R v Sheridan, 2015 ABQB 790

Court of Queen ’ s Bench of Alberta Citation: R v Sheridan, 2015 ABQB 790 Date: 20151214 Docket: 130851884Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Linda Ethal Sheridan Accused _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M.T. Moreau _______________________________________________________ I. Introduction [ 1 ] Linda Louise Sheridan is charged with four counts of possession of a controlled substance for the purpose of trafficking, namely cannabis resin, hydromorphone, methamphetamine and heroin. Ms.

Sheridan admitted both the actus reus and the mens rea of each offence, but argued that the offences were committed under duress.

[ 2 ] Crown counsel argued that duress did not have an air of reality in this case and was therefore not available to Ms. Sheridan as an excuse to her criminal conduct. II. The Evidence [ 3 ] According to an Agreed Statement of Facts: Ms. Sheridan attended the maximum security Edmonton Institution (“the Institution”) for a scheduled 72-hour family visit on July 22, 2013. She was accompanied by both her 10 year old granddaughter, and the daughter of her son, who was an inmate at the Institution. Carson McDonald, an employee of the Institution, testified that he escorted Ms.

Sheridan and the child from the front gate through the initial X-ray and ion scanning then to an area patrolled by a drug detector dog. [ 4 ] Ms. Brandy Swenson, a dog handler employed by the Institution, testified that she brought a drug detection dog to Ms. Sheridan and the dog indicated the presence of drugs on Ms. Sheridan three times. [ 5 ] Ms. Swenson administered both a Charter warning and caution to Ms. Sheridan, who responded that she did not want to speak to a lawyer. She stated that she wanted to remove “the stuff” from her body cavity and to call her husband to pick up their granddaughter. Ms.

Swenson then took her to the office of Mr. Mark Pauline, a correctional manager at the Institution, to use the phone but she was unable to reach her husband. Ms. Swenson then accompanied Ms. Sheridan to a washroom where Ms. Sheridan pulled three packages from her vagina. [ 6 ] According to the Agreed Statement of Facts, each package was wrapped in cellophane plastic, tied with a knot and placed in a condom. The first package contained 5.8 grams of methamphetamine valued at $5,800 and 3.1 grams of diacetylmorphine (heroin) valued at $1550.

The second and third packages each contained a vial with 4.9 g. and 4.2 grams respectively of cannabis resin with a total value of $2,000. [ 7 ] Following this, Ms. Sheridan was able to contact her husband by phone. Having dealt with Ms. Sheridan for about 35 to 45 minutes, Ms. Swenson described her as embarrassed, but not upset or crying. [ 8 ] Mr. Pauline testified that he initially met Ms. Swenson and Ms. Sheridan in the visitor area where Ms. Sheridan said words to the effect of: “I wish I hadn’t got talked into this” and that she wanted to take out a package hidden on her person.

When speaking with her husband by telephone, he heard her say: “It was a stupid move and I should have known better.” He described her as a little nervous but quite calm when speaking to her husband on the phone. [ 9 ] While Mr. Pauline did not keep contemporaneous notes of his conversations with Ms. Sheridan, I accept his testimony that he accurately recorded her statements in the written report he prepared approximately 2 ½ hours later. [ 10 ] Detective Lacey and Detective Dezwart of the Edmonton Police Service responded to the Institution on July 22, 2013.

Detective Lacey testified that he took possession of the packages retrieved from Ms. Sheridan and administered a secondary caution. I accept Detective Lacey’s testimony that Ms. Sheridan was very cooperative in his dealings with her and that on proceeding to her vehicle, she told him: “it was dumb”. She was very cooperative and he observed no overt indication in the 18 minutes or so he dealt with her that she was very agitated or upset. [ 11 ] On arriving at Ms.

Sheridan’s truck where she retrieved her purse, Detective Lacey asked her if she had anything else on her, and she responded some “nic” patches and some stronger pills, gesturing to her bra area. [ 12 ] Detective Dezwart arrested Ms. Sheridan on charges of possession of controlled substances for the purposes of trafficking, and administered a Charter warning and caution. He asked her if she had more drugs or contraband on her and she responded “no”. He did not hear what she said to Detective Lacey when they accompanied her to her car. According to the Agreed Statement of Facts, when Ms.

Sheridan was searched at police headquarters, 12 hydromorphone pills valued at $2,880.00 along with six cigarettes, were retrieved from her right bra cup. In addition five nicotine patches were retrieved from her left bra cup. She was wearing a nicotine patch on her stomach. [ 13 ] In the Agreed Statement of Facts, Ms. Sheridan admitted that she brought the controlled substances to the prison for the purpose of transferring them to her son, a serving prisoner. [ 14 ] Detective Dezwart conducted an audio interview with Ms. Sheridan after she had been provided telephone access to counsel at police headquarters.

He re-administered the Charter warning and caution. She declined to provide a statement. She referred to the legal advice she had received which advised her not to say anything. She stated at one point: “Like I said, I really don’t want to do the wrong thing but I don’t want you to think that I just took these in here for someone, my son to sell or whatever cuz that is just not the case.

It was a pressure situation and you know I folded to the pressure and I shouldn’t have obviously.” [ 15 ] I accept the testimony of Detective Dezwart that when he was serving a Notice of Mandatory Minimum Punishment of Imprisonment on Ms. Sheridan, he asked her if she had ever thought of getting caught or what would happen if she got caught. She responded that she never thought she would get caught. While neither the handwritten notes he made at the time of his dealings with her nor his file

summary prepared for the bail hearing that evening refer to this exchange or her denial that she had more drugs on her person, their exchange was recorded in his report six days later. I accept his evidence that he recalled the short exchange with her in the context of its timing with his delivery to her of the Notice. [ 16 ] Detective Dezwart described Ms. Sheridan’s demeanor, during the more than five hours he dealt with her, as very calm and polite. He also stated that she did not show any signs of remorse or guilt other than saying she shouldn’t have done it. [ 17 ] Ms. Sheridan testified in her defence. I found her to be a credible witness whose account of the events and her decision to

smuggle drugs into the Institution was not shaken after a thorough cross-examination. In argument, Crown counsel agreed with defencecounsel that Ms. Sheridan’s testimony appeared to be forthright, credible and believable. [18] Ms. Sheridan was 60 years old at the time of the events. She and her husband of 35 years reside in Vilna, Alberta. She hasundergone a liver transplant, has COPD and osteoarthritis and has not worked for close to 20 years. Her husband is employed. They hadthree children, however, their oldest child, a daughter born in 1976, died in 2001. Nathan Sheridan, their second child, is in prison.

Theirthird child was stillborn. [19] Ms. Sheridan testified that Nathan has been in and out of jail since his mid-teens and has been housed at several institutionsand has spend the majority of his adult life in prison. He is currently at the Kent Institution in B.C. During the times he was not in prison,Nathan lived in Calgary and came home for visits. [20] A large part of Ms. Sheridan’s evidence consisted of recounting what her son Nathan told her.

As pointed out by defencecounsel and conceded by Crown counsel, the purpose of eliciting statements made to her by her son was not to establish the truth of thosestatements, but rather the fact that they were made. As noted in R v Smith, (SCC), [1992] 2 SCR 915 at 925, the factthat the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of thewitness or of some other person in whose presence the statement was made. In this case, the assessment of Ms.

Sheridan’s state of mindprior to and at the time she smuggled the substances into the Institution is a very important component of her defence. [21] I accept Ms. Sheridan’s testimony that: o She has a very close relationship with her son, particularly since the death of his older sister. When he is in prison, she talks to him byphone almost every day. o She became aware, through media reports, of the Fresh Off the Boat gang (“FOB) in the early 2000’s, and learned that it was a veryviolent gang from Calgary involved in the drug trade.

When Nathan came home for a visit in 2005 with a FOB tattoo on his chest, headmitted to her and her husband that he had joined the gang. He told them he decided to join when members of the gang assaulted andbroke both arms of a male at the Calgary Remand Centre, who had been very abusive toward Nathan’s sister prior to her death. o She was very worried about Nathan’s involvement with FOB. Nathan gave her the phone number of his “boss” and friend, NickChan. Over the years, Nick called her home 15 to 20 times to locate Nathan. She herself called Nick a few times to locate Nathan.

Aftershe became aware that Nathan had become a member of FOB, she followed the gang on the internet, including its war with the FOBKillers (“FK”) gang and read articles about the violence perpetrated by and against the FOB gang, including in prison. She submitted inevidence a news

article she read in 2009, which reported on a gang war between FOB and FK that had killed 25 gang members. She alsosubmitted an

article she read in 2009, about a FOB gang member who had been beaten in a gang-related fight at the Calgary RemandCentre. She noticed that when Nathan visited, he often had a black eye, bruises or cuts and scrapes. o She had also read in an

article that Nick Chan had a dedicated phone line for FOB members in prison, and she believed this to be true. o In 2010, Nick Chan contacted her and told her that Nathan had been shot in Calgary. Nick made arrangements for her travel toCalgary and took her to the hospital where Nathan was in intensive care in a locked unit under another name. While Nathan wasrecovering in her home after the shooting, she noticed that he was worried about his safety and that he purchased a bulletproof vest.

Shesubsequently learned that he had again been shot in Calgary but was wearing the bulletproof vest at the time. o Nathan also told her about being stabbed approximately seven times in jail, and having been involved in fights and beatings. Sheknew about Protective Custody (“PC”) but believed it was still not really safe there, as Nathan had told her that some of the stabbings andfights occurred while he was in PC. He described a protective device he had made for himself in prison, consisting of two t-shirts sewntogether at the bottom, which he then filled with magazines to protect himself in case he was stabbed.

She recalled one visit to theInstitution when Nathan introduced her to a male whom Nathan described as a FOB member who had committed first degree murder inthe prison. o Prior to July 22, 2013, she was visiting Nathan weekly at the Institution, with his now 12-year-old daughter, whom she and herhusband are raising along with another grandchild. A drug detection dog searched her “pretty regularly” before the visits. o Around 2012, Nathan told her he had decided to leave FOB. He said he had concerns about leaving and was concerned about violenceagainst him and that loyalty was a big thing with FOB.

He was moved to a unit for ex-gang members. There were several FOB memberswithin the Institution at the time. o About 10 days to 2 weeks prior the family visit to the Institution on July 22, 2013, which had been booked about one month earlier,she received a phone call which caller ID displayed as “unknown name unknown number”. The male caller told her she had a son at theInstitution and asked her if she loved her son. He said he was going to send her a package and that she was going to have to take it intothe prison. When she asked what would be in the package he said “drugs”.

She said she could not do so as there were dogs that detecteddrugs. He told her if she did exactly as she was told, the drugs would not be detected. He told her if she didn’t take the package into thejail, what happened to her son in Calgary would happen again and that if she didn’t want her son harmed she had to listen to what he said.She believed he was referring to Nathan having been shot in Calgary. He also said her son would be killed if she did not comply.

He toldher that she was to put away the package when she received it until he contacted her again and that she was not to tell her husband or herson or anyone. o When her husband brought in the mail within a week of her having received the call, she opened a package in a brown envelope thatcontained wrapped up packs of what she assumed to be drugs. She hid it in her bedroom. She did not tell her husband, even though shetrusted him with her life, as she was told not to tell anyone and she did not want her son to be harmed or killed in prison.

She felt like sheneeded to follow the caller’s instructions totally. o A couple of days later, and within a week before her scheduled family visit with Nathan, she received a phone call from the same

male during which she confirmed she had received the package. She again expressed concern about bringing drugs into the Institution. He responded that if she inserted the two little vials inside of her, she could put the rest of the packages in her bra or underwear and the drug dog would not detect them. He repeated that she had to do this or her son was going to be killed in prison. She had no idea who called her but assumed it had something to do with FOB, as the male knew Nathan had been shot, and the package arrived even though she had not given the caller her address.

She stated that she had lost two children already and could not bear the thought of losing her last child. She believed the caller and did not really believe she had a choice. o She proceeded with her granddaughter to the Institution on July 22, 2013 for the family visit. When she was processed with the drug dog, it sat down in front and behind her. The dog handler told her it was an indication she was carrying drugs and that the police were being called. She described being “horribly stressed out” but was trying not to act like that, as her granddaughter was with her and she did not want her to be upset.

She also did not know if her son would be killed because she had been caught with the drugs. o She had never smuggled drugs into a prison prior to this incident. She and her husband are financially stable and if it was a matter of giving someone the value of the drugs that would have been easy but she did not have that choice. She had no role in purchasing or packaging the drugs. She and her husband did not give Nathan money. o She did not call the police as she did not know who to trust.

She had also read articles about prison guards taking drugs into prisons and she did not know if the male who had her address was connected to the prison. She believed the FOB could get into the prison, as she had already met a FOB member who had killed someone in prison. She smuggled the drugs into the prison because she believed prison to be a very dangerous place, she felt that her son would be murdered if she did not comply, and she did not have a choice.

She was aware that Nathan had been housed in a unit for ex-gang members for a couple of months prior to the smuggling incident in July 2013. o When put to her under cross-examination that she reacted without thinking, she stated she thought about it a lot but felt that she needed to listen to what the man said to protect her son. When it was put to her that there was nothing to suggest that police could not be trusted, she responded that there had been problems between the police and Nathan in the past in which the police beat him up.

She was not aware of what kind of connections the male caller had, whether with jail guards or police, but was too scared to take the risk. She did not believe anyone could help them. She had not had a lot of prior dealings with corrections staff, however, she had read articles about prison guards being arrested and taking drugs themselves, and Nathan had told her that some of them caused violence. Nathan had also talked to her about FOB controlling drugs in prison. o Nathan did not have extensive discussions with her about his role in FOB. She knew that he was involved in selling drugs and thought he used drugs.

She was aware of his criminal record for violence and of his most recent conviction for a home invasion (break and enter and commit aggravated assault), for which he received a seven-year plus nine-month sentence. o She did not tell Nathan about the threats during their phone calls as the male had told her not to tell him or her husband.

She felt that if she told Nathan he could not have taken steps to protect himself. o When suggested to her that Nathan could have requested a move to another prison, she responded that if they want to get you to do something, they can get to you in any prison and that there are FOB members where he is in prison now in B.C. When it was suggested to her that there are federal prisons in Ontario and Quebec, she stated that Nathan didn’t want to have to move that far away, as it was hard enough for him to be in B.C. without his family. She acknowledged that maybe it could have been safer out there.

When asked if he could have requested a transfer to the Maritimes, she stated she could not answer for him but added: “I am assuming he could have but don’t really know”. o She had not thought about approaching police or corrections with a hypothetical because it had been proven that Nathan could not be protected there as he had been stabbed in prison. He had previously told her that he heard someone was mad at him who had a shank and was coming after him and that he received a knife that he turned in and then was moved to PC.

She was sure there had been a problem with his safety while in PC but could not recall a specific incident. [ 22 ] Nathan Sheridan is 35 years of age and admitted his lengthy criminal and youth record. Cross-examination was very brief and his testimony was not shaken. I accept his testimony that: o He is very close to his mother. As a result of his sister’s death and his mother’s health their relationship has grown stronger. o He has spent more than half of his adult life in prison and talks to his mother every day, if his unit is not on lockdown.

In the past, when not in prison, he spent time in Calgary with the FOB gang which he joined in 2005. He joined the gang when its members broke the arms of and stabbed a male detained at the Calgary Remand Centre who had been abusing his sister before she died. o He has been shot twice, in Calgary, the first time in 2010 which put him in the ICU unit. The second time was months later, which caused only severe bruising as he was wearing a bulletproof vest at the time. o A member of FOB, Nick Chan, was his boss and good friend and he spoke about him to his mother.

Nick would have had all the contact information on his family. He told his parents that FOB was an organized crime gang and that he was involved in some pretty serious things. o He talked to his mother about having been stabbed seven times in prison, the presence of FOB within the prison, and the measures he took to protect himself from injury. In recent years, he had been in protective custody (“PC”) more often than not. He described PC in the federal system as “kind of … like a myth”.

Inmates at the Institution are in PC for anything from a drug debt, to getting stripped of their gang colours, to leaving a gang, to just being scared. More times than not, a lot of PC inmates feel the need to prove themselves; they have friends in general population and would do a favour for them and “get guys” to get back into the good graces of their friends. He discussed these matters with his mother. Four of the seven stabbings he sustained occurred while he was in PC. o He left FOB about four or five months before the July 2013 incident. He told his mother he was leaving and she expressed concerns

that something was going to happen to him. There were a fair number of FOB members in the prison in 2012 and he spoke to his mother about this. He understood that as long as he kept his mouth shut he would be fine, however, he had a bad conversation with Nick Chan on the phone, which made him decide to move to PC. He stated that FOB has lots of enemies in the Edmonton Max and this caused him concerns about his safety. o He had conversations with his mother about shanks and she was aware that pretty much everyone had one.

He explained the precaution he took against being stabbed by sewing two shirts together and putting magazines between the layers. o His mother never brought drugs to him in prison, nor did they ever discuss her doing so. If he had wanted drugs, he could have asked someone on the range. o He was very surprised when he was told that his mother had been arrested. At no time did she tell him she had received a threat and that she had to bring drugs into the prison.

Had he known about it before it happened he would have stopped it. o His parents would never give him money; just a bus ticket home if he was going to straighten out and his mother never participated in his criminal lifestyle. III. The Law Relating to Duress [ 23 ] Ms. Sheridan admitted that the Crown has proven beyond a reasonable doubt all elements of the offence of possession of the controlled drugs in question, for the purpose of trafficking. She maintains, however, that her actions were committed under duress. [ 24 ]

Section 17 of the Criminal Code RSC 1985, c C-46 states: 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 … [what follows is a list of criminal offences that does not include the offence of possession for the purpose of trafficking [ 25 ] As noted by Justices Lebel and Cromwell, writing for the majority of the Court in R v Ryan , 2013 SCC 3 , [2013] 1 SCR 14 at paras 23 and 41 , duress is an amalgam of statutory and common law elements.

Section 17 applies only to persons who commit offences as principals, while the common law defence of duress remains available to parties to an offence. [ 26 ] The defence of duress is classified as an excuse; the law excuses those who, although morally blameworthy, acted in a morally involuntary manner. The act remains wrong, but the author of the offence will not be punished because it was committed in circumstances in which there was realistically no choice. [ 27 ] Self-defence, in contrast, is a justification; the impugned act is considered right.

Unlike duress, self-defence does not require that any course of action other than inflicting the injury was “demonstrably impossible” or that there was “no other legal way out” and therefore the justification of self-defence ought to be more readily available than the excuse of duress: Ryan , para. 26 . [ 28 ] In R v Ruzic , [2001] SCR 687, 2001 SCC 24 , the accused’s claim of duress did not satisfy the “immediacy” and “presence” conditions set out in s. 17 . The accused challenged the constitutionality of these statutory requirements.

Lebel J., writing for the Court, noted, at para 47, that the rationale underlying duress is that of moral involuntariness: It is a principle of fundamental justice that only voluntary conduct – behavior that is the product of a free will and controlled body, unhindered by external constraints – should attract the penalty and stigma of criminal liability. [ 29 ] Lebel J. concluded, at paras 88-92, that the requirements of immediacy ( ie. threat of immediate death or bodily harm) and presence ( ie. threat from a person who is present when the offence is committed) infringe s.7 of the Charter and must be struck down as, taken together, they preclude threats of future harm.

This under-inclusiveness violates the liberty and security interests protected by s. 7 of the Charter .

As noted in Ryan , at para 43 , the Court in Ruzik left intact the requirements in s. 17 that: 1. there must be a threat of death or bodily harm directed against the accused or a third party; 2. the accused must believe that the threat will be carried out; 3. the offence must not be on the list of excluded offences; and 4. the accused cannot be a party to a conspiracy or criminal association such that the person is subject to compulsion. [ 30 ] As noted in Ryan , at paras 51-52 , the requirement left intact in Ruzik , that a person must believe that the threat will be carried out, made sense when the threat was clearly immediate and the individual making the threat was physically present on the scene.

Once the immediacy and presence requirements were struck down, the accused’s belief that the threat will be carried out necessarily demanded a higher standard of evaluation. The Court accordingly imposed the requirement that the accused’s actual belief must be reasonable.

The threat must involve a threat of such a degree of violence, that a person of reasonable firmness, with the characteristics and in the situation of the defendant, could not have been expected to resist. [ 31 ] The majority of the Court in Ryan commented, at paragraphs 44-54 , that the Court in Ruzik , did not leave the statutory defence of duress in place “simply stripped of its unconstitutional portions”. It supplemented the

interpretation and application of s. 17 with elements of the common law of duress to clarify and flesh out the statutory defence so as to be more consonant with the values of the Charter . The Court stated at paragraphs 71-73, that the following three key elements of the common law defence of duress now

operate alongside the four requirements remaining in s. 17 : 1. There is no safe avenue of escape. The defence does not apply to persons who could have legally and safely extricated themselves from the situation of duress. This element is measured on the modified objective standard of the reasonable person similarly situated. 2. There is a close temporal connection between the threat and the harm threatened. The close connection must be such that the accused loses the ability to act voluntarily. This requirement is linked with the requirement that the accused have no safe avenue of escape.

A threat too far removed in time would cast doubt on its seriousness and on claims of an absence of a safe avenue of escape: Ruzik , at para 65. This requirement is also measured on the modified objective standard of the reasonable person similarly situated. 3. The threat is proportional to the criminal act to be committed. The harm threatened must be equal to or greater than the harm inflicted by the accused.

The proportionality requirement also includes the requirement that the accused will adjust his or her conduct according to the nature of the threat: “The accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat” ( Ryan , at para 53 ). Did the actions of the accused accord with what society expects from a reasonable person similarly situated in that particular circumstance - did the accused demonstrate “normal” resistance to the threat? IV.

Air of Reality [ 32 ] Before duress is to be considered by the trier of fact, there must be an air of reality to each of the components of the defence: R v Hubler , 2013 ABCA 31 , at para 25 , [2013] AJ No 36.

Crown counsel conceded in argument that there is an air of reality to the requirement that threat is of death or bodily harm, the accused is not part of a conspiracy or criminal association, and the threat was proportional to the harm threatened. [ 33 ] The air of reality test was expressed as follows in R v Cinous , [2002] 2 SCR 3, 2002 SCC 29 , at para 82 : We conclude that the authorities after Pappajohn continue to support a two-pronged question for determining whether there is an evidential foundation warranting that a defence be put to a jury.

The question remains whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true. The second part of this question can be rendered by asking whether the evidence put forth is reasonably capable of supporting the inferences required to acquit the accused.

This is the current state of the law, uniformly applicable to all defences. [ 34 ] The trial judge must assume the truth of the evidence that tends to support the defence, leaving credibility, the weight of the evidence, the making of findings of fact and the drawing of determinate factual inferences to the jury: Cinous at para 87 . If there is direct evidence as to every element of the defence, whether or not it is adduced by the accused, the trial judge must put the defence to the jury: Cinous at para 88 .

The onus then shifts to the Crown to disprove the requirements of duress beyond a reasonable doubt: Ruzik , at paras 71, 100.

As noted in Hubler , at para 60 , the Crown must prove beyond a reasonable doubt that at least one of the requirements of duress is absent for the defence to have no application. [ 35 ] Where the defence includes an element that cannot be established by direct evidence, such as where a defence has an objective reasonableness component, the question becomes whether those elements of the defence that cannot be established by direct evidence may be reasonably inferred from the circumstantial evidence.

Circumstantial evidence is “evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred” Cinous at para 89 . There is a “limited weighing” of the evidence at this stage, in the sense that the trial judge will assess whether the evidence, if believed, is reasonably capable of supporting the inferences that the accused is asking the jury to draw: Cinous at para 90 .

The judge does not draw determinate factual inferences, but comes to a conclusion about the “field of factual inferences” that could reasonably be drawn from the evidence: Cinous para 91 . V. Analysis The statutory requirement s of duress [ 36 ] Having regard to my fact findings and the nature of the offence charged, there is evidence upon which a reasonable jury, properly instructed, could find that the first, third and fourth elements of the statutory requirements of duress were met.

Lebel J. clarified in Ruzik that s. 17 only requires that the threat be made to the accused, not that the object of the threatened harm be the accused: Ryan paras 57-58. I accepted the evidence of Ms. Sheridan that she directly received from the unknown male caller a threat to kill her son if she did not smuggle the drugs into the Institution. The offence charged is not excluded from the application of s. 17 . Ms.

Sheridan was not a party to a conspiracy or criminal association. [ 37 ] I conclude that not only is there an air of reality to each of these requirements but, having regard to my findings in relation to the testimony of Ms. Sheridan and Nathan Sheridan, I find that the Crown has not disproven any of these statutory requirements beyond a reasonable doubt. [ 38 ] I must then determine whether there is an air of reality to the remaining modified statutory requirement, namely, that Ms.

Sheridan believed that the threat would be carried out, and the three common law requirements set out in Ruzik: 1) that there was no safe avenue of escape; 2) there was a close temporal connection between the threat and the harm threatened; and 3) the threat was proportional to the harm threatened. Each of these requirements must be analyzed on a modified objective test: Ryan at paras 64-74 .

As noted in Hibbert , at paras 59-60, that standard takes into account the particular circumstances and human frailties of the accused, which would include his or her ability to perceive the existence of alternative courses of action. This standard was restated in Ryan , at para 65 , citing Ruzik , at para 61:

The courts will take into consideration the particular circumstances where the accused found himself and his ability to perceive a reasonable alternative to committing a crime, with an awareness of his background and essential characteristics. The process involves a pragmatic assessment of the position of the accused, tempered by the need to avoid negating criminal liability on the basis of a purely subjective and unverifiable excuse.

In other words, a reasonable person in the same situation as the accused and with the same personal characteristics and experience would conclude that there was no safe avenue of escape or legal alternative to committing the offence. [emphasis added] [ 39 ] Having regard to my finding that Ms. Sheridan believed that her son’s life was in danger, the subjective element of the modified statutory requirement, that the accused must reasonably believe that the threat will be carried out, has been made out. I also find that the objective element of this requirement has an air of reality. Ms.

Sheridan’s belief was anchored in the history of her knowledge of her son’s particular circumstances, having been involved for several years with a very violent gang that had a presence in the Institution, and having previously been the victim of two shootings on the outside and of multiple stabbings within prison, four of them while housed in PC. Her belief that the threat originated in the gang was buttressed by the unknown caller’s reference to what had happened to her son in Calgary which she took as a reference to the shooting.

She had also received the package of drugs by mail in Vilna, having been told by Nathan that he had provided her coordinates to his gang boss, Nicky Chan. Accordingly, I find that the requirement of a reasonable belief that the threat will be carried out, has an air of reality. I also find that this component of duress was not disproven by the Crown beyond a reasonable doubt given the modified objective test requires an evaluation of what is reasonable to believe in the same situation, with the same characteristics and experience as the accused.

The common law requirements of duress Close temporal connection [ 40 ] There must be a close temporal connection between the threat and its threatened execution. It must be such that the accused loses the ability to act voluntarily: Ryan at para 48 . This requirement is linked to the “no safe avenue of escape” requirement. As noted in Ruzik at para 65, a threat that is “too far removed in time… would cast doubt on the seriousness of the threat and, more particularly, on claims of an absence of a safe avenue of escape”.

Another purpose of the close temporal connection requirement is to ensure that it is reasonable to believe that the threat put so much pressure on the accused, that between this threat and the commission of the offence, the accused lost the ability to act freely: Ryan at paras 68-69 . [ 41 ] Defence counsel noted that a close temporal connection was found to exist in Ruzic , where the accused embarked on a task that would have taken a number of days to accomplish. [ 42 ] Crown counsel maintained that this requirement has no air of reality.

She pointed out that a longer period between the threat and the harm threatened provides a reasonable opportunity to consider and explore other options. Crown counsel also argued that Ms. Sheridan had days to consider her options and to make reasonable inquiries about them. She made no such inquiries. [ 43 ] Ms. Sheridan’s strong and genuine belief was that her son would be killed unless she smuggled the drugs into the Institution and that she had no realistic choice but to act on it.

Looking at the temporal connection from the perspective of a reasonable person in her position: a mother, aware of the past violence both outside and within prison caused by FOB, including homicide, and the previous violence against her son. She receives a phone call announcing the package would arrive by mail and warns her to tell no one, including her husband and son, about the smuggling plan. Within a few days of this, the package arrives and its contents are consistent with drugs. Within two days after receiving the package, she receives a call from the same male.

He is able to describe the contents of the package and tells her to secrete the vials internally to avoid detection. There are indeed two vials seized from her by police. The package and instructions are delivered within days of her pre-booked visit to the Institution. Given these events, a reasonable person in her position would not assume that the threat was so removed in time as to cast doubt on its seriousness. I find that the close temporal connection requirement has an air of reality and having considered the evidence, that the Crown has not disproved this requirement beyond a reasonable doubt.

No safe avenue of escape [ 44 ] This requirement is closely tied to the close temporal connection requirement. [ 45 ] Defence counsel noted that Ms. Sheridan was fully aware of the dangerousness of FOB both outside and inside the prison walls. She was fully aware of the violence to which Nathan had already been subjected while a member of FOB and precautions he had taken both outside and inside the prison walls to avoid injury. She was aware that despite being housed previously in PC, Nathan had been stabbed multiple times and that homicides occurred at the Institution.

Her relationship with her son was extremely close, even more so after the death of her oldest child. [ 46 ] Defence counsel relied on the comment in Ruzik , at para 98, that the law does not require an accused to seek the protection of the police or other officials in all cases when the threat is to do harm in the future. However, the law does expect the accused to seek such protection if it is feasible and safe to do so. In this case, Ms. Sheridan genuinely believed that it was not safe for her to do so and having regard to her personal circumstances and state of knowledge, her belief was reasonable.

[ 47 ] Defence counsel referred to R v Johnstone , 2014 ABQB 647 , a case where duress was argued not in the context of a trial but in mitigation of sentence. In that case counsel for the accused had conceded that the requirement of a close temporal connection did not have an air of reality.

Ouellette J. found that it would not be unreasonable for the accused, a prison guard who trafficked drugs into the Edmonton Remand Centre, to believe that the inmate who threatened him and who worked with the Hell’s Angels would in fact cause him or his mother significant harm or death, as borne out by the inmate’s violent criminal record. The accused was contacted by phone at his home by another individual in relation to picking up a package on the same day he received the threat from the inmate. He delayed making the instructed deliveries.

His vehicle was damaged on three occasions and on one of them, his belongings were stolen from his vehicle. He did not report the threat to his supervisor or to the police. He stated he had a “history” with his supervisor and other staff members. He also believed the inmate could carry out his threats before the authorities could intervene. The Agreed Statement of Facts disclosed a conspiracy to traffic drugs among inmates who had dealings with the accused.

The criminal records of these inmates disclosed violent crimes. [ 48 ] Ouellette J. found as a fact, at para 37, that “when the inmates said things were going to happen, they did happen. Therefore, it would not be unreasonable for the accused to believe that the inmates, because of who they were and their connections, could in fact act more swiftly to cause the harm they had threatened than could the police.” Defence counsel argued that Ms.

Sheridan was similarly situated in that she genuinely and reasonably believed, based on the history of violence against her son including inside prison, that the police and correctional authorities could not protect him. [ 49 ] Crown counsel maintained that there is no air of reality to the requirement of no avenue of escape in this case. She referred to R v Keller 1998 ABCA 357 , 131 CCC (3d) 59, where the appellant was convicted of trafficking in LSD. The appellant was arrested at the Calgary Airport cargo office while picking up a package containing 240 “hits” of LSD.

He admitted to the police that he had picked up at least 10 similar packages during the preceding four months. He described an individual, a drug dealer, who had threatened him while accompanied by two men with shaved heads. Several months before that he had inadvertently destroyed 2,000 hits of LSD with a street value of $10,000 owned by the drug dealer. He testified that he did not go to the police because he was afraid of the drug dealer and his friends and felt the police could not protect him. He did not tell anyone because he was embarrassed about the situation.

He did not leave Calgary to live with his mother in B.C. as he felt he would not be safe there. The initial threat was not repeated and he continued to receive instructions about the pick-ups from individuals whom he did not know and who did not threaten him. However, he assumed their instructions originated with the drug dealer. He felt the drug dealer’s friends were watching him. [ 50 ] The trial judge refused to leave duress with the jury. The appellant, on appeal, sought a declaration that s. 17 of the Criminal Code was unconstitutional.

The Court of Appeal concluded that it was not necessary to determine the constitutional issue. Accepting without deciding that the appellant was not entitled to rely on the common law defence of duress, the Court found that the evidence at trial did not lend to it an air of reality and that the trial judge correctly declined to leave the defence with the jury.

The Court, at paras 22- 23, described as the “crux of common law duress” the requirement that there be no safe avenue of escape, which is determined on an objective-subjective standard taking into account the particular circumstances and human frailties of the accused.

The Court framed the test as follows, at para 24: The question is whether a reasonable person, with similar history, personal circumstances, abilities, capacities, and human frailties as the accused, would, in the particular circumstances, reasonably believe there was no safe avenue of escape and that he had no choice but to yield to the coercion. [ 51 ] The Court went on to note, at para 29, the comments of Lamer CJC in Hibbert , at para 57, that a person’s failure to take steps to inform himself or herself of the true state of affairs is itself a choice, and a decision based on the resulting erroneous view of the circumstances is therefore not normatively involuntary as it could have been avoided.

However, Lamer CJC went on to observe, at para 58, that this does not fully the resolve the issue : 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 . [emphasis added] [ 52 ] The Court of Appeal noted that the appellant had good relations with his mother and there was nothing in the evidence other than his assertion to suggest that the police could not protect him. He did not contact police even anonymously to see if they could protect him and he had ample opportunity to seek that protection.

He was arrested committing the trafficking offence four months after he received the threat. He failed to take any steps to discover the full range of legal alternatives open to him. There was no suggestion that he was incapable of processing information or analyzing potential options of others, nor any subjective frailty that suggested he was unable to discover his options.

The Court observed, at para 36, that his failure to inform himself of the true state of affairs … was itself a choice, and his ultimate decision based on the resulting erroneous view of the circumstances is thus not normatively involuntary, since it could have been avoided. Society properly expects a reasonable effort to consider legal alternatives before permitting reliance on duress to excuse wrongful conduct. [ 53 ] The Court concluded that there was no air of reality to the defence of duress. [ 54 ] Crown counsel argued that while Ms.

Sheridan expressed distrust for the police, and she was aware that Nathan had altercations with them in the past, there was no reason to believe that the police could not have protected him. She contrasted the situation here to that in Ryan , where the accused had in the past engaged the police in an effort to protect her from her abusive husband without success. Crown counsel noted that in relation to offences he had been convicted of in 2008, Ms. Sheridan and her husband had been able to negotiate turning Nathan into the police instead of having a SWAT team arrest him.

She was unable to articulate any particular issue with the correctional authorities other than suspicions regarding institution staff members being involved in drugs. She

had more than adequate time to contact the police. When it was suggested to her that correctional authorities could have arranged a move to a distant prison, she referred to it being too hard for him to have family visits. She determined not to involve her son who might have had other avenues at his disposal. She trusted her husband with her life yet did not share her dilemma with him. The Crown argues that the law required her to do more and accordingly, the requirement of “no avenue of escape” had no air of reality. [ 55 ] Ms.

Sheridan genuinely believed that the police and the correctional authorities could not protect her son. She testified that Nathan did not know how leaving FOB was going to be taken and whether there would be violence against him. She was aware that prison authorities had not been able to protect him in the past even when housed in PC. At the time of deciding Keller , the Court did not have the benefit of the comments in Ruzic ; that there may not be a requirement in each case that the police be called depending on the circumstances.

In both Ruzic and Ryan, which were decided after Keller , the accused had opportunities to go to the police. [ 56 ] There was independent evidence in this case supporting Ms. Sheridan’s belief that the prison was a dangerous environment. Mr.

Pauline, a correctional manager at the Institution, confirmed that violent incidents occur regularly there and that he also comes across shanks that have been made within the prison and that are used for stabbing. [ 57 ] Detective Dezwart confirmed that in his employment investigating institutional crime, he was aware of frequent beatings, assaults, stabbings, and weapons complaints, and that it was not uncommon for police to lay charges for possession of knives and shanks.

He acknowledged that homicides occur within the Institution, that drugs are a problem and that there is a lot of gang-related crime within the Institution. He stated that FOB is one of the stronger gangs and has been involved in drug crimes and assaults within the Institution. [ 58 ] While in this case, like in Keller , there was no evidence that Ms. Sheridan was mentally incapable of processing information and analyzing potential options, I find that her situation differs from Mr. Keller’s in a number of important respects. Here the threat was not against Ms. Sheridan herself. Had it been, she, like Mr.

Keller, would have had some measure of control over any plans of escape. The timeframe here was a matter of days and the offence occurred on only one occasion, she had never confronted a situation like this before, and there was no after-the-fact opportunity for reflection. In Keller , the appellant made several drug pick-ups at the airport during the four-month time frame between the threat and his arrest, with many opportunities to reflect on his offences both before and after committing them.

This prompted the Court to observe, at para 34, that he could continue trafficking drugs indefinitely with the assurance that if he were caught he would have a viable defence. [ 59 ] Lebel J. commented in Ruzic , at para 98 , that the requirement of objectivity must itself take into consideration the special circumstances of the accused as well as her perception of them . In this case, Ms. Sheridan testified that she gave the matter much thought and perceived that she had no avenue of escape. Her perception was grounded in her belief that the unknown caller was connected to FOB.

The basis of that belief was reasonable in that the caller knew her contact information, information that had been previously supplied by Nathan to Nicky Chan. She knew that her son had recently left FOB but that while in PC in the past he had been stabbed. She was aware that FOB had a strong presence in the Institution and was also present in other prisons, and that at least one of its members had committed a murder at the Institution. She had read articles about prison guards taking drugs into prisons.

She believed she could not trust the authorities based on her son’s prior experience with the police and her belief based on media reports and information from her son that there have been situations where prison guards have been connected with smuggling drugs. [ 60 ] This is unlike the situation in Keller where the appellant’s assertion that he had no avenue of escape was not supported by any evidence or the circumstances. The appellant indicated “embarrassment” as a reason for not contacting anyone. In the case of Ms. Sheridan, she genuinely believed if she told anyone she would jeopardize her son’s safety.

I find that the negativing of criminal liability in this case is not on the basis of a “purely subjective and unverifiable excuse”: Ryan at para 65 . [ 61 ] It was put to Ms. Sheridan in cross-examination that Nathan could have requested to be moved to another prison. While she agreed that FOB members were mostly centered in Calgary, she was also aware they were in other prisons. She also responded at trial that she “assumed” Nathan could have requested a transfer to the other side of the country, but added that she did not know. She stated that her son would not have wanted to move that far away.

While this response was troubling in a life and death situation, I agree with defence counsel that care must be taken to distinguish her after-the-fact comments three years after the events at trial in response to the presentation of logical alternatives and what she believed and perceived at the time she was facing the threats to her son’s life. There was no evidence that up to that point he had been moved to an institution outside Alberta. Ms.

Sheridan testified that she thought a great deal about her situation but could not find a way out, in view of the circumstances of danger she believed her son to be in, having recently decided to leave FOB. Her genuine belief at the time paralyzed her ability to consider what might have been reasonable options. [ 62 ] I have also considered Ms. Sheridan’s statements following her arrest expressing that it was a “stupid move” and she should have known better and that “it was dumb”. These must be considered in the context of her statement to Mr.

Pauline that she should not have gotten talked into it and to Detective Dezrant that she was pressured into it.

I am not of the view that her post-arrest reflections weaken her testimony as to her state of mind at the time of the offence, but were an ex post facto recognition, after being immediately detected by the drug dog, of her foolishness in believing she would avoid detection. [ 63 ] As noted in Ruzic , at paras 39-40 , when discussing “moral involuntariness”, what is meant is that the accused had no “real” choice but to commit the offence: This recognizes that there was indeed an alternative to breaking the law, although in the case of duress that choice may be even more unpalatable – to be killed or physically harmed… As Fletcher, supra , puts it, at p. 798, excuses absolve the accused of personal accountability by focusing, not on the wrongful act, but on the circumstances of the act and the accused’s personal capacity to avoid it.

Necessity and duress are characterized as concessions to human frailty in this sense. The law is designed for the common man, not for a community of saints and heroes. [emphasis added] [ 64 ] The majority in Ryan also referred, at para 23 , to the principle of moral involuntariness being “a concession to human frailty” in the face of “agonizing choice” and that the commission of the crime is “remorselessly compelled by normal human instincts”.

[ 65 ] I conclude that there is some evidence upon which a reasonable jury, properly instructed, could find that there was no avenue of escape, on the basis of the modified objective test. Having met the air of reality test, it is for the Crown to disprove this element beyond a reasonable doubt. [ 66 ] In Ruzik and Ryan , as in this case, there were opportunities to seek out the authorities. Each case must be carefully considered bearing in mind the very limited application of the defence.

As noted at para 59 in Hibbert , 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, given the history, circumstances and perceptions of the accused and the accused’s belief that there was no avenue of escape. The jury must seek to determine how the accused perceived the relevant facts and whether that perception was reasonable.

At para 61: 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. [ 67 ] In the particular factual matrix of this case, Ms. Sheridan has raised a reasonable doubt as to the existence of no avenue of escape.

This is having regard to the requirement that the objective component, of no safe avenue of escape, must be considered within the context of the emotional frailties and particular state of knowledge of the apprehended harm, held by the person threatened. Proportionality [ 68 ] There is no suggestion in the evidence that the harm done was greater than the harm threatened in this case, as Crown counsel conceded. However, there is a second aspect to proportionality, whether Ms. Sheridan’s actions accord with what society would expect from a reasonable person in the same circumstances with Ms.

Sheridan’s personal characteristics and frailties. This requirement is linked to the other requirements of duress that require a modified objective analysis. [ 69 ] At the second stage of the proportionality test, similar arguments can be made to those considered on the no safe avenue of escape requirement with respect to the consideration and pursuit of reasonable options. I rejected those arguments and will not repeat my reasons for doing so. Given Ms.

Sheridan’s state of knowledge of violence within the Institution; her knowledge of FOB’s presence and involvement in the drug trade within it; her knowledge of her son’s decision to leave the gang; and the fact that she believed that if she told anyone, she would be bargaining with the life of her only remaining child, there is an air of reality to an inference that the normal degree of resistance to the threat demanded by the proportionality test in this context would not suffice to avoid the commission of the offence.

I find that there is an air of reality to this aspect of the proportionality test and that the Crown has not disproven this requirement beyond a reasonable doubt. VI. Conclusion [ 70 ] Having determined for the reasons given that each of the statutory and common-law requirements of duress had an air of reality and that the Crown has failed to disprove one or more of these requirements beyond a reasonable doubt, I find Ms. Sheridan not guilty of Counts 1, 2, 3 and 4 of the indictment. [ 71 ] I wish to thank counsel for their helpful submissions. Heard on the 7 th , 8 th and 9 th days of December, 2015.

Dated at the City of Edmonton, Alberta this 14 th day of December, 2015. M.T. Moreau J.C.Q.B.A. Appearances:

Monique Dion for the Crown Ajay Juneja for the Accused Linda Ethal Sheridan