Her Majesty the Queen - v. -, 2016 SKPC 144

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 144 Date: October 31, 2016 Information: 33643891 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Maxine Amelia Charles Appearing: Mr. Shawn Blackman For the Crown Ms. Terra Lennox-Zepp For the Accused DECISION S.D. SCHIEFNER, J [ 1 ] The accused, Maxine Charles, is charged by indictment, that on or about March 11, 2016 at or near the City of Prince Albert, she committed the following offences: 1. Theft of a motor vehicle, the property of Erin King, contrary to

section 333.1(1) of the Criminal Code ; 2. While her ability to operate a motor vehicle was impaired by alcohol or a drug, did operate or have care or control of a motor vehicle, contrary to section 255(1) and section 253(1) of the Criminal Code ; and 3. Having consumed alcohol in such quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one

hundred millilitres of blood, did operate or have the care or control of a motor vehicle, contrary to section 255(1) and section 253(1) (

b) of the Criminal Code . [ 2 ] At the conclusion of the trial, Ms. Charles admitted that the actus reus of these offences had been proven by the Crown beyond a reasonable doubt but argued that the offences were committed under duress. Simply put, Ms. Charles argues that her participation in these offences was not voluntary. [ 3 ] For the purpose of creating a complete record, I find that both the actus reus and the mens rea of counts (1) and (3) have been proven beyond a reasonable doubt. Ms. Charles admits to stealing a motor vehicle belonging to Erin King and operating that vehicle.

Further, the Crown has satisfied me, through test results and the presumptions set forth in section 258(1) (

c) of the Criminal Code , that at the time Ms. Charles was operating this vehicle, the concentration of alcohol in her blood exceeded the prescribed limit. Further, I am satisfied beyond a reasonable doubt that these offences were committed on March 11, 2016 in Prince Albert, Saskatchewan. [ 4 ] The issue before me is whether or not Ms. Charles can avail herself of the defence of duress. THE FACTS: [ 5 ] Prior to March of 2016, Ms. Charles was living in Saskatoon and receiving addictions treatment through the Metis Addictions Council of Saskatchewan (commonly referred to as “Macsi”). Ms.

Charles reports that she was doing well in her recovery but continued to require Methadone to ameliorate her withdrawal symptoms. [ 6 ] Ms. Charles testified that the source of her compulsion to engage in the above captioned offences was Calvin Montgrand (“Calvin”). Ms. Charles and Calvin were in a relationship; a sad and troubled relationship. For example, in August of 2015, Ms. Charles was admitted to hospital after being assaulted by Calvin. Ms. Charles gave a statement to police about that incident.

As a result, Calvin was charged and served time for assaulting her. [ 7 ] Soon after being released from custody, Calvin returned to Ms. Charles’ residence wanting to live with her again. Ms. Charles testified that she didn’t want Calvin to live with her anymore. She was doing well in her recovery and felt Calvin would be a negative influence. In addition, he could be violent and aggressive. For example, the day Calvin showed up at her place after being released from custody, Ms. Charles had friends over at her residence. This upset Calvin. Ms.

Charles testified that Calvin was jealous; that he made her friends leave; and, that in doing so, he assaulted one of them. However, Ms. Charles’ primary concern about Calvin living with her was that he drank and used crystal meth. Ms. Charles knew that Calvin would not be good for her recovery. [ 8 ] Nonetheless, Calvin moved back in and both of them began using drugs. After a couple of days of drinking and consuming crystal meth, Ms. Charles told Calvin that she didn’t want him living with her anymore. In response, Calvin suggested that they go to Prince Albert. Ms.

Charles testified that this wasn’t really a “suggestion” because Calvin had a knife and he said that he would use it if she didn’t agree to go with him. On the other hand, Ms. Charles had family on the Little Red First Nation (“Little Red”) near Prince Albert and she thought it would be nice to see them again. [ 9 ] As a result, early in March of 2016, Calvin and Ms. Charles drove to Prince Albert in a stolen 2007 VW Golf (a vehicle belonging to Magen Mercer).

And so began a dysfunctional road trip fueled by alcohol and drugs and featuring violence and antisocial behaviour that culminated in the above mentioned charges. [ 10 ] Ms. Charles testified that she and Calvin drove to Prince Albert. They stayed in Prince Albert for a couple of days; drinking and using drugs. They then drove to Little Red to visit and/or stay with Ms. Charles’ family. They first went to visit Ms. Charles’ aunt. However, Calvin became upset because of how close Ms. Charles was with her aunt. As a result, they left early and went to visit Ms. Charles’ uncle, who also lived at Little Red.

While there, they were drinking. At some point, the uncle observed that Ms. Charles had a black eye and asked how she got it. Ms. Charles testified that Calvin then became upset and began beating up her uncle. The assault concluded with Ms. Charles holding her uncle down while Calvin tied him up. They then left Little Red. [ 11 ] Ms. Charles testified that she and Calvin then drove to an old garbage dump where they stayed in the vehicle for a couple of days. During this period, Calvin had a knife with him and he variously threatened to hurt himself or Ms. Charles if she left him. By this

point, the two were in need of methadone and/or more crystal meth. As a result, they drove to Nordale (a community just north of Prince Albert), parked their vehicle (the stolen VW Golf), and walked into Prince Albert. Ms. Charles testified that she wanted to go to Prince Albert to obtain a dose of methadone. However, Calvin wanted to obtain more drugs because they were running out. Ms. Charles did not get her methadone. However, the two found more drugs and alcohol in Prince Albert and began using/consuming both. [ 12 ] Ms.

Charles testified that they stayed in Prince Albert for about a day drinking and using drugs. Ms. Charles testified that they fought almost constantly. At some point, Ms. Charles wanted to get away from Calvin. She flagged down a vehicle and got a ride out of the City. She then started hitch-hiking back to the Little Red. Ms. Charles testified that, while she was walking on the road just north of Prince Albert, Calvin caught up to her. Calvin asked her to stay with him and she agreed. [ 13 ] Ms.

Charles testified that they then returned to the community of Nordale to retrieve the car they had previously stashed there. However, the car was gone; it had been discovered by the police. Ms. Charles testified that Calvin wanted to get back to Saskatoon because he was running out of drugs and she needed her methadone. As she put it, Calvin was afraid she was going to become “dope sick”. However, neither of them had any money at this point. Calvin wanted Ms. Charles to find them a ride even if doing so meant stealing another car. They walked back to Prince Albert.

Although not clear from the evidence how they did so in light of the fact they had no money, Ms. Charles testified that, when they returned to Prince Albert, they began using drugs and drinking again. [ 14 ] At this point, another person joined them; Sylvia Halkett (“Sylvia”). Apparently, Sylvia was a friend of Ms. Charles and/or had a romantic interest in Calvin. [ 15 ] While partying with Sylvia and Calvin, Ms. Charles became so intoxicated that she ended up in the Victoria Union Hospital from an overdose. Ms. Charles woke up in the hospital and Sylvia was by her side. Calvin was not present.

It was March 8, 2016 and, for reasons not explained, Ms. Charles and Sylvia walked away from the hospital. Not only did Ms. Charles not wait to be discharged but she also took with her a telemetry unit (i.e. heart monitor) that had been attached to her in the hospital. This unit would later be discovered in Calvin’s possession. [ 16 ] After leaving the hospital, Ms. Charles and Sylvia walked to a liquor store, where they quickly ran into Calvin. Ms. Charles testified that she didn’t want to be around Calvin anymore. Nonetheless, they all began walking around together.

After some discussion, they decided to walk back to Little Red. In doing so, they walked near the community of Hazeldell. Ms. Charles testified that, at this point, both Sylvia and Calvin wanted her to steal a vehicle so that they could go back to Saskatoon. All three walked to the community of Hazeldell with the hopes of finding a vehicle to steal. Ms. Charles testified that she didn’t want to steal a vehicle but both Sylvia and Calvin wanted her to do so; with Calvin saying to her that “if you don’t get me back to Saskatoon, you’re gonna get a lickin”. Ms.

Charles complied and began looking for unlocked vehicles. [ 17 ] At approximately 8:00 p.m. on March 8, 2016, Ms. Charles came across a truck belonging to Cory Boisson. Mr. Boisson was in Hazeldell working on a friend’s kitchen and his truck was parked in front of her house. When Ms. Charles pulled on the truck’s doors, she found that it was unlocked. Ms. Charles admits to entering this vehicle. She also admits to rummaging through the vehicle looking for stuff to steal. Ms. Charles testified that Calvin was nearby and presumably watching her. Ms.

Charles testified that she purposely took longer in the vehicle than she needed hoping that someone would see her and that she would get caught. Ms. Charles knew that if someone saw her she would likely get arrested. Ms. Charles testified that she had previously broken into and stolen vehicles at Calvin’s behest. When she did so, Calvin remained close by. If she found keys in an unlocked vehicle, she would drive away and meet Calvin at a predetermined location. If she didn’t find the keys, she would steal what she could and take it back to Calvin.

The two would sell whatever they could and use the money to buy drugs. [ 18 ] As it turned out, someone did see Ms. Charles in the vehicle. As Mr. Boisson left the house, he noticed that someone was in his truck. As soon as Ms. Charles noticed Mr. Boisson coming toward the truck, she exited the vehicle and began walking/running away. Mr. Boisson chased after her. At this point, Ms. Charles had a number of Mr. Boisson’s possessions, including a large case of compact disks, shoes, sunglasses. As he got closer, Mr.

Boisson yelled at her and she dropped the case of CD’s; said “That’s all I got”; and continued running away. Ms. Charles testified that she wanted to keep some stuff to sell if she got away. [ 19 ] The decoy worked. Mr. Boisson grabbed the case of CD’s and returned to his vehicle. When he did so, he noticed that the inside of his vehicle was a mess. He also noticed that other things were missing, including shoes and sunglasses. At this point, Mr. Boisson looked around but the person he had seen exiting his vehicle was gone. Soon after, Mr. Boisson saw two people walking by on the street.

As it turns out, these two were Calvin and Sylvia and they were walking the same direction as Ms. Charles was last seen running. Mr. Boisson told them what happened and they said they were looking for her too. At this point, Mr. Boisson did not know that Calvin and Sylvia were involved with Ms. Charles.

[ 20 ] Soon after the incident with Mr. Boisson’s truck, Ms. Charles testified that she ran into Calvin in an alley. He told her to keep going (i.e.: keep looking for a vehicle or things to steal). She did so. [ 21 ] Approximately an hour later, Ms. Charles came across another unlocked vehicle in the community of Hazeldell. This time, the vehicle belonged to Duane Karlstrom. Ms. Charles testified that a door was unlocked and she got in the back seat. She also testified that she purposely left the door open hoping that someone would see it and catch her. Again, someone did see her. [ 22 ] As Mr.

Karlstrom was exiting his house to go to work at approximately 9:00 p.m., he observed a woman in his vehicle. When he approached her, the woman said that she thought it was her aunt’s vehicle. Ms. Charles told Mr. Karlstrom that she was lost and he gave her directions. Ms. Charles then began walking away. At this point, Mr. Karlstrom checked his vehicle. In doing so, he noticed that things were scattered about and certain items were missing, including knives, sunglasses, some change and various miscellaneous items. Mr. Karlstrom then called 911. [ 23 ] At about this time, Mr.

Karlstom’s neighbor, Mike Warner, drove up and asked what was going on. Mr. Karlstrom told him that he had found a woman in his vehicle and that he was missing a number of things. Mr. Warner then drove around looking for someone matching the description provided by Mr. Karlstrom. Mr. Warner found Ms. Charles walking/running down an alley. By the time he caught up to her she was cutting through private property. Mr. Warner yelled at Ms. Charles and told her to stop. Mr. Warner then grabbed her and told her that the police had been called. At this point, Ms. Charles tried to pull away but Mr. Warner restrained her.

Ms. Charles then tried telling Mr. Warner that she was being abused by Calvin; that she only did what she did because he made her; and that she just wanted to get away from him and go back to Little Red. [ 24 ] When Ms. Charles realized that Mr. Warner was not going to help her (i.e.: was not going to let her go), she tried to kick and punch Mr. Warner. As it turns out, Mr. Warner is a corrections worker and has been trained in physical restraint techniques. Ms. Charles’ efforts to injure Mr. Warner or break his hold were largely ineffectual. Mr.

Warner testified that he used no more force than was necessary to restrain Ms. Charles. On the other hand, it would have been difficult to continue restraining her if she hadn’t agreed to comply. Heated words were exchanged between Ms. Charles and Mr. Warner. Ultimately, Ms. Charles acquiesced and complied with Mr. Warner’s instructions when he informed her she was under “citizen’s arrest”. Thereafter, Ms. Charles was compliant and waited with Mr. Warner until the police arrived. [ 25 ] Constable Popescul is a member of the Prince Albert Police Force and was dispatched to Hazeldell. Upon arriving, he found Mr.

Warner holding Ms. Charles. Nearby, a bag was discovered which contained numerous items, including items belonging to both Mr. Karlstrom and Mr. Boisson. Ms. Charles was arrested at the scene. Constable Popescul testified that he was also aware that the Victoria Hospital was alleging that Ms. Charles had left the hospital and taken an expensive piece of medical equipment with her. Constable Popescul asked Ms. Charles where the medical equipment was. Ms. Charles said she had hidden it but that she would take the officer to it so that it could be recovered. The Officer agreed, placed Ms.

Charles in the police vehicle, and then drove to the location indicated by Ms. Charles, which was just across the river in Prince Albert. [ 26 ] At this location, Constable Popescul found discarded hospital clothing but not the medical equipment. However, while they were still at this location, Calvin and Sylvia walked up to the police vehicle. The officer either asked or observed that Calvin had medical equipment in his possession. When requested to do so, Calvin gave it to the officer indicating that he had found it. Constable Popescul observed that Calvin appeared to be highly intoxicated. At that point, Ms.

Charles was under arrest and in the back of the police vehicle. [ 27 ] Ms. Charles was held in custody until she appeared in Provincial Court on March 10, 2016. When Ms. Charles appeared in court, she was released on an undertaking. [ 28 ] Almost immediately after being released from custody, Ms. Charles ran into Calvin on the street in downtown Prince Albert. Ms. Charles testified that Calvin wanted to know where she had been. Ms. Charles reminded Calvin that she had been arrested. Calvin was yelling and the two began pushing each other. Ms.

Charles testified that Calvin was trying to drag her away but she didn’t want to go with him. Their conduct was sufficient to attract a complaint from someone downtown and an officer with the Prince Albert Police Force was dispatched to investigate. As the officer was approaching, Calvin told Ms. Charles not to say anything to the police. When asked by the officer, Ms. Charles denied that she had been or was being assaulted by Calvin. Both appeared to calm down while talking to the officer. As a result, the officer allowed both of them to go on their way without charges. Ms.

Charles testified that she didn’t want to say anything to police because she didn’t want Calvin to get in trouble again. Ms. Charles assumed that, if Calvin got arrested again, he would spend time in jail. The last time she gave a statement to police about him hitting her, he spent time in jail.

[ 29 ] After the officer departed, Calvin told Ms. Charles that he had enough money to buy alcohol from the liquor store. She agreed to go with him and they bought alcohol. They then spent the rest of the day drinking. [ 30 ] As evening was approaching, Calvin concluded that it was time to return to Saskatoon. They originally planned to hitchhike but soon into the journey Calvin told Ms. Charles to steal a vehicle because he didn’t want to walk. At this point, Ms. Charles testified that Calvin was insistent and forceful. He wanted her to get them a ride to Saskatoon, even if that meant stealing a car. Ms.

Charles testified that she was afraid of Calvin. She testified that she had just finished healing from a black eye and she didn’t want to get another one. As a result, she started looking for, and rummaging through, unlocked vehicles. [ 31 ] As they were walking through the streets looking for unlocked vehicles, Calvin noticed a woman parked her truck nearby and that she had gone into a store - a maternity and baby boutique. It appeared that truck was unlocked. Calvin pushed Ms. Charles in the direction of the vehicle and told her to go try it.

This meant to check the vehicle and, if the keys were in it, to drive away with it. Ms. Charles testified that they had done this before and the only question she asked him was where they would meet. He said “Humpty’s”. At which point, Ms. Charles walked over to the truck. When she found that the keys were in the vehicle, she got in and drove away with it. [ 32 ] The owner of the vehicle, Erin King, came out of the store and saw her vehicle driving away. Panic set in as Ms. King’s infant baby was in the back of her vehicle. Ms. King observed Ms. Charles driving her vehicle. To Ms. King, Ms.

Charles was driving fast and appeared to be laughing. She ran to a nearby business and someone phoned 911. A patrol vehicle was nearby and found Ms. Charles driving Ms. King’s vehicle within minutes. [ 33 ] Ms. Charles testified that soon after she drove away, she noticed that there was a baby in the back seat. About this same time, she also noticed that she was being followed by police. Ms. Charles testified that she immediately pulled into a back alley, found a safe place to park, and waited for the police to arrive. [ 34 ] Ms. Charles was arrested at the scene. While Ms.

Charles was being held in the police vehicle, she repeatedly tried to tell police that someone else had been driving the vehicle. [ 35 ] Samples of Ms. Charles’ breath were tested at the police station. The test results indicated that the concentration of alcohol in Ms. Charles’ blood was 160 and 150 mg in 100 ml of blood (i.e. .160 and .150). DEFENCE POSITION: [ 36 ] Relying on the decisions of the Supreme Court of Canada in R v Ryan , infra, and R v Ruzic , infra, Ms. Charles asserts that she realistically had no choice in committing the within offence(s). Defence counsel argues that Ms.

Charles was compelled to commit these offences by the threat of potential physical violence from her on and off again boyfriend, Calvin Montgrand. Simply put, the defence argues that Ms. Charles’ actions were involuntary and, therefore she should not be punished. [ 37 ] The defence notes that, during their relationship, Calvin assaulted and physically harmed Ms. Charles; that he repeatedly threatened her with physical violence; and that he assaulted others in her presence. Defence counsel argues that, based on their past history, Ms.

Charles reasonably believed that Calvin was violent and prepared to use violence to get what he wanted. Simply put, Ms. Charles had learned to obey Calvin or suffer the consequences of physical violence. Defence counsel argues that Ms. Charles’ fear of Calvin was reasonable and reinforced just days before the indexed offence(

s) when he assaulted her uncle at Little Red. [ 38 ] Defence counsel also argues that Ms. Charles had no safe avenue of escape. Defence notes that Calvin kept Ms. Charles close to him; that he isolated her by discouraging her from having close relationships with her family; that he assaulted her friends; and that every time she got away, he seemed to find her almost immediately. Simply put, defence argues that Ms. Charles had no way to safely extricate herself from Calvin’s influences. [ 39 ] Defence counsel notes that there was a close temporal connection between Calvin’s threats and the harm threatened.

Specifically, the defence notes that Calvin specifically pushed her toward Ms. King’s vehicle; that he told her to go get it; that he was in close proximity when she got in the vehicle and drove away. Defence notes that, by this point in time, Calvin had become forceful with Ms. Charles and he was insistent that she steal a vehicle so they could get back to Saskatoon.

[40] Finally, the defence argues that Ms. Charles reasonably anticipated that Calvin would physically assault her if she failed tocomply with his directions. He had used violence in the past and it was reasonable for her to assume that he would do it again. THE LAW IN RELATION TO THE DEFENCE OF DURESS: [41] In contrast to self-defence, which is classified as a justification, duress is classified as an excuse. The law excuses those who,while morally blameworthy, acted in a morally involuntary manner.

While the act remains wrong, the perpetrator of the offence will notbe punished if the offence was committed in circumstances where the offender realistically had no choice. As stated in R v Ryan, 2013SCC 3, [2013] 1 SCR 14, 2013 SCC 3, 353 DLR (4th) 387, 290 CCC (3rd) 477, [Ryan], at para 23, duress recognizes the principle ofmoral involuntariness as a “concession to human frailty” in the face of an “agonizing choice” that results in the commission of a crime. [42] The law of duress is an amalgam of statutory and common law elements.

As noted by the Court in Ryan, the law of duress ispartly codified in statute and partly governed by judge-made law. See: paras 22 & 36. The statutory version of duress is set forth in s. 17of the Criminal Code of Canada, RCS 1985, c.C-46, and applies only to persons who commit offences as principals. The common lawdefence of duress is available to parties to an offence. See: R v Paquette (1976), [1977] 2 SCR 189, 70 DLR (3rd) 129, (SCC) and R v Ruzic, [2001] 1 SCR 687, 2001 SCC 24 (SCC) [Ruzic]. [43] Because Ms.

Charles is charged as a principal, s. 17 is the starting point for examining the availability of the duress as adefence in these proceedings. [44]

Section 17 of the Criminal Code reads as follows: 17. A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is presentwhen the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if theperson is not a party to a conspiracy or association whereby the person is subject to compulsion, but this

section does not apply where theoffence 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 aweapon 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). [45] Following the decisions of the Supreme Court of Canada in Ruzic and Ryan, the statutory and common law versions of thedefence of duress are now largely the same.

The difference being that the statutory version of the defence excludes a list of offencesfrom its operation. However, it should also be noted that none of the list of exclusions are applicable to these proceedings save one(conspiracy and criminal association) discussed later in these reasons. [46] Both the statutory and common law versions of the defence of duress share a number of common elements that must bepresent for the defence to be considered.

While the analytical approach is to consider each element individually, the components areinterrelated and all find their genesis in the concept of “moral involuntariness”. [47] While all of the enumerated elements must be present for an accused to avail him/herself of the defence, an accused need onlylead evidence on each of the components sufficient to establish an “air of reality” to the defence. This is an evidentiary burden only. TheCrown must prove beyond a reasonable doubt that the accused did not act under duress. See: R v M(DB), 2016 ONCA 264, 2016CarswellOnt 5482, [2016] OJ No 1863 [M(DB)].

See also: R v Sheridan, 2015 ABQB 790. [48] The six (6) essential elements of the defence of duress are as follows: 1. There must be an explicit or implicit threat of present or future death or bodily harm. This threat can be directed at the accused or athird party. 2. The accused must reasonably believe that the threat will be carried out.

3. There must be no safe avenue of escape for the accused such that the accused realistically had no option but to commit the offence. This element is not evaluated on either a purely subjective or objective basis. Rather, it is evaluated on a modified objective standard whereby the court must be satisfied that a reasonable person in the same situation as the accused and with similar characteristics and experiences would have concluded that there was no safe avenue of escape and/or there was no legal alternative to committing the offence. 4.

There must be a close temporal connection between the threat, the harm threatened and the unlawful conduct. The purpose of requiring a close temporal connection is two-fold. First, it demonstrates that there truly was no safe avenue of escape for the accused. If the threat is too far removed from the accused’s illegal conduct, it will be difficult to conclude that a reasonable person (similarly situated) had no option but to commit the offence.

Second, it supports the reasonableness of the belief that the threats to which the accused was subjected exerted sufficient pressure on the accused that he/she lost the ability to act freely. 5. There must be proportionality between the harm threatened and the harm inflicted by the accused. Proportionality is essential to the principle of moral involuntariness as only an action based on a proportionately grave threat, resisted with normal fortitude, can be considered morally involuntary and thus excusable.

As a starting point, the harm caused by the accused must be no greater than the threat to which the accused was subject. In addition, proportionality also involves an evaluation of how great of a threat we expect people to resist before they feel compelled to inflict harm on others. Both aspects of this element are evaluated on a modified objective standard. In other words, through the eyes of a reasonable person, possessed of reasonable fortitude, who happened to find him/herself in the circumstances of the accused. 6.

Exclusions : The offence must not be one of the excluded offences and the accused cannot be a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association. [ 49 ] Through her own testimony, Ms. Charles has tendered evidence on each of the above captioned elements and I am satisfied that this evidence, if accepted by the court, could establish that her actions on March 11, 2016 were the result of a compulsion or coercion.

As such, I must consider the defence of duress. I will do so by reviewing each component of the defence in turn. [ 50 ] However, prior to doing so, I would first like to comment on the issue of credibility. Ms. Charles testified on her own behalf and, did so, in a candid and forthright manner. On several occasions, she testified against her own interests, including admissions to unlawful conduct. However, at several points, evidence arose that undermines her credibility as a witness. [ 51 ] Firstly, Ms.

Charles testified that she was untruthful to many of the people she encountered immediately prior to the indexed offences. Firstly, she was untruthful with Mr. Boisson. When she realized he was following her, she dropped the case of CD’s she had taken from his vehicle and told him “that’s all I got”. By Ms. Charles’ own testimony, this was untrue. She had taken more things and was hoping to sell these things if she got away. Secondly, when found by Mr. Karlstrom in his vehicle, Ms. Charles told him that she thought his vehicle belonged to her aunt. Ms. Charles admitted that such was not the case.

Thirdly, when Ms. Charles and Calvin were found to be causing a disturbance in downtown Prince Albert, she lied to police saying that Calvin was not assaulting her or otherwise a threat to her. She did so because she didn’t want to get Calvin in trouble. Nonetheless, she was untruthful with the police. [ 52 ] Ms. Charles was also untruthful with police when she was originally arrested for the within offence. While she was in the back of the police vehicle, she repeatedly stated that there were other people in the vehicle with her. During her testimony at trial, Ms.

Charles admitted that these statements were not true. [ 53 ] Furthermore, Ms. Charles’ actions in Hazeldell were inconsistent with her testimony in court. In court, she testified that she was directed by Calvin and Sylvia to break into cars and that she didn’t want to do so. Ms. Charles testified that she purposely lingered in one vehicle and in another left the door open, hoping that someone would see her and she would get caught. Her implied reason for doing so was to get arrested so that she could get away from Calvin. However, based on Ms.

Charles’ own testimony, she took overt actions in an effort to avoid being arrested. She ran away from Mr. Boisson. She fabricated a story for Mr. Karlstrom. While she may have been truthful with Mr. Warner about her plight and Calvin’s abuse, the purpose of her communicating this information to Mr. Warner was not to separate herself from Calvin; it was to avoid being arrested by police. When that didn’t work, she resorted to physical violence in an attempt to avoid being arrested. [ 54 ] Finally, there is an internal inconsistency to Ms. Charles’ evidence that on March 11, 2016, her actions were involuntary. Ms.

Charles testified that she had previously stolen vehicles at Calvin’s behest. She testified that, when she did so, she would check vehicles for unlocked doors and Calvin would remain nearby. She testified that, if she found an unlocked door, she would enter the vehicle and rummage around looking for keys. If she found the keys, she would then start the vehicle and drive to a predetermined location where she would meet Calvin. The internal inconsistency is that Ms.

Charles was voluntarily engaged in precisely this conduct in Hazeldell only days before the within offences. [ 55 ] While none of these discrepancies, either individually or collectively, are sufficient that her evidence must be discounted entirely, there is no doubt that it has influenced the weight I have given her testimony. EXPLICIT OR IMPLIED THREAT OF DEATH OR BODILY HARM: [ 56 ] If Ms. Charles’ testimony is to be believed, Calvin is a violent and deplorable individual; an individual who threatens and resorts to violence to achieve his own selfish and self-serving goals. Ms.

Charles testified that Calvin assaulted her on at least one occasion such that she required medical attention. She testified that Calvin assaulted someone in her apartment when he was released from custody and wanted to return to live with her. She testified that Calvin assaulted her uncle. In her own words, she had learned to “obey” Calvin because of his propensity for violence. Finally, Ms. Charles testified that on March 11, 2016, Calvin pushed her in the direction of Ms. King’s vehicle and specifically told her to go try it (and, if possible, steal it). Ms.

Charles also testified that, at this point, Calvin was insistent and forceful. [ 57 ] The Crown notes that there was no specific threat of bodily harm or violence uttered by Calvin on March 11, 2016. The Crown takes the position that, while the evidence, if accepted, may be sufficient to demonstrate that Ms. Charles was in an abusive relationship, it is insufficient to demonstrate that she was the victim of an explicit or implied threat that, if she didn’t engage in the within offences, she would experience bodily harm. [ 58 ] Having considered the evidence before me, I accept Ms.

Charles’s assertions that she was in an abusive relationship with Calvin; that he wanted her to steal Ms. King’s vehicle (so that they could get back to Saskatoon); and that, if she didn’t steal the vehicle, she believed that he would inflict violence on her in the form of bodily injury. While this threat was not specifically uttered by Calvin on March 11, 2016, I accept Ms. Charles’ assertion that violence toward her was implied by Calvin under the circumstances. Violence was a common feature of their relationship and I accept that, on this particular occasion, he was insistent and forceful.

REASONABLE BELIEF THE THREAT WILL BE CARRIED OUT: [ 59 ] This element of the defence of duress is not measured on a subjective basis. To satisfy this component of the defence, I must be satisfied that any person in Ms. Charles’ shoes would have reasonably believed the threat of bodily harm by Calvin would be carried out.

Having considered the evidence, I accept the assertion that any person in the same situation as the accused and with similar characteristics and life experiences as her would have reasonably believed that Calvin’s violence would be directed at them if they failed to comply with his instructions to steal Ms. King’s car. Particularly so if that person had witnessed, as Ms. Charles did, Calvin assault a close member of their family just days before. NO SAFE AVENUE OF ESCAPE: [ 60 ] Ms. Charles argues that she had no safe avenue of escape from Calvin.

She argues that, every time she became separated from him, he found her. By way of example, Ms. Charles points out that as soon as Calvin was released from custody, he found her in Saskatoon. When she tried to run away from him when they were in Prince Albert and she started hitchhiking back to Little Red, he found her on the highway north of the city. When she left the hospital, he found her at the liquor store. When she was released from custody after being arrested in Hazeldell, he found her on the streets of downtown Prince Albert. Ms.

Charles testifies that she had learned to obey Calvin and that her actions on March 11, 2016, were not based on an exercise of her own free will. Rather, Ms. Charles argues that, at this point, her free will had been stripped from her and she was just doing whatever Calvin told her to do. [ 61 ] In my opinion, it is upon this element that Ms. Charles’ attempt to avail herself of the defence of duress must fail. I do not accept Ms. Charles assertion that she had no safe avenues of escape. In fact, the evidence demonstrates that she had many opportunities and she rejected them all.

[ 62 ] I would like to preface my evaluation of this element with the observation that stealing vehicles, excessive consumption of alcohol, and use of illegal drugs were all predicable components of Ms. Charles’ relationship with Calvin. I also accept the assertion that Calvin was abusive and violent and that it may well have been difficult for Ms. Charles to extricate herself from that relationship without fear of violence. For example, I accept that Ms. Charles may well have been compelled to travel to Prince Albert with Calvin. In this regard, I note that Ms.

Charles testified that, when Calvin “suggested” that they go to Prince Albert, he had a knife in his hand and that his “suggestion” that they go there wasn’t really a suggestion at all. [ 63 ] However, I find that Ms. Charles had multiple opportunities just prior to the occurrence of the within offences to safely extricate herself from Calvin’s control. Firstly, she was hospitalized on March 7, 2016, and, when she awoke the next day, Calvin was not present. She could have remained in hospital, where she could have recovered and made arrangements to safely return to Saskatoon.

Rather, than doing so, she walked away from care and the very people who would have been capable of assisting her. Instead, she and Sylvia went to a liquor store and were soon back in Calvin’s company. Secondly, when Ms. Charles was arrested in Hazeldell, she could have provided a statement to police as to Calvin’s involvement as a party to those offences. She also could have provided a statement to police regarding Calvin’s assault on and unlawful confinement of her uncle in Little Red just a few days prior. Either of these actions would have resulted in Calvin being arrested.

Doing so would have also resulted in conditions being imposed upon Calvin legally restricting him from contacting her or her family. Finally, she could have been truthful with the investigating officer that approached her and Calvin on the street in downtown Prince Albert. While Ms. Charles testified that, at this point, she wanted to get away from Calvin and return to Saskatoon, her actions were entirely inconsistent with this goal. [ 64 ] Even if I accept that Ms.

Charles (or any other reasonable person in a similar situation) would have been reluctant to give police a statement against Calvin for fear of retaliation, such cannot be said for her decision to leave the hospital on March 8, 2016. The hospital would have provided a safe environment wherein she could have taken measures to return to Saskatoon without fear of reprisal from Calvin. There is no doubt in my mind that remaining at the hospital represented a safe avenue of escape for Ms. Charles. When this opportunity presented itself, Ms.

Charles not only left the hospital at soon as she could but she did so contrary to medical advice and went directly back to Calvin. Even with the fear of reprisal, giving a truthful statement to police represented a legal means by which Ms. Charles could have separated herself from Calvin, his violent propensity, and thus his control. As such, they also represent avenues of escape which I must consider. See: R v M (DB), supra . [ 65 ] The threat of violence to which Ms. Charles was subject arose out of her ongoing relationship with Calvin.

By continuing to remain in his company when she had multiple opportunities to extricate herself from his influences, she voluntarily exposed herself to his violence. I am satisfied, beyond a reasonable doubt that a reasonable person in the same situation as the accused, who wanted to get away from Calvin and who was prepared to exercise a modicum of fortitude, could have done so and done so safely. [ 66 ] Because Ms.

Charles voluntarily exposed herself to Calvin’s violence and because she failed or refused to act upon multiple opportunities to safely remove herself from his company (and thus implied violence at his hands), the defence of duress is unavailable to her. Simply put, I am satisfied, beyond a reasonable doubt, that her actions on March 11, 2016, were morally voluntary. [ 67 ] Because of my finding that the defence of duress is unavailable to Ms. Charles because of her failure to avail herself of safe avenues of escape, I will keep my comments brief on the remaining elements. CLOSE TEMPORAL CONNECTION: [ 68 ] Ms.

Charles argues that there was a close temporal connection between Calvin’s threat, the harm threatened by Calvin and the unlawful conduct of the accused. Simply put, Ms. Charles argues that Calvin was always present and that an unavoidable feature of being around him was his propensity for violence. While Calvin did not specifically threaten Ms. Charles on March 11, 2016, the defence argues that Calvin reinforced his potential for violence when he assaulted Ms. Charles’ uncle at Little Red. Ms. Charles notes that Calvin was nearby on March 11, 2016; that it was his idea that Ms. Charles steal Ms.

King’s vehicle; and that, at that point, he was insistent and aggressive. [ 69 ] There is no evidence before me that Calvin verbalized a threat to inflict bodily injury on Ms. Charles if she failed to steal Ms. King’s vehicle. The threat upon which Ms. Charles relies is Calvin’s normal propensity for violence, coupled with his state of mind on March 11, 2016, which Ms. Charles described as insistent and aggressive. In other words, the threat to which Ms. Charles was subject was not limited to the stealing of Ms. King’s car. Rather, the threat, as Ms.

Charles understood it, existed if she failed to comply with any instruction given by Calvin. [ 70 ] As I have already noted, Ms. Charles had multiple opportunities to safely extricate herself from Calvin’s influences. But for

the failure of Ms. Charles to avail herself of several safe avenues of escape, I would have accepted her assertion of a close temporal connection. Certainly, there is an air of reality to Ms. Charles’ conclusion that, if she failed to comply with Calvin’s wishes on March 11, 2016, he may well have imparted violence on her. However, because she failed to avail herself of these safe avenues of escape, her actions are not excusable under the law of duress. PROPORTIONALITY: [ 71 ] I am satisfied that there is proportionality between the crime committed by Ms. Charles and the threat to which she was subject.

However, in coming to this conclusion, it is extremely important to note that I am satisfied that Ms. Charles did not know that there was a baby in Ms. King’s vehicle. Certainly, there would be absolutely no proportionality if it could have been established that Ms. Charles knew or ought to have known that a baby was involved. No reasonable person in the same situation as the accused and with similar characteristics and experiences would have concluded that the violence to which they could become subject for refusing to comply with Calvin’s direction would have justified stealing a baby.

NOT PART OF CRIMINAL ACTIVITY, CONSPIRACY OR ASSOCIATION: [ 72 ] Because of my finding that the defence of duress is unavailable to Ms. Charles, I decline to make a determination on the application of this exclusion from the defence of duress to Ms. Charles’s situation. However, I note that there are few distinguishing features in Ms. Charles actions in stealing Ms. King’s vehicle on March 11, 2016 and any of the unsuccessful attempts to steal a vehicle in Hazeldell. From Ms. Charles’ own testimony, it appears that stealing vehicles was an activity previously engaged in by Ms.

Charles and Calvin and may well have been a predictable component of Ms. Charles’ decision to remain in a relationship with Calvin. As noted, the threat of violence to which Ms. Charles was subject arose out of her continuing relationship with Calvin and his propensity for violence; a propensity for which she had actual knowledge. In this regard, I note that the defence of duress, which finds it genesis in the principle of “moral involuntariness”, does not permit the creation of one’s own compulsion through a voluntary assumption of risk. See: Ryan , at paras 76 to 80 .

CONCLUSION: [ 73 ] For the foregoing reasons, I find that the defence of duress is unavailable to Ms. Charles. The source of the threat to which Ms. Charles was subject was the general propensity for violence of another person and not a specific threat to commit the within offences. I am satisfied, beyond a reasonable doubt, that Ms. Charles had multiple opportunities prior to the commission of these offences to safely separate herself from this individual’s influences and that she failed to do so on each occasion. As a consequence, I find that Ms. Charles’s actions in stealing Ms.

King’s vehicle and in operating a motor vehicle with a blood alcohol content in excess of the prescribed limit were voluntary. [ 74 ] I find Ms. Charles guilty of counts (1) and (3) of the Information. As there was no evidence that her ability to operate a motor vehicle was impaired by alcohol, I find the accused not guilty of count (2). Dated this 31 day of October, A.D. 2016, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S.D. SCHIEFNER, J