R. v. Hibbert

R. v. Hibbert
Collection
Supreme Court Judgments
Date
1995-07-20
Report
[1995] 2 SCR 973
Case number
23815
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 23815
Decision Content
R. v. Hibbert, [1995] 2 S.C.R. 973
Lawrence Hibbert Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Hibbert
File No.: 23815.
1995: January 30; 1995: July 20.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Duress ‑‑ Parties to offences ‑‑ Attempted murder -- Charge to jury ‑‑ Accused testifying that principal offender would have killed him if he had refused to cooperate ‑‑ Trial judge instructing jury that mens rea for parties to offence could be negated by duress and that common law defence of duress was unavailable if safe avenue of escape was open to accused ‑‑ Whether trial judge properly instructed jury on law of duress.
Criminal law ‑‑ Parties to offences ‑‑ Mens rea -- Duress ‑‑ Whether duress negates mens rea for parties to offence under ss. 21(1) (b) and 21(2) of Criminal Code ‑‑ Meaning of "purpose" in s. 21(1) (b) and of "intention in common" in s. 21(2) ‑‑ Whether interpretation of s. 21(2) 's mental element adopted in Paquette correct ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 21(1) (b), 21(2) .
Criminal law ‑‑ Defences ‑‑ Duress ‑‑ Safe avenue of escape ‑‑ Whether availability of common law defence of duress limited by "safe avenue of escape" rule ‑‑ If so, whether existence of safe avenue of escape to be determined objectively or subjectively.
C, a close friend of the accused, was shot by B, a drug dealer. At the time of the incident, B was accompanied by the accused. C survived the shooting and, as a party to the offence, the accused was charged with attempted murder. At trial, the accused testified that on the night of the shooting he had accidentally run into B, who indicated to him that he was armed with a handgun and ordered the accused to take him to C's apartment. When the accused refused, B punched him in the face several times. The accused stated that he feared for his life and believed that B would shoot him if he did not cooperate with him. B drove the accused to a telephone booth where the accused, following B's orders, called C to ask him to meet him in the lobby of C's apartment building in twenty minutes. Shortly thereafter, the accused called C from the intercom outside the lobby and asked him to "come down". Before leaving his apartment C unlocked the building front door. B and the accused went into the lobby and, when C arrived, he was grabbed by B. After some discussion, B pushed C away and shot him. The accused stated that he had repeatedly pleaded with B not to shoot C. C, however, testified that during the incident the accused said nothing and made no effort to intervene. After the shooting, B drove the accused away from the scene of the shooting. According to the accused's testimony, B then threatened to kill him if he went to the police. The next morning the accused turned himself in. Under cross‑examination, he declared that he believed that he had had no opportunity to run away or warn C without being shot. In his charge, the trial judge told the jury that "if [the accused] joined in the common plot to shoot [C], under threats of death or grievous bodily harm, that would negative his having a common intention with [B] to shoot [C], and you must find [the accused] not guilty". He added that "the accused [could] not rely on [the common law defence of duress] if a safe avenue of escape exist[ed], which . . . is a matter for you to find when you consider the evidence". The accused was acquitted of the charge of attempted murder, but was convicted of the included offence of aggravated assault. The Court of Appeal upheld the conviction.
Held: The appeal should be allowed and a new trial ordered.
The fact that a person who commits a criminal act does so as a result of threats of death or bodily harm can, in some instances, be relevant to the question of whether he possessed the mens rea necessary to commit an offence. Whether or not this is so will depend, among other things, on the structure of the particular offence in question ‑‑ that is, on whether or not the mental state specified by Parliament in its definition of the offence is such that the presence of coercion can, as a matter of logic, have a bearing on the existence of mens rea. If the offence is one where the presence of duress is of potential relevance to the existence of mens rea, the accused is entitled to point to the presence of threats when arguing that the Crown has not proven beyond a reasonable doubt that he possessed the mental state required for liability.
A person who commits a criminal act under threats of death or bodily harm may also be able to invoke an excuse‑based defence (either the statutory defence set out in s. 17 of the Criminal Code or the common law defence of duress, depending on whether the accused is charged as a principal or as a party). This is so regardless of whether or not the offence at issue is one where the presence of coercion also has a bearing on the existence of mens rea.
The mental states specified in ss. 21(1)(b) and 21(2) of the Code are not susceptible to being "negated" by duress. This conclusion is based on an interpretation of the particular terms of the two provisions. Section 21(1) (b), which imposes criminal liability as a party on anyone who "does or omits to do anything for the purpose of aiding any person to commit" an offence, does not require that the accused actively view the commission of the offence he is aiding as desirable in and of itself. Parliament's use of the term "purpose" in s. 21(1) (b) is essentially synonymous with "intention" and does not incorporate the notion of "desire" into the mental state for party liability. This interpretation, which best reflects the legislative intent underlying s. 21(1) (b), is in accord with the common law principles governing party liability, and avoids the absurdity that would flow from the equation of "purpose" with "desire". As well, under s. 21(2) , which provides that "persons [who] form an intention in common to carry out an unlawful purpose and to assist each other therein" are liable for criminal offences committed by the principal that are foreseeable and probable consequences of "carrying out the common purpose", the accused's subjective view as to the desirability of the commission of the offence is not relevant. The expression "intention in common" in s. 21(2) means only that the party and the principal must have in mind the same unlawful purpose. The expression does not connote a mutuality of motives and desires between them. A person would thus fall within the ambit of s. 21(2) if he intended to assist in the commission of the same offence envisioned by the principal, regardless of the fact that their intention might be due solely to the principal's threats. The comments in Paquette on the relation between duress and mens rea in the context of s. 21(2) can therefore no longer be considered the law in Canada. While it is not open to persons charged under ss. 21(1) (b) and 21(2) to argue that because their acts were coerced by threats they lacked the requisite mens rea, such persons may seek to have their conduct excused through the operation of the common law defence of duress.
An accused person cannot rely on the common law defence of duress if he had an opportunity to extricate himself safely from the situation of duress. The rationale for the "safe avenue of escape" rule is simply that, in such circumstances, the condition of "normative involuntariness" that provides the theoretical basis for the defences of both duress and necessity is absent. Indeed, if the accused had the chance to take action that would have allowed him to avoid committing an offence, it cannot be said that he had no real choice when deciding whether or not to break the law. Furthermore, the internal logic of the excuse‑based defence, which has theoretical underpinnings directly analogous to those that support the defence of necessity, suggests that the question of whether or not a safe avenue of escape existed is to be determined according to an objective standard. When considering the perceptions of a "reasonable person", however, the personal circumstances of the accused are relevant and important, and should be taken into account.
The trial judge's charge to the jury contained several errors. First, the reference to the relevant mental state in this case as being a "common intention" to carry out an unlawful purpose was incorrect, since what was at issue here was s. 21(1) (b), as opposed to s. 21(2) . Second, the trial judge's instruction that the mens rea for party liability under s. 21(1) (b) could be "negated" by duress was also incorrect. Thirdly, and most importantly, the jury was not told that even if the accused possessed the requisite mens rea his conduct could be excused by operation of the common law defence of duress, if the jurors were of the view that the necessary conditions for this defence's application were present. Since it cannot be said that the errors in the charge relating to the nature of the defence of duress necessarily had no effect on the verdict, a new trial should be ordered. It should be noted, however, that the trial judge did not err in instructing the jury that the accused could not rely on the defence of duress if the Crown established that he had failed to avail himself of a safe avenue of escape. Furthermore, while the trial judge should have instructed the jury that the existence of such an avenue was to be determined objectively, taking into account the personal circumstances of the accused, on the particular facts of this case his failure to do so did not affect the jury's decision, since there was no indication, on the facts, that any of the accused's personal attributes or frailties rendered him unable to identify any safe avenues of escape that would have been apparent to a reasonable person of ordinary capacities and abilities.
Cases Cited
Applied: Perka v. The Queen, [1984] 2 S.C.R. 232; disapproved: Paquette v. The Queen, [1977] 2 S.C.R. 189; distinguished: R. v. Creighton, [1993] 3 S.C.R. 3; considered: Director of Public Prosecutions for Northern Ireland v. Lynch, [1975] A.C. 653; referred to: R. v. Carker, [1967] S.C.R. 114; Lewis v. The Queen, [1979] 2 S.C.R. 821; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Logan, [1990] 2 S.C.R. 731; R. v. McIntosh, [1995] 1 S.C.R. 686; New Brunswick v. Estabrooks Pontiac Buick Ltd. (1982), 44 N.B.R. (2d) 201; R. v. Howe, [1987] 1 A.C. 417; R. v. Kirkness, [1990] 3 S.C.R. 74; R. v. Jackson, [1993] 4 S.C.R. 573, aff'g (1991), 68 C.C.C. (3d) 385; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Pétel, [1994] 1 S.C.R. 3; R. v. Mena (1987), 34 C.C.C. (3d) 304.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 7 .
Criminal Code, R.S.C., 1985, c. C‑46, ss. 8(3) , 17 [am. c. 27 (1st Supp.), s. 40(2) (Sch. I, item 1)], 21.
Criminal Code, 1892, S.C. 1892, c. 29, s. 12.
Authors Cited
Colvin, Eric. Principles of Criminal Law, 2nd ed. Scarborough, Ont.: Thomson Professional Publishing Canada, 1991.
Edwards, J. Ll. J. "Compulsion, Coercion and Criminal Responsibility" (1951), 14 Mod. L. Rev. 297.
Fletcher, George P. Rethinking Criminal Law. Boston: Little, Brown, 1978.
Hart, H. L. A. Punishment and Responsibility. Oxford: Clarendon Press, 1968.
Horder, Jeremy. "Autonomy, Provocation and Duress", [1992] Crim. L.R. 706.
Mewett, Alan W., and Morris Manning. Criminal Law, 2nd ed. Toronto: Butterworths, 1985.
Mewett, Alan W., and Morris Manning. Mewett & Manning on Criminal Law, 3rd ed. Toronto: Butterworths, 1994.
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989, "purpose".
Rosenthal, Peter. "Duress in the Criminal Law" (1989‑90), 32 Crim. L.Q. 199.
Smith, John Cyril, and Brian Hogan. Criminal Law, 7th ed. London: Butterworths, 1992.
Stuart, Don. Canadian Criminal Law: A Treatise, 3rd ed. Scarborough, Ont.: Carswell, 1995.
Williams, Glanville. Textbook of Criminal Law, 2nd ed. London: Stevens & Sons, 1983.
APPEAL from a judgment of the Ontario Court of Appeal rendered July 15, 1993, dismissing the accused's appeal from his conviction for aggravated assault. Appeal allowed and new trial ordered.
Timothy E. Breen, for the appellant.
Gary T. Trotter, for the respondent.
The judgment of the Court was delivered by
1 Lamer C.J. -- This appeal presents a number of important questions, each having to do with the role of duress as a defence to criminal charges. In order to resolve these issues, we must first examine the theoretical basis underlying the rule that criminal liability does not attach to a person who commits the actus reus of an offence as a result of threats of death or bodily harm from a third party. In particular, this Court must decide whether it is open to a person charged as a party to an offence to argue that, because his or her actions were coerced, he or she did not possess the mens rea necessary for party liability. This argument must be weighed against the alternative position -- namely, that duress does not "negate" the mens rea for party liability, but that persons who commit certain criminal acts under duress may nonetheless be excused from criminal liability under the common law "defence of duress". It is also necessary for the Court to address certain questions having to do with limitations on this defence's availability. Specifically, we are asked to determine whether accused persons are foreclosed from recourse to the defence if they failed to avail themselves of a "safe avenue of escape" from the situation of coercion when such a safe avenue was available. If this is indeed the case, we must go on to consider whether the existence of such a "safe avenue" is to be determined on an objective basis, or from the subjective viewpoint of the accused.
I. Factual Background
2 On November 25, 1991, shortly before 1:00 a.m., Fitzroy Cohen was shot four times with a semi-automatic handgun as he stood in the lobby of the apartment building he lived in. The shots were fired by Mark Bailey, an acquaintance of Cohen whom Cohen knew by his street names, "Quasi" or "Dogheart". At the time of the shooting, Bailey was accompanied by the appellant, Lawrence Hibbert, who was a close friend of Cohen. Cohen had descended from his apartment to the lobby at the appellant’s request, unaware that Bailey was waiting below with gun in hand.
3 Cohen survived the shooting. At the appellant's trial, Cohen testified that for some time prior to the shooting he had been aware that Bailey was seeking a confrontation with him. Bailey, Cohen believed, was seeking revenge for an incident that had taken place the previous year, in which Bailey had been robbed by a rival drug dealer named Andrew Reid while Cohen and several others stood by, watching and laughing. Cohen testified that he had been told that Bailey had subsequently attacked one of the men involved in the robbery on a busy street, firing several shots at him (but missing). He also knew that Andrew Reid had been murdered. Cohen said that he had told the appellant, whom he described as his "best friend", about the robbery of Bailey.
4 The appellant, who testified at trial, stated that at the time of the shooting he owed Bailey $100 as payment for drugs he had purchased from him some months earlier. He testified that he had been attempting to avoid Bailey, but that on the evening of November 24, 1991 he had accidentally run into him in the lobby of an apartment building in Etobicoke where he had gone to visit friends. Bailey had approached the appellant and indicated that he was armed with a handgun. The appellant testified that Bailey ordered him to take him to Cohen’s apartment. When he refused, the appellant stated, Bailey had led him to the basement and punched him in the face several times. The appellant testified that he feared for his life, and that he believed that Bailey would shoot him if he continued to refuse to assist him. He stated that it was this fear that led him to agree to lead Bailey to Cohen's apartment.
5 Bailey and the appellant went out to Bailey's car, where Bailey's girlfriend and another young woman were waiting. The appellant got into the back seat, while Bailey drove. The women testified that the appellant was quiet during the drive, but that his mood was neither noticeably happy or unhappy. At trial, one of the young women recalled that the appellant had made a remark to the effect that "this might be the last time [I'm] going to see you".
6 Bailey dropped the two women off at their apartment, and told the appellant to get into the front seat. The appellant testified that they stopped at a telephone booth, and that Bailey ordered him to call Cohen and ask him to meet him downstairs in twenty minutes. The appellant did so, telling Cohen that he "had something for him". According to the appellant, Bailey stood by the phone booth during his conversation with Cohen, and could hear what the appellant said to Cohen. Cohen and his girlfriend, Beverley St. Hillaire, confirmed that they had received a telephone call from the appellant, essentially as the appellant described. They testified that the appellant had sounded "normal", but that he had been more abrupt than he usually was.
7 Bailey and Hibbert arrived at Cohen's apartment building approximately half an hour after making the phone call. The appellant testified that Bailey drew his gun and pointed it at him as they got out of the car. They went to the front door of the building where, following Bailey's orders, the appellant called Cohen's apartment on the building intercom, while Bailey kept his gun trained on him. The appellant's testimony, which was confirmed by Cohen, was that ordinarily when visiting Cohen he would not use the building’s front door, but would instead enter the building through a side door that could be opened from the outside using a technique Cohen had taught him. Cohen also confirmed the appellant's testimony that he had asked Cohen to "come down" to the lobby, but that he had not asked Cohen to "buzz him in" (i.e., press a button on the intercom that would unlock the building's outer door). The appellant testified that he had hoped that Cohen would not unlock the building’s front door, so that when he came downstairs he would see Bailey through the locked glass outer door and have a chance to retreat to safety. However, Cohen buzzed the outer door open without being asked to do so, and Bailey and the appellant went into the lobby.
8 According to the testimony of both Cohen and Hibbert, Cohen took the stairs from his second-floor apartment to the lobby. When he emerged into the lobby, he was met by Bailey, who grabbed him and pointed the gun at his chest, saying "You're dead now pussy." Bailey led Cohen into the ground floor hallway, where (according to both Cohen and the appellant’s testimony) he turned to Hibbert and told him to "stay some place where I [can] see you". After a brief exchange of words with Cohen, Bailey pushed Cohen away and fired four shots at him, striking him in the groin, legs and buttocks. Saying "Come, Pigeon" (the appellant’s nickname), Bailey and the appellant left the building by the side door. Cohen testified that during the incident the appellant said nothing, and made no effort to intervene. He described the appellant as "all sweating", and said that the appellant was unable to look at him. The appellant, however, testified that he had repeatedly pleaded with Bailey, "Quasi don't kill him."
9 The appellant testified that from the moment he first encountered Bailey that evening he had believed Bailey would shoot him if he refused to cooperate, and stated that he had been "terrified" throughout his time in Bailey’s company. Under cross-examination, he declared that he believed that he had had no opportunity to run away or warn Cohen without being shot.
10 After leaving the building, Bailey drove the appellant back to Etobicoke. The appellant testified that Bailey threatened to kill him if he went to the police. Upon his return to Etobicoke, the appellant spoke to Cohen's brother about what had happened, and called Cohen's mother and Cohen's apartment. He subsequently called his own mother, before going to sleep. The next morning, he turned himself in to the police. Bailey, however, was never apprehended.
11 The appellant was charged with attempted murder. On March 19, 1992, following a trial by jury in the Ontario Court of Justice (General Division) presided over by Webber J., he was acquitted of this charge, but was convicted of the included offence of aggravated assault and sentenced to four years imprisonment. On July 15, 1993 his appeal of his conviction to the Court of Appeal for Ontario was dismissed, although the court allowed his appeal from sentence, reducing his sentence from four years to time served (some fifteen months).
II. Relevant Statutory Provisions
Criminal Code, R.S.C., 1985, c. C-46
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.
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).
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.
(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.
III. Decisions Below
Ontario Court of Justice (General Division)
12 Webber J. charged the jury on the defence of duress in the following terms:
If you find the Crown has not proved beyond a reasonable doubt that Hibbert did acts or omitted to do something, for the purpose of, or with the intention of aiding in the commission of the crime, he is not guilty. If you do so find the Crown has proved beyond a reasonable doubt, that situation, then Hibbert is guilty, subject, of course, to the question of duress which was addressed to you by counsel.
Duress is a common law defence available to Mr. Hibbert. The defence asserts Hibbert participated in the shooting of Cohen because he was compelled to do so. I direct you, if Hibbert joined in the common plot to shoot Cohen, under threats of death or grievous bodily harm, that would negative his having a common intention with Quasi [i.e., Bailey] to shoot Cohen, and [sic] you must find Hibbert not guilty. These threats can be expressed or implied. You look to the evidence for that particular finding. Put another way, a person whose actions have been dictated by fear of grievous bodily injury cannot be said to have formed a genuine common intention to carry out an unlawful purpose with the person who has threatened him with those consequences if he fails to co-operate. Please note that the accused cannot rely on this defence if a safe avenue of escape exists, which again, is a matter for you to find when you consider the evidence.
Finally, the onus always remains on the Crown throughout. It is their duty to negative the defence of duress. The Crown must prove beyond a reasonable doubt, their case, and if a doubt exists it must be resolved in favour of the accused.
13 During its deliberations, the jury sent a note to the trial judge asking the following question:
Please explain "duress" and how it may be negated, especially regarding a reasonable opportunity to escape from confinement. Thank you. The jury is unclear on this matter in order to determine verdict.
After discussing the question with counsel, Webber J. decided to repeat the portion of his original charge that dealt with duress, and add to it portions of a standard jury charge taken from a book prepared by British Columbia judges. After an objection by the Crown, however, it was agreed that he would omit all references in the latter charge to the "reasonable person" standard. His recharge on the subject of duress proceeded as follows:
Duress is a defence available to Hibbert. The defence asserts Hibbert participated in the shooting of Cohen because he was compelled to do so. I direct you, that if Hibbert joined in the common plot to shoot Cohen under threats of death or grievous bodily harm, that would negative his having a common intention with Quasi [Bailey] to shoot Cohen and [sic] you must find Hibbert not guilty. Then I said to you, those threats can be expressed or implied, and you look to all of the evidence to determine that issue.
Put another way, a person whose actions had been dictated by fear of death or grievous bodily injury cannot be said to have formed a genuine common intention to carry out an unlawful purpose with the person who has threatened him with those consequences if he fails to co-operate. Please note, the accused cannot rely on the defence of duress if a safe avenue of escape exists, which is a question of fact for you as the judges of fact to find. I concluded my remarks to you by using these words: finally, the onus remains on the Crown throughout. It is their duty to negative the defence of duress. The Crown must prove its case beyond a reasonable doubt. If a doubt exists, it must be resolved in favour of the accused.
I add two further matters to my original charge, the first dealing with escape from the place. This ingredient of duress is that the person must not have an obvious safe avenue of escape from the person making the threat. This means that you should examine all of the evidence and determine whether Hibbert could have avoided acting as he did by running away or by seeking police protection.
Then the final point, which ties in with the matter of reasonable doubt. I will put it to you this way. The Crown must prove beyond a reasonable doubt that the defence of duress cannot succeed. The accused does not have to prove anything. Keep in mind these three things.
1) If you accept the evidence in support of the defence of duress, you must return a verdict of not guilty.
2) If you do not accept the evidence in support of the defence of duress, but you are left in a reasonable doubt by it, as I defined that term for you, you must also return a verdict of not guilty.
3) Even if you are not left in a reasonable doubt by the evidence in support of the defence of duress, you must still go on to consider whether or not, on the basis of all of the evidence, the accused Hibbert is guilty.
14 After deliberating for nearly a day, the jury returned a verdict of not guilty on the charge of attempted murder, but convicted the appellant of the lesser included offence of aggravated assault. Webber J. subsequently sentenced him to a four-year prison term.
Ontario Court of Appeal (Houlden, Tarnopolsky and Krever JJ.A.)
15 The reasons of the Court of Appeal dismissing the appellant's appeal from conviction were as follows (in their entirety):
The application to admit fresh evidence is dismissed. Counsel for the appellant concedes that, on the basis of the question from the jury, it is clear that the jury found that the appellant was subjected to compulsion, but they were concerned with whether he had a safe avenue of escape. The trial judge left it to the jury to determine whether the appellant had a safe avenue of escape. Defence counsel referred to the relevant evidence on this issue in her address to the jury, and the trial judge summarized the relevant evidence in his charge. On the facts of this case we believe that the charge on this point was sufficient. The appeal against conviction is accordingly dismissed.
The Court of Appeal went on to allow the appellant's sentence appeal, reducing his sentence to time served (approximately fifteen months).
IV. Grounds for Appeal
16 Lawrence Hibbert appeals his conviction to this Court on the grounds that the trial judge's charge to the jury on the issue of duress contained several errors. First, he argues, the trial judge erred by instructing the jury that the defence of duress operated by "negativing common intention". The appellant objects further to the trial judge's statement that the defence of duress was unavailable to an accused who failed to avail himself or herself of a "safe avenue of escape". As an alternative to the latter argument, the appellant submits that even if the "safe avenue of escape" rule exists, the trial judge erred by not advising the jury that the existence or non-existence of such an avenue was to be determined by reference to the appellant's subjective belief.
V. Analysis
A. Introduction
17 The issues raised in this appeal must be analysed in several stages. First, it is necessary to consider the fundamental question of why it is that a person who performs an act that would otherwise constitute the actus reus of a criminal offence will not be held criminally liable at common law if he or she did so as a result of threats of death or bodily harm. That is, we must examine the theoretical nature of the common law defence of duress, and determine its relationship to basic mens rea principles. We must also consider the question of whether the availability of the defence of duress is limited by a "safe avenue of escape" rule. Once these questions have been addressed, it will then be possible to assess the learned trial judge's charge to the jury on duress, and to determine whether the jurors were correctly advised of the principles they were to apply in their deliberations.
B. The Relationship Between Mens Rea and the Defence of Duress
(1) The Common Law Defence of Duress in Canada
18 The defence of "duress per minas" ("duress by threat") has a long history at common law. References to the defence can be found in the writings of such venerable commentators as Hale and Blackstone (see J. Ll. J. Edwards, "Compulsion, Coercion and Criminal Responsibility" (1951), 14 Mod. L. Rev. 297, at pp. 298-99; and P. Rosenthal, "Duress in the Criminal Law" (1989-90), 32 Crim. L.Q. 199, at pp. 200ff.). In spite of the defence’s antiquity, however, many important aspects of its nature and its details have remained unresolved, or have been shrouded with uncertainty. As Professor Edwards, supra, observed in 1951 (at p. 297):
Judged by the absence of any satisfactory modern authority, it must be very rare for the accused to set up as a defence that he committed the alleged crime under the compulsion of another person. Indeed the whole field of learning on this defence to criminal liability is both meagre and unsatisfactory.
19 In Canada, a defence of duress was included in the first Criminal Code enacted in 1892 (S.C. 1892, c. 29). Section 12 of the original Code (the predecessor of the current Code's s. 17 ) provided that "compulsion by threats of immediate death or grievous bodily harm from a person actually present at the commission of the offence shall be an excuse for [its] commission" (subject to certain specified conditions being met). For many years, it seems to have been generally assumed (although never conclusively established) that the existence of a codified version of the defence of duress left no room for further development of the common law defence in Canada. As Ritchie J. remarked, obiter, in R. v. Carker, [1967] S.C.R. 114, at p. 117:
[I]n respect of proceedings for an offence under the Criminal Code the common law rules and principles respecting "duress" as an excuse or defence have been codified and exhaustively defined in s. 17 ....
In Paquette v. The Queen, [1977] 2 S.C.R. 189, however, this Court determined that s. 17 of the Code does not constitute an exhaustive codification of the law of duress. Rather, the Court held, s. 17 applies only to persons who commit offences as principals. Accordingly, it remains open to persons who are liable as parties to offences to invoke the common law defence of duress, which remains in existence by virtue of s. 8(3) of the Code (which preserves those common law defences not expressly altered or eliminated by Parliament). The common law rules governing situations of duress thus remain an important aspect of Canadian criminal law.
20 The holding in Paquette that the common law defence of duress is available to persons liable as parties is clear and unambiguous, and has stood as the law in Canada for almost twenty years. The case has a second aspect, however, that is less firmly established, having given rise to differing interpretations, and having been the subject of considerable debate in the legal community. The controversy stems from certain comments made by Martland J. on the issue of the relationship between duress and the mens rea for party liability under s. 21(2) of the Code. The facts in Paquette were as follows. The accused had been charged as a party to non-capital murder. He had driven two acquaintances, Clermont and Simard, to a store. After Paquette had dropped them off, Clermont and Simard robbed the store, and during the course of the robbery an innocent bystander was shot and killed. Paquette was not present at the shooting, having driven away from the store once Clermont and Simard had entered. Although he circled the block and returned to the store, there was evidence that he had refused to let Clermont and Simard get back into the car. In a statement made to the police, Paquette indicated that he had driven Clermont and Simard to the scene of the crime only after Clermont had pointed a gun at him and threatened to kill him if he refused. At trial, the issue of duress had been left to the jury, which acquitted the accused. On appeal, the Ontario Court of Appeal ordered a new trial, on the grounds that the statutory defence of duress contained in s. 17 of the Code could not, by the express terms of the section, be invoked as a defence to a charge of murder or robbery.
21 As noted above, the main holding of the Court was that s. 17 applied only to principals and not to parties, from which it followed that Paquette could rely on the common law defence of duress, to which the restrictions set out in s. 17 did not apply. Martland J. went on, however, to make an observation regarding duress and the mental element of party liability under s. 21(2) of the Code, stating (at p. 197):
A person whose actions have been dictated by fear of death or of grievous bodily injury cannot be said to have formed a genuine common intention to carry out an unlawful purpose with the person who has threatened him with those consequences if he fails to co-operate. [Emphasis added.]
The significance of this comment in terms of the judgment as a whole is rather difficult to determine. Martland J. had earlier endorsed the decision of the House of Lords in Director of Public Prosecutions for Northern Ireland v. Lynch, [1975] A.C. 653, in which a majority of the House of Lords had clearly taken the view that the common law defence of duress provided an excuse, rather than operating by negating mens rea. Thus, Martland J. evidently did not intend to suggest that duress provides a defence at common law only when the accused’s culpable mental state can be said to have been "negated". Instead, he appears to have been holding out an alternative route by which a person charged as a party under s. 21(2) could escape criminal liability, distinct from the "defence of duress" per se -- that is, a "defence" founded not on concepts of excuse or justification, but based instead on the absence of an essential element of the offence.
22 Seen in this way, Paquette stands for the proposition that duress can provide a "defence" in either of two distinct ways -- as an excuse, or by "negating" mens rea. In the present case, the appellant argues that this is a correct view of the law, and submits that the trial judge erred by not placing both alternatives before the jury. What falls to be considered, therefore, is the validity of the proposition that the mens rea for party liability under the Criminal Code can be "negated" by threats of death or bodily harm. That is, the Court is called upon to reconsider whether the second aspect of our judgment in Paquette reflects a correct understanding of the law of duress in Canada.
(2) Duress and Mens Rea
23 That threats of death or serious bodily harm can have an effect on a person’s state of mind is indisputable. However, it is also readily apparent that a person who carries out the actus reus of a criminal offence in response to such threats will not necessarily lack the mens rea for that offence. Whether he or she does or not will depend both on what the mental element of the offence in question happens to be, and on the facts of the particular case. As a practical matter, though, situations where duress will operate to "negate" mens rea will be exceptional, for the simple reason that the types of mental states that are capable of being "negated" by duress are not often found in the definitions of criminal offences.
24 In general, a person who performs an action in response to a threat will know what he or she is doing, and will be aware of the probable consequences of his or her actions. Whether or not he or she desires the occurrence of these consequences will depend on the particular circumstances. For example, a person who is forced at gunpoint to drive a group of armed ruffians to a bank will usually know that the likely result of his or her actions will be that an attempt will be made to rob the bank, but he or she may not desire this result -- indeed, he or she may strongly wish that the robbers' plans are ultimately foiled, if this could occur without risk to his or her own safety. In contrast, a person who is told that his or her child is being held hostage at another location and will be killed unless the robbery is successful will almost certainly have an active subjective desire that the robbery succeed. While the existence of threats clearly has a bearing on the motive underlying each actor’s respective decision to assist in the robbery, only the first actor can be said not to desire that the robbery take place, and neither actor can be said not to have knowledge of the consequences of their actions. To determine whether mens rea is "negated" in a particular case, therefore, the first question that must be asked is whether the mental element of the offe