Her Majesty the Queen - v. -, 2016 SKPC 165

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 165 Date: December 13, 2016 Information: 34481433, 35707853, 34481432, 35707850 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Payton Armstrong Appearing: W. Collins For the Crown B. Little For the Accused JUDGMENT M.M.

BANIAK , J [ 1 ] The accused, Payton Armstrong, was charged with multiple offences contained in four Informations (containing 25 counts), ranging from s. 88 to s. 96 as well as four counts pursuant to s. 117.01(1) of the Criminal Code : Information #34481433 (1) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did without lawful excuse, carry a firearm, to wit: a 12 gauge shotgun, in a careless manner, contrary to s. 86(1) of the Criminal Code ;

(2) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did without lawful excuse, carry prohibited ammunition, to wit: 12 gauge shotgun, shells, in a careless manner, contrary to s. 86(1) of the Criminal Code ; (3) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did have in her possession, a weapon, to wit: a 12 gauge shotgun, for a purpose dangerous to the public peace, contrary to s. 88 of the Criminal Code ; (4) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did have in her possession a firearm, to wit: a 12 gauge shotgun, while she was prohibited from doing so by reason of an order made pursuant to s. 109(1) of the Criminal Code , contrary to s. 117.01(1) of the Criminal Code ; and (5) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did have in her possession prohibited ammunition, to wit: 12 gauge shotgun shells, while she was prohibited from doing so by reason of an order made pursuant to s. 109(1) of the Criminal Code , contrary to s. 117.01(1) of the Criminal Code .

Information #35707853 (1) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did not being authorized under the Firearms Act to carry concealed, a weapon, to wit: a knife, did carry it concealed, contrary to s. 90 of the Criminal Code ; (2) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did have in her possession , a weapon, to wit: a knife, for a purpose dangerous to the public peace, contrary to s. 88 of the Criminal Code ; (3) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did possess a firearm, to wit: a .22 calibre long rifle, while she was prohibited from doing so by reason of an order made pursuant to s. 109 of the Criminal Code at North Battleford on March 19, 2015, contrary to s. 117.01(1) of the Criminal Code ; and (4) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did possess ammunition, to wit: .22 calibre ammunition, while she was prohibited from doing so by reason of an order made pursuant to s. 109 of the Criminal Code .

Information #34481432 (1) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan was an occupant in a motor vehicle, to wit: a 2002 Oldsmobile Intrigue, in which he/she knew that there was at that time, prohibited ammunition, to wit: .22 calibre shells, contrary to s. 94(1) (a)(

i) of the Criminal Code ; (2) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did have in his/her possession a firearm, to wit: a .22 calibre long rifle, knowing that it was obtained by the commission in Canada of an offence, contrary to s. 96 (

a) of the Criminal Code ; (3) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did have in her/her possession prohibited ammunition, to wit: .22 calibre long rifle shells, knowing that it was obtained by the commission in Canada of an offence, contrary to s. 96 (

a) of the Criminal Code ; (4) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did have in her/her possession a firearm, to wit: a 12 gauge shotgun, knowing that it was obtained by the Commission in Canada of an offence, contrary to s. 96 (

a) of the Criminal Code ;

(5) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did have in her/her possession prohibited ammunition, to wit: 12 gauge shotgun shells, knowing that it was obtained by the commission in Canada of an offence, contrary to s. 96 (

a) of the Criminal Code ; (6) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did possess a firearm, to wit: a 12 gauge shotgun, knowing that (he/she) was not the holder of a licence under which (he/she) may possess it, contrary to s. 92(1) of the Criminal Code ; (7) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan was an occupant in a motor vehicle, to wit: a 2002 Oldsmobile Intrigue, in which he/she knew that there was at that time, prohibited ammunition, to wit: 12 gauge shotgun shells, contrary to s. 94(1) (a)(

i) of the Criminal Code ; and (8) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan was an occupant in a motor vehicle, to wit: a 2002 Oldsmobile Intrigue, in which he/she knew that there was at that time, a firearm, to wit: a 12 gauge shotgun, contrary to s. 94(1) (a)(

i) of the Criminal Code .

Information #35707850 (1) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did have in her possession, a weapon, to wit: a .22 calibre long rifle, for a purpose dangerous to the public peace, contrary to s. 88 of the Criminal Code ; (2) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did have in her possession, a weapon, to wit: a knife, for a purpose dangerous to the public peace, contrary to s. 88 of the Criminal Code ; (3) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did have in her possession, a weapon, to wit: a knife, for a purpose dangerous to the public peace, contrary to s. 88 of the Criminal Code ; (4) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did have in her possession, a weapon, to wit: bear spray, for a purpose dangerous to the public peace, contrary to s. 88 of the Criminal Code ; (5) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did without lawful excuse, transport a firearm, to wit: a .22 calibre long rifle, in a careless manner, contrary to s. 86(1) of the Criminal Code ; (6) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did without lawful excuse, transport ammunition, to wit: .22 calibre ammunition, in a careless manner, contrary to s. 86(1) of the Criminal Code ; (7) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan did possess a firearm, to wit: a .22 calibre long rifle, knowing that he/she was not the holder of a licence under which he/she may possess it, contrary to s. 92(1) of the Criminal Code ; and (8) that on or about the 1st day of December, A.D. 2015 at or near Saskatoon, Saskatchewan was an occupant in a motor vehicle, to wit: a 2002 Oldsmobile Intrigue, in which he/she knew that there was at that time, a firearm, to wit: a .22 calibre long rifle, contrary to s. 94(1) (a)(

i) of the Criminal Code .

[ 2 ] I will, in due course, make my finding with respect to which the Crown has proven guilty beyond a reasonable doubt. [ 3 ] The accused, who testified in her own defence, did not deny her participation in some of the listed offences. As already stated, the Crown was able to establish the actus reus and the mens rea of these offences. However, the accused submits that these offences were committed under duress. This defence, if successfully made out, would excuse the commission of these offences.

Evidence [ 4 ] The Crown’s first witness was Constable Travis Chomyn, a four year member of the Saskatoon Police Service. He testified that on December 1, 2015, he was involved in a pursuit of a 2002 Oldsmobile Intrigue automobile. His unit was unsuccessful in utilising a spike belt to immobilize the vehicle, but another police car was. The police air patrol also became involved in the chase. [ 5 ] At 1:22 a.m., a firearm was thrown out of the vehicle at 19 th Street. The pursuit continued.

Eventually, having regard for safety concerns, the patrol cars let up in the chase and the suspect vehicle was being monitored by the airplane, which then relayed information to the police cars on the ground. [ 6 ] Almost an hour after becoming involved, Constable Chomyn saw the passenger jump out of the vehicle in the vicinity of 1141 - 22 nd Street. He and his partner, Constable Vossen, chased this person, and yelled for her to stop. She ignored the direction and continued running, eventually ending up in a dead end between a fence and a garage.

From her posture, Constable Chomyn believed that she may have a weapon and employed some force against her in effecting the arrest, which occurred at 2:30 a.m. He also located two handbags and two cell phones in the backyard. Constable Vossen found a folding knife inside a pocket of the jacket the accused was wearing. One cell pone was found on the ground where the accused was arrested. One cell phone had a video, from a different date, of the driver of the vehicle holding a handful of $20.00 bills. There was also a picture of the driver with a rifle and a gun.

Another picture was of Spencer Wapass and the accused. [ 7 ] When asked about te speed of the fleeing vehicle, Constable Chomyn replied: “Not sure, it was not outrageously fast”. [ 8 ] The second Crown witness was Preston Wood, a resident of Saskatoon. He testified that on December 1, 2015, at the corner of 17 th Street and Avenue V, he found a shotgun. It was laying on a street beside his neighbour’s truck.

He took it to the police station that afternoon, and later that evening another police officer came to take pictures of the location where the gun was found. [ 9 ] The Crown’s third witness was Constable Cole Miklautsch. He testified that his involvement with the suspect vehicle started around 1:40 a.m. on December 1, 2015. At that point the vehicle was parked, but once Constable Miklautsch’s vehicle approached it sped away, accelerating rapidly - at one point going at 125 kph in a 50 kph zone. [ 10 ] There were three people in the car. One in the back and two in the front.

At Diefenbaker Drive and Laurier Driver the vehicle stopped and the person in the back seat got out and started walking down the street. Constable Bear detained her. She was identified as Angie Stiglitz. She was released. [ 11 ] The Court’s fourth witness was Constable Kristopher Klutz, a nine year member with the Saskatoon Police Service. He is a tactical flight officer with the air support unit. He testified that the airplane became the primary pursuit unit. It would relay information to the patrol cars on the ground.

He testified that except for about 15 seconds he had the suspect vehicle in sight at all times. The pursuit lasted almost an our and the vehicle drove throughout the city. Sometimes it drove normally obeying traffic rules, other times it went through stop signs and red lights. [ 12 ] In time it became apparent that the vehicle was becoming increasingly disabled. It had trouble negotiating turns and Constable Kluz believed that the spike strips had flattened the tires.

[ 13 ] He testified that he observed objects being thrown out of the vehicle and he relayed this information to the ground units. As the vehicle approached 2 nd Street from Munroe Avenue, the passenger from the front seat got out and started running. He relayed this information and the members on the ground gave chase. [ 14 ] During cross-examination, Constable Klutz testified that the traffic was very light at that time of the day, and that the “car never stopped for any length of time”, but that it did obey traffic lights occasionally. [ 15 ] The next Crown witness was Constable Trevor Stevenson.

He was the officer who retrieved the object thrown out the front passenger window. It was the .22 calibre rifle. He testified that his unit was on the scene within 15 seconds of being advised by the air patrol that something was thrown out of the car. [ 16 ] Constable Chomyn’s partner, Constable Thomas Vossen also testified. When the suspect vehicle finally came to a stop at 22 nd Street he assisted in the arrest of the male driver and then went to assist Constable Chomyn. He testified that he observed a female running - “I yelled for her to stop. She didn’t comply with police command”.

She also ignored Constable Chomyn’s command. [ 17 ] Constable Vossen found the folding knife in the pocket of the accused’s jacket (Exhibit P-6). [ 18 ] Constable Blake Atkinson testified that he was involved in the arrest of the male driver, Spencer Wapass. Constable Bishop apprehended the male first. He was resisting vigorously and Constable Atkinson went to assist. [ 19 ] He then went to inspect the car. “Then I went to where the vehicle was parked. On driver’s side seat was a small baggie of crystal meth”.

Constable Atkinson also found the following: 2, 22 calibre rounds in the cup holder of the front console; a bladed knife wedged between the centre console and the driver’s side of the front seat; and .22 calibre round and a shot gun shell. A Samsung cell phone was also seized from the male. A small amount of drugs were also located on the centre console. [ 20 ] Constable Cody Bishop also searched the vehicle.

He found the following: 1) black knife with 4 inch fixed blade (buck) on top of the back seat; 2) black knife with an orange handle; 3) small bag of .22 calibre rounds (10); 4) bear spray (back seat on the floor); and 5) red and grey shot gun shells (17) in a make up bag. [ 21 ] The accused, Payton Armstrong, testified. She just turned 21. She described a troubled, perhaps even a horrific childhood. She was born at the Thunderchild First Nation. Her mother was addicted to alcohol and drugs. Ms.

Armstrong testified that she was introduced to alcohol at a very early age: “I started drinking when I was around 6 or 7. My mom gave me coolers. She though it was funny”. She was apprehended by Social Services several times. She did not meet her father until she was 7 years old. He is not part of her life. [ 22 ] She spent time in jail for assault and robbery. About a month after being released from the Pine Grove facility she met Spencer Wapass. This meeting occurred in the latter part of October, 2015. According to her, she met him at the Great Canadian Oil Change garage.

Her cousin encouraged her to go to Spencer’s apartment and the relationship started immediately. From that point on she stayed at his place. He supplied her with drugs and she stayed high throughout. She barely slept or ate.

[ 23 ] The relationship deteriorated quickly. According to Ms. Armstrong, Spencer Wapass would beat her and make fun of her. He threatened to stab or shoot her. She spent most of the time in his apartment. She would use drugs with him or with his former roommate. [ 24 ] At one point, she decided to leave and go back to the reserve. This angered Spencer. According to her, he sent some girls to the apartment to beat her up. She was also stabbed in the leg. [ 25 ] On December 1, 2015 they were packing to move to another apartment on Munroe Avenue. Spencer was in a bad mood. He threatened to shoot the place up.

He left the apartment and later texted her that he as going to pick her up. It was late at night when they started going to the Munroe suite. [ 26 ] When she got in the car she noticed a “white girl” in the backseat. She noticed a lot of garbage in the back of the vehicle - it looked really gross. [ 27 ] The other female had a purse and an almost empty bottle of liquor. She wanted to go to a liquor store to get more liquor. They proceeded to the liquor store where the “girl” got more liquor. Shortly after the chase started. The accused felt panicky and started crying. The girl in the back also started to cry.

Spencer Wapass told both of them to shut up. [ 28 ] The car stopped and the girl jumped out. The accused was told to stay in the car; “he told me not to get out of the vehicle. His right hand was on my left hand”. [ 29 ] After this point, Wapass told the accused to grab the blanket from the back seat. When she did so, she saw “two really big guns”. She was told to take these guns and throw them out the window. She believed that if she did not do as she was told Wapass would shoot her. [ 30 ] She took a jacket from the back seat and put it on. She did not know whose jacket it was.

She decided to get out of the vehicle. Their vehicle was barely moving. The tires were flat and spinning in the snow. She ran out and climbed over the fence trying to “get away and be safe”. She was quickly arrested. She told the police that the jacket was not hers and that she didn’t know what was in the back seat. She had no idea that the bear mace was in the back. [ 31 ] During cross-examination, Ms. Armstrong reiterated that she was high every day during the time she stayed in Spencer’s apartment. If she didn’t smoke meth she would become suicidal.

When asked why she didn’t just leave she answered: “I stayed with im because I had no other place to go and I just got out of jail”. [ 32 ] When asked why she did not call police for help, she answered: “I could call police, but I didn’t want to be a rat and get beat up”. [ 33 ] On the day in question, when she got in the car she was nervous that Spencer and the girl might do something to her. When the female went to the liquor store, Ms. Armstrong took out an old cup from the cup holder and she noticed the little bullets on the bottom of the cup holder.

She denies seeing any drugs on the console. [ 34 ] When the chase started she started crying. When the other girl jumped out of the car, she was told to stay. “I didn’t want him to do anything to me or the cops to do anything to me. I just panicked and didn’t know what to do. He said he was going to run away from the cops”. [ 35 ] She acknowledged that Spencer Wapass wrote to her when she was in jail and that she wrote him back. She also engaged Mr. Wapass in a conversation while in the cells at the courthouse prior to the trial.

[ 36 ] Based on the evidence which I accept, I find the following: 1) the accused knew of an had possession of the .22 calibre rifle; the 12 gauge shotgun; the .22 calibre shells in the console cup holder; and the knife wedged between the front seat and the console; 2) the accused did not know, or have possession of the ten .22 calibre shells in the back seat bag; the seventeen shotgun shells in the make up bag; the knives found in the back seat, or the bear spray; and 3) I also have reasonable doubt as to her having the knowledge of the folding knife found in the pocket of the jacket she retrieved from the back seat; or that she was aware of the small amount of meth located in the front console. [ 37 ] What remains to be determined, therefore, is whether the accused can avail herself of the defence of duress.

Defence submits that the accused can rely on both, the statutory provisions ( s. 17 of the Criminal Code ) as the offences she is being charged with do not fall within the category of offences excluded from this defence, as well as the common law version of the defence. [ 38 ] In support of its position, defence argues that Ms. Armstrong was compelled to commit these offences by her fear of Spencer Wapass. More specifically, she feared for her safety if not her life. Their relationship, although relatively short, was punctuated by violence and threats.

On the day in question, she feared the consequences of not obeying Mr. Wapass. The threat could be implicit or explicit. [ 39 ] She didn’t have a safe avenue of escape. It is important to note here that her belief is not to be judged on purely a subjective or objective basis, but rather on a modified subjective/objective test.

Moreover, once the duress defence is raised, and there is some evidence to support it, the burden then shifts to the Crown to establish beyond a reasonable doubt that the accused did not act under duress. [ 40 ] The Crown acknowledged the accused’s difficult past, but points out that she had choices - both during the six week relationship and on the day in question. She started smoking meth with Mr. Wapass on the day she met him and chose to stay with him. He supplied her drug needs. [ 41 ] On the day in question, there was no threat - implicit or explicit - of any harm to her.

Her defence is based on her perception of what happened in the past or may happened in the future. Throughout the pursuit Mr. Wapass did not threaten her with bodily harm or death. He did not hit her or even attempt to hit her. [ 42 ] Further, the Crown takes the position that if the totality of the evidence is considered, including the nearly one hour pursuit, there were opportunities for her to escape. [ 43 ] Finally, she has to take some responsibility for associating with someone like Mr. Wapass.

She knew he hung around with “rough people”, and it was reasonable for her to conclude that if she stayed with him bad things could happen. In short, there was a voluntary assumption of risk. [ 44 ] When all of the evidence is considered, the Crown has proven beyond a reasonable doubt that the defence of duress does not apply. Analysis

Analysis [ 45 ]

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

section does not apply where the offence that is committed is high treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons). [ 46 ] This defence was considered by the Supreme Court of Canada in R v Ruzic [1] and R v Ryan [2] .

There is very little difference between the statutory and common law versions of this defence. The main difference is that s. 17 lists a number of offences which are exempt from this defence. [ 47 ] In Ruzic , the accused admitted importing heroin from Serbia to Canada. She did so in order to protect her mother from a third party who has threatened harm to her if the accused did not commit the offence. The accused was certain that the Serbian authorities would not be able to protect her mother.

On that basis she argued that she should be excused from criminal liability. [ 48 ] To consider the defence of duress, the Court had to grapple with a portion of s. 17 which addressed the immediacy and presence requirements (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. . .). [ 49 ] The Court held that the immediacy and presence requirements infringed the Charter (namely the liberty and security interests protected by s. 7), and that this violation could not be saved by s. 1. [ 50 ] After Ruzic , it is accepted that s. 17 of the Code only requires that the threat be made to the accused, and not necessarily that the accused be the object of that threat.

In other words, the threat need not be just against the accused, it could be directed against a third party. [ 51 ] It should be noted, however, that Ruzic did not strike down s. 17 completely.

As the Supreme Court noted in Ryan (para 43 ) the following four requirements of the statutory defence remain intact: 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. [ 52 ] As was noted in Ryan (para. 46 ) the four requirements remaining in the statutory defence, were augmented or buttressed by three key elements of the common law defence of duress, namely: 1) no safe avenue of escape;

2) a close temporal connection; and 3) proportionality. [ 53 ] In Ryan , the accused was charged with counselling to commit murder. She tried to hire a hit man (who turned out to be an undercover police officer) to kill her abusive and violent husband. She testified that her husband told her on many occasions that he would kill her and their daughter if she ever tried to leave him. [ 54 ] The Supreme Court held that, on these facts, the defence of duress was not available, as duress is available only in cases in which the accused is threatened for the purpose of compelling the commission of the offence.

Needless to say, Mr. Ryan would not have been threatening his wife to kill him. [ 55 ] A careful reading of Ruzic and Ryan clearly shows that this defence, which is rarely used, is subject to certain limitations. Ryan (paras. 28 and 29 ) explain the justification for this: [28] These distinctive underlying principles of self-defence and duress take on added significance when we remember that in Canadian law, self-defence is exhaustively codified, whereas duress is an amalgam of statutory and common law elements.

This means that the courts must take care not to use the flexibility of the common law to develop duress in ways that circumvent limitations and restrictions imposed by Parliament on the defence of self-defence. This would amount to judicial abrogation of parts of the Criminal Code . The courts intervene to interpret and apply the statutory rules governing self-defence, not to set them aside in the absence of a constitutional challenge. [29] Duress cannot be extended so as to apply when the accused meets force with force, or the threat of force with force in situations where self-defence is unavailable.

Duress is, and must remain, an applicable defence only in situations where the accused has been compelled to commit a specific offence under threats of death or bodily harm. This clearly limits the availability of the offence to particular factual circumstances. The common law elements of duress cannot be used to “fill” a supposed vacuum created by clearly defined statutory limitations on self-defence. [ 56 ] Another principle that emerges from Ruzic and Ryan is that the accused’s belief that the threat will be carried out must be evaluated on a modified objective standard.

The accused’s subjective belief that the threat will be carried out must also be reasonable ( Ryan , para. 50 ). And, finally, the accused’s conduct must be such as to demonstrate that he did not easily make the decision to commit the offence.

As the Court stated in Ruzic (para. 62 ): “The accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat”. [ 57 ] The Court in Ryan (para 55 ), following its analysis in Ruzic , concluded that the common law of duress comprises the following six elements: 1) an explicit or implicit threat of death or bodily harm proffered against the accused or a third person. The threat may be of future harm.

Although, traditionally, the degree of bodily harm was characterized as “grievous”, the issue of severity is better dealt with at the proportionality stage, which acts as the threshold for the appropriate degree of bodily harm; 2) the accused reasonably believed that the threat would be carried out; 3) the non-existence of a safe avenue of escape, evaluated on a modified objective standard;

4) a close temporal connection between the threat and the harm threatened; 5) proportionality between the harm threatened and the harm inflicted by the accused. This is also evaluated on a modified objective standard; 6) the accused is not 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. [ 58 ] Absence of any of these elements will result in the defence of duress not being made out.

Each of these elements will be examined on its own merit. 1) an explicit or implicit threat of death or bodily harm proffered against the accused or a third person. [ 59 ] Based on the testimony of Ms. Armstrong, there was no explicit threat delivered to her by Mr. Wapass during the pursuit. She testified that when Ms. Stiglitz exited the vehicle Ms. Wapass told her to stay and held her hand. This, in and of itself, falls short of an explicit threat. However, if I accept her testimony - which I do - that Mr.

Wapass is an impulsive and violent individual who routinely abused and assault her during their five week relationship, then it is reasonable for her to fear that he would inflict violence on her if she disobeyed him. [ 60 ] So even though there is no evidence of an explicit threat being directed towards Ms. Armstrong, having regard to the type of abuse she experienced at the hands of Mr. Wapass, I find that an implicit threat existed. 2) the accused reasonably believed that the threat would be carried out [ 61 ] This element of the defence of duress is analysed on a modified objective basis.

It is not enough for the accused to believe that the threat would be carried out; the test has to be measured against that of a reasonable person similarly situated ( Ruzic , para. 61 ). [ 62 ] Again, having regard to the totality of the evidence, I find that the accused’s belief that she would be victimized if she did not obey Mr. Wapass was reasonable under the circumstances. 3) the non-existence of a safe avenue of escape, evaluated on a modified objective standard [ 63 ] This element was addressed in Ruzic (para. 61 ): [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. . . [ 64 ] In other words, what would a reasonable person, finding himself in the same situation as the accused, do?

If he believed that there was a safe avenue of escape, then this requirement is not met.

[ 65 ] In the case before me, it may be useful to examine Ms. Armstrong’s situation before December 1, 2015, as well as during the pursuit itself on December 1, as I believe there is a connection. [ 66 ] She testified that the five week period that she stayed at Mr. Wapass’ apartment was filled with drug use and violence. She was “high” nearly every day. [ 67 ] She was subject to physical violence at the hands of Mr. Wapass. She did drugs with him, by herself, as well as with others when Mr. Wapass was not around.

She testified that sometimes he was gone all day and she was in the apartment by herself or sometimes in the company of his ex-roommate. When asked why she did not leave the apartment she answered that she was afraid of what Mr. Wapass might do, and, secondly, that she did not have a place to go. [ 68 ] I find that she had multiple opportunities to leave the relationship prior to December 1. Mr. Wapass’ apartment was not a virtual prison. Her serious drug addiction, coupled with her lack of resources, including the availability of alternate housing, was the main reason she chose to stay with Mr. Wapass.

This may provide a reason for her reluctance to escape his control, it does not, in my view provide a reasonable explanation for failing to do so. [ 69 ] During the offence period, that is the pursuit in the early morning hours of December 1, 2015, there were opportunities to exit the vehicle with minimal risk to herself - the safe avenue of escape. The pursuit lasted almost an hour. At some point the vehicle stopped for Ms. Stiglitz to get out. I believe that if Ms. Armstrong also got out of the car Mr.

Wapass would not have pursued her knowing that the police were close by. [ 70 ] On another occasion, as the police were placing the spike belt on the road, the car came practically to a stop as it maneuvered around the belt. If she got out of the car at that point she would have had police protection instantly. [ 71 ] At other times, according to police testimony, the car drove normally, stopped for traffic lights and stop signs. This would have provided Ms. Armstrong an opportunity to get out of the car safely. She testified that she did not do so because she was scared of being hit by other vehicles.

I do not accept this. Police testified that the traffic, at that time in the morning, was very light. Ms. Armstrong was aware of this. She was also aware of the police plane overhead. She was not so distraught or terrified as to be paralysed with fear and unable to act. When the vehicle was becoming inoperable, Mr. Wapass and Ms. Armstrong made the decision to make a run for it. She jumped out of the car before he did. She could have remained in the car and turned to police for protection. When she got out of the car she started running and looking for a place to hide from the police.

She did not stop when challenged by police to d so. She took two bags out of the car before jumping out - again, not the behaviour of a traumatized person who simply tried to escape. [ 72 ] I conclude, therefore, that Ms. Armstrong had multiple opportunities - both before December 1, 2015, and during the pursuit on December 1, 2015 - to safely escape. She chose not to avail herself of this safe avenue of escape.

As such, the defence of duress is not available to her. [ 73 ] In light of my finding with respect to this element, it is not necessary for me to analyse the evidence as it relates to the remaining three elements. [ 74 ] Accordingly, I find the accused guilty of the following: Information #34481433 - guilty of counts 3 and 4; Information #35707853 - guilty of counts 3 and 4; Information #34481432 - guilty of 6; and

Information #35707850 - guilty of counts 1 and 7. _____________________ M.M. Baniak, J [1] 2001 SCC 24 , [2001] 1 SCR 687; 2001 SCC 24 [2] 2013 SCC 3; [2013] 1 SCR 14