R v Willis (TAW), 2016 MBCA 113

Citation: R v Willis (TAW), 2016 MBCA 113 Date: 20161130 Docket: AR15-30-08394 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Michel A. Monnin Mr. Justice Christopher J. Mainella BETWEEN: ) U. B. Goeres andHER MAJESTY THE QUEEN ) C. A. English ) for the Appellant ) Respondent ) N. M. Cutler, ) M. A. Conner and- and - ) C. P. R.

Murray ) for the RespondentTREYVONNE ANTHONY WARNER ) WILLIS ) Appeal heard: ) May 4, 2016 ) (Accused) Appellant ) Judgment delivered: ) November 30, 2016 On appeal from 2015 MBQB 114, 318 ManR (2d) 209 MAINELLA JA Introduction and Issues [1] Defining the boundary between law and morality is a timeless and ever controversial question. In 1892, Parliamentenacted a law regarding the defence of duress based on a strict standard of expected behaviour for the intentional taking of life which hadits genesis in 17th century English common law.

The purpose of this law and its constitutionality is the central issue in this appeal. Adrug-related murder typically does not require ascertaining what the philosophical foundations of a particular law are, in deciding whenthe act of murder should be excused, or determining what duties a person facing an extreme danger owes to another. This appeal,however, raises all of those difficult problems.

The parties have asked this Court to consider conflicting legal authorities from manyjurisdictions, as well as different philosophical perspectives to the defence of duress to decide the constitutional issues in this appeal. [2] This appeal arises from the brutal murder by the accused of a young woman, Kaila Tran. The crime was not the resultof transient emotions. The accused barely knew Ms Tran. She had done nothing illegal or improper to bring about her tragic fate; shewas an innocent person. The accused’s motive was unusual. He faced death threats over a drug debt.

The dealers threatening him alsowanted Ms Tran killed for an unrelated reason. In order to avoid the threat, he chose to commit the murder. He rationalized the act topolice by explaining to them that it was “necessary at the time”, because “[i]t was like my life or her life.” [3] At his trial for first degree murder, the accused sought to put forward the rare defence of duress based on his claimthat this was a situation of kill or be killed.

Section 17 of the Criminal Code (the Code) prohibits reliance on the defence of duress for aprincipal or a co-principal charged with murder (i.e., a person who is liable pursuant to section 21(1)(

a) of the Code (see Paquette v TheQueen, (SCC), [1977] 2 SCR 189 at 194; and R v Mena (1987), (ON CA), 20 OAC 50 at paras 30-39)). [4] The accused unsuccessfully brought a challenge to this law on the basis of

section 7 of the Canadian Charter ofRights and Freedoms (the Charter). The trial then proceeded on the basis that he could not rely on the defence of duress. He was

convicted of first degree murder, and was sentenced to life imprisonment without eligibility for parole for 25 years. [ 5 ] The first ground of appeal is whether the statutory prohibition against duress being a defence to murder, by a principal or co-principal (as opposed to a party), violates

section 7 of the Charter . The accused says that

section 17 of the Code infringes his right to liberty of the person in a manner that is contrary to the principles of fundamental justice because the law allows for liability for morally involuntary conduct. He also submits that the law is overbroad. Finally, he says that the law cannot be saved by

section 1 of the Charter . [ 6 ] On the first ground of appeal, the Crown also raises a related issue that, even if the trial judge erred in not finding

section 17 of the Code unconstitutional, the curative proviso should be applied to dismiss the appeal because there was no air of reality to the accused’s claim of duress in light of the requirements of the common law defence of duress as set out in R v Ryan , 2013 SCC 3 , [2013] 1 SCR 14 .

The Crown argues that the accused had a safe avenue of escape (calling the police or leaving town), and also that the defence of duress was not available to him because he voluntarily joined a criminal organization where threats of the nature he faced were known to him. [ 7 ] The next ground of appeal alleges error in the trial judge’s instructions to the jury on the effect of evidence of intoxication on proof of the state of mind required to establish that an unlawful killing was murder (

section 229 (

a) of the Code ). The accused submits that the trial judge erred in his instruction to the jury as to how they could use the common sense inference that a sober and sane person usually intends or means to cause the predictable consequences of his actions in light of the evidence of the accused’s intoxication at the time of the offence. [ 8 ] Finally, the accused says that the trial judge’s answer to a question from the jury during deliberations, seeking clarification on “how an action can be planned but not deliberate” was inadequate. [ 9 ] For the following reasons, I would dismiss the appeal.

Facts [ 10 ] The accused abandoned his university studies and joined a criminal organization operated by Derrick Bennett (a.k.a. Fenali). The accused made deliveries of cocaine from Winnipeg, Manitoba, to the northern community of The Pas, Manitoba. On one occasion, he was caught by police and a shipment of cocaine was seized. As a result, the accused acquired a large drug debt to the criminal organization. [ 11 ] Over the course of the following year, the accused unsuccessfully attempted to pay off the drug debt by continuing to traffic in cocaine.

In time, the criminal organization began to pressure him for full repayment of the debt. He turned to friends and family for advice. They told him to go to the police. Unwisely, he ignored their counsel. [ 12 ] As the months went by, the threats regarding the debt escalated. Approximately a month prior to the murder of Ms Tran, members of the criminal organization shot at the accused and beat him up, resulting in several broken bones.

Nevertheless, he did not turn to the police for help. [ 13 ] In the week before the murder of Ms Tran, the accused received a new threat in the form of a text message from Fenali containing the addresses of his brother and aunt. The accused had no idea how the criminal organization could have found out where his family members lived. He took the text message to be an implicit threat that, if the debt was not paid, he would not be the only one killed. In spite of this ominous development, remarkably, he decided not to contact police, nor did he warn his family members of the threat.

The option he chose in an effort to extricate himself from his predicament was to kill Ms Tran. [ 14 ] The accused was asked by police why he didn’t seek their assistance instead of killing Ms Tran. He told them that he was “scared” and it “would make things much worse if [he] went to police obviously.” [ 15 ] The jury heard conflicting versions of the murder plot. The accused told police that Fenali ordered him to commit the murder in exchange for forgiveness of the debt.

In contrast, the accused’s friend, Tremaine Sam-Kelly, testified that the accused told him that the murder was in essence directed by Ms Tran’s boyfriend, Drake Moslenko, who was a friend of both Fenali and the accused. Apparently, Moslenko revealed to the accused that Ms Tran was a police informant. Moslenko proposed a scheme that, if the accused murdered Ms Tran, the two would split her property thus giving the accused a way to repay his debt. The accused told Sam-Kelly that he decided to kill Ms Tran as a “favour” to Moslenko.

Neither Fenali nor Moslenko testified at the trial. [ 16 ] The accused learned, in some way, that every morning at around 7 a.m., Ms Tran would leave her Winnipeg apartment and get into her car to drive to work. He decided that he would kill her in the parking lot of her apartment building. [ 17 ] On the morning of June 19, 2012, he made his first attempt. He and Sam-Kelly (who was present apparently only for moral support) arrived at the parking lot at around 7 a.m. Ms Tran’s car was there, as she had not yet left for work.

The accused had with him a murder kit consisting of a backpack which contained: gloves, a knife, a change of clothes and a bandana. He found a suitable place nearby to change. However, when he returned to the parking lot a few minutes later, she had already left for work. [ 18 ] The next day the accused made a concerted effort to arrive with Sam-Kelly earlier than the day before.

Sam-Kelly testified that, before travelling to the parking lot, he had consumed the drug MDMA, a psychoactive drug that can produce such effects as euphoria, reduction of inhibitions, poor judgment, impulsiveness, decreased co-ordination, altered perception and aggression. [ 19 ] Sam-Kelly testified that he was “really affected” by the MDMA and was “flying” at the time of the homicide. He also gave evidence that the accused had taken some MDMA before killing Ms Tran, although he could not say how much.

He told the jury that the accused seemed “affected” by the drug, but he could not give any opinion as to the degree of the accused’s intoxication. In his statement to police, the accused said nothing about how much MDMA he may have used before the homicide, nor did he say anything about being intoxicated in any way. He did not testify at the trial. The jury was shown surveillance video of shortly before and after the

homicide allowing it to observe the accused’s behaviour. Several witnesses also testified as to normal physical functions the accused could perform before, during and after the homicide. [ 20 ] After the accused arrived at the parking lot, he again briefly left the area to change. He then returned in his change of clothes, with his face covered with a bandana. He waited for, and then attacked Ms Tran as she was leaving her apartment to go to her car. After stabbing her 30 times, he fled. He ultimately stopped, changed and disposed of the contents of his murder kit in a river.

Nevertheless, police located the discarded items. [ 21 ] Later, the accused told Sam-Kelly that the murder had not wiped out his drug debt. The two men discussed various legal and illegal ways of raising funds to pay the debt. In his statement to police the accused advised that, between the day of the murder and his arrest on June 26, 2012, he had met with Moslenko. He said that the purpose of that meeting was to ask Moslenko for a loan to make a payment on the debt. Issue One – Constitutionality of

Section 17 of the Code for the Offence of Murder Constitutional and Statutory Provisions The Charter Rights and freedoms in Canada 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The Code Common law principles continued 8

(3) Every rule and principle of the common law that renders any circumstance a justification or excuse for

an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament. Compulsion by threats 17 A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this

section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons). Parties to offence 21(1) Every one is a party to an offence who (

a) actually commits it; (

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

c) abets any person in committing it. Common intention 21(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

Introduction and Some Words of Warning [22] The defence of duress[1] recognizes that, subject to certain rules, a person who commits an offence under thecompulsion of a threat of death or bodily harm made by another, will not be held criminally liable. The defence is seen as a “concessionto human frailty” (Reg v Howe, [1987] AC 417 (HL)). As Monnin JA (as he then was) explained in R v Bergstrom (1980), (MB CA), 2 ManR (2d) 121 (CA), aff’d (SCC), [1981] 1 SCR 539, “The basic idea behind the defence of duressis that duress makes the act committed involuntary” (at para 15).

To that description I would add that the involuntariness is of a moral(sometimes called normative) nature.

Professor Dennis Baker explains that, “The defence is allowed not because it achieves the greatergood or lesser evil but because the defendant acts without a fully unfettered freedom” (Dennis J Baker, Textbook of Criminal Law, 3rd ed(London, UK: Sweet & Maxwell, 2012) at 867). [23] Despite its ancient pedigree dating back until at least the 14th century in England, the defence of duress has been seen as“an extremely vague and elusive juristic concept” (Director of Public Prosecutions for Northern Ireland v Lynch, [1975] AC 653 (HL) at686).

This is partly because of historical reasons, the infrequency of it arising and also due to the fact that it involves a multiplicity ofseemingly conflicting interests. As LeBel J explained in R v Ruzic, 2001 SCC 24, [2001] 1 SCR 687 (at para 58): Duress involves the resolution of conflicts between individual rights and duties to others or obligations as a citizen. The analysis anddetermination of the rules governing duress should not take place in a vacuum where courts would focus only on the position and rightsof the threatened party.

The rights of third parties, more particularly the intended victims, may also be involved. The interest of theState or society in the preservation of public order and the proper application of laws will also be engaged. [24] The essential features of the defence of duress are more certain. Absent statutory language to the contrary, duress doesnot operate to negate any legal element of an offence; it only raises a new issue in a trial once the requirements of an offence are proven.

An accused has an evidentiary burden to raise the defence, but once there is an air of reality to it, the Crown has the burden of negatingthe defence, otherwise the accused will be acquitted. [25] In Canada, two forms of the defence are recognized. The first being a statutory one, as set out in

section 17 of theCode, that applies to those whose liability for an offence is that of a principal or co-principal (section 21(1)(

a) of the Code). The other isthe common law version of the defence, which is continued by

section by 8(3) of the Code, and is reserved for those whose liability foran offence is that of a party (sections 21(1)(b)-(

c) or 21(2) of the Code). In light of the decision of the Supreme Court of Canada inRyan, the two different forms of the defence are now almost identical, save for the list of statutory exclusions to the defence in section17 and the principal/party distinction (see Ryan at paras 81-84).

Finally, the defence of duress is closely related conceptually to thedefence of necessity (see Lynch at pp 668, 670, 692, 709-11; R v Hibbert, (SCC), [1995] 2 SCR 973 at paras 19-20, 23,45, 54; R v Cinous, 2002 SCC 29 at para 57, [2002] 2 SCR 3; Ruzic at paras 64, 71, 100; Ryan at paras 23, 36, 42, 74; and Perka et al vThe Queen, (SCC), [1984] 2 SCR 232 at 255-56). [26] Some criminal defences are rationalized and distinguished from others by characterizing them as either “justifications”or “excuses” (Perka at p 246).

A justification challenges the wrongfulness of the action; the law views the action as rightful in thecircumstances. An excuse concedes that the act is wrongful, but the law does not hold the actor accountable because of thecircumstances under which the act was done (see Perka at pp 246-47). [27] Professor George Fletcher describes the defence of duress as a “paradigmatic example of an excuse” (George PFletcher, Rethinking Criminal Law (New York: Oxford University Press, 2000) at 830).

While the language Parliament uses to describea defence in a statute is not necessarily determinative of its true juristic nature, in the case of duress, since it was introduced into theCode in 1892, the statutory language has consistently referred to it as an excuse for the commission of an offence (see CanadianFoundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 at paras 64-65, [2004] 1 SCR 76; and Gary PRodrigues, ed, Crankshaw’s Criminal Code of Canada, RSC 1985, (Toronto: Thomson Reuters, 2016) vol 1, (loose-leaf revision 16-1)at 1-185 - 1-186). [28] Serious discussion of duress as a recognized defence in the common law began with the influential writings of SirMatthew Hale, Chief Justice of the King’s Bench (1671-1676) (see Matthew Hale, Historia Placitorum Coronæ: The History of thePleas of the Crown (London, UK: E and R Nutt & R Gosling, 1736) vol 1 (reprinted London, UK: Professional Books, 1971) at 49-52(hereafter Hale)).

One feature of Hale’s articulation of the defence of duress is that the law excludes duress as a defence to the offenceof murder (Hale at p 51). Hale’s rule was the common law in Canada prior to the enactment of the Code in 1892 (see Henri ElzéarTaschereau, The Criminal Code of the Dominion of Canada as amended in 1893, with Commentaries, Annotations, Precedents ofIndictments; &c., &c. (Toronto: Carswell, 1893) at 10). [29] In this appeal, the Court is asked to address the constitutionality of the law passed by Parliament in 1892 codifying, inwhat is now

section 17 of the Code, the common law rule articulated by Hale that the law will never excuse the murder of an innocentperson based on a claim of duress. [30] A related point is that the facts of this case are that the accused was charged with murder as a principal, not a party. While the modern view of the criminal law is that there are not different degrees of culpability for principals, as opposed to parties aspreviously mentioned, the Supreme Court of Canada in Paquette used the principal/party distinction in relation to which form of thedefence of duress is available in a given context.

The Court has not resiled from that position in subsequent cases from Hibbert throughto Ryan. [31] In three decisions between 1974 and 1987, the House of Lords and the Privy Council wrestled with whether, atcommon law, duress can be a defence to the offence of murder (see Lynch; Abbott v The Queen, [1977] AC 755 (PC); and Howe). InLynch, by a majority of three to two, the House of Lords accepted that the common law did not bar a party, as opposed to a principal,from raising the defence of duress to a charge of murder.

In Abbott, by a majority of three to two, the Privy Council rejected the idea ofextending the defence of duress to principals charged with murder. Finally, in Howe the House of Lords unanimously overruled Lynch

and held that, at common law, the defence of duress is not available to anyone charged with murder. More recently in R v Z, [2005]UKHL 22 at para 21, [2005] 2 AC 467 (Eng) (hereafter Hasan), the House of Lords restated its conclusion in Howe. [32] The scope of the defence of duress at common law for parties on a charge of murder has not been stated as categoricallyby the Supreme Court of Canada as it has been in England since Lynch was overruled.

There are, however, decisions from the Courts ofAppeal of Alberta, British Columbia and Ontario that have allowed an accused charged as a party to raise the common law defence ofduress to the offence of murder, even after the House of Lords overruled Lynch (see R v Aravena (

M) et al, 2015 ONCA 250 at para 32,333 OAC 264, leave to appeal to the SCC refused, ; ; and ). In Ryan, theCourt makes the point that the common law in Canada as to what, if any, offences are excluded from the defence of duress is currently“unclear” (at para 83). [33] It is unnecessary on the facts of this case to decide whether the common law in Canada on the defence of duress to acharge of murder is currently reflective of the view in Lynch or Howe, or alternatively, state what the common law ought to be. The legaldistinction between principals and parties as to the defence of duress is, subject to Parliament amending

section 17 of the Code, for theSupreme Court of Canada to vary. More importantly, in my view, the constitutional issues in this appeal can be decided on theinterpretation given to the Code in Paquette, the principle of moral involuntariness as discussed in Perka, Ruzic and Ryan and theprinciple of overbreadth. [34] To those introductory comments, some words of warning need also be stated. [35] The question of the relationship between the defence of duress and the offence of murder is highly controversial.

Thereis no consensus in common law jurisdictions (or internationally) as to what the relationship should be between the defence of duress andthe offence of murder, although the starting point for each common law jurisdiction has been the common law as articulated by Hale.

The lack of consensus to this divisive legal question is not surprising because, as Professor Joshua Dressler eruditely explains, “Duressalways is a matter of line drawing about which reasonable minds can differ” (Joshua Dressler, “Exegesis of the Law of Duress: Justifying the Excuse and Searching for its Proper Limits” (1989) 62 S Cal L Rev 1331 at 1367).

A similar view was taken by theSupreme Court of New Zealand in Akulue v R, [2013] NZSC 88, [2014] 1 NZLR 17 (NZLII), where the Court stated, “The shape of thedefence of [duress] has always been affected by policy considerations” (at para 11) (see also Howe at pp 453-54). [36] Some have long advocated for the end of Hale’s rule. For example, in

section 2.09 of the American Law Institute,Model Penal Code: Official Draft and Explanatory Notes (Philadelphia: The American Law Institute, 1985) online: www.icla.up.ac.za/images/un/use-of-force/western-europe-others/UnitedStatesofAmerica/Model%20Penal%20Code%20United​%20States%20of%20America%201962.pdf, duress is recognized asa defence to all offences (including murder) committed as a result of the threat of unlawful force by another that “a person of reasonablefirmness in his situation would have been unable to resist”.

While the wisdom of Parliament’s policy choice to exclude duress as adefence to the offence of murder is a fertile source of discussion, that debate is beyond this appeal. It is for Parliament to define thecriminal law in terms of the nature of both offences and defences, subject only to constitutional review (see Ruzic at para 23). [37] It is also noteworthy that this appeal relates solely to the offence of murder, and not to any of the other many offenceslisted in

section 17 of the Code for which Parliament has determined that the defence of duress is also excluded. That is significantbecause the purpose of the murder exception to the defence of duress is not, in my view, the same as the other offences listed in section17, with the debatable exception of attempted murder. Also, the discussion of the proportionality requirement of moral involuntariness ismaterially different in relation to murder than the other offences listed in

section 17 of the Code. [38] Finally, before moving to a discussion of the history of this appeal and the background of the defence of duress,something needs to be said about hypotheticals. A survey of the literature about the defence of duress evidences that judges and otherwriters commonly resort to the use of hypotheticals. One of the first to use this technique was Aristotle.

In distinguishing what isinvoluntary from conduct that is voluntary in Aristotle, The Nicomachean Ethics of Aristotle, translated by David Ross (London, UK: Oxford University Press, 1963), Aristotle stated (at pp 48-49): But with regard to the things that are done from fear of greater evils or for some noble object (e.g. if a tyrant were to order one to dosomething base, having one’s parents and children in his power, and if one did the action they were to be saved, but otherwise would beput to death), it may be debated whether such actions are involuntary or voluntary.

Something of the sort happens also with regard to thethrowing of goods overboard in a storm; for in the abstract no one throws goods away voluntarily, but on condition of its securing thesafety of himself and his crew any sensible man does so. [39] Versions of Aristotle’s “tyrant” (at p 209) or Lord Morris’s “gangster-tyrant” (Lynch at p 670) have appeared incountless hypotheticals about duress. What is pertinent in this appeal is not the possibility, based on an elaborate and unrealistic catch-22 scenario, that a particularly diabolic villain may compel an ordinary person to murder an innocent person.

Laws are to beconstitutionally evaluated on the basis of reasonable hypotheticals, not on the basis of fantastic and remote situations (see R v Nur, 2015SCC 15 at paras 54-62, [2015] 1 SCR 773; R v Appulonappa, 2015 SCC 59 at para 28, [2015] 3 SCR 754). The correct perspective toapply in this appeal is whether it is reasonably foreseeable, based on experience and common sense, that the exclusion of murder fromthe defence of duress will result in criminal liability for an action that is morally involuntary, or that the law is overbroad to its purpose.

Decision of the Trial Judge [40] The trial judge rejected the argument that

section 17 of the Code, in the case of murder, is inconsistent with theprinciple of moral involuntariness for essentially three reasons, which he summarized as follows (at para 37):

(1) Proportionality is inherent in the principle that we should not punish morally involuntary conduct. It is never proportional tosacrifice an innocent life in order to avoid the mere possibility of threats being carried out;

(2) There remains a widely-held and deeply-rooted belief in our society that human life has an intrinsic value and is inviolable. Accordingly, the principles of fundamental justice must give significant weight to the sanctity of life. The life of a murder victim must be equally protected by s. 7 of the Charter ;

(3) The long-standing societal consensus in Canada and other similar jurisdictions is that duress cannot excuse murder. While some debate may exist whether it should apply to all parties, the societal consensus has never been questioned in regard to perpetrators. [ 41 ] In reaching his conclusion, the trial judge declined to follow the decision of the Ontario Court of Appeal in Aravena . Aravena dealt with the mass murder of several members of a criminal organization committed by other members of the same group.

Three of the accused performed lookout functions while the murders were committed and then assisted in cleanup of the crime scene; they were parties to the murders. The trial judge in that case refused to allow the three accused to raise the common law defence of duress for two reasons. He concluded that the defence was not available to them after Howe (given the effect that decision has on the underlying reasoning in Paquette ). Also, he ruled that killing an innocent person based on duress fails the proportionality requirement of moral involuntariness (see R v Sandham (2009), 70 CR (6th) 203 (Ont Sup Ct

J) at paras 57 , 70, 110). [ 42 ] The Court of Appeal decided that the trial judge in Aravena erred in his

interpretation of Paquette . The Court held that the common law defence of duress is available to persons charged with the offence of murder as a party (see para 40). The Court of Appeal also concluded that the trial judge erred in concluding that the importance society gives to the sanctity of life of innocent victims always makes it disproportionate for their life to be taken by an accused claiming to have acted under duress (see para 84). Although the trial judge in Aravena (see paras 123-24 of Sandham ) declined to decide the further issue of whether the statutory exclusion of the defence of duress to the offence of murder in

section 17 of the Code infringed the Charter , the Court of Appeal in Aravena made an obiter comment about the provision’s constitutionality (at para 86): The constitutionality of the murder exception to the duress defence in s. 17 of the Charter is not before the court.

However, it follows from this analysis that, subject to any argument the Crown might advance justifying the exception as it applies to perpetrators under s. 1 of the Charter , the exception must be found unconstitutional. [ 43 ] In declining to follow Aravena , the trial judge raised several concerns he had with the decision (see para 26 of his reasons). To begin, in his view, the Court of Appeal failed to address the problem of excusing the certainty of death of an innocent victim on the mere risk of grave harm in its consideration of the proportionality requirement of moral involuntariness.

Second, the Court of Appeal failed to address the argument that self defence is a realistic choice as an alternative to murdering an innocent person. Finally, he concluded that the distinction between a principal and a party in the case of the offence of murder supports the constitutionality of

section 17 . [ 44 ] The trial judge also came to the alternative conclusion that if

section 17 of the Code violated

section 7 of the Charter , such a violation was justifiable under

section 1 of the Charter because the statutory prohibition of the defence of duress in the case of murder was necessary for the “objective of protecting the life innocent victims who have no wish to die” (at para 85). Background to the Defence of Duress [ 45 ] The law against the defence of duress being available for the offence of murder is a longstanding one that needs to be understood in context. The starting point is of course Hale. Hale’s 17th century articulation of the law has greatly influenced the common law world to this day. Also important is that the drafting of what is now

section 17 of the Code is a bi-product of the unsuccessful attempt to create an English Penal Code in the late 19th century. To that I would add that, although Canada has taken a restrictive approach generally to the defence of duress compared to other jurisdictions (see Don Stuart, Canadian Criminal Law: A Treatise , 7th ed (Toronto: Carswell, 2014) at 524), on the question relevant to this appeal, the relationship between the defence of duress and the offence of murder, as committed by a principal (or co-principal), the Canadian perspective is shared by many other parts of the common law world.

The final bit of background context is what is meant by the principle of moral involuntariness for the purposes of

section 7 of the Charter .

Hale’s Understanding of Duress [ 46 ] Hale confronted the situation of the taking of innocent life due to duress with these words (Hale at p 51): Again, if a man be desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant’s fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact; for he ought rather to die himself, than kill an innocent: but if he cannot otherwise safe his own life, the law permits him in his own defence to kill the assailant; for by the violence of the assault, and the offence committed upon him by the assailant himself, the law of nature, and necessity hath made him his own protector cum debito moderamine inculpatae tutelae , as shall be farther shewed, when we come to the

chapter of homicide se defendendo . [ 47 ] Properly understood, Hale says that, when one is threatened by another and is faced with the choice of kill or be killed,

one has two options if they cannot otherwise escape—sacrifice oneself or act in self-defence. According to Hale, unless the person chooses sacrifice or self-defence, they should be properly convicted and punished for murder. Later in the 18th century, Hale’s understanding of duress was approved by another eminent jurist, Sir William Blackstone (William Blackstone, Commentaries on the Laws of England , 16th ed (London, UK: A Strahan for T Cadell in the Strand & J Butterworth and Son, 1825) vol 4 at 21). [ 48 ] The views of Hale and Blackstone are based on the deontological perspective of moral absolutism.

In their view, because of the importance of the sanctity of human life, certain strict standards of conduct are required that do not vary with the circumstances. Thus, according to Hale, no one may take a life except in self-defence. This perspective has a long tradition in the criminal law.

Lord Brooke made the point in A (Children) (Conjoined Twins: Surgical Separation) , Re , [2000] EWCA Civ 254 , [2000] 4 All ER 961 , that when the criminal law was the responsibility of the judiciary to develop, judges were “steeped in the Judaeo-Christian tradition” and used those moral principles to develop the criminal law until Parliament took over (at p 1024). [ 49 ] At the end of the 19th century, another judge of similar stature, Sir James Stephen, confirmed that, what meager jurisprudence there was on duress after Hale stated the law was consistent with his view (see James Fitzjames Stephen, A History of the Criminal Law of England (London, UK: MacMillan and Company, 1883) vol 2 at 106-7; and William Holdsworth, A History of English Law (London, UK: Methuen & Co & Sweet and Maxwell, 1966) vol 8 at 444). [ 50 ] While Stephen, a utilitarian, opposed the idea of duress being a defence to any crime, and favoured the idea that it should be a factor relevant only to mitigating sentence, he conceded that Hale’s view that duress is not a defence to the offence of murder was defensible.

Stephen stated that, “Surely it is at the moment when temptation to crime is strongest that the law should speak most clearly and emphatically to the contrary” (at p 107). [ 51 ] In the decade before Canada adopted the Code , five judges of the Queen’s Bench Division gave their judgment in the notorious and influential case of Reg v Dudley and Stephens (1884), 14 QBD 273 (CA (Eng)), involving shipwrecked sailors adrift in the ocean murdering a young cabin boy and resorting to cannibalism before their rescue.

That decision casts its long shadow on the defences of duress and necessity to modern times. [ 52 ] The question before the Court in Dudley and Stephens was whether “in order to save your own life you may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever towards you or any one else” (at p 281). [ 53 ] In answering the question in the negative, Lord Coleridge CJ on behalf of the Court, confirmed that the defence of necessity was not available in the case of the intentional killing of another person.

In coming to that conclusion he relied, in part, on Hale’s reasoning regarding whether duress was a defence to the offence of murder.

This judicial endorsement of Hale’s understanding of duress in Dudley and Stephens has had an enormous impact on the law of duress going forward (and some would argue that consequence has been unfortunate) (see Joshua Dressler, “Reflections on Dudley and Stephens and killing the innocent: taking a wrong conceptual path” in Dennis J Baker & Jeremy Horder, eds, The Sanctity of Life and the Criminal Law: The Legacy of Glanville Williams (Cambridge, UK: Cambridge University Press, 2013) 126 at 128-29; Howe at pp 429-31 per Lord Hailsham LC; Holdsworth at p 445; Fletcher at pp 823-27). [ 54 ] Appropriate caution needs to be taken with Lord Coleridge’s judgment in Dudley and Stephens , as there is no analysis in the decision of whether the taking of an innocent life to avoid a harm posed by a grave external danger might be excused, even if it cannot be justified.

Lord Coleridge used the two terms “excuse” and “justification” interchangeably in his reasons. The conceptual distinction between justifications and excuses was unimportant in his era. Like Hale, Lord Coleridge takes a strict deontological approach to the law, that a person cannot murder an innocent person to avoid harm. Rather, one has a duty to avoid murdering an innocent person.

This view subscribes to the perspective that, while law and morality are not the same thing, the two cannot be completely divorced when the consequence of an action is the taking of an innocent life (see Dudley and Stephens at p 287; Howe at pp 430, 456; and Fletcher at pp 826-27). [ 55 ] Also relevant to this appeal are the difficult and provocative questions Lord Coleridge raises about the taking of innocent human life. He states (at p 287): It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity?

By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. [ 56 ] Professor Glanville Williams describes Dudley and Stephens as a “dramatic illustration of the difference between utilitarian and deontological ethics” (Glanville Williams, “A Commentary on R. v. Dudley and Stephens ” (1977) 8 Cambrian L Rev 94).

While Williams, a utilitarian, was critical of Dudley and Stephens , he did acknowledge that Lord Coleridge’s concern about the problem of the choosing of the victim was “one satisfying reason” in the decision (Glanville Williams, Criminal Law , 2nd ed (London, UK: Stevens & Sons, 1961) at 744). The Influence of the English Draft Penal Code on

Section 17 of the Code [ 57 ] The reason why Canada has a statutory defence of duress begins with the efforts in England by Stephen and others during Prime Minister Disraeli’s second administration (1874-80) to create an English penal code that would consolidate and codify the criminal law (see Rupert Cross, “The Making of English Criminal Law

(6) Sir James Fitzjames Stephen” [1978] Crim L Rev 652 at 656- 57; generally, Desmond H Brown, The Genesis of the Canadian Criminal Code of 1892 (Toronto: University of Toronto Press, 1989); and Graham Parker, “The Origins of the Canadian Criminal Code” in David H Flaherty, ed, Essays in the History of Canadian Law

(Toronto: Osgoode Society, 1981) 249). [ 58 ] The first draft of the English Penal Code was introduced in Parliament in 1878 and was based primarily on the early writings of James Fitzjames Stephen, A Digest of the Criminal Law: Crimes and Punishments 3rd ed (London, UK: MacMillan and Co, 1877) (see Bill 178, A Bill to establish a Code of Indictable Offences, and the Procedure relating thereto , 41 Vic, 1878). In that proposed law, the formulation of duress was quite different from what was stated by Hale.

As Stephen had previously advocated, Bill 178 did not recognize duress as an exculpatory defence to any offence; rather, when the circumstances of duress as set out in the statute were satisfied the effect was only a mitigation of punishment (see

section 22). [ 59 ] Given the enormity of the idea of codifying centuries of criminal law, the Disraeli government decided to withdraw Bill 178 from Parliament and appoint a Royal Commission to study the Bill and make recommendations (Brown at p 33). Four Commissioners were appointed, including Stephen.

They presented their report to Parliament in 1879, recommending substantial revisions (see UK, Report of the Royal Commission Appointed to Consider The Law Relating to Indictable Offences: With an Appendix Containing a Draft Code Embodying the Suggestions of the Commissioners (London, UK: Her Majesty’s Stationery Office, 1879) (the Report)). [ 60 ] In the Report, the Commissioners abandoned adopting Stephen’s view of duress. They advised Parliament that, “We have framed

section 23 of the Draft Code to express what we think is the existing law, and what at all events we suggest ought to be the law” (the Report at p 43) (emphasis added). In

summary, the Commissioners’ view of the law of duress was a restatement of the common law of duress as stated by Hale, and an aspirational view of what they believed the law of duress should be (see Reg v Gotts , [1992] 2 AC 412 (HL) at 434 ; and Lynch at p 684). [ 61 ] The Commissioners recommended maintaining duress as an excuse to the commission of an offence, contrary to Stephen’s earlier suggestion. The Report also recommended codifying Hale’s “stern rule” that duress is no defence to the offence of murder (at p 43; and Lynch at p 701).

The Report also recommended excluding the defence of duress from other offences listed in the Report to be of “a heinous character” (at p 43). This list was more restrictive of the defence than had previously been the case at common law. Finally, the defence was taken away from anyone who was party to a conspiracy or association which rendered him or her subject to compulsion.

The Report formed the basis of various bills in 1879 and 1880 regarding the draft English Penal Code that were never passed (see Cross at p 657). [ 62 ] After Confederation, Prime Minister MacDonald saw uniformity in the criminal law as a necessity for Canada (see Parker at p 252). His and other governments pursued a policy of harmonizing the criminal law in the Dominion through codification.

Ultimately Sir John Thompson, then Attorney General of Canada and Minister of Justice, was able to achieve that goal by shepherding the first version of the Code through Parliament in 1892 ( The Criminal Code , 1892 , SC 1892, c 29). Thompson made it clear in his comments regarding the Code on second reading that it had many influences, including the work of the Commissioners in England (see House of Commons Debates , 7th Parl, 2nd Sess, No 1 (12 April 1892) at 1312 (Sir John Thompson)).

That is clearly the case in terms of the defence of duress. [ 63 ] The Canadian version of the defence of duress in 1892 mirrored the version recommended by the Commissioners in the Report (see J LI J Edwards, “Compulsion, Coercion and Criminal Responsibility” (1951) 14:3 Mod L Rev 297 at 300). [ 64 ] Parliament has done little substantively, in terms of duress, since 1892, except lengthen the list of excluded offences from the original version of the statute.

The Royal Commission on Revision of the Criminal Code in the 1950s did not recommend to Parliament any revision of the law of duress (see Debates of the Senate , 21st Parl, 6th Sess, No 1 (14 May 1952) at 229 (Hon Élie Beauregard) . [ 65 ] During the debate in Parliament in 1954 about the revised Code , the Hon Stuart S Garson, Attorney General of Canada and Minister of Justice, stated that the wording of

section 17 of the Code had “stood the test of time” and the government had no intention of substantively revising it (see House of Commons Debates , 22nd Parl, 1st Sess, No 2 (19 January 1954) at 1256). [ 66 ] More recently there has been a call for legislative reform. In the 1980s, the Law Reform Commission of Canada (the LRCC) advocated narrowing the statutory limitations on the defence of duress, and ending the distinction as to the availability of the defence between principals and parties created by the Paquette decision.

The LRCC’s recommendations, however, included maintaining the law that would exclude duress as a defence to conduct that would cover the offence of murder (see Law Reform Commission of Canada, Criminal Law, The General Part: Liability and Defences , Working Paper No 29, Catalogue No J32-1/29-1982 (Ottawa: Law Reform Commission of Canada, 1982) at 87-88; Law Reform Commission of Canada, Recodifying Criminal Law , Report 31, Catalogue No J31-51/1987 (Ottawa: Law Reform Commission of Canada, 1987) at 35).

The LRCC’s version of the defence of duress has strong parallels to the common law as stated in Howe . [ 67 ] In 1993, the federal government released a white paper on proposals to amend

Part I of the Code , including the defence of duress. The proposal would have created a single statutory defence of duress that applied to both duress by threats or duress of circumstances. The new defence would apply to any offence, except murder. It also envisaged codification of the common law requirements of duress. No legislative action was taken, as the government was defeated in the election later that year.

Subsequent governments to this day have shown no interest in redefining the defence of duress (see Minister of Justice of Canada, “ Proposals to Amend the Criminal Code (General Principles)”, White Paper (Ottawa: Department of Justice Canada, 28 June 1993) at 11-12).

The Approach of Other Common Law Jurisdictions [ 68 ] As previously mentioned, the relationship between the defence of duress and the offence of murder in the common law world has consistently begun with Hale’s rule that, at common law, duress is not a defence to the offence of murder (e.g., US v LaFleur , 971 F (2d) 200 at 204-5 (9th Cir 1991); Commonwealth v Vasquez , 462 Mass 827 at 834-35 (Sup Jud Ct 2012); and Akulue at para 12).

From that starting point, there are four different approaches in the common law world today as to the relationship between the defence of duress and the offence of murder, leaving aside the question of different rules in the case of principals and parties.

[69] To begin, England (Howe and Hasan) together with some jurisdictions in Australia (e.g., South Australia—R v Brownand Morley, [1968] SASR 467); and the United States (e.g., Maryland—McMillan v State of Maryland, 428 Md 333 (CA 2009)), haveleft the question of whether duress is a defence to murder entirely to the common law based on Hale’s rule. [70] A second group of jurisdictions such as New Zealand (e.g., Crimes Act 1961 (NZ), 1961/43

section 24), parts ofAustralia (e.g., Queensland—Criminal Code 1899 (Qld)

section 31) and the United States (e.g., Oregon—Or Rev Stat § 161.270), havetaken an approach similar to Canada and have codified Hale’s rule into their criminal law such that duress is not a defence to the offenceof murder. [71] When considering American jurisdictions that have followed Hale’s rule and denied the defence of duress for murderby statute or the common law, some of those jurisdictions may allow it for the special case of where an accused is charged with murderarising from an unintended death of another occurring during the commission of a serious violent crime; what is often called the felonymurder rule or constructive murder (e.g., California—People v Anderson, 28 Cal (4th) 767 (Sup Ct 2002) at 784; and Maryland—McMillan).

This approach to the defence of duress is similar to what occurred in Canada after Paquette was decided, and continuedthereafter until the question of duress for constructive murder situations involving a party became moot after the decision in R v Logan, (SCC), [1990] 2 SCR 731. In Logan, the Court held that because

section 7 of the Charter mandates that a conviction formurder only occurs if there is subjective foresight of death of the victim, any law that allows for a party charged with murder to beconvicted on any lesser degree of mens rea is unconstitutional. [72] A third group of jurisdictions in Australia (e.g., Western Australia—Criminal Code Act Compilation Act 1913 (WA), s32) and the United States (e.g., Texas—Tex Penal Code § 8.05) have followed the approach in the Model Penal Code and have legislatedthat duress is a defence available to any offence, including murder. [73] Finally, Minnesota (Minn Stat § 609.08 and § 609.20(3)), Wisconsin (Wis Stat § 939.46) and New Jersey (NJ Stat §2C:2-9) have, through legislation, adopted a hybrid approach.

Duress is a partial defence to murder (like provocation) that may, ifsuccessful, reduce a charge of murder to a lesser form of culpability, such as manslaughter. [74] While this comparative survey provides little in the way of answers to the relationship between the defence of duressand the offence of murder, the literature leads me to two general observations relevant to this appeal. The first is that Hale’s rulecontinues to have legitimacy in the eyes of a majority of common law jurisdictions to this day, regardless of whether one thinks that it isgood or bad policy.

It is not fair to say that the rule is outdated simply because of its age. The second observation I would make is that,where reform of Hale’s rule has occurred, it has been done mainly in the legislatures, not the courts. Of course the common law world isnot the only perspective on the relationship between the defence of duress and the offence of murder, which is an argument the accusedhas raised that I will deal with later. Perka, Ruzic and Ryan—The Principle of Moral Involuntariness [75] It is a principle of fundamental justice under

section 7 of the Charter that no one may be convicted of an offence basedon an involuntary act because of the importance of autonomy in the attribution of criminal liability (see Ruzic at paras 43-47). TheCharter recognizes involuntariness in terms of both physical involuntariness and moral involuntariness.

LeBel J explains moralinvoluntariness as a principle of fundamental justice this way in Ruzic (at para 47): It is a principle of fundamental justice that only voluntary conduct – behaviour that is the product of a free will and controlled body,unhindered by external constraints – should attract the penalty and stigma of criminal liability. Depriving a person of liberty andbranding her with the stigma of criminal liability would infringe the principles of fundamental justice if the accused did not have anyrealistic choice.

The ensuing deprivation of liberty and stigma would have been imposed in violation of the tenets of fundamental justiceand would thus infringe s. 7 of the Charter. [emphasis added] [76] Moral involuntariness can be traced back at least as far as the philosophy of Aristotle that pardon should be granted“when one does a wrongful act under pressure which overstrains human nature and which no one could withstand” (Aristotle at p 49; seeFletcher at pp 802-03). [77] The idea of moral involuntariness is that the choice of disobeying the law cannot be said to be that of the individual,because it is not the product of his or her own free will.

Aristotle says but for the external circumstances compelling the act, “no onewould choose any such act in itself” (Aristotle at p 49). Dressler explains the concept by stating that, “the actor is normal, but that someexternal factor has acted on her in a way that causes us to say that she did not have a fair opportunity to act lawfully” (Dressler,“Reflections on Dudley and Stephens” at p 144).

Professor John Gardner explains the relationship between the defence of duress andmoral involuntariness in this way (John Gardner, “Reply to Critics” in Offences and Defences—Selected Essays in the Philosophy ofCriminal Law (Oxford: Oxford University Press, 2007) 239 (at pp 267-68): One’s will is overborne in the relevant sense, when someone else, by issuing a conditional threat, intentionally creates a reason (or whatone reasonably takes to be a reason) for one to ϕ, and one ϕs for that reason, and one could not reasonably have been expected to dootherwise than to ϕ for that reason.

The reasonableness of one’s reaction is, in short, a necessary condition of the overbearing of one’swill.

[ 78 ] Ruzic , and prior English decisions, have used similar language to Gardner, and have described morally involuntary conduct as when the individual’s will to choose is “overborne . . . by the threats of another” or is “constrained by some external force” ( Ruzic at paras 44, 46; see also Regina v Hudson; Regina v Taylor , [1971] 2 QBD 202 at 206 (CA (Eng)); and Lynch at p 686). [ 79 ] When the law speaks of an individual’s will, it is not a question of whether a particular person is either stalwart or timid.

The law inserts an objective requirement to set the standard of expected behaviour as individuals not only enjoy rights, but also owe duties to others; a person must calibrate their conduct reasonably to threats.

Accordingly, as LeBel J explained in Ruzic , people are “expected to demonstrate some fortitude and to put up a normal resistance to the threat” (at para 62). [ 80 ] A morally involuntary action is, however, not a morally blameless action; the act committed is not innocent, only that it would be unjust in the circumstances to stigmatize and punish the actor (see Ruzic at para 41). [ 81 ] While the law appreciates that difficult circumstances can produce great temptations, the mere fact that a person is faced with a hard or agonizing choice because of an external danger is not enough to make their subsequent action morally involuntary.

The law does not take an entirely idiosyncratic view, because the interests at stake are larger (see Ruzic at para 58). Rather, moral involuntariness is about not having “ any realistic choice” (emphasis added) in the circumstances but to commit the criminal offence ( Ruzic at para 47; see also Ryan at para 40 ). [ 82 ] What does it mean to have no realistic choice but to disobey the law when facing an external danger? The leading decision on this question is Perka , a case involving the defence of necessity, where the Court adopted the Aristotelian perspective of Fletcher.

Dickson J (as he then was), for the majority, explains that, whether one has a realistic choice to excuse breaking the law due to an external danger has two qualities. To begin, there must be “no reasonable legal alternative” to breaking the law in the circumstances, otherwise the action is voluntary (at p 252).

Also, even if there is no reasonable legal alternative, the harm caused by disobeying the law cannot be disproportionate to the benefit accrued by avoiding the external danger (see pp 252-53; and Fletcher at pp 802-07). [ 83 ] Justices LeBel and Cromwell summarize the proportionality assessment this way in Ryan (at paras 72-73 ): In other words, the “moral voluntariness” of

an act must depend on whether it is proportional to the threatened harm. To determine if the proportionality requirement is met, two elements must be considered: the difference between the nature and magnitude of the harm threatened and the offence committed, as well as a general moral judgment regarding the accused’s behaviour in the circumstances. These elements are to be evaluated in conjunction on a modified objective basis. The first element of proportionality requires that the harm threatened was equal to or greater than the harm inflicted by the accused ( Ruzic , at para. 62; see also R. v.

Latimer , 2001 SCC 1 , [2001] 1 S.C.R. 3 , at para. 31 ). The second element of proportionality requires a more in-depth analysis of the acts of the accused and a determination as to whether they accord with what society expects from a reasonable person similarly situated in that particular circumstance. It is at this stage that we examine if the accused demonstrated “normal” resistance to the threat.

Given that the defence of duress “evolved from attempts at striking a proper balance between those conflicting interests of the accused, of the victims and of society” ( Ruzic , at para. 60), proportionality measured on a modified objective standard is key. [ 84 ] In Ruzic , the Court struck down the immediacy and presence requirements in

section 17 of the Code as being an infringement of the principle of moral involuntariness. The Court determined that those two parts of

section 17 violated the principle of moral involuntariness because they restricted the defence of duress from being raised for threats of future harm or in situations when the person issuing threats would harm a third party, such as a family member taken hostage, at a different location than where the offence was committed (see paras 53-54). The result was that

section 17 was underinclusive (see para 90). [ 85 ] In both Ruzic and Ryan the Court left open the question of whether the list of excluded offences in

section 17 of the Code is in conformity with the principle of moral voluntariness. Positions of the Parties [ 86 ] The parties agree that both moral involuntariness and overbreadth are principles of fundamental justice guaranteed by

section 7 of the Charter . The parties also agree that

section 17 of the Code infringes an accused’s

section 7 right to liberty by taking away the defence of duress for the offence of murder. The disagreement of the parties is whether that deprivation of an accused’s right to liberty is in accordance with the principles of fundamental justice. [ 87 ] The accused makes three arguments in favour of his submission that the statutory exclusion of the defence of duress to the offence of murder for a principal (as opposed to a party) violates the principle of moral involuntariness, or is overbroad, contrary to

section 7 of the Charter . [ 88 ] To begin, he says the issue was in essence decided by the hypothetical LeBel J gave at para 44 of Ruzic (set out in para 114 of this decision). The Crown submits this perspective is an overly simplistic view of Ruzic . [ 89 ] Next, the accused argues that the trial judge erred in his analysis by considering irrelevant factors such as proportionality, the uncertainty of a threat versus the certainty of the death of an innocent person and communal interests in determining the constitutionality of

section 17 of the Code . He says the trial judge made a false assumption that an innocent third party’s life is

“inherently more valuable than any right of an accused.” [90] The accused relies on various legal and philosophical authorities from around the globe that argue that the fundamentalissue in the case of duress is the injustice of convicting a person for a crime, even murder, when they succumb, understandably, to agiven external danger. [91] The Crown says that it is well accepted that the principles of fundamental justice relate to a broad spectrum of interestsbeyond those of an accused.

Accordingly, it submits that the trial judge did not err in examining questions relating to proportionality andthe sanctity of life. [92] The Crown argues that because of the value our society places on the sanctity of human life, the trial judge was correctto conclude it can never be proportionate to excuse murder on the basis of the certainty resulting from the taking of human life versus themere possibility of death or bodily harm based on a threat. The Crown also says the calculus of weighing the comparative value of life isan entirely repugnant concept under the criminal law.

According to the Crown, all life must be treated equally under the law, and it isconstitutional for Parliament to prevent a jury from ever having to decide if the offence of murder should be excused by the defence ofduress in the case of a principal or co-principal. The Crown also says an accused always has a realistic choice other than to commitmurder in the form of acting in self-defence. Finally, the Crown agrees with the trial judge that the views of the Court of Appeal inAravena should not be followed to decide this appeal.

To support its position, the Crown also relies on various authorities from multiplejurisdictions. [93] The third submission of the accused is that Parliament should have enacted a less restrictive law that would allow forthe defence of duress to be assessed on a case-by-case basis by a jury rather that have a list of offences, such as murder, excluded fromthe defence automatically. He says that statutory exclusion of the defence of duress to the offence of murder is overbroad.

For thatsubmission he relies on what he says is the modern trend in favour of having no offences for which the defence of duress is restricted, asis the case in civilian countries or countries that have a civilian-common law tradition like South Africa (see S v Goliath (1972), 3 S AfrLR 1(A) (translation at 465)), common law jurisdictions that have followed the Model Penal Code approach and international criminallaw. [94] The Crown replies by saying that the accused is essentially making a policy argument for law reform, not aconstitutional submission as to Parliament’s power to restrict the defence of duress.

It also says there is no such trend as the accusedsuggests; to the contrary, it says there is no consensus as to what the law of duress ought to be. In its view, the challenged law is notoverbroad because it does not lead to the possibility of liability for morally involuntary conduct. Analysis and Decision Standard of Review [95] The standard of review of the trial judge’s decision on the constitutionality of the aspect of

section 17 of the Code thatis challenged is one of correctness. Purpose of the Challenged Law [96] The trial judge accepted the Crown’s submission that the accused’s overbreadth analysis was nothing more than “amere recapitulation” of his argument on moral involuntariness which added nothing to an evaluation of the challenged law under theCharter (at para 20). Accordingly, it was not necessary for him to identify the purpose of the challenged law for his

section 7 analysis. [97] The trial judge did however, in his

section 1 analysis, summarize his view of the objectives of the exclusion of thedefence of duress from the offence of murder as being “[t]he expression of society’s disapprobation for murder—the most heinous crimeknown to law; [and] [t]he maintenance of the strictest disincentive to cooperate with criminal threats, which in the context of s. 17operates to preserve life, public order and security” (at para 81). [98] The sentiments expressed by the trial judge have been said many times before and carry great force, however, I think itbest for the disposition of the accused’s

section 7 arguments to separate the precise purpose of the challenged law from its effects and thesocial values behind it (see Carter v Canada (Attorney General), 2015 SCC 5 at paras 76-78, [2015] 1 SCR 331; and R v Moriarity, 2015SCC 55 at paras 27-32, [2015] 3 SCR 485). [99] At the centre of any criminal defence is a normative evaluation of the standard of conduct the law expects (seeBenjamin L Berger, “Emotions and the Veil of Voluntarism: The Loss of Judgment in Canadian Criminal Defences” (2006) 51 McGillLJ 99 at 110 (citing R v Morgentaler, (SCC), [1988] 1 SCR 30 at 70); see also Ruzic at para 25).

What then is theultimate aim behind Parliament’s law removing the defence of duress from the offence of murder? [100] There was no explicit statement of legislative purpose for the challenged law in 1892 that is of assistance to this Court. The text, content and scheme of the legislation and the extrinsic evidence does, however, evidence that in 1892 Parliament endorsed theview in the Report that Hale’s “stern rule” (as they called it) should be codified as it was the “existing law” and they believed it wasgood public policy to continue it (at p 43).

Hale’s rule (at least as far as a principal as opposed to a party) has been accepted in numerousdecisions across the common law world to be, as Lord Simon stated in Lynch, “the consensus of the centuries” (at p 695). [101] But what exactly is the consensus that Parliament endorsed? It is something distinct from the Biblical commandmentthou shalt not kill, as that conduct is captured by the offence of murder. Hale was a lawyer and jurist, not a theologian. He also certainlywasn’t a pacifist.

Intentionally killing another was not necessarily an offence in his view, so long as it was done in self-defence. [102] The difficult questions Lord Coleridge asks in Dudley and Stephens in the context of necessity about the impossibility ofbalancing life against a life are of assistance (see p 287). His concerns would have been well known to Parliament in 1892; they areessentially timeless questions about the relationship between law and morality. Lord Coleridge’s comments were endorsed by Lord

Hailsham in Howe (see pp 430-31) as being also applicable to the relationship between the defence of duress and the offence of murder. Lord Hailsham goes on to say that if one is allowed to balance a life against life, the law is embracing the “morally disreputableprinciple that the end justifies the means” (at p 433). [103] Lord Coleridge gives another insight in Dudley and Stephens which is of further assistance.

As he explains, when thetemptation to murder arose after ordinary men had been adrift for almost three weeks on the high seas, it was “the weakest, the youngest,the most unresisting” that was “chosen” to die (at p 287). Does that fact surprise anyone? It has been all too common in the course ofhuman history that, in a time of peril, it is the most vulnerable amongst us that require the protection of the law the most.

As theAmerican jurist Benjamin Cardozo poignantly remarked (Benjamin Cardozo, “Law and Literature” in Margaret E Hall, ed, SelectedWritings of Benjamin Nathan Cardozo: The Choice of Tycho Brahe (New York: Fallon Publications, 1947) 339), “There is no rule ofhuman jettison” (at p 390). [104] Lord Ward explained the purpose of the law this way in Re A (Children) (Conjoined Twins: Surgical Separation), “Thepolicy of the law is to prevent A being judge in his own cause of the value of his life over B’s life or his loved one C’s life, and thenbeing executioner as well” (at p 1014) (see also Howe at p 456). [105] The balancing of a life against a life in the context of self-defence, however, is a different story, both for Hale and in theCode.

The law distinguishes necessity and duress from self-defence because in the latter, the victim is “the author of his or her owndeserts, a factor which arguably warrants special consideration in the law” (Hibbert at para 50). [106] The common thread that one can glean, albeit from a record that is far from perfect, as to the purpose of the challengedlaw is the concern about anyone having the right to balance life against life, except in a case of self-defence, when the decision willaffect their interests.

In this sense, the rule’s aim is to prevent one descending into the moral quicksand of trying to determine whose lifeis more important (or less important) in a given context, when they have an inherent bias as to who should live and who should die. Inmy view, that is the normative evaluation of conduct that Parliament chose to legislate in 1892, and it is the purpose of the statutory banof the defence of duress from the offence of murder.

The trial judge in his discussion of proportionality was correct in stating that,“Parliament has chosen to legislate such that it is not open for anyone to decide who should live or die” (at para 45). For the purposes ofCharter analysis of the challenged law, this legislative objective is assumed to be appropriate and lawful (see Moriarity at para 30).

Is the Defence of Duress Inconsistent with the Offence of Murder? [107] In Ruzic, the Supreme Court of Canada reiterated its position in R v Penno, (SCC), [1990] 2 SCR 865;and R v Finta, (SCC), [1994] 1 SCR 701, that the mere fact that a defence is restricted or removed all together byParliament from a particular offence does not lead automatically to a violation of

section 7 of the Charter. [108] In terms of Charter analysis of a law restricting a defence, the Supreme Court of Canada in Ruzic cited with approval theearlier comments of Cory J in Finta that, “when a defence is inconsistent with the offence proscribed, in that it would excuse the veryevil which the offence seeks to prohibit or punish” (at p 865) it will generally not violate

section 7 of the Charter for Parliament torestrict or remove the defence (see Ruzic at para 23). [109] In Ruzic, the Court distinguished Finta and Penno because the duress facing the accused, in terms of the threat of futureharm to her mother by the tyrant in that case, a man called Mirkovic, was not inconsistent with illegal conduct associated with drugsmuggling (see para 24). [110] What about excusing the commission of murder due to the threat of death?

There is a persuasive argument that it wouldbe inconsistent for the reasons stated by Cory J in Finta to excuse the commission of murder on the basis of duress because the harmcaused is the exact same harm that the offence of murder prohibits, the taking of human life. However, I would not decide this appeal onthis basis. Rather, this reality is a good barometer that the statutory prohibition against the defence of duress being raised on the offenceof murder does not violate the principle of moral involuntariness, nor is it overbroad.

Challenge to the Law on the Basis of Moral Involuntariness [111] Two questions arise from Perka, Ruzic and Ryan that are necessary to decide in determining whether a law that restrictsor removes a defence from a particular offence violates the principle of moral involuntariness. [112] The first question is does the restriction or removal of the defence deprive a person of “any realistic choice” whether tobreak the law (Ruzic at para 47; see also Perka at p 251; Ruzic at paras 29, 40, 47; and Ryan at para 40)?

If the challenged law ensuresthat, “there is a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one” (Perka at p252). [113] The second question focusses on the proportionality between the harm done and the benefit accrued.

Even when aperson lacks a realistic choice other than to disobey the law, the harm caused by their illegal conduct cannot be greater than the harmsought to be avoided measured on the standard of what is expected of a reasonable person similarly situated (Perka at p 253; and Ryan atparas 53-54). [114] I would begin by looking at how the challenged law impacts the realistic choices available to those faced with the “killor be killed” scenario that the accused argues was his predicament in this case. I see no merit in the accused’s initial argument that theconstitutionality of

section 17 of the Code in relation to the defence of duress and the offence of murder was decided by the SupremeCourt of Canada simply because of the hypothetical LeBel J used in Ruzic (at para 44): Consider next the situation of someone who gives the accused a knife and orders her to stab the victim or else be killed herself. Unlikethe first scenario, moral voluntariness is not a matter of physical dimension. The accused here retains conscious control over her bodily

movements. Yet, like the first actor, her will is overborne, this time by the threats of another. Her conduct is not, in a realistic way,freely chosen. [115] LeBel J is explicit in Ruzic that, the “appeal does not concern the constitutional validity of the list of excluded offences”in

section 17 of the Code such as murder (at para 19). Also the context of the hypothetical is the difference between physical and moralinvoluntariness and their unifying premise, the importance of individual autonomy and choice (see paras 44-45). Moreover, LeBel andCromwell JJ make it clear in their reasons in Ryan that the Supreme Court of Canada has not yet had the opportunity to consider theconstitutionality of any of the exclusions from the defence of duress in

section 17 (see Ryan at para 84). I expect if the question wasdecided in Ruzic, the Court would have said so in Ryan. [116] That said, the hypothetical mentioned in para 44 of Ruzic is a good one on the question of the scope of realistic choicesafforded by the challenged law because the hypothetical is reasonably foreseeable.

The deficiency with it, in terms of whether thechallenged law takes away any realistic choice, is that the hypothetical is not a case where the threatened party lacks a realistic choiceother than to stab the innocent person to death with the knife. [117] Leaving aside the question of simply trying to negotiate your way out of the dilemma, attempting escape (there are notenough facts to the hypothetical to say whether those options are feasible), or refusing to submit to the threat (the option of sacrifice), theactor who is given the knife by the tyrant has another reasonable legal alternative in the form of self-defence; he can turn on theaggressor and resist him even to the point of using deadly force.

As the California Supreme Court commented in Anderson, “As apractical matter, death will rarely, if ever, inevitably result from a choice not to kill. The law should require people to choose to resistrather than kill an innocent person” (at p 373). This view is the same as Hale—that an actor will have the option of deadly force in self-defence if faced with the kill or be killed scenario. Resisting a threat may be a hard choice, but so is the decision to kill an innocentperson.

Moral involuntariness is a high threshold, as compliance with the law has to be “demonstrably impossible” (Perka at p 251). [118] What about where self-defence and more obvious lawful alternatives, like negotiation and flight, can be ruled out asrealistic choices to avoid a threat? Laskin JA discussed such a reasonably foreseeable scenario in the Ontario Court of Appeal’s decisionin Ruzic (see R v Ruzic (M) (1998), (ON CA), 112 OAC 201). It took the form of what he called the “typical hostagecase” (at para 51). The hypothetical would go something like this.

A hostage would be under the control of a tyrant at an unknownlocation and the threatened party would be instructed through some medium to murder another person or else the hostage would bebrutally tortured or killed. Self-defence, negotiation and escape are not realistic options because the threatened party doesn’t knowwhere the hostage and the tyrant are located and he or she lacks the technological capacity to find them.

According to Hale, this wouldleave only one option—refusing to submit to the threat, thereby risking the life of the hostage. [119] In fairness to Hale, when he was thinking about duress, it was a time of primitive law enforcement and limited ability tocommunicate in a timely way. There is now another feasible option. That option is seeking rescue by law enforcement.

One of the firstlegal thinkers to advance the alternative of rescue specifically to the taking of innocent life was Cardozo. [120] In writing about the decision of Dudley and Stephens, Cardozo agreed with Lord Coleridge’s concern about theimpossibility of allowing for the choice of who shall live and who shall die. But he challenged the idea of balancing a life against a lifenot strictly on moral grounds, but also from the perspective of rescue. For Cardozo, the choice to balance life against life is anunreasonable one also because of the uncertainty that such choice ever has to be made.

He commented, “Who shall know when mastsand sails of rescue may emerge out of the fog?” (at p 390). To Cardozo, there is no such thing as a certainty that the choice to balancelife against life need be made at all. [121] In the hostage scenario, it is difficult to see why it would ever be demonstrably impossible for our threatened party to notturn to the police, as opposed to resorting to the murder of an innocent party. The police would have the capacity to locate the site wherethe hostage was located by conducting a police investigation.

The police will have resources, and possibly knowledge about the hostagetaker, beyond that of the ordinary person.

Also, if the police are not contacted, the threatened party would be relying on the faultyassumption that the amoral tyrant, who is prepared to compel the death of an innocent person, would also piously keep his or her promiseand release the hostage from danger if the murder was committed. [122] One could argue that perhaps the police cannot be trusted because the threat has or will take place in a jurisdictionoutside Canada where the police are corrupt or not diligent as was the suggestion in Ruzic (e.g., see R v Ajami, 2010 ONCJ 284).

This sort of reasoning, however, unreasonably stretches the boundaries of what is reasonably foreseeable. LeBel J made itclear in Ruzic that such “unverifiable assertions” open the defence of duress up to abuse (at para 87). A reasonable person would rejectout of hand that Canadian authorities would not make their best efforts to prevent a murder by reaching out to a responsible internationalpartner in a foreign location. Ajami of course involved only a property crime in Canada to save a relative threatened in Lebanon, notmurder, so the acquittal in that case based on the common law of duress is understandable.

However, based on Nur, it would be goingtoo far afield to say that a Canadian law might be unconstitutional because of the remote situation that foreign police might notinvestigate a serious hostage case involving death or bodily harm to a resident of their jurisdiction and, that Canadian authorities alsomight be unwilling or unable to do anything that may thwart the threat.

Such a speculative assertion is not reasonable (see R v TanPhuong LE (No 3), [2010] NSWDC 37 at paras 30-43 (AustLII)). [123] In his reasons, the trial judge was very alive to the problem of the uncertainty that a threat will ever be carried out, versusthe certainty that follows from the commission of murder. Professor Jerome Hall makes the same point as the trial judge that the threatof harm from a human source is never inevitable given such possibilities as self-defence or rescue (Jerome Hall, General Principles ofCriminal Law, 2nd ed (Clark, New Jersey: Lawbook Exchange, 2010) at 447-48).

To begin, he points out that there is always the offchance that the “evil-doer,” as he puts it (at p 447), might change his or her mind on carrying out the threat. There is logic to this ideabecause, unlike a peril emanating from nature like a tidal wave or blizzard, it is reasonably foreseeable that even a tyrant may retreatfrom his or her threat based on a reassessment of his or her best interests.

Hall also then argues, as I have discussed, that there is always away to conceivably avoid a threat without taking an innocent life. [124] What about the situation of a hard case that lies near the borderline of a person acting in a morally involuntary way?

This scenario is dealt with by several of the judges in Howe (at pp 433, 445-46, 457) who suggest that the criminal justice sys

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