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Criminal law—Non-capital murder—Duress—Threat of death or of grievous bodily harm—“A party to the offence”—“Intention in common”—Aiding and abetting under duress—Defence of duress open to accused—Criminal Code, R.S.C. 1970, c. C-34, ss. 7(3), 17, 21(2).

During the course of a robbery committed by Simard and Clermont an innocent bystander was killed by a rifle shot fired by Simard. When jointly charged, together with appellant, with non-capital murder, both Simard and Clermont pleaded guilty. Appellant was not present at the robbery or at the shooting but was charged under s. 21(2) of the Criminal Code as an accomplice. Appellant did not testify at trial but relied on statements made to the police and to his girl friend the day after the robbery to support his argument that he had no intention in common with Simard and Clermont to carry out the robbery. The trial judge charged the jury that if they accepted that appellant had joined the common plot to rob under threats of death or grievous bodily harm they should find appellant to be not guilty. Appellant was acquitted. While the subsequent appeal by the Crown was allowed the Court of Appeal made it clear that the appeal would have been dismissed but for Dunbar v. The King (1936), 67 C.C.C. 20, 4 D.L.R. 737.

Held. The appeal should be allowed.

The application of s. 17 of the Criminal Code is limited to cases in which the person seeking to rely on it has himself committed an offence. Appellant did not himself commit the offence of robbery or of murder and could only be considered a party to the murder on the basis of s. 21(2) which only applies if it is established that the appellant, in common with Simard and Clermont, formed an intention to commit robbery. As s. 17 was inapplicable appellant was entitled by virtue of s. 7(3) to rely on any excuse or defence available to him at common law. 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

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carry out an unlawful purpose with the person who has threatened him.

Although Dunbar v. The King, supra, could be distinguished on its facts it should not be followed as it was based on the proposition with which the Court is not in agreement, that on a charge of murder founded on what is now s. 21(2) of the Criminal Code duress does not negative the intention of an accused to carry out an unlawful purpose in common with others.

Dunbar v. The King (1936), 67 C.C.C. 20, [1936] 4 D.L.R. 737 nor followed; Director of Public Prosecutions for Northern Ireland v. Lynch, [1975] A.C. 653 adopted; R. v. Carker, [1967] S.C.R. 114; R. v. Farduto (1912), 21 C.C.C. 144; R. v. Warren (1973), 14 C.C.C. (2d) 188 distinguished; R. v. Brown and Morley, [1968] S.A.S.R. 467 referred to.

Leonard Shore, for the appellant.

David Watt, for the respondent.

APPEAL from a judgment of the Court of Appeal for Ontario allowing an appeal from an acquittal by Houlden J. and jury of an accused on a charge of non-capital murder founded on s. 21(2) of the Criminal Code. Appeal allowed.

The judgment of the Court was delivered by

MARTLAND J.—The facts which give rise to this appeal are as follows:

During the course of a robbery at the Pop Shoppe, in the City of Ottawa, on March 18, 1973, an innocent bystander was killed by a bullet from a rifle fired by one Simard. The robbery was committed by Simard and one Clermont, both of whom, together with the appellant, were jointly charged with non-capital murder. Simard and Clermont pleaded guilty to this charge.

The appellant was not present when the robbery was committed or when the shooting occurred. The charge against him was founded upon s. 21(2) of the Criminal Code. Section 21 provides as follows:

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.

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(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.

The appellant made a statement to the police, which was admitted in evidence at the trial and which described his involvement in the matter as follows: On the day of the robbery Clermont telephoned the appellant for a ride as his own car was broken. Clermont asked the appellant where he used to work and was told at the Pop Shoppe. Clermont told him to drive to the Pop Shoppe because Clermont wanted to rob it, and, when the appellant refused, Clermont pulled his gun and threatened to kill him. Simard was picked up later and also a rifle. The appellant drove them to the Pop Shoppe. The appellant had been threatened with revenge if he did not wait for Clermont and Simard. The appellant, in his statement, stated he was afraid and drove around the block. After the robbery and homicide Clermont and Simard attempted twice, unsuccessfully, to get into the appellant’s car. Three of the Crown’s witnesses supported this latter statement.

The appellant did not testify at trial but relied on the above statement and two other statements also introduced at the trial by the Crown to support his argument that he had no intention in common with Simard and Clermont to carry out the robbery; i.e.:

(1) An oral statement to a police officer on his arrest that he had been threatened with death “is he squealed”;

(2) The written statement to the police outlined above in which he stated that he had only participated in the robbery by driving because he was threatened with death;

(3) A statement to his girl friend the day after the robbery that he was forced to do it.

The trial judge charged the jury as follows:

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Now, the defence are asserting that Paquette participated in this robbery because he was compelled to do so, and in that connection I charge you that if Paquette joined in the common plot to rob the Pop Shoppe under threats of death or grievous bodily harm, that would negative his having a common intention with Simard to rob the Pop Shoppe, and you must find Paquette not guilty.

The appellant was acquitted. The Crown appealed to the Court of Appeal for Ontario. The reasons delivered by that Court make it clear that the appeal would have been dismissed had it not been for the decision of this Court in Dunbar v. The King[1].

The relevant portions of the majority judgment in that case are as follows:

On January 15, 1936, three men entered and robbed a branch of the Canadian Bank of Commerce in Vancouver and in the course of the robbery the teller was fatally shot. The appellant Dunbar was not among those who entered the bank but he had brought the robbers to the bank in an automobile and after the robbery was over drove back for them and took them away to the house where they had all been living together. He subsequently shared with them in the proceeds of the robbery. He had a criminal record, had met one or other of the robbers in the penitentiary and had been living with them in the same house for some days prior to the robbery. He knew when driving the car to the bank that his associates were going there with the purpose of robbing the bank, that these men were armed and that in the course of such robbery it was not improbable that someone might be killed. His sole excuse for his conduct was that he had acted under compulsion as one of his associates had threatened his life unless he accompanied them and had further threatened that if he did anything to betray them that he would be killed. The point of alleged misdirection most stressed by counsel for the prisoner before us was a statement as follows:—

“If you accept Dunbar’s evidence that he was so bereft of reason that his reasoning faculties were suspended and that he was really in the position of having his hand held by somebody, that he has two men standing over him—you had this story of the thing put to you in the way that he would have you believe—well, then it seems to me there should be some evidence to show his mental condition.”

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Section 20 (now s. 17) of the Criminal Code, dealing with compulsion, excludes murder and robbery and therefore is inapplicable to this case, but it was argued that if compulsion were shown it might be sufficient to negative any common intention under the provision of s. 69(2) (now s. 21(2)) of the Code. It seems to me that this argument fails to recognize the distinction between intention and the motive giving rise to intention.

If Dunbar’s story of the threat to him was true then he was faced with a choice between endangering his own life or assisting those about to commit a robbery which might, as he knew, be accompanied by murder of an innocent person. The motive giving rise to his choice between these two courses is irrelevant. This being so, in my opinion the issue was not unfairly put before the jury in the learned trial Judge’s charge. I would, therefore, dismiss the appeal.

Counsel for the Crown submits that the principles of law applicable to the excuse or defence of duress or compulsion are exhaustively codified in s. 17 of the Criminal Code, and that the appellant is precluded from relying upon this provision because of the exception contained at the end of it. Section 17 provides:

17. A person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is excused for committing the offence if he believes that the threats will be carried out and if he is not a party to a conspiracy or association whereby he is subject to compulsion, but this section does not apply where the offence that is committed is treason, murder, piracy, attempted murder, assisting in rape, forcible abduction, robbery, causing bodily harm or arson.

In my opinion the application of s. 17 is limited to cases in which the person seeking to rely upon it has himself committed an offence. If a person who actually commits the offence does so in the presence of another party who has compelled him to do the act by threats of immediate death or grievous bodily harm, then, if he believes the threats would be carried out, and is not a party to a conspiracy whereby he is subject to such compulsion, he is excused for committing the offence. The protection afforded by this section is not given in respect

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of the offences listed at the end of the section, which include murder and robbery.

The section uses the specific words “a person who commits an offence”. It does not use the words “a person who is a party to an offence.” This is significant in the light of the wording of s. 21(1) which, in para. (a), makes a person a party to an offence who “actually commits it”. Paragraphs (b) and (c) deal with a person who aids or abets a person committing the offence. In my opinion s. 17 codifies the law as to duress as an excuse for the actual commission of a crime, but it does not, by its terms, go beyond that. R. v. Carker[2], in which reference was made to s. 17 having codified the defence or excuse of duress, dealt with a situation in which the accused had actually committed the offence.

The appellant, in the present case, did not himself commit the offence of robbery or of murder. He was not present when the murder occurred, as was the case in R. v. Farduto[3], and R. v. Warren[4], to which counsel for the Crown referred. In the former case the accused provided the razor with which the murderer cut the throat of the victim in his presence. The Court was of the view that the trial judge could conclude that there was no case of such compulsion as would constitute an excuse. In the latter case the accused, the brother of the actual murderer was present with him over a period of time after the robbery occurred and before the deceased was killed in his presence. The report does not indicate the nature of the compulsion alleged. The emphasis appears to have been on the subnormal intelligence of the accused making him willing to go along with what was suggested to him.

The appellant could only be considered to be a party to the murder on the basis of the application of s. 21(2). Section 21(1) is not applicable because the offence to which he is alleged to be a party is murder, and it is clear that he did not commit murder, nor did he aid or abet in its commission.

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Subsection (2) is only applicable if it is established that the appellant, in common with Simard and Clermont, formed an intention to commit robbery. The question in issue is as to whether the trial judge erred in law in telling the jury that if the appellant joined in the plot to rob under threats of death or of grievous bodily harm, this would negative such common intention.

I have already stated my reasons for considering s. 17 to be inapplicable. That being so, the appellant is entitled, by virtue of s. 7(3) of the Code, to rely upon any excuse or defence available to him at common law. The defence of duress to a charge of murder against a person who did not commit the murder, but who was alleged to have aided and abetted, was recently considered by the House of Lords in Director of Public Prosecutions for Northern Ireland v. Lynch[5], in which the decided cases were fully reviewed. The facts in that case were as follows:

The defendant drove a motor car containing a group of the I.R.A. in Northern Ireland on an expedition in which they shot and killed a police officer. On his trial for aiding and abetting the murder there was evidence that he was not a member of the I.R.A. and that he acted unwillingly under the orders of the leader of the group, being convinced that, if he disobeyed, he would himself be shot. The trial judge held that the defence of duress was not available to him and the jury found him guilty. The Court of Criminal Appeal in Northern Ireland upheld the conviction.

The House of Lords, by a 3 to 2 majority, held that on a charge of murder the defence of duress was open to a person accused as a principal in the second degree (aider and abettor) and ordered a new trial.

The conclusion of Lord Morris of Borth-y-Gest is stated at p. 677, as follows:

Having regard to the authorities to which I have referred it seems to me to have been firmly held by our courts in this country that duress can afford a defence in criminal cases. A recent pronouncement was that in the

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Court of Appeal in 1971 in the case above referred to (Reg. v. Hudson, [1971] 2 Q.B. 202). The court stated that they had been referred to a large number of authorities and to the views of writers of textbooks. In the judgment of the court delivered by Lord Parker C.J. and prepared by Widgery L.J. the conclusion was expressed, at p. 206, that

“…it is clearly established that duress provides a defence in all offences including perjury (except possibly treason or murder as a principal).”

We are only concerned in this case to say whether duress could be a possible defence open to Lynch who was charged with being an aider and abettor. Relying on the help given in the authorities we must decide this as a matter of principle. I consider that duress in such a case can be open as a possible defence. Both general reasoning and the requirements of justice lead me to this conclusion.

Lord Wilberforce, at p. 682, cited with approval a passage from the dissenting reasons of Bray C.J., in R. v. Brown and Morley[6] at p. 494:

The reasoning generally used to support the proposition that duress is no defence to a charge of murder is, to use the words of Blackstone cited above, that “he ought rather to die himself, than escape by the murder of an innocent.” Generally speaking I am prepared to accept this proposition. Its force is obviously considerably less where the act of the threatened man is not the direct act of killing but only the rendering of some minor form of assistance, particularly when it is by no means certain that if he refuses the death of the victim will be averted, or conversely when it is by no means certain that if he complies the death will be a necessary consequence. It would seem hard, for example, if an innocent passer-by seized in the street by a gang of criminals visibly engaged in robbery and murder in a shop and compelled at the point of a gun to issue misleading comments to the public, or an innocent driver compelled at the point of a gun to convey the murderer to the victim, were to have no defence. Are there any authorities which compel us to hold that he would not?

I am in agreement with the conclusion reached by the majority that it was open to Lynch, in the circumstances of that case, to rely on the defence of duress, which had not been put to the jury. If

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the defence of duress can be available to a person who has aided and abetted in the commission of murder, then clearly it should be available to a person who is sought to be made a party to the offence by virtue of s. 21(2). 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 Dunbar case could be distinguished from the present case on its facts. The accused, in that case, had been living with the persons who committed the robbery in which the shooting occurred. He drove them to and from the scene of the crime and shared with them in the proceeds of the robbery. However, the decision is based upon the proposition that on a charge of murder founded on the operation of what is now s. 21(2) of the Code, duress does not negative the intention of the accused to carry out an unlawful purpose in common with others, but only relates to his motive for joining in that common purpose, which is irrelevant to the issue of his guilt. I am not in agreement with this view and I am of the opinion that it should not be followed.

I would allow the appeal, set aside the judgment of the Court of Appeal, and restore the verdict of acquittal.

Appeal allowed, verdict of acquittal restored.

Solicitor for the appellant: Leonard M. Shore, Ottawa.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.

 

 



[1] [1936] 4 D.L.R. 737, 67 C.C.C. 20.

[2] [1967] S.C.R. 114.

[3] (1912), 21 C.C.C. 144.

[4] (1973), 14 C.C.C. (2d) 188.

[5] [1975] A.C. 653.

[6] [1968] S.A.S.R. 467.

 

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