and shot him. The accused stated that he had repeatedly pleaded with B not to shoot C.  C, however, testified that during the incident the accused said nothing and made no effort to intervene.  After the shooting, B drove the accused away from the scene of the shooting.  According to the accused's testimony, B then threatened to kill him if he went to the police.  The next morning the accused turned himself in.  Under cross‑examination, he declared that he believed that he had had no opportunity to run away or warn C without being shot.  In his charge, the trial judge told the jury that "if [the accused] joined in the common plot to shoot [C], under threats of death or grievous bodily harm, that would negative his having a common intention with [B] to shoot [C], and you must find [the accused] not guilty".  He added that "the accused [could] not rely on [the common law defence of duress] if a safe avenue of escape exist[ed], which . . . is a matter for you to find when you consider the evidence".  The accused was acquitted of the charge of attempted murder, but was convicted of the included offence of aggravated assault.  The Court of Appeal upheld the conviction.

 

                   Held:  The appeal should be allowed and a new trial ordered.

 

                   The fact that a person who commits a criminal act does so as a result of threats of death or bodily harm can, in some instances, be relevant to the question of whether he possessed the mens rea necessary to commit an offence.  Whether or not this is so will depend, among other things, on the structure of the particular offence in question ‑‑ that is, on whether or not the mental state specified by Parliament in its definition of the offence is such that the presence of coercion can, as a matter of logic, have a bearing on the existence of mens rea.  If the offence is one where the presence of duress is of potential relevance to the existence of mens rea, the accused is entitled to point to the presence of threats when arguing that the Crown has not proven beyond a reasonable doubt that he possessed the mental state required for liability.

 

                   A person who commits a criminal act under threats of death or bodily harm may also be able to invoke an excuse‑based defence (either the statutory defence set out in s. 17  of the Criminal Code  or the common law defence of duress, depending on whether the accused is charged as a principal or as a party).  This is so regardless of whether or not the offence at issue is one where the presence of coercion also has a bearing on the existence of mens rea.

 

                   The mental states specified in ss. 21(1)(b) and 21(2) of the Code are not susceptible to being "negated" by duress.  This conclusion is based on an interpretation of the particular terms of the two provisions.  Section 21(1)(b), which imposes criminal liability as a party on anyone who "does or omits to do anything for the purpose of aiding any person to commit" an offence, does not require that the accused actively view the commission of the offence he is aiding as desirable in and of itself.  Parliament's use of the term "purpose" in s. 21(1)(b) is essentially synonymous with "intention" and does not incorporate the notion of "desire" into the mental state for party liability.  This interpretation, which best reflects the legislative intent underlying s. 21(1)(b), is in accord with the common law principles governing party liability, and avoids the absurdity that would flow from the equation of "purpose" with "desire".  As well, under s. 21(2), which provides that "persons [who] form an intention in common to carry out an unlawful purpose and to assist each other therein" are liable for criminal offences committed by the principal that are foreseeable and probable consequences of "carrying out the common purpose", the accused's subjective view as to the desirability of the commission of the offence is not relevant.  The expression "intention in common" in s. 21(2) means only that the party and the principal must have in mind the same unlawful purpose.  The expression does not connote a mutuality of motives and desires between them.  A person would thus fall within the ambit of s. 21(2) if he intended to assist in the commission of the same offence envisioned by the principal, regardless of the fact that their intention might be due solely to the principal's threats.  The comments in Paquette on the relation between duress and mens rea in the context of s. 21(2) can therefore no longer be considered the law in Canada.  While it is not open to persons charged under ss. 21(1)(b) and 21(2) to argue that because their acts were coerced by threats they lacked the requisite mens rea, such persons may seek to have their conduct excused through the operation of the common law defence of duress.

 

                   An accused person cannot rely on the common law defence of duress if he had an opportunity to extricate himself safely from the situation of duress.  The rationale for the "safe avenue of escape" rule is simply that, in such circumstances, the condition of "normative involuntariness" that provides the theoretical basis for the defences of both duress and necessity is absent.  Indeed, if the accused had the chance to take action that would have allowed him to avoid committing an offence, it cannot be said that he had no real choice when deciding whether or not to break the law.  Furthermore, the internal logic of the excuse‑based defence, which has theoretical underpinnings directly analogous to those that support the defence of necessity, suggests that the question of whether or not a safe avenue of escape existed is to be determined according to an objective standard.  When considering the perceptions of a "reasonable person", however, the personal circumstances of the accused are relevant and important, and should be taken into account.

 

                   The trial judge's charge to the jury contained several errors.  First, the reference to the relevant mental state in this case as being a "common intention" to carry out an unlawful purpose was incorrect, since what was at issue here was s. 21(1)(b), as opposed to s. 21(2).  Second, the trial judge's instruction that the mens rea for party liability under s. 21(1)(b) could be "negated" by duress was also incorrect.  Thirdly, and most importantly, the jury was not told that even if the accused possessed the requisite mens rea his conduct could be excused by operation of the common law defence of duress, if the jurors were of the view that the necessary conditions for this defence's application were present.  Since it cannot be said that the errors in the charge relating to the nature of the defence of duress necessarily had no effect on the verdict, a new trial should be ordered.  It should be noted, however, that the trial judge did not err in instructing the jury that the accused could not rely on the defence of duress if the Crown established that he had failed to avail himself of a safe avenue of escape.  Furthermore, while the trial judge should have instructed the jury that the existence of such an avenue was to be determined objectively, taking into account the personal circumstances of the accused, on the particular facts of this case his failure to do so did not affect the jury's decision, since there was no indication, on the facts, that any of the accused's personal attributes or frailties rendered him unable to identify any safe avenues of escape that would have been apparent to a reasonable person of ordinary capacities and abilities.

 

Cases Cited

 

                   Applied:  Perka v. The Queen, [1984] 2 S.C.R. 232; disapproved:  Paquette v. The Queen, [1977] 2 S.C.R. 189; distinguished:  R. v. Creighton, [1993] 3 S.C.R. 3; considered:  Director of Public Prosecutions for Northern Ireland v. Lynch, [1975] A.C. 653; referred to:  R. v. Carker, [1967] S.C.R. 114;  Lewis v. The Queen, [1979] 2 S.C.R. 821; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Logan, [1990] 2 S.C.R. 731; R. v. McIntosh, [1995] 1 S.C.R. 686; New Brunswick v. Estabrooks Pontiac Buick Ltd. (1982), 44 N.B.R. (2d) 201; R. v. Howe, [1987] 1 A.C. 417; R. v. Kirkness, [1990] 3 S.C.R. 74; R. v. Jackson, [1993] 4 S.C.R. 573, aff'g (1991), 68 C.C.C. (3d) 385; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Pétel, [1994] 1 S.C.R. 3; R. v. Mena (1987), 34 C.C.C. (3d) 304.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , s. 7 .

 

Criminal Code , R.S.C., 1985, c. C‑46 , ss. 8(3) , 17  [am. c. 27 (1st Supp.), s. 40(2) (Sch. I, item 1)], 21.

 

Criminal Code, 1892, S.C. 1892, c. 29, s. 12.

 

Authors Cited

 

Colvin, Eric.  Principles of Criminal Law, 2nd ed.  Scarborough, Ont.:  Thomson Professional Publishing Canada, 1991.

 

Edwards, J. Ll. J.  "Compulsion, Coercion and Criminal Responsibility" (1951), 14 Mod. L. Rev. 297.

 

Fletcher, George P.  Rethinking Criminal Law.  Boston:  Little, Brown, 1978.

 

Hart, H. L. A.  Punishment and Responsibility. Oxford:  Clarendon Press, 1968.

 

Horder, Jeremy.  "Autonomy, Provocation and Duress", [1992] Crim. L.R. 706.

 

Mewett, Alan W., and Morris Manning.  Criminal Law, 2nd ed.  Toronto:  Butterworths, 1985.

 

Mewett, Alan W., and Morris Manning.  Mewett & Manning on Criminal Law, 3rd ed.  Toronto:  Butterworths, 1994.

 

Oxford English Dictionary, 2nd ed.  Oxford:  Clarendon Press, 1989, "purpose".

 

Rosenthal, Peter.  "Duress in the Criminal Law" (1989‑90), 32 Crim. L.Q. 199.

 

Smith, John Cyril, and Brian Hogan.  Criminal Law, 7th ed.  London:  Butterworths, 1992.

 

Stuart, Don.  Canadian Criminal Law:  A Treatise, 3rd ed.  Scarborough, Ont.:  Carswell, 1995.

 

Williams, Glanville.  Textbook of Criminal Law, 2nd ed.  London:  Stevens & Sons, 1983.

 

                   APPEAL from a judgment of the Ontario Court of Appeal rendered July 15, 1993, dismissing the accused's appeal from his conviction for aggravated assault.  Appeal allowed and new trial ordered.

 

                   Timothy E. Breen, for the appellant.

 

                   Gary T. Trotter, for the respondent.

 

                   The judgment of the Court was delivered by

 

1                 Lamer C.J. -- This appeal presents a number of important questions, each having to do with the role of duress as a defence to criminal charges.  In order to resolve these issues, we must first examine the theoretical basis underlying the rule that criminal liability does not attach to a person who commits the actus reus of an offence as a result of threats of death or bodily harm from a third party.  In particular, this Court must decide whether it is open to a person charged as a party to an offence to argue that, because his or her actions were coerced, he or she did not possess the mens rea necessary for party liability.  This argument  must be weighed against the alternative position -- namely, that duress does not "negate" the mens rea for party liability, but that persons who commit certain criminal acts under duress may nonetheless be excused from criminal liability under the common law "defence of duress".  It is also necessary for the Court to address certain questions having to do with limitations on this defence's availability.  Specifically, we are asked to determine whether accused persons are foreclosed from recourse to the defence if they failed to avail themselves of a "safe avenue of escape" from the situation of coercion when such a safe avenue was available.  If this is indeed the case, we must go on to consider whether the existence of such a "safe avenue" is to be determined on an objective basis, or from the subjective viewpoint of the accused.

 

 

I.  Factual Background

 

2                 On November 25, 1991, shortly before 1:00 a.m., Fitzroy Cohen was shot four times with a semi-automatic handgun as he stood in the lobby of the apartment building he lived in.  The shots were fired by Mark Bailey, an acquaintance of Cohen whom Cohen knew by his street names, "Quasi" or "Dogheart".  At the time of the shooting, Bailey was accompanied by the appellant, Lawrence Hibbert, who was a close friend of Cohen.  Cohen had descended from his apartment to the lobby at the appellant’s request, unaware that Bailey was waiting below with gun in hand.

 

3                 Cohen survived the shooting.  At the appellant's trial, Cohen testified that for some time prior to the shooting he had been aware that Bailey was seeking a confrontation with him.  Bailey, Cohen believed, was seeking revenge for an incident that had taken place the previous year, in which Bailey had been robbed by a rival drug dealer named Andrew Reid while Cohen and several others stood by, watching and laughing.  Cohen testified that he had been told that Bailey had subsequently attacked one of the men involved in the robbery on a busy street, firing several shots at him (but missing).  He also knew that Andrew Reid had been murdered.  Cohen said that he had told the appellant, whom he described as his "best friend", about the robbery of Bailey.

 

4                 The appellant, who testified at trial, stated that at the time of the shooting he owed Bailey $100 as payment for drugs he had purchased from him some months earlier.   He testified that he had been attempting to avoid Bailey, but that on the evening of November 24, 1991 he had accidentally run into him in the lobby of an apartment building in Etobicoke where he had gone to visit friends.  Bailey had approached the appellant and indicated that he was armed with a handgun.  The appellant testified that Bailey ordered him to take him to Cohen’s apartment.  When he refused, the appellant stated, Bailey had led him to the basement and punched him in the face several times.  The appellant testified that he feared for his life, and that he believed that Bailey would shoot him if he continued to refuse to assist him.  He stated that it was this fear that led him to agree to lead Bailey to Cohen's apartment.

 

5                 Bailey and the appellant went out to Bailey's car, where Bailey's girlfriend and another young woman were waiting.  The appellant got into the back seat, while Bailey drove.  The women testified that the appellant was quiet during the drive, but that his mood was neither noticeably happy or unhappy.  At trial, one of the young women recalled that the appellant had made a remark to the effect that "this might be the last time [I'm] going to see you".

 

6                 Bailey dropped the two women off at their apartment, and told the appellant to get into the front seat.  The appellant testified that they stopped at a telephone booth, and that Bailey ordered him to call Cohen and ask him to meet him downstairs in twenty minutes.  The appellant did so, telling Cohen that he "had something for him".  According to the appellant, Bailey stood by the phone booth during his conversation with Cohen, and could hear what the appellant said to Cohen.  Cohen and his girlfriend, Beverley St. Hillaire, confirmed that they had received a telephone call from the appellant, essentially as the appellant described.  They testified that the appellant had sounded "normal", but that he had been more abrupt than he usually was.

 

7                 Bailey and Hibbert arrived at Cohen's apartment building approximately half an hour after making the phone call.  The appellant testified that Bailey drew his gun and pointed it at him as they got out of the car.  They went to the front door of the building where, following Bailey's orders, the appellant called Cohen's apartment on the building intercom, while Bailey kept his gun trained on him.  The appellant's testimony, which was confirmed by Cohen, was that ordinarily when visiting Cohen he would not use the building’s front door, but would instead enter the building through a side door that could be opened from the outside using a technique Cohen had taught him.  Cohen also confirmed the appellant's testimony that he had asked Cohen to "come down" to the lobby, but that he had not asked Cohen to "buzz him in" (i.e., press a button on the intercom that would unlock the building's outer door).  The appellant testified that he had hoped that Cohen would not unlock the building’s front door, so that when he came downstairs he would see Bailey through the locked glass outer door and have a chance to retreat to safety.  However, Cohen buzzed the outer door open without being asked to do so, and Bailey and the appellant went into the lobby.

 

8                 According to the testimony of both Cohen and Hibbert, Cohen took the stairs from his second-floor apartment to the lobby.  When he emerged into the lobby, he was met by Bailey, who grabbed him and pointed the gun at his chest, saying "You're dead now pussy."  Bailey led Cohen into the ground floor hallway, where (according to both Cohen and the appellant’s testimony) he turned to Hibbert and told him to "stay some place where I [can] see you".  After a brief exchange of words with Cohen, Bailey pushed Cohen away and fired four shots at him, striking him in the groin, legs and buttocks.  Saying "Come, Pigeon" (the appellant’s nickname), Bailey and the appellant left the building by the side door.  Cohen testified that during the incident the appellant said nothing, and made no effort to intervene.  He described the appellant as "all sweating", and said that the appellant was unable to look at him.  The appellant, however, testified that he had repeatedly pleaded with Bailey, "Quasi don't kill him."

 

9                 The appellant testified that from the moment he first encountered Bailey that evening he had believed Bailey would shoot him if he refused to cooperate, and stated that he had been "terrified" throughout his time in Bailey’s company.  Under cross-examination, he declared that he believed that he had had no opportunity to run away or warn Cohen without being shot.

 

10               After leaving the building, Bailey drove the appellant back to Etobicoke.  The appellant testified that Bailey threatened to kill him if he went to the police.  Upon his return to Etobicoke, the appellant spoke to Cohen's brother about what had happened, and called Cohen's mother and Cohen's apartment.  He subsequently called his own mother, before going to sleep.  The next morning, he turned himself in to the police.  Bailey, however, was never apprehended.

 

11               The appellant was charged with attempted murder.  On March 19, 1992, following a trial by jury in the Ontario Court of Justice (General Division) presided over by Webber J., he was acquitted of this charge, but was convicted of the included offence of aggravated assault and sentenced to four years imprisonment.  On July 15, 1993 his appeal of his conviction to the Court of Appeal for Ontario was dismissed, although the court allowed his appeal from sentence, reducing his sentence from four years to time served (some fifteen months).

 

 

II.  Relevant Statutory Provisions

 

Criminal Code , R.S.C., 1985, c. C-46 

 

                   8. ...

 

                   (3) Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.

 

 

                   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).

 

 

                   21.  (1) Every one is a party to an offence who

 

(a)  actually commits it;

 

(b)  does or omits to do anything for the purpose of aiding any person to commit it; or

 

(c)  abets any person in committing it.

 

 

                   (2)  Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

 

 

III.  Decisions Below

 

Ontario Court of Justice (General Division)

 

12               Webber J. charged the jury on the defence of duress in the following terms:

 

                   If you find the Crown has not proved beyond a reasonable doubt that Hibbert did acts or omitted to do something, for the purpose of, or with the intention of aiding in the commission of the crime, he is not guilty.  If you do so find the Crown has proved beyond a reasonable doubt, that situation, then Hibbert is guilty, subject, of course, to the question of duress which was addressed to you by counsel.

 

                   Duress is a common law defence available to Mr. Hibbert.  The defence asserts Hibbert participated in the shooting of Cohen because he was compelled to do so.  I direct you, if Hibbert joined in the common plot to shoot Cohen, under threats of death or grievous bodily harm, that would negative his having a common intention with Quasi [i.e., Bailey] to shoot Cohen, and [sic] you must find Hibbert not guilty.  These threats can be expressed or implied.  You look to the evidence for that particular finding.  Put another way, a person whose actions have been dictated by fear of grievous bodily injury cannot be said to have formed a genuine common intention to carry out an unlawful purpose with the person who has threatened him with those consequences if he fails to co-operate.  Please note that the accused cannot rely on this defence if a safe avenue of escape exists, which again, is a matter for you to find when you consider the evidence.

 

                   Finally, the onus always remains on the Crown throughout.  It is their duty to negative the defence of duress.  The Crown must prove beyond a reasonable doubt, their case, and if a doubt exists it must be resolved in favour of the accused.

 

13               During its deliberations, the jury sent a note to the trial judge asking the following question:

 

Please explain "duress" and how it may be negated, especially regarding a reasonable opportunity to escape from confinement.  Thank you.  The jury is unclear on this matter in order to determine  verdict.

 

After discussing the question with counsel, Webber J. decided to repeat the portion of his original charge that dealt with duress, and add to it portions of a standard jury charge taken from a book prepared by British Columbia judges.  After an objection by the Crown, however, it was agreed that he would omit all references in the latter charge to the "reasonable person" standard.  His recharge on the subject of duress proceeded as follows:

 

                   Duress is a defence available to Hibbert.  The defence asserts Hibbert participated in the shooting of Cohen because he was compelled to do so.  I direct you, that if Hibbert joined in the common plot to shoot Cohen under threats of death or grievous bodily harm, that would negative his having a common intention with Quasi [Bailey] to shoot Cohen and [sic] you must find Hibbert not guilty.  Then I said to you, those threats can be expressed or implied, and you look to all of the evidence to determine that issue.

 

                   Put another way, a person whose actions had been dictated by fear of death or grievous bodily injury cannot be said to have formed a genuine common intention to carry out an unlawful purpose with the person who has threatened him with those consequences if he fails to co-operate.  Please note, the accused cannot rely on the defence of duress if a safe avenue of escape exists, which is a question of fact for you as the judges of fact to find.  I concluded my remarks to you by using these words:  finally, the onus remains on the Crown throughout.  It is their duty to negative the defence of duress.  The Crown must prove its case beyond a reasonable doubt.  If a doubt exists, it must be resolved in favour of the accused.

 

                   I add two further matters to my original charge, the first dealing with escape from the place.  This ingredient of duress is that the person must not have an obvious safe avenue of escape from the person making the threat.  This means that you should examine all of the evidence and determine whether Hibbert could have avoided acting as he did by running away or by seeking police protection.

 

                   Then the final point, which ties in with the matter of reasonable doubt.  I will put it to you this way.  The Crown must prove beyond a reasonable doubt that the defence of duress cannot succeed.  The accused does not have to prove anything.  Keep in mind these three things.

 

1)   If you accept the evidence in support of the defence of duress, you must return a verdict of not guilty.

 

2)   If you do not accept the evidence in support of the defence of duress, but you are left in a reasonable doubt by it, as I defined that term for you, you must also return a verdict of not guilty.

 

3)  Even if you are not left in a reasonable doubt by the evidence in support of the defence of duress, you must still go on to consider whether or not, on the basis of all of the evidence, the accused Hibbert is guilty.

 

14               After deliberating for nearly a day, the jury returned a verdict of not guilty on the charge of attempted murder, but convicted the appellant of the lesser included offence of aggravated assault.  Webber J. subsequently sentenced him to a four-year prison term.

 

Ontario Court of Appeal (Houlden, Tarnopolsky and Krever JJ.A.)

 

15               The reasons of the Court of Appeal dismissing the appellant's appeal from conviction were as follows (in their entirety):

 

                   The application to admit fresh evidence is dismissed.  Counsel for the appellant concedes that, on the basis of the question from the jury, it is clear that the jury found that the appellant was subjected to compulsion, but they were concerned with whether he had a safe avenue of escape.  The trial judge left it to the jury to determine whether the appellant had a safe avenue of escape.  Defence counsel referred to the relevant evidence on this issue in her address to the jury, and the trial judge summarized the relevant evidence in his charge.  On the facts of this case we believe that the charge on this point was sufficient.  The appeal against conviction is accordingly dismissed.

 

The Court of Appeal went on to allow the appellant's sentence appeal, reducing his sentence to time served (approximately fifteen months).

 

IV.  Grounds for Appeal

 

16               Lawrence Hibbert appeals his conviction to this Court on the grounds that the trial judge's charge to the jury on the issue of duress contained several errors.  First, he argues, the trial judge erred by instructing the jury that the defence of duress operated by "negativing common intention".  The appellant objects further to the trial judge's statement that the defence of duress was unavailable to an accused who failed to avail himself or herself of a "safe avenue of escape".  As an alternative to the latter argument, the appellant submits that even if the "safe avenue of escape" rule exists, the trial judge erred by not advising the jury that the existence or non-existence of such an avenue was to be determined by reference to the appellant's subjective belief.

 

V.  Analysis

 

A. Introduction

 

17               The issues raised in this appeal must be analysed in several stages.  First, it is necessary to consider the fundamental question of why it is that a person who performs an act that would otherwise constitute the actus reus of a criminal offence will not be held criminally liable at common law if he or she did so as a result of threats of death or bodily harm.  That is, we must examine the theoretical nature of the common law defence of duress, and determine its relationship to basic mens rea principles. We must also consider the question of whether the availability  of the defence of duress is limited by a "safe avenue of escape" rule.  Once these questions have been addressed, it will then be possible to assess the learned trial judge's charge to the jury on duress, and to determine whether the jurors were correctly advised of the principles they were to apply in their deliberations.

                  

B. The Relationship Between Mens Rea and the Defence of Duress

 

                   (1) The Common Law Defence of Duress in Canada

 

18               The defence of "duress per minas" ("duress by threat") has a long history at common law.  References to the defence can be found in the writings of such venerable commentators as Hale and Blackstone (see J. Ll. J. Edwards, "Compulsion, Coercion and Criminal Responsibility" (1951), 14 Mod. L. Rev. 297, at pp. 298-99; and P. Rosenthal, "Duress in the Criminal Law" (1989-90), 32 Crim. L.Q. 199, at pp. 200ff.).  In spite of the defence’s antiquity, however, many important aspects of its nature and its details have remained unresolved, or have been shrouded with uncertainty. As Professor Edwards, supra, observed in 1951 (at p. 297):

 

                   Judged by the absence of any satisfactory modern authority, it must be very rare for the accused to set up as a defence that he committed the alleged crime under the compulsion of another person.  Indeed the whole field of learning on this defence to criminal liability is both meagre and unsatisfactory.

 

19               In Canada, a defence of duress was included in the first Criminal Code  enacted in 1892 (S.C. 1892, c. 29).  Section 12 of the original Code (the predecessor of the current Code's s. 17) provided that "compulsion by threats of immediate death or grievous bodily harm from a person actually present at the commission of the offence shall be an excuse for [its] commission" (subject to certain specified conditions being met).  For many years, it seems to have been generally assumed (although never conclusively established) that the existence of a codified  version  of the defence of duress left no room for further development of the common law defence in Canada.  As Ritchie J. remarked, obiter, in R. v. Carker, [1967] S.C.R. 114, at p. 117:

 

[I]n respect of proceedings for an offence under the Criminal Code  the common law rules and principles respecting "duress" as an excuse or defence have been codified and exhaustively defined in s. 17....

 

In Paquette v. The Queen, [1977] 2 S.C.R. 189, however, this Court determined that s. 17 of the Code does not constitute an exhaustive codification of the law of duress.  Rather, the Court held, s. 17 applies only to persons who commit offences as principals.  Accordingly, it remains open to persons who are liable as parties to offences to invoke the common law defence of duress, which remains in existence by virtue of s. 8(3) of the Code (which preserves those common law defences not expressly altered or eliminated by Parliament).  The common law rules governing situations of duress thus remain an important aspect of Canadian criminal law.

 

20               The holding in Paquette that the common law defence of duress is available to persons liable as parties is clear and unambiguous, and has stood as the law in Canada for almost twenty years.  The case has a second aspect, however, that is less firmly established, having given rise to differing interpretations, and having been the subject of considerable debate in the legal community.  The controversy stems from certain comments made by Martland J. on the issue of the relationship between duress and the mens rea for party liability under s. 21(2) of the Code.  The facts in Paquette were as follows.  The accused had been charged as a party to non-capital murder.  He had driven two acquaintances, Clermont and Simard, to a store.  After Paquette had dropped them off, Clermont and Simard robbed the store, and during the course of the robbery an innocent bystander was shot and killed.  Paquette was not present at the shooting, having driven away from the store once Clermont and Simard had entered.  Although he circled the block and returned to the store, there was evidence that he had refused to let Clermont and Simard get back into the car.  In a statement made to the police, Paquette indicated that he had driven Clermont and Simard to the scene of the crime only after Clermont had pointed a gun at him and threatened to kill him if he refused.  At trial, the issue of duress had been left to the jury, which acquitted the accused.  On appeal, the Ontario Court of Appeal ordered a new trial, on the grounds that the statutory defence of duress contained in s. 17 of the Code could not, by the express terms of the section, be invoked as a defence to a charge of murder or robbery.

 

21               As noted above, the main holding of the Court was that s. 17 applied only to principals and not to parties, from which it followed that Paquette could rely on the common law defence of duress, to which the restrictions set out in s. 17 did not apply.  Martland J. went on, however, to make an observation regarding duress and the mental element of party liability under s. 21(2) of the Code, stating (at p. 197):

 

A person whose actions have been dictated by fear of death or of grievous bodily injury cannot be said to have formed a genuine common intention to carry out an unlawful purpose with the person who has threatened him with those consequences if he fails to co-operate. [Emphasis added.]

 

The significance of this comment in terms of the judgment as a whole is rather difficult to determine.  Martland J. had earlier endorsed the decision of the House of Lords in Director of Public Prosecutions for Northern Ireland  v. Lynch, [1975] A.C. 653, in which a majority of the House of Lords had clearly taken the view that the common law defence of duress provided an excuse, rather than operating by negating mens rea. Thus, Martland J. evidently did not intend to suggest that duress provides a defence at common law only when the accused’s culpable mental state can be said to have been "negated".  Instead, he appears to have been holding out an alternative route by which a person charged as a party under s. 21(2) could escape criminal liability, distinct from the "defence of duress" per se -- that is, a "defence" founded not on concepts of excuse or justification, but based instead on the absence of an essential element of the offence.

 

22               Seen in this way, Paquette stands for the proposition that duress can provide a "defence" in either of two distinct ways -- as an excuse, or by "negating" mens rea.  In the present case, the appellant argues that this is a correct view of the law, and submits that the trial judge erred by not placing both alternatives before the jury.  What  falls to be considered, therefore, is the validity of the proposition that the mens rea for party liability under the Criminal Code  can be "negated" by threats of death or bodily harm.  That is, the Court is called upon to reconsider whether the second aspect of our judgment in Paquette reflects a correct understanding of the law of duress in Canada.

 

(2) Duress and Mens Rea

 

23               That threats of death or serious bodily harm can have an effect on a person’s state of mind is indisputable.  However, it is also readily apparent that a person who carries out the actus reus of a criminal offence in response to such threats will not necessarily lack the mens rea for that offence.  Whether he or she does or not will depend both on what the mental element of the offence in question happens to be, and on the facts of the particular case.  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.

 

24               In general, a person who performs an action in response to a threat will know what he or she is doing, and will be aware of the probable consequences of his or her actions. Whether or not he or she desires the occurrence of these consequences will depend on the particular circumstances.  For example, a person who is forced at gunpoint to drive a group of armed ruffians to a bank will usually know that the likely result of his or her actions will be that an attempt will be made to rob the bank, but he or she may not desire this result -- indeed, he or she may strongly wish that the robbers' plans are ultimately foiled, if this could occur without risk to his or her own safety.  In contrast, a person who is told that his or her child is being held hostage at another location and will be killed unless the robbery is successful will almost certainly have an active subjective desire that the robbery succeed.  While the existence of threats clearly has a bearing on the motive underlying each actor’s respective decision to assist in the robbery, only the first actor can be said not to desire that the robbery take place, and neither actor can be said not to have knowledge of the consequences of their actions. To determine whether mens rea is "negated" in a particular case, therefore, the first question that must be asked is whether the mental element of the offence in question is defined in such a way that either an actor’s motives or his or her immediate desires have any direct relevance.  As A. W. Mewett and M. Manning explain:

 

                   Mens rea...has more than one meaning.  It can entail a purpose, a desire to  achieve an objective; it can entail merely knowledge that consequences will follow or that circumstances exist; it can entail only recklessness, that is, some advertent or perhaps inadvertent disregard of the consequences or circumstances.  What suffices for liability depends upon the particular offence with which we are dealing.  If a person is compelled to do an act which he does not wish to do, and therefore does it "against his will", why, it may be asked, does he have a defence not of compulsion but simply of lack of mens rea?  The answer is that this is quite true, but only if the mens rea required for the particular offence in question is of the sort that is negatived by a person being compelled to do something against his will.

(Mewett & Manning on Criminal Law (3rd ed. 1994), at p. 520.)

 

25               As Dickson J. (as he then was) observed in Lewis v. The Queen, [1979] 2 S.C.R. 821, at p. 831, "[t]he mental element of a crime ordinarily involves no reference to motive". Instead, he noted, "[i]n most criminal trials, the mental element, the mens rea with which the court is concerned, relates to ‘intent’".  Intention, however, is distinct from desire or subjective wish.  As Lord Simon of Glaisdale (dissenting, but on another issue) stated in Lynch, supra, at p. 690:

 

[A]n intention to bring about a consequence of an act can co-exist with a desire that such consequence should not ensue.... [A] wish is a particular instance of desire.... [T]herefore, an intention to perform the act with foreseen consequences can co-exist with a wish not to perform an act or that its consequences should not ensue (this is crucial in considering the juridical effect of duress). [Emphasis in original.]

 

Parliament is, of course, entitled to define the mental element of criminal offences in whatever manner it sees fit (subject, of course, to the requirements of s. 7  of the Canadian Charter of Rights and Freedoms : see, for instance, Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Martineau, [1990] 2 S.C.R. 633; and R. v. Logan, [1990] 2 S.C.R. 731).  Thus, Parliament could choose to make it an element of a given offence that the perpetrator have some particular desire at the time of the commission of the actus reus, or even make it a precondition for liability that an actor have a particular motive for performing a prohibited act.  In the present appeal, of course, we are not called upon to conduct an exhaustive review of the Criminal Code  for the purposes of identifying any or all offences with mental elements that might be capable of being negated by duress.  Rather, the present case, like Paquette, involves the special situation of liability under s. 21 of the Code.  Thus, our analysis can be restricted to the question of whether the mens rea requirements for party liability contained in s. 21 are of the sort that can, in some circumstances, be "negated" by coercion.  Since the sole aspect of s. 21 left with the jury in the appellant's trial was s. 21(1)(b), the analysis could, strictly speaking, be restricted to that subsection.  It is difficult, however, to embark upon an examination of the mental element of s. 21(1)(b) without being seen as inferentially commenting on s. 21(2), thereby calling into question the Court's holding in Paquette, supra.  In my view, in order to avoid creating undue confusion and uncertainty in the law, it is appropriate that we address the issue of the continued validity of Paquette's statements on the relation between duress and mens rea under s. 21(2) head on.  I will thus extend my analysis beyond what is strictly necessary for the resolution of the present appeal by, considering s. 21(2) in addition to s. 21(1)(b).   

 

(3) The Mens Rea Requirements for Party Liability Under Section 21

 

(a) Section 21(1)(b)

 

26               As noted earlier, s. 21(1)(b) imposes criminal liability as a party on anyone who "does or omits to do anything for the purpose of aiding any person to commit" an offence.  Although a person who is a party to an offence is guilty of committing that offence, rather than a separate crime (as is the case for accessories after the fact), s. 21(1)(b) contains its own mens rea requirement, distinct from that applicable to the principal who actually commits the underlying offence.  As the subsection states, party liability as an "aider" requires acts or omissions "for the purpose" of aiding the commission of the offence.  In order to understand what effect, if any, duress might have on the mens rea of an aider, it is thus necessary to determine what "for the purpose" means in this context.

 

27               It is impossible to ascribe a single fixed meaning to the term "purpose".  In ordinary usage, the word is employed in two distinct senses.  One can speak of an actor doing something "on purpose" (as opposed to by accident) thereby equating purpose with "immediate intention".  The term is also used, however, to indicate the ultimate ends an actor seeks to achieve, which imports the idea of "desire" into the definition.  This dual sense is apparent in the word’s dictionary definition.  For instance, the Oxford English Dictionary (2nd ed. 1989) defines "purpose" alternatively as "[t]hat which one sets before oneself as a thing to be done or attained; the object which one has in view" and as "[t]he action or fact of intending or meaning to do something; intention, resolution, determination".  The first of these definitions reflects the notion of one's "purpose" as relating to one's ultimate object or desire, while the latter conveys the notion of "purpose" as being synonymous with "intention".

 

28               Commentators who have considered the meaning of "purpose" in definitions of criminal offences have come to differing conclusions on the question of which of these alternate meanings is more appropriate in this context.  Professor E. Colvin, for instance, argues on behalf of the "purpose as desire" interpretation in his text Principles of Criminal Law (2nd ed. 1991).  He states (at pp. 121-22):

 

The terms "direct intention" and "desire" are sometimes used instead of purpose.  The latter term, however, best describes the relevant state of mind.  In ordinary language descriptions of action, the concept of purpose usually refers to an actor's reasons for doing what he did.... [Emphasis in original.]

 

According to Colvin, "an actor's purpose was to accomplish something if the prospect of its occurrence played a causal role in his decision to do what he did" (p. 122).  The actor's knowledge that his actions will result in the occurrence, however, is not determinative.  As Colvin states (at p. 123):

 

                   If it is to be concluded that an actor's purpose in doing something did not include an outcome which was foreseen, then the actor must have been genuinely opposed or indifferent to it.  Purpose is not negatived where an actor chose to bring about the outcome as a means of attaining some further objective. [Emphasis in original.]

 

29               Other commentators, however, have questioned this equation of "purpose" with "desire", arguing instead that a person who consciously performs an act knowing the consequences that will (with some degree of certainty) flow from it "intends" these consequences or causes them "on purpose", regardless of whether he or she desired them.  As Mewett and Manning state:

 

[T]he distinction between purpose/intent and knowledge/intent does not work, because if there is, given an awareness of the consequences of an act, a freedom of choice as to whether one acts or not, by choosing to act those consequences have been chosen.  If intent is the choosing of consequences, it does not make any difference to the existence of the intent whether the accused wants those consequences to follow or merely knows that they will follow, without necessarily desiring them to do so.

 

                   "Intent", is not a very descriptive word.  Mens rea connotes volition on the part of the accused, that is to say, given an awareness that certain consequences will follow (or will probably follow) if he acts, an accused who chooses to act when he has the alternative of not acting "intends" those consequences in the sense of choosing to bring them about.  It seems not only unnecessary but positively misleading to attempt to distinguish between purpose/intent and knowledge/intent.

(Criminal Law (2nd ed. 1985), at p. 113.)

 

A similar argument is made by the English authors J. C. Smith and B. Hogan:

 

[A] person may know that he cannot achieve his purpose, A, without bringing about some other result, B.  If he is to bring about A, he knows he must also, at the same time or earlier, bring about B.  It may be that, in any other circumstances, he would much rather B did not happen, indeed its occurrence may be abhorrent to him.  But, the choice being between going without A and having A and B, he decides to have A and B.  It seems fair to say that he intends to cause B as well as A.

(Criminal Law (7th ed. 1992), at p. 55.)

30               As this debate reveals, the term "purpose" is capable of bearing two distinct meanings, both of which can be supported by reasoned arguments.  In a case, such as this one, where an interpretation of the term in a specific statutory context is required, the court’s task is to determine which of the two possible meanings best accords with Parliament's intention in drafting the particular statutory provision at issue.  In other words, our task in the present case is to consider the meaning of "purpose" as it is employed in s. 21(1)(b) of the Code in light of the Parliamentary objective underlying the subsection.  It must be emphasized, however, that the word "purpose" is employed in many different sections of the Criminal Code , in a number of distinct contexts.  My conclusions in the present case on the proper interpretation of the word "purpose" as it is employed in s. 21(1)(b) of the Code are thus restricted to this particular subsection.  It may well be that in the context of some other statutory provision a different interpretation of the term will prove to be the most appropriate.

 

31               As I said, when Parliament drafts a statute in language that, on its face, supports more than one meaning, it is appropriate for a court to consider which of the alternative interpretations that are available best accords with Parliament’s intention (see my remarks in R. v. McIntosh, [1995] 1 S.C.R. 686, at pp. 697ff.).  As I will explain, I am of the view that in the context of s. 21(1)(b) of the Code, the second of the two meanings of "purpose" discussed above -- that is, the interpretation that equates "purpose" with "intention" -- best reflects the legislative intent underlying the subsection.  In contrast, adopting the first interpretation of "purpose" (the "purpose" equals "desire" interpretation) to describe the mens rea for aiding in s. 21(1)(b) would, in my view, create a number of theoretical and practical difficulties that Parliament is unlikely to have envisioned or intended.

 

32               The problems associated with the "purpose equals desire" interpretation are several.  First, incorporating the accused's feelings about the desirability of the commission of an offence by the principal into the definition of the mens rea for "aiding" can result in distinctions being made which appear arbitrary and unreasonable in light of the policy underlying s. 21(1)(b).  As Professor Colvin notes, under the "purpose equals desire" interpretation a person would not be guilty of aiding in the commission of an offence if he or she were "genuinely opposed or indifferent to it" (p. 123).  The reason for the aider’s indifference or opposition would be immaterial.  The perverse consequences that flow from this are clearly illustrated by the following hypothetical situation described by Mewett and Manning:

 

                   If a man is approached by a friend who tells him that he is going to rob a bank and would like to use his car as the getaway vehicle for which he will pay him $100, when that person is...charged under s. 21 for doing something for the purpose of aiding his friend to commit the offence, can he say "My purpose was not to aid the robbery but to make $100"?  His argument would be that while he knew that he was helping the robbery, his desire was to obtain $100 and he did not care one way or the other whether the robbery was successful or not.

(Criminal Law, supra, at p. 112.)

 

I agree with the authors' conclusion that "[t]hat would seem an absurd result" (p. 112). As I noted in McIntosh, supra, at pp. 704-5, "[a]bsurdity is a factor to consider in the interpretation of ambiguous statutory provisions".  That is, to quote the words of La Forest J.A. (as he then was) in New Brunswick v. Estabrooks Pontiac Buick Ltd. (1982), 44 N.B.R. (2d) 201, at p. 210, "[t]he fact that the words as interpreted would give an unreasonable result...is certainly ground for the courts to scrutinize a statute carefully to make abundantly certain that those words are not susceptible of another interpretation".  In my view, the absurdity that would flow from the equation of "purpose" with "desire" cannot legitimately be ascribed to Parliamentary intention. This serves to cast considerable doubt on the correctness of this interpretation of the word "purpose" in this context, especially when one recalls that there exists an alternative interpretation of the word that can just as accurately be said to reflect its "plain meaning", under which this absurdity would be avoided.

 

33               A further guide to Parliament's intention can be gleaned from an examination of the common law governing party liability.  Although s. 21 of the Code was intended to simplify the law governing parties by eliminating the old distinctions drawn at common law between principals in the first and second degree, accessories before the fact, etc., there is no indication, in the section or elsewhere, of any intention by Parliament to radically alter the basic principles of party liability, including its mental element.  As Mewett and Manning state:

 

It must...be kept in mind that the conduct that gave rise to criminal liability at common law remains the basis of modern liability and while the former labels have gone, the principles remain.

(Mewett & Manning on Criminal Law, supra, at p. 268.)

 

For this reason, cases dealing with party liability at common law can be instructive when interpreting s. 21 of the Code.

 

34               The leading English case on the issue of whether duress negates the  mens rea of parties to offences (under the common law governing party liability) is the House of Lords’ decision in Lynch, supra.  As Professor G. Williams observes in his Textbook of Criminal Law (2nd ed. 1983), at p. 624:

 

The view taken by the majority of the House of Lords in Lynch was that duress is a defence on its own, and does not negative either the doing of the act charged or the mens rea.  This is plainly right.

 

Although five separate speeches were delivered in Lynch, the general tenor of the reasons of those members of the House who considered the issue is typified by Lord Edmund-Davies' statement (at p. 710) that:

 

At the end of the day, the defence of duress is probably best evaluated without reference to its supposed relation to either actus reus or mens rea, for, in the words of Professor Turpin [1972] C.L.J. 205, "not every morally exculpatory circumstance has a necessary bearing on these legal ingredients of crime."

 

While another aspect of the judgment in Lynch -- the holding that the common law defence of duress was available to persons charged with aiding or abetting murder -- was subsequently overruled in R. v. Howe, [1987] 1 A.C. 417, in Howe the House of Lords confirmed the statements that had been made in Lynch on the relation between duress and mens rea.  As Lord Hailsham of Marylebone L.C. stated in Howe (at p. 428):

 

                   The . . . unacceptable view is that, possibly owing to a misunderstanding which has been read into some judgments, duress as a defence affects only the existence or absence of mens rea.  The  true view is stated by Lord Kilbrandon (of the minority) in Lynch [1975] A.C. 653 and by Lord Edmund-Davies (of the majority) in his analysis at p. 709.

 

Lord Bridge of Harwich took a similar position, declaring (at p. 436), with reference to Lynch, that "[t]he theory that the party acting under duress is so far deprived of volition as to lack the necessary criminal intent has been clearly shown to be fallacious...."

 

35               These English cases reveal that the mens rea for party liability at common law is not of the sort that is capable of being "negated" by duress. Put another way, it is not a precondition for party liability at common law that an accused actively desire that the underlying criminal offence be successfully committed.  As Lord Morris of Borth-y-Gest stated in Lynch, supra, at p. 678 (referring to the facts in that case):

 

If in the present case the jury were satisfied that the car was driven towards the garage in pursuance of a murderous plan and that the appellant knew that that was the plan and intentionally drove the car in execution of that plan, he could be held to have aided and abetted even though he regretted the plan or indeed was horrified by it.  However great his reluctance, he would have intended to aid and abet.

 

36               The position at common law, of course, does not in and of itself determine the meaning to be ascribed to the word "purpose" in the context of s. 21(1)(b) of the Code.  It can, however, provide useful guidance when it comes to choosing between the two interpretations of the term that are available -- one that accords with the common law position and the other that contradicts it.  In the absence of reason to believe that Parliament intended its enactment of s. 21(1)(b) to radically alter the common law principles governing party liability, the interpretation that accords with the common law would seem to also be the most likely to accurately embody Parliament's intentions.  This observation strengthens my conclusion that Parliament's use of the term "purpose" in s. 21(1)(b) should not be seen as incorporating the notion of "desire" into the mental state for party liability, and that the word should instead be understood as being essentially synonymous with "intention".

 

37               This interpretation is, moreover, consistent with the approach that has been taken on previous occasions by this Court in connection with s. 21(1)(b).  In R. v. Kirkness, [1990] 3 S.C.R. 74, for instance, Cory J. (writing for a majority of the Court) stated (at p. 88):

 

[T]he person aiding or abetting the crime [of murder] must intend that death ensue or intend that he or the perpetrator cause bodily harm of a kind likely to result in death and be reckless whether death ensues or not.

 

It is implicit in this statement that there is no requirement under s. 21(1)(b) that the person charged as a party "desire" that the victim die (that is, subjectively wish that this result come to pass), just as the principal’s intent to kill is not negated even if, all other things being equal, he or she regrets the fact that he or she is killing the victim.  Similarly, in R. v. Jackson, [1993] 4 S.C.R. 573, the Court commented on the mental element for conviction of murder as a party under s. 21(1).  Writing for the Court, McLachlin J. stated (at p. 581):

 

In this case, Jackson [the principal] committed the offence of murder.  It was open on the evidence for the jury to find that Davy aided and abetted him in that offence, and is guilty under s. 21(1) (b) and (c) of the Criminal Code .  If he possessed the necessary mens rea for murder he could be guilty of murder.

 

Since the mens rea requirement for murder is satisfied if the accused means to cause the victim bodily harm that he knows is likely to cause his death, it can be inferred that the Court in Jackson did not believe that s. 21(1) imposed any additional requirement that an aider or abettor subjectively approve of or desire the victim's death.

 

38               Finally, I am satisfied that the interpretation of the mens rea for liability under s. 21(1)(b) that I am proposing will not result in unjust convictions in cases involving coercion by threats of death or bodily harm, since in these cases the common law defence of duress will remain available to the accused.  As I will explain shortly, this defence, properly understood, provides an excuse to persons who assist in the commission of offences as a result of threats of serious violence.  On the other hand, interpreting "purpose" as equivalent to "desire" in s. 21(1)(b) would result in the introduction of unnecessary complication into the law.  Under such an interpretation, juries in duress cases would have to be provided with extremely complex instructions that would, in the end, have very little, if any, impact on the final determination of guilt or innocence.  As a matter of logic, the issue of whether an accused can invoke an excuse or justification arises only after the Crown has proven the existence of all the elements of the offence, including mens rea.  Thus, if "purpose" were understood as incorporating "desire", and hence as being susceptible to "negation" by duress, trial judges would have to instruct juries accordingly.  This would require judges, and juries, to delve into the arcane issue of whether a person who intentionally commits an offence in order to save his or her own skin commits the offence "on purpose" -- a question of some philosophical significance, perhaps, but no easy matter for a judge to explain succinctly, or for a jury to comprehend readily.  At the same time, trial judges would also have to  provide juries with alternative instructions on the excuse-based common law defence of duress. While in many cases an aider who actively desires the commission of the offence he or she aids will not be able to legitimately claim that he or she acted under duress, this will not inevitably be so (consider, for instance, the hypothetical example, discussed earlier, of the parent whose child is held hostage by confederates of robbers, who is told that the child will be released unharmed only if he or she  assists in the successful commission of a robbery).  Consequently, in at least some cases juries would be forced to consider two alternate legal routes leading to an acquittal by reason of duress.  This complication would, however, have little or no practical effect, since there will be few, if any, cases involving parties in which a "defence" of "negation of mens rea by duress" would succeed where recourse to the excuse-based common law defence of duress would not also lead to an acquittal.  As Professor D. Stuart observes (Canadian Criminal Law: A Treatise (3rd ed. 1995)), introducing the notion of duress "negating" mens rea into the analysis serves only to muddy the conceptual waters.  As he points out (at p. 420):

 

The advantages [of viewing the operation of duress solely in terms of an excuse] are more than linguistic.  If the defence of duress is viewed like any other justification or excuse as based squarely on policy considerations allowing one who has committed an actus reus with mens rea to escape in certain circumstances, the policy issues are focussed without confusing the matter as one of mens rea.

 

39               For these reasons, I conclude that the expression "for the purpose of aiding" in s. 21(1)(b), properly understood, does not require that the accused actively view the commission of the offence he or she is aiding as desirable in and of itself. As a result, the mens rea for aiding under s. 21(1)(b) is not susceptible of being "negated" by duress.  The trial judge's charge to the jury in the present case was thus incorrect in two respects.  First, the reference to the relevant mental state in the present case as being a "common intention to carry out an unlawful purpose" was erroneous since, unlike Paquette, what was at issue in the present case was s. 21(1)(b), as opposed to s. 21(2).  Second, in light of the mental element for commission of an offence  under s. 21(1)(b), the suggestion that duress might "negate" the accused's mens rea was also incorrect.

                  

(b) Section 21(2) and the Decision in Paquette

 

40               The preceding discussion suffices to resolve the question of the relation between duress and mens rea that directly arises in the present case.  As I indicated earlier, however, I believe that in the interests of avoiding undue confusion in the law that applies to duress cases I should proceed further, and look expressly at the question of whether the interpretation of s. 21(2)'s mental element that was adopted by the Court in Paquette, supra, remains correct in light of the interpretation of s. 21(1)(b) I am now adopting.  To be sure, the respective mens rea requirements of the two subsections are defined differently  -- while s. 21(1)(b) imposes party liability on persons who "do or omit to do anything for the purpose of aiding any person to commit [an offence]", s. 21(2) establishes that "persons [who] form an intention in common to carry out an unlawful purpose and to assist each other therein" are liable for criminal offences committed by the principal that are foreseeable and probable consequences of carrying out the "common purpose".   There is, however, a close connection between the two subsections, arising from the evident similarities that exist between certain aspects of s. 21(2)'s requirements and the terms of s. 21(1)(b).  As I have explained in the previous section, a person who does something "for the purpose of aiding" another to commit a criminal offence (and who is thus liable under s. 21(1)(b)) invariably "intends" to assist the principal to carry out "an unlawful purpose" -- an "intention" that is not susceptible of being "negated" by the fact that it arises as the result of threats of death or bodily harm.  Furthermore, the terms "aid" and "assist" are virtually synonymous.  Section 21(2), however, contains two further qualifications -- the accused's intention must be "an intention in common" with the principal, and the intention to assist must be reciprocal (that is, two or more persons must have "an intention in common...to assist each other therein").  The question that must be addressed, therefore, is whether these additional qualifications on the requisite "intention" raise the prospect of an accused's mens rea being "negated" by duress.  In particular, we must consider whether the requirement that the accused have an "intention in common" with another person has this effect.

 

41               As was the case with the term "purpose" in s. 21(1)(b), the phrase "intention in common" is capable of being understood in more than one sense.  One possible interpretation is that "intention in common" means no more than that the two persons must have in mind the same unlawful purpose.  Alternatively, however, it might be argued that the requirement of "commonality" requires that the two persons' intentions match in greater detail -- in particular, that their motives or subjective views as to the desirability of the commission of the "unlawful purpose" match up.  If this latter interpretation were adopted, it could be argued that although persons who assist others to commit criminal acts as a result of threats made by the others would "intend" to provide such assistance, their intention would not be "in common" with the intentions of the threatener, due to the different motives and, possibly, views as to the immediate desirability of the criminal activity at issue.  In contrast, under the former interpretation a person would fall within the ambit of s. 21(2) if they intended to assist in the commission of the same offence envisioned by the principal, regardless of the fact that their intention might be due solely to the principal's threats.  Of course, it would be open to such a person to avoid criminal liability through the common law defence of duress.

 

42               As noted earlier, in Paquette, supra, Martland J. took the position that "intention in common" meant something more than "intention to commit or aid in the same offence", arguing (at p. 197) that:

 

A person whose actions have been dictated by fear of death or of grievous bodily injury cannot be said to have formed a genuine common intention to carry out an unlawful purpose with the person who has threatened him with those consequences if he fails to co-operate.

 

The phrase "intention in common" is certainly open to being interpreted in this manner.  However, notwithstanding the considerable weight I place on and the respect I have for the opinion of Martland J., I have come to the conclusion that, in the context of s. 21(2), the first interpretation discussed above is more consistent both with Parliament's intention and with the interpretation of s. 21(1)(b) I have adopted in these reasons.  Many of the factors I considered earlier in the course of determining the meaning to be ascribed to the term "purpose" in s. 21(1)(b) apply with similar force to the problem of interpreting s. 21(2).  Parliament's purpose in enacting s. 21(2) is clear.  As the Ontario Court of Appeal (per Doherty J.A.) noted in R. v. Jackson (1991), 68 C.C.C. (3d) 385, at p. 421 (aff'd [1993] 4 S.C.R. 573):

 

[Section 21(1)] is aimed at those who participate in the actual offence for which liability is imposed.  Section 21(2) widens the circle of criminal culpability to include those who do not participate in the alleged crime but who do engage in a different criminal purpose and foresee the commission of the alleged offence by a party to that criminal purpose as a probable consequence of the pursuit of the criminal purpose....

 

That is, Parliament has chosen to impose liability on persons who engage in criminal conduct with others for additional criminal acts that could be foreseen as likely to be committed in furtherance of the underlying offence (within the limits imposed by the Charter : see Logan, supra).  Interpreting the expression "intention in common" as connoting a mutuality of motives and desires between the party and the principal would restrict the scope of this section in a manner that is difficult to justify on the basis of Parliamentary intention.  As was the case with the interpretation of "purpose" in s. 21(1)(b), adopting this interpretation of "intention in common" would remove all manner of persons from the scope of s. 21(2) in addition to those whose intention is the product of threats of death or serious bodily harm since, once again, the reason for the divergence in motive and desire would be immaterial to the question of whether the party's and principal's "intentions" matched to a sufficient degree.  This result, I believe, can no more be ascribed to Parliament's intention than could the similar result that would flow from equating "purpose" with "desire" in s. 21(1)(b), which I discussed earlier.  In my opinion, a much more plausible interpretation of Parliament's purpose is that the "commonality" qualification on the subsection's mental element is simply meant to ensure that accused persons are not convicted of crimes committed in furtherance of offences to which they are not party to.  

 

43               Furthermore, as was the case with s. 21(1)(b), the interpretation of s. 21(2)'s mens rea requirement that was adopted by the Court in Paquette is not essential as a means of ensuring the avoidance of unjust convictions in duress cases, since here, as in cases involving s. 21(1)(b), accused persons who act under duress have recourse to the protection from criminal liability provided by the common law defence of duress.  At the same time, it can be seen that the interpretation of s. 21(2) adopted in Paquette significantly complicates the law of duress, in so far as it requires juries to be instructed on both the manner in which duress might "negate" mens rea and on the common law defence of duress itself, notwithstanding the fact that both cover essentially the same ground.  This problem would be exacerbated if the interpretation of s. 21(2) in Paquette was preserved alongside the interpretation of s. 21(1)(b) that we are adopting in the present appeal.  In a significant number of cases, the two subsections will be presented to the jury as alternative bases for liability.  In such cases, a trial judge who was required to follow both the holding in this case and Paquette would have to instruct the jury that the accused's subjective view as to the desirability of the commission of the offence was not relevant to s. 21(1)(b), but that it was relevant to s. 21(2), and that the existence of duress might "negate" mens rea under the latter (but not the former) provision.  He or she would then have to go on to charge the jury, in the alternative, on the common law defence of duress.  While complex jury instructions are sometimes unavoidable if justice is to be done, I am of the view that unnecessary complexity is something that courts should strive to avoid.  The Canadian justice system places considerable faith in jurors' ability to follow the trial judge's instructions.  In exchange, I believe it is incumbent on the courts to do what they can to ease, rather than add to, the difficult burden we call upon jurors to bear, subject, of course, to the overriding imperative that trial fairness be preserved.

 

44               For these reasons, I am of the view that the comments of Martland J. in Paquette, supra, on the relation between duress and mens rea in the context of s. 21(2) can no longer be considered the law in Canada.  I hasten to point out, however, that overturning this holding in Paquette does not affect the validity of that case's first aspect, namely, that the common law defence of duress continues to apply in cases involving party liability under s. 21 of the Code.  Furthermore, it can be noted in passing that, on the facts of Paquette, the accused's acquittal could well have been supported on the basis of the excuse provided by the common law defence of duress rather than on the notion that his intention to assist in the commission of the robbery was "negated" by duress.

 

(4)               Conclusions on Duress and Mens Rea

 

45               The conclusions that can be extracted from the discussion in the previous sections may be summarized as follows:

 

1.The fact that a person who commits a criminal act does so as a result of threats of death or bodily harm can in some instances be relevant to the question of whether he or she possessed the mens rea necessary to commit an offence.  Whether or not this is so will depend, among other things, on the structure of the particular offence in question -- that is, on whether or not the mental state specified by Parliament in its definition of the offence is such that the presence of coercion can, as a matter of logic, have a bearing on the existence of mens rea.  If the offence is one where the presence of duress is of potential relevance to the existence of mens rea, the accused is entitled to point to the presence of threats when arguing that the Crown has not proven beyond a reasonable doubt that he or she possessed the mental state required for liability.

 

2.A person who commits a criminal act under threats of death or bodily harm may also be able to invoke an excuse-based defence (either the statutory defence set out in s. 17 or the common law defence of duress, depending on whether the accused is charged as a principal or as a party).  This is so regardless of whether or not the offence at issue is one where the presence of coercion also has a bearing on the existence of mens rea.

 

3.The mental states specified in ss. 21(1) (b) and 21(2)  of the Criminal Code  are not susceptible to being "negated" by duress.  Consequently, it is not open to persons charged under these sections to argue that because their acts were coerced by threats they lacked the requisite mens rea.  Such persons may, however, seek to have their conduct excused through the operation of the common law defence of duress.

 

It should be reiterated, however, that the holding in the present case is based on an interpretation of the particular terms of two specific offence-creating statutory provisions, ss. 21(1) (b) and 21(2)  of the Criminal Code .  The question of whether other offences can be found, either in the Code or in some other statute, that are defined in such a way that the presence of coercion is relevant to the existence of mens rea remains open. 

 

 

C. The "Safe Avenue of Escape" Requirement in the Common Law of Duress

46

                   The second and third issues raised by the appellant have to do with the so-called "safe avenue of escape" rule.  The Court must decide whether such a rule in fact exists, and, if it does, whether the availability of a "safe avenue" is to be determined on an objective or subjective basis.  In my opinion, it is best to start the analysis by examining the juristic nature of the defence of duress and its relationship to other common law defences, since I am of the view that by so doing the answers to the questions posed in the present appeal will become clear.

 

(1) The Relation Between Duress and Other Excuses

 

47               As I have explained, the common law defence of duress, properly understood, is not based on the idea that coercion negates mens rea.  Rather, it is one of a number of defences that operate by justifying or excusing what would otherwise be criminal conduct.  Once duress is recognized as providing a defence of this type, it becomes apparent that much can be learned about its juristic nature by examining other existing legal excuses or justifications, such as the defences of necessity, self-defence and provocation, and by considering the extent to which analogies between these defences and the defence of duress can be drawn and sustained.

 

48               In his submissions, the appellant emphasized the similarities between duress and provocation, which raises a partial defence to the charge of murder.  Although analogies can indeed be drawn between duress and provocation, there exist significant differences between the two defences that lessen the usefulness of comparing them.  Firstly, and most obviously, provocation provides only a partial defence to a single criminal offence, murder, leaving open the possibility of conviction for manslaughter.  In contrast, the defence of duress applies to a wide range of offences, and provides a complete bar to conviction rather than merely a partial defence.  It is not necessary to explore the theoretical justifications underlying these restrictions on the defence of provocation to see why their existence poses problems for any analogies that could be drawn between provocation and duress.

 

49               Furthermore, there is a clear conceptual distinction between situations where a person acts by reason of provocation and those arising in the context of  self-defence, duress, or necessity.  As Professor J. Horder observes (in "Autonomy, Provocation and Duress", [1992] Crim. L.R. 706, at p. 709):

 

Pleas of self-defence, duress and necessity all share [the following] common feature, and this sets them apart in one vital respect from a plea of provocation.  For those who act only to avert a threat act prospectively, from fear of imminent harm, whereas those who lose their self-control and retaliate in the face of provocation act retrospectively, inflicting injury in response to a perceived wrongdoing that is now part of history, albeit recent history.  If people who are threatened with imminent harm or the unjustified use of force do not take the necessary evasive action, they believe that they will themselves be harmed, perhaps gravely; but this is not true of people who have been provoked but not threatened, who must know that, at most, all they have to lose personally by inaction is their self-regard or reputation. [Emphasis in original.]

 

For these reasons, examining the defence of provocation does not, in my view, hold great potential as a tool for gaining further understanding of the defence of duress.  I turn, therefore, to the more promising analogies that can be drawn between duress and the defences of self-defence and necessity.

 

50               The defences of self-defence, necessity and duress all arise under circumstances where a person is subjected to an external danger, and commits an act that would otherwise be criminal as a way of avoiding the harm the danger presents.  In the case of self-defence and duress, it is the intentional threats of another person that are the source of the danger, while in the case of necessity the danger is due to other causes, such as forces of nature, human conduct other than intentional threats of bodily harm, etc.  Although this distinction may have important practical consequences, it is hard to see how it could act as the source of significant juristic differences between the three defences.  As Lord Hailsham of Marylebone L.C. observed in Howe, supra, at p. 429:

 

There is, of course, an obvious distinction between duress and necessity as potential defences; duress arises from the wrongful threats or violence of another human being and necessity arises from any other objective dangers threatening the accused.  This, however, is, in my view a distinction without a relevant difference, since on this view  duress is only that species of the genus of necessity which is caused by wrongful threats.

 

In contrast, a distinction can be drawn between self-defence, on the one hand, and duress and necessity, on the other, that might well provide a basis for a meaningful juridical difference. In cases of self-defence, the victim of the otherwise criminal act at issue is himself or herself the originator of the threat that causes the actor to commit what would otherwise be an assault or culpable homicide (bearing in mind, of course, that the victim's threats may themselves have been provoked by the conduct of the accused).  In this sense, he or she is the author of his or her own deserts, a factor which arguably warrants special consideration in the law.  In cases of duress and necessity, however, the victims of the otherwise criminal act (to the extent that a victim can be identified) are third parties, who are not themselves responsible for the threats or circumstances of necessity that motivated the accused’s actions.  For this reason, analogies between the defence of necessity and duress would appear to be the most clearly supportable, and thus the most likely to be instructive.

 

51               The similarities between defences of duress and necessity have been noted on previous occasions by other commentators.  As Lord Simon of Glaisdale observed in his dissenting reasons in Lynch, supra, at p. 692:

 

In the circumstances where either "necessity" or duress is relevant, there are both actus reus and mens rea.  In both sets of circumstances there is power of choice between two alternatives; but one of those alternatives is so disagreeable that even serious infraction of the criminal law seems preferable.  In both the consequence of the act is intended, within any permissible definition of intention.  The only difference is that in duress the force constraining the choice is a human threat, whereas in "necessity" it can be any circumstance constituting a threat to life (or, perhaps, limb).  Duress is, thus considered, merely a particular application of the doctrine of "necessity"....

 

In Canada, of course, a distinction between the two defences exists as a result of the fact that the defence of duress has been partially codified (in relation to principals) by s. 17, while necessity remains a purely common law defence: Perka v. The Queen, [1984] 2 S.C.R. 232.  In the present case, however, we are concerned only with those cases of duress falling outside the ambit of s. 17, where the common law remains applicable -- that is, cases of party liability (Paquette, supra).  In my view, the clear similarities between the factual circumstances in which the common law defence of duress and the common law defence of necessity arise imply that comparisons between the two remain highly relevant, notwithstanding the existence of a partially codified version of the defence of duress applicable in other situations.  It would, I believe, be highly anomalous if the common law defence of duress were to be understood as based on substantially different juridical principles from the common law defence of necessity.

 

52               In Perka, supra, the status of the defence of necessity in the common law of Canada was firmly established.  In his majority reasons, Dickson J. summarized the considerable debate in the academic literature over the question of whether the defence of necessity should be conceptualized as a "justification" or an "excuse".  Dickson J. described the justification-based approach to the defence of necessity in the following terms (at pp. 247-48):

 

                   As a justification [the defence of necessity] can be related to Blackstone's concept of a "choice of evils".  It would exculpate actors whose conduct could reasonably have been viewed as "necessary" in order to prevent a greater evil than that resulting from the violation of the law.  As articulated, especially in some of the American cases, it involves a utilitarian balancing of the benefits of obeying the law as opposed to disobeying it, and when the balance is clearly in favour of disobeying, exculpates an actor who contravenes a criminal statute.  This is the "greater good" formulation of the necessity defence: in some circumstances, it is alleged, the values of society, indeed of the criminal law itself, are better promoted by disobeying a given statute than by observing it.

 

He went on to reject this basis for the defence.  Instead, he adopted an understanding of the defence of necessity based on the alternative concept of an "excuse".  As he declared (at pp. 248-49):

 

                   Conceptualized as an "excuse", however, the residual defence of necessity is, in my view, much less open to criticism.  It rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience.  The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable.  Praise is indeed not bestowed, but pardon is, when one does a wrongful act under pressure which, in the words of Aristotle in the Nicomachean Ethics [Book III, 1110a (trans. D. Ross, 1975, at p. 49)] "overstrains human nature and which no one could withstand".

 

53               Dickson J. continued by referring to the position articulated by G. P. Fletcher in his treatise Rethinking Criminal Law (1978).  In Fletcher’s view, excuses in criminal law can best be understood as rooted in the notion of "moral or normative involuntariness".  Dickson J. approved of this theoretical foundation for excuses, stating (at p. 250):

 

                   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.

 

Having set out this conceptual basis for the defence of necessity, Dickson J. went on to examine the limitations on the defence’s availability that he saw as flowing naturally from its theoretical underpinnings.  As he stated (at pp. 250-51):

 

                   If the defence of necessity is to form a valid and consistent part of our criminal law it must, as has been universally recognized, be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale.  That rationale, as I have indicated, is the recognition that it is inappropriate to punish actions which are normatively "involuntary".  The appropriate controls  and limitations on the defence of necessity are, therefore, addressed to ensuring that the acts for which the benefit of the excuse of necessity is sought are truly "involuntary" in the requisite sense.

 

Dickson J. proceeded to establish several preconditions that must be satisfied before the defence of necessity could be invoked.  He was of the view that there were three primary requirements: first, that there be an "urgent situation of clear and imminent peril", second, that "compliance with the law [be] demonstrably impossible" and third, that there be proportionality between the danger facing the accused and the harm caused by his or her unlawful acts.  Dickson J. explained the justification for the first and second requirements as follows (at pp. 251-52):

 

                   In Morgentaler [Morgentaler v. The Queen, [1976] 1 S.C.R. 616], I was of the view that any defence of necessity was restricted to instances of non-compliance "in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible".  In my opinion this restriction focuses directly on the "involuntariness" of the purportedly necessitous behaviour by providing a number of tests for determining whether the wrongful act was truly the only realistic reaction open to the actor or whether he was in fact making what in fairness could be called a choice.  If he was making a choice, then the wrongful act cannot have been involuntary in the relevant sense.

 

                                                                    ...

 

At a minimum, the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable.

 

                   The requirement that compliance with the law be "demonstrably impossible" takes this assessment one step further.  Given that the accused had to act, could he nevertheless realistically have acted to avoid the peril or prevent the harm, without breaking the law?  Was there a legal way out?  I think this is what Bracton means when he lists "necessity" as a defence, providing the wrongful act was not "avoidable".  The question to be asked is whether the agent had any real choice: could he have done otherwise?  If there is a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one, impelled by some consideration beyond the dictates of "necessity" and human instincts. [Emphasis in original.]

 

54               As I noted earlier, the common law defences of necessity and duress apply to essentially similar factual situations.  Indeed, to repeat Lord Simon of Glaisdale's observation, "[d]uress is...merely a particular application of the doctrine of "necessity"".  In my view, 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.  Indeed, to do otherwise would be to promote incoherence and anomaly in the criminal law.  In the case of necessity, the Court has already considered the various alternative theoretical positions available (in Perka, supra), and has expounded a conceptualization of the defence of necessity as an excuse, based on the idea of normative involuntariness.  In my opinion, the need for consistency and coherence in the law dictates that the common law defence of duress also be based on this juridical foundation.  If the defence is viewed in this light, the answers to the questions posed in the present appeal can be seen to follow readily from the reasons of Dickson J. in Perka.

 

                   (a) The Safe Avenue of Escape Requirement

 

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

 

(b)Is the Existence of a Safe Avenue of Escape to Be Determined Subjectively or Objectively?

 

56               The remaining question on this appeal raises a potentially more difficult issue, namely, the question of whether the existence of a "safe avenue of escape" is to be determined objectively or on the basis of the accused’s own subjective knowledge and awareness at the time.  How this question is answered depends, in my view, on how one conceives of the notion of "normative involuntariness" upon which the defence of duress is based.  That is, is an action "normatively involuntary" when the actor believes that he has no real choice, or is this the case only when there is in fact no reasonable alternative course of action available?

 

57               Cogent arguments can be made in support of each of these positions.  The issue can be framed in slightly different terms.  As H. L. A. Hart notes:

 

One necessary condition of the just application of a punishment is normally expressed by saying that the agent ‘could have helped’ doing what he did, and hence the need to inquire into the ‘inner facts’ is dictated not by the moral principle that only the doing of an immoral act may be legally punished, but by the moral principle that no one should be punished who could not help doing what he did. [Emphasis in original.]

(Punishment and Responsibility (1968), at p. 39.)

 

The question of when a person "could not help doing what he did" (and thus performs a normatively involuntary act) can, however, be understood in two different ways.  On the one hand, it can be argued that actors who perform acts that appear reasonable in relation to their knowledge of their surrounding circumstances "cannot help" what they did, even if their understanding of their situation is objectively unreasonable.  Put another way, it can be argued that a person’s acts are normatively involuntary if he or she honestly believes there are no reasonable alternatives, even if he or she has overlooked an alternative that a reasonable person would have been aware of.  On the other hand, it can also be argued that an actor’s failure to take steps to inform himself or herself of the true state of affairs is itself a choice, and that a decision based on the resulting erroneous view of the circumstances is thus not normatively involuntary, since it could have been avoided.  In my opinion, the latter argument accords most closely with the  view of normative involuntariness adopted by the Court in Perka, which, as I have explained, should be seen as the theoretical foundation of both the defences of duress and necessity.  As Dickson J.’s reasons in Perka suggest, a degree of objectivity is inherent to excuses that are based on the notion of normative involuntariness, to the extent that this concept turns on the objective availability, or lack of availability, of true choice.  Indeed, Dickson J. clearly indicates that the operative standard for the defence of necessity is to be an objective one, based on whether "there is a reasonable legal alternative to disobeying the law" (emphasis added).

 

58               However, simply adopting the second of the two arguments set out above does not fully resolve the issue of the standard to be applied in assessing whether a safe avenue of escape existed.  Even if it is accepted that an actor’s failure to take steps to acquire reasonable knowledge of his or her full range of options can, in itself, constitute a form of choice, it can still be argued that this only holds true when the actor is able to acquire and process additional information.  That is, a person does not "choose" inaction when he or she is incapable in the first place of acting, or of knowing when to act.  Thus, an argument can be made for framing the objective standard used in determining the availability of alternative options, such as "safe avenues of escape", in terms of the particular actor’s capacities and abilities. This argument reflects a more general concern about the application of the negligence standard in criminal law, which Hart, supra, has summarized in the following terms (at p. 154):

 

If our conditions of liability are invariant and not flexible, i.e. if they are not adjusted to the capacities of the accused, then some individuals will be held liable for negligence though they could not have helped their failure to comply with the standard.

 

59               This Court has previously indicated that when assessing the reasonableness of an accused's conduct for the purposes of determining whether he or she should be excused from criminal responsibility, it is appropriate to employ an objective standard that takes into account the particular circumstances of the accused, including his or her ability to perceive the existence of alternative courses of action.  For instance, in R. v. Lavallee, [1990] 1 S.C.R. 852, a self-defence case, Wilson J., writing for a majority of the Court, declared (at p. 889):

 

I think the question the jury must ask itself [in a case of self-defence] is whether, given the history, circumstances and perceptions of the appellant, her belief that she could not preserve herself from being killed by [her "common-law" spouse] that night except by killing him first was reasonable.

 

Similarly, in R. v. Pétel, [1994] 1 S.C.R. 3, at p. 12, I stated that in assessing self-defence "the jury must seek to determine how the accused perceived the relevant facts and whether that perception was reasonable".

 

60               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.

 

61               It should be noted that the question of what sort of objective standard is to be used when assessing the "reasonableness" of the conduct of persons raising an excuse-based defence is different in several key respects from the issue that was before the Court in R. v. Creighton, [1993] 3 S.C.R. 3.  In that case, in the course of considering the mens rea for "unlawful act manslaughter" under s. 222(5) (a) of the Criminal Code , a majority of the Court was of the view that (at p. 61, per McLachlin J.):

 

[C]onsiderations of principle and policy dictate the maintenance of a single, uniform legal standard of care for [offences with a mens rea of negligence], subject to one exception: incapacity to appreciate the nature of the risk which the activity in question entails.

 

Although I dissented on this point in Creighton (while concurring in the result), I now consider myself bound by the majority judgment.  However, I do not believe that Creighton is applicable when what is at issue is the standard of reasonableness to be used in establishing the availability of an excuse-based defence, as opposed to the determination of liability under an offence that is defined in terms of a mental state of negligence.  In my view, the relevant "considerations of policy and principle" in such cases are quite different from those identifiable in the context of negligence-based offences.  Offences defined in terms of negligence typically impose criminal liability on an accused person for the consequences that flowed from his or her inherently hazardous activities  -- activities that he or she voluntarily and willingly chose to engage in.  In Creighton, supra, the majority was of the view that people "may properly be held to [a strict objective standard] as a condition of choosing to engage in activities which may maim or kill other innocent people" (p. 66).  Even if a person fails to foresee the probable consequences of their freely chosen actions, these actions remain the product of genuine choice.  In contrast, excuse-based defences, such as duress, are predicated precisely on the view that the conduct of the accused is involuntary, in a normative sense -- that is, that he or she had no realistic alternative course of action available.  In my view, in determining whether an accused person was operating under such constrained options, his or her perceptions of the surrounding facts can be highly relevant to the determination of whether his or her conduct was reasonable under the circumstances, and thus whether his or her conduct is properly excusable.

 

(2) Conclusions on Duress and "Safe Avenue of Escape" Requirement

 

62               My conclusions on the second and third issues raised by the appellant can thus be summarized as follows.  An accused person cannot rely on the common law defence of duress if he or she had an opportunity to safely extricate himself or herself from the situation of duress.  The rationale for this rule is simply that in such circumstances the condition of "normative involuntariness" that provides the theoretical basis for both the defences of duress and necessity is absent -- if the accused had the chance to take action that would have allowed him or her to avoid committing an offence, it cannot be said that he or she had no real choice when deciding whether or not to break the law.  Furthermore, I believe that the internal logic of the excuse-based defence, which has theoretical underpinnings directly analogous to those that support the defence of necessity (as set out in Perka, supra), suggests that the question of whether or not a safe avenue of escape existed is to be determined according to an objective standard.  When considering the perceptions of a "reasonable person", however, the personal circumstances of the accused are relevant and important, and should be taken into account.

 

D. Assessing the Charge to the Jury

 

63               Having set out the legal principles that, in my view, are applicable in cases such as the one at bar, what remains to be considered is whether the jurors in the present case were correctly instructed on the law they were to apply during their deliberations.  I hasten to add that the law today is not what it was yesterday, as a consequence of this judgment.  While certain portions of the trial judge's instructions to the jury in the present case must now be characterized as containing "errors" as a result of the retrospective effect of the instant judgment, it must be emphasized in all fairness to my colleague the trial judge, that at the time of the trial Webber J. was simply following the course laid by this Court in Paquette, supra, which we have now revisited and altered.

                  

64               In the present case, Webber J. was confronted with the difficult and unenviable task of charging the jury on a very complex area of the common law  -- an area, moreover, that was (as Martin J.A. remarked in R. v. Mena (1987), 34 C.C.C. (3d) 304, at p. 319), "in a somewhat unsatisfactory state" at the time.  With the greatest of respect, I am of the view that his charge to the jury contained several instructions that, when read with reference to the law as set out in this Court’s current decision, now can be identified as incorrect.  In his charge, the trial judge told the jurors that "if Hibbert joined in the common plot to shoot Cohen, under threats of death or grievous bodily harm, that would negative his having a common intention with Quasi to shoot Cohen, and [sic] you must find Hibbert  not guilty". In my respectful view, these instructions contained several errors.  First, the reference to "common intention"-- an expression descriptive of the mental element in s. 21(2) -- was misplaced, in light of the trial judge’s earlier instruction that s. 21(1)(b) was "the portion of s. 21 that applies to this particular case".  Second, as I have explained, it was incorrect to instruct the jury that the mens rea for party liability under s. 21(1)(b) could be "negated" by duress.  Thirdly, and most importantly, the jury was not told that even if the appellant possessed the requisite mens rea his conduct could be excused by operation of the common law defence of duress, if the jurors were of the view that the necessary conditions for this defence’s application were present.

 

65               In order to assess what impact these errors may have had on the verdict, it is necessary to examine other portions of the jury charge.  Although the instruction that duress could "negate mens rea" was, as I have explained, incorrect, it would not necessarily have  affected the outcome of the trial if the jury had also been told that to be convicted the appellant actively had to "desire" the successful completion of the offence he was charged with assisting.  While this latter instruction would, as I have explained, have been an incorrect statement of the law, on the particular facts of this case any determination that the appellant actively  desired that the attack on Cohen take place would be tantamount to a finding that he did not act under duress.  If this had been the case, the fact that the jury was not advised of the excuse-based common law defence of duress would not have affected their decision to convict the appellant.  Put another way, on the particular facts of the case the impact of the trial judge’s error could conceivably have been negated if he had made  a further error.   However, as an examination of the charge reveals, the jury in the present case was not charged on the applicable mens rea in this erroneous manner.  Rather, the trial judge instructed the jury on the mental element of party liability under s. 21(1)(b) in the following terms:

 

To aid the commission of a crime, a person must associate himself with the criminal venture by participating in it and trying to make it succeed.  Remember, it is no criminal offence to stand by.  A mere passive spectator to a crime no matter how serious the offence, is not guilty of the offence.  There must be an intentional assistance of the crime for the accused to be guilty of aiding.  In order for you to find the accused guilty on the basis of aiding, it is not sufficient for the Crown to prove that his acts or omissions, in fact, had the effect of aiding the commission of the crime.  The Crown must also prove beyond a reasonable doubt that he did the acts, or he omitted to do something for the purpose of, or with the intention of, aiding the commission of the crime. [Emphasis added.]

 

This instruction clearly communicated to the jurors that, in the context of s. 21(1)(b), "purpose" was synonymous with "intention".  I hasten to add that in this respect the trial judge’s instructions were, as I have explained, perfectly correct; however, in light of these correct instructions on the issue of mens rea it cannot be said that the erroneous instructions on duress had no effect on the jury’s verdict.  It is quite possible that the jury determined that the appellant aided the assault "intentionally", in the sense that he performed acts that he knew would probably assist Bailey to commit the assault because he believed that if he did not Bailey would kill him.  The jurors might have thus concluded that the appellant’s mens rea was not "negated" by duress, under circumstances in which they might well have  concluded that his conduct could be excused if they had been aware of the existence of the common law defence of duress, properly conceptualized.

 

66               The Ontario Court of Appeal was of the view in the present case that the fact that the jury had asked a question relating to the issue of the existence of a "safe avenue of escape" indicated  that the jurors must have already come to the conclusion that the appellant had acted under compulsion, and that any errors contained in the trial judge’s charge on the nature of the defence of duress thus had no effect on the jury’s verdict.  With respect, I cannot accept this argument, for several reasons.  First, there is no way of knowing whether the question posed by the jury reflected a concern held by all the jurors, or merely by some of them.  Second, even if it could be established that at the time the question was posed all of the jurors were of the view that the appellant had acted under duress, the jury continued to deliberate for nearly a full day after the trial judge responded to its question.  Without having been present in the jury room during the deliberations, there is no way of knowing with any degree of certainty whether any jurors altered their views from those they held at the time the question was posed.  Consequently, I do not believe that it can be said that the errors in the charge relating to the nature of the defence of duress necessarily had no effect on the verdict.

 

67               Although the errors identified above are in themselves sufficient, in my opinion, to entitle the appellant to a new trial, I will briefly address the other points raised by the appellant.  As I have explained, I am of the view that the trial judge did not err in instructing the jury that the appellant could not rely on the defence of duress if the Crown established that he had failed to avail himself of a safe avenue of escape.  Furthermore, while I believe the trial judge should have instructed the jury that the existence of such an avenue was to be determined objectively, taking into account the personal circumstances of the appellant, on the particular facts of this case I am not persuaded that his failure to do so affected the jury's decision, since there was no indication, on the facts, that any of the appellant's personal attributes or frailties rendered him unable to identify any safe avenues of escape that would have been apparent to a reasonable person of ordinary capacities and abilities.

 

VI. Conclusion

 

68               With respect, I am of the view that the trial judge erred in his instructions to the jury  on the law of duress.  Since I do not believe that it can be said that this error necessarily had no impact on the jury’s verdict, I believe that there should be a new trial.  Accordingly, the appeal is allowed, the appellant’s conviction is set aside, and a new trial is ordered.

 

                   Appeal allowed and new trial ordered.

 

                   Solicitors for the appellant:  Rosen, Fleming, Toronto.

 

                   Solicitor for the respondent:  The Ministry of the Attorney General, Toronto.