Court headnote

R. v. Ruzic
Collection
Supreme Court Judgments
Date
2001-04-20
Neutral citation
2001 SCC 24
Report
[2001] 1 SCR 687
Case number
26930
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 26930
Decision Content
R. v. Ruzic, [2001] 1 S.C.R. 687, 2001 SCC 24
Her Majesty The Queen Appellant
v.
Marijana Ruzic Respondent
and
The Attorney General for Ontario,
the Canadian Council of Churches and
the Canadian Council for Refugees Interveners
Indexed as: R. v. Ruzic
Neutral citation: 2001 SCC 24.
File No.: 26930.
2000: June 13; 2001: April 20.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for ontario
Constitutional law – Charter of Rights – Fundamental justice – Criminal Code providing for defence of compulsion by threats -- Provision requiring that threat be of immediate death or bodily harm from a person who is present when offence is committed -- Whether immediacy and presence requirements of provision infringe principles of fundamental justice -- If so, whether infringement justifiable -- Canadian Charter of Rights and Freedoms, ss. 1 , 7 – Criminal Code, R.S.C. 1985, c. C-46, s. 17 .
Criminal law – Defences – Duress – Criminal Code providing for defence of compulsion by threats -- Provision requiring that threat must be of immediate death or bodily harm from a person who is present when offence is committed -- Whether trial judge right in allowing common law defence of duress to go to jury – Whether trial judge adequately instructed jury on defence – Criminal Code, R.S.C. 1985, c. C-46, s. 17 .
The accused was tried before a judge and jury on charges of unlawfully importing two kilograms of heroin into Canada, contrary to s. 5(1) of the Narcotic Control Act, and of possession and use of a false passport contrary to s. 368 of the Criminal Code . The accused admitted having committed both offences but claimed that she was then acting under duress and should thus be relieved from any criminal liability. She testified that a man in Belgrade, where she lived in an apartment with her mother, had threatened to harm her mother unless she brought the heroin to Canada. She also said that she did not seek police protection because she believed the police in Belgrade were corrupt and would do nothing to assist her. The accused conceded that her claim of duress did not meet the immediacy and presence requirements of s. 17 of the Code, which provides a defence for 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”. She successfully challenged the constitutionality of s. 17 under s. 7 of the Canadian Charter of Rights and Freedoms , raised the common law defence of duress and was acquitted. The Crown appealed the acquittal on the charge of importing heroin, but the Court of Appeal dismissed the appeal.
Held: The appeal should be dismissed.
Subject to constitutional review, Parliament retains the power to restrict access to a criminal defence or to remove it altogether. The question for the courts is whether restricting the defence accords with Charter rights. Statutory defences are not owed special deference by reviewing courts. Determining when to absolve a person for otherwise criminal behaviour is a value-laden exercise, but statutory defences do not warrant more deference simply because they are the product of difficult moral judgments.
Although moral involuntariness does not negate the actus reus or mens rea of an offence, it is a principle which, like physical involuntariness, deserves protection under s. 7 of the Charter . 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 and branding him or her with the stigma of criminal liability would infringe the principles of fundamental justice if the person did not have any realistic choice.
Section 17 of the Code breaches s. 7 of the Charter because it allows individuals who acted involuntarily to be declared criminally liable. The section limits the defence of duress to a person who is compelled to commit an offence under threats of immediate death or bodily harm from a person who is present when the offence is committed. The plain meaning of s. 17 is quite restrictive in scope. The phrase “present when the offence is committed”, coupled with the immediacy criterion, indicates that the person issuing the threat must be either at the scene of the crime or at whatever other location is necessary to make good on the threat without delay should the accused resist. Practically speaking, a threat of harm will seldom qualify as immediate if the threatener is not physically present at the scene of the crime. The immediacy and presence requirements, taken together, clearly preclude threats of future harm. While s. 17 may capture threats to third parties, the immediacy and presence criteria continue to impose considerable obstacles to relying on the defence in hostage or other third party situations. The underinclusiveness of s. 17 infringes s. 7 of the Charter . The Crown made no attempt before this Court to justify the immediacy and presence criteria according to the s. 1 analysis and has therefore failed to satisfy its onus under s. 1 . In any event, the criteria would likely not meet the proportionality branch of the s. 1 analysis. In particular, these requirements seemingly do not minimally impair the accused’s s. 7 rights.
The common law defence of duress was never completely superseded by s. 17 of the Code, and remains available to parties to an offence. The common law defence has freed itself from the constraints of immediacy and presence and thus appears more consonant with the values of the Charter . The common law of duress, as restated by this Court in Hibbert, recognizes that an accused in a situation of duress not only enjoys rights, but also has obligations towards others and society. As a fellow human being, the accused remains subject to a basic duty to adjust his or her conduct to the importance and nature of the threat. The law includes a requirement of proportionality between the threat and the criminal act to be executed, measured on the objective-subjective standard of the reasonable person similarly situated. The accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat. The threat must be to the personal integrity of the person. In addition, it must deprive the accused of any safe avenue of escape in the eyes of a reasonable person, similarly situated.
The Court of Appeal and the trial judge were right in allowing the common law defence of duress to go to the jury, and the trial judge adequately instructed the jury on the defence. In the future, when the common law defence of duress is raised, the trial judge should instruct the jury clearly on the components of this defence including the need for a close temporal connection between the threat and the harm threatened. The jury’s attention should also be drawn to the need for the application of an objective-subjective assessment of the safe avenue of escape test. Nevertheless, the trial judge’s charge, viewed in its entirety, contained all the elements required by the common law rules on duress. The criterion of the safe avenue of escape was well explained as was the objective component of this test. The law does not require an accused to seek the official protection of police in all cases. The requirement of objectivity must itself take into consideration the special circumstances in which the accused found herself as well as her perception of them. The trial judge drew the jury’s attention both to that objective component and to the subjective elements of the defence. As to the immediacy of the threat, the trial judge brought home to the jury the fact that the threat had to be a real threat affecting the accused at the time of the offence. This instruction at least implied that the jury had to consider the temporal connection between the threat and the harm threatened, although it would have been preferable to say so in so many express words. There was no misdirection either on the burden of proof. The accused must certainly raise the defence and introduce some evidence about it. Once this is done, the burden of proof shifts to the Crown under the general rule of criminal evidence. It must be shown, beyond a reasonable doubt, that the accused did not act under duress.
Cases Cited
Distinguished: R. v. Finta, [1994] 1 S.C.R. 701; R. v. Penno, [1990] 2 S.C.R. 865; referred to: R. v. Parris (1992), 11 C.R.R. (2d) 376; R. v. Langlois, [1993] R.J.Q. 675; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Vriend v. Alberta, [1998] 1 S.C.R. 493; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Seaboyer, [1991] 2 S.C.R. 577; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Perka v. The Queen, [1984] 2 S.C.R. 232; R. v. Hibbert, [1995] 2 S.C.R. 973; Bergstrom v. The Queen, [1981] 1 S.C.R. 539; R. v. Daviault, [1994] 3 S.C.R. 63; R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. DeSousa, [1992] 2 S.C.R. 944; R. v. Chaulk, [1990] 3 S.C.R. 1303; Rabey v. The Queen, [1980] 2 S.C.R. 513; R. v. Parks, [1992] 2 S.C.R. 871; R. v. Stone, [1999] 2 S.C.R. 290; R. v. Carker, [1967] S.C.R. 114; Paquette v. The Queen, [1977] 2 S.C.R. 189; R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1; R. v. Martin, [1989] 1 All E.R. 652; R. v. Abdul-Hussain, [1998] E.W.J. No. 4183 (QL); Re A (Children) (Siamese Twins Decision), [2000] E.W.J. No. 4875 (QL); R. v. Howe, [1987] 1 All E.R. 771; R. v. Gotts, [1992] 1 All E.R. 832; Lynch v. Director of Public Prosecutions for Northern Ireland, [1975] 1 All E.R. 913; R. v. Lewis (1992), 96 Cr. App. R. 412; R. v. Heath, [1999] E.W.J. No. 5092 (QL); R. v. Graham, [1982] 1 All E.R. 801; R. v. Hudson, [1971] 2 Q.B. 202; R. v. Hurley and Murray, [1967] V.R. 526; R. v. McCafferty, [1974] 1 N.S.W.L.R. 89; R. v. Dawson, [1978] V.R. 536; R. v. Abusafiah (1991), 24 N.S.W.L.R. 531; R. v. Palazoff (1986), 43 S.A.S.R. 99; R. v. Lawrence, [1980] 1 N.S.W.L.R. 122; R. v. Brown (1986), 43 S.A.S.R. 33; R. v. Williamson, [1972] 2 N.S.W.L.R. 281; Osborne v. Goddard (1978), 21 A.L.R. 189; United States v. Jennell, 749 F.2d 1302 (1984); United States v. Contento-Pachon, 723 F.2d 691 (1984); United States v. Marenghi, 893 F. Supp. 85 (1995); Esquibel v. State, 576 P.2d 1129 (1978); People v. Harmon, 232 N.W.2d 187 (1975); State v. Toscano, 378 A.2d 755 (1977); Rhode Island Recreation Center v. Aetna Casualty & Surety Co., 177 F.2d 603 (1949); New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; R. v. Heywood, [1994] 3 S.C.R. 761.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 24 .
Constitution Act, 1982, s. 52 .
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)], 368.
Narcotic Control Act, R.S.C. 1985, c. N-1 [rep. 1996, c. 19, s. 94], s. 5(1).
Authors Cited
Côté, Pierre-André. The Interpretation of Legislation in Canada, 3rd ed. Scarborough, Ont.: Carswell, 2000.
Côté-Harper, Gisèle, Pierre Rainville et Jean Turgeon. Traité de droit pénal canadien, 4e éd. Cowansville, Qué.: Yvon Blais, 1998.
Findlay, Mark, Stephen Odgers and Stanley Yeo. Australian Criminal Justice, 2nd ed. Melbourne: Oxford University Press, 1999.
Fletcher, George P. Rethinking Criminal Law. Boston: Little, Brown, 1978.
Gillies, Peter. Criminal Law, 4th ed. Sydney: LBC Information Services, 1997.
Hall, Jerome. General Principles of Criminal Law, 2nd ed. Indianapolis: Bobbs‑Merrill, 1960.
Klimchuk, Dennis. “Moral Innocence, Normative Involuntariness, and Fundamental Justice” (1998), 18 C.R. (5th) 96.
LaFave, Wayne R., and Austin W. Scott, Jr. Substantive Criminal Law, vol. 1. St. Paul, Minn.: West Publishing, 1986.
O’Connor, Desmond, and Paul A. Fairall. Criminal Defences, 3rd ed. Sydney: Butterworths, 1996.
Parent, Hugues. “Histoire de l’acte volontaire en droit pénal anglais et canadien” (2000), 45 McGill L.J. 975.
Parent, Hugues. Responsabilité pénale et troubles mentaux: Histoire de la folie en droit pénal français, anglais et canadien. Cowansville, Qué.: Yvon Blais, 1999.
Shaffer, Martha. “Scrutinizing Duress: The Constitutional Validity of Section 17 of the Criminal Code ” (1998), 40 Crim. L.Q. 444.
Smith, Sir John. Smith & Hogan: Criminal Law, 9th ed. London: Butterworths, 1999.
Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.
APPEAL from a judgment of the Ontario Court of Appeal (1998), 41 O.R. (3d) 1, 164 D.L.R. (4th) 358, 112 O.A.C. 201, 128 C.C.C. (3d) 97, 18 C.R. (5th) 58, 55 C.R.R. (2d) 85, [1998] O.J. No. 3415 (QL), addendum reported at 41 O.R. (3d) 39, 165 D.L.R. (4th) 574, 115 O.A.C. 361, 128 C.C.C. (3d) 481, [1998] O.J. No. 4732 (QL), dismissing the Crown’s appeal from the accused’s acquittal on a charge of unlawful importation of heroin. Appeal dismissed.
Croft Michaelson and Morris Pistyner, for the appellant.
Frank Addario and Leslie Pringle, for the respondent.
Gary T. Trotter and John McInnes, for the intervener the Attorney General for Ontario.
Marlys Edwardh and Jill Copeland, for the interveners the Canadian Council of Churches and the Canadian Council for Refugees.
The judgment of the Court was delivered by
1 LeBel J. – On April 29, 1994 Marijana Ruzic, a Yugoslav citizen, landed at Pearson Airport in Toronto carrying two kilograms of heroin strapped to her body and a false Austrian passport. When the heroin was found on her, she was arrested, charged and tried for possession and use of a false passport and unlawful importation of narcotics. At trial, Ruzic successfully challenged the constitutionality of s. 17 of the Criminal Code, R.S.C. 1985, c. C-46 , raised the common law defence of duress and was acquitted by a jury. The Crown appealed the acquittal without success to the Ontario Court of Appeal. This appeal now raises, as a core issue, the constitutional validity, under s. 7 of the Canadian Charter of Rights and Freedom, of s. 17 of the Criminal Code and more precisely of some of the conditions restricting the admissibility of the defence of duress. For reasons differing in part from those of the Court of Appeal, I will suggest that s. 17 of the Criminal Code be declared unconstitutional in part, that the acquittal of the respondent Ruzic be upheld and that the appeal be dismissed.
I. Facts
2 The respondent Marijana Ruzic was born in Belgrade in the former Yugoslavia. She was 21 years old when she entered Canada. When heroin was discovered on her, she was charged with three offences, two of which proceeded to trial: possession and use of a false passport contrary to s. 368 of the Criminal Code , and unlawful importation of a narcotic contrary to s. 5(1) of the Narcotic Control Act, R.S.C. 1985, c. N-1.
3 Ms. Ruzic admitted having committed both offences but claimed that she was then acting under duress and should thus be relieved from any criminal liability. She testified that, two months before her arrival in Canada, a man named Mirko Mirkovic approached her while she was walking her dog in the streets of Belgrade, where she lived in an apartment with her mother. She described him as a “warrior” and believed he was paid to kill people in the war. An expert witness testified at trial that, in 1994, large paramilitary groups roamed Belgrade and engaged in criminal and mafia-like activities. The same expert maintained that people living in Belgrade during that period did not feel safe. They believed the police could not be trusted. There was a real sense that the rule of law had broken down.
4 From there began a series of encounters between Mirkovic and the respondent while she was walking her dog. Each time he approached her, he knew more about her, although she had shared no details of her life with him. He phoned her at home. He told her he knew her every move. Ms. Ruzic alleged that his behaviour became more and more intimidating, escalating to threats and acts of physical violence. On one occasion, he burned her arm with a lighter. On another, he stuck a syringe into her arm and injected her with a substance that smelled like heroin and made her nauseous. She indicated that these physical assaults were coupled with sexual harassment and finally threats against her mother.
5 On April 25, 1994, Mirkovic phoned the respondent and instructed her to pack a bag and meet him at a hotel in central Belgrade. Once there, he allegedly strapped three packages of heroin to her body and indicated that she was to take them to a restaurant in Toronto. He gave her the false passport, a bus ticket from Belgrade to Budapest and some money. He told her to fly from Budapest to Athens, and then from Athens to Toronto. When she protested, he warned her that, if she failed to comply, he would harm her mother.
6 Ms. Ruzic arrived in Budapest on April 26. Late that evening, she boarded a plane to Athens, where she arrived early the next day. She then purchased a ticket to Toronto. She missed that flight, exchanged her ticket for the next available flight, and left for Toronto two days later, on April 29.
7 During the two months prior to her journey to Canada, Ms. Ruzic testified that she did not tell her mother or anyone else about Mirkovic. She was afraid he would harm whoever she told. She did not seek police protection because she believed the police in Belgrade were corrupt and would do nothing to assist her. She maintained that she followed Mirkovic’s instructions out of fear for her mother’s safety. She made no attempt while in Budapest or Athens to seek the assistance of police or other government officials. Similarly, before her arrest, she did not ask any Canadian authorities for help. She asserted that she believed the only way she could protect her mother was to obey Mirkovic’s orders.
II. Constitutional and Statutory Provisions
8 Canadian Charter of Rights and Freedoms
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.
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.
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).
III. Judicial History
A. Ontario Court (General Division)
9 Ms. Ruzic was tried before Herold J. and a jury. Her main line of defence was that she acted under duress. She conceded that her claim of duress did not meet the immediacy and presence requirements of s. 17 of the Criminal Code . Mirkovic’s threats were not of “immediate” death or bodily harm and he was not “present” when she committed the offence. Furthermore, the threats were directed at her mother. She accordingly challenged the constitutionality of s. 17 under s. 7 of the Charter , in order to raise the common law defence of duress that, in her mind, did not incorporate the requirements of immediacy and presence.
10 Herold J. accepted her submissions, holding that s. 17 of the Criminal Code infringes s. 7 of the Charter and cannot be justified under s. 1 . Rather than setting out the grounds for his conclusion in any detail, he adopted the reasoning of two previous judgments in which s. 17 was found unconstitutional: R. v. Parris (1992), 11 C.R.R. (2d) 376 (Ont. Ct. (Gen. Div.)), per Thomas J., and R. v. Langlois, [1993] R.J.Q. 675 (C.A.), per Fish J.A. He then instructed the jury on the common law defence of duress, which is preserved by virtue of s. 8(3) of the Criminal Code . The jury acquitted Ms. Ruzic on both charges. The Crown appealed the acquittal on the charge of importing heroin to the Court of Appeal for Ontario.
B. Ontario Court of Appeal (1998), 41 O.R. (3d) 1
11 Writing for the Court of Appeal, Laskin J.A. upheld the trial judge’s finding that the immediacy and presence requirements in s. 17 infringe s. 7 of the Charter . First, he maintained that it would violate the principles of fundamental justice to convict a person whose actions are morally involuntary. He held that this Court in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, and subsequent cases had recognized, as a principle of fundamental justice, the requirement that the morally blameless should not be punished. He likened moral voluntariness to moral blameworthiness. Those who act in a morally involuntary fashion, he stated, are not morally blameworthy for what they do. It follows that it would be contrary to s. 7 of the Charter to attach criminal liability to their conduct. In the alternative, he found such similarity between moral blamelessness and moral involuntariness that it would be as unfair to punish morally involuntary conduct as it would be unjust to punish morally blameless behavior.
12 Second, Laskin J.A. held that the immediacy and presence restrictions in s. 17 are poor measures of moral voluntariness. They deny access to the defence to an accused who is threatened with future injury. In addition, they render the defence unavailable to persons whose family members are the target of the threatened harm. As he explained at p. 32:
The underlying problem with the immediacy and presence restrictions is that they do not adequately capture all morally involuntary conduct. Perka and Hibbert hold that the essence of involuntary conduct is the absence of a realistic choice or a safe avenue of escape. The mother whose child is abducted, or Mr. Langlois whose family is threatened, or Ms. Ruzic who lives where the police cannot help her or her mother, or the battered spouse who cannot leave her abusive relationship, do not have a realistic choice but to commit a criminal offence, even though the threatened harm is not immediate and the threatener is not present when the offence is committed.
He concluded that the immediacy and presence requirements contravene s. 7 of the Charter because they permit the conviction of persons whose conduct is morally involuntary.
13 Laskin J.A. also endorsed an alternative basis for finding that s. 17 violates s. 7 . It is that the immediacy and presence restrictions risk punishing persons contrary to the principle of fundamental justice that the deprivation of a right must not be arbitrary or unfair. In his view, these criteria conflict with Parliament’s purpose in providing the defence in the first place, which is to excuse acts that are morally involuntary.
14 Third, Laskin J.A. held that the violation of s. 7 was not saved by s. 1 . He specified three reasons for so finding: the appellant made no submissions regarding s. 1 , there are no decisions of this Court in which a breach of s. 7 has been justified, and the immediacy and presence requirements in s. 17 do not satisfy the proportionality component of the s. 1 analysis. He declared s. 17 of no force or effect to the extent that it prevents an accused from relying on the common law defence of duress. He then added that this declaration applied only to those offences not listed in s. 17 as an excluded offence.
15 Last, Laskin J.A. concluded that Herold J. did not misdirect the jury on the elements of the common law defence of duress. The trial judge was not required to use the word “immediate” or “imminent” in his explanation of that defence. The operative test was whether the accused had a safe avenue of escape, assessed on a reasonableness standard taking into account the personal circumstances of the accused. While the trial judge might have described the objective nature of the standard more clearly, Laskin J.A. surmised that his instructions, on this question, did not amount to a reversible error.
IV. Issues
16 Lamer C.J. stated the following constitutional questions:
1. Do the requirements in s. 17 of the Criminal Code, R.S.C. 1985, c. C-46 , that a threat must be of immediate death or bodily harm and from a person who is present when the offence is committed infringe the rights of an accused person as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms ?
2. If the answer to Question 1 is yes, is the said infringement of the s. 7 rights a reasonable limit that can be demonstrably justified under s. 1 of the Canadian Charter of Rights and Freedoms ?
3. Does s. 17 of the Criminal Code, R.S.C. 1985, c. C-46 , infringe the rights of an accused person as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms by precluding access to the defence of duress where the threat is to a third party?
4. If the answer to Question 3 is yes, is the said infringement of the s. 7 rights a reasonable limit that can be demonstrably justified under s. 1 of the Canadian Charter of Rights and Freedoms ?
17 The first and central question before us is thus framed in the same way that it was in the courts below: do the immediacy and presence requirements in s. 17 of the Criminal Code infringe s. 7 of the Charter , and, if so, can they be justified under s. 1 ? This question raises several subsidiary matters:
-- Are statutory defences owed special deference by reviewing courts?
-- Is it a principle of fundamental justice that only morally voluntary conduct can attract criminal liability?
-- Do the immediacy and presence requirements in s. 17 infringe this principle? Is a broader interpretation of s. 17 possible as argued by the appellant, in order to avoid a declaration of unconstitutionality?
– What can the common law tell us on the defence of duress?
– If there is a violation of s. 7 , can it be justified under s. 1 ?
-- As an alternative question, do the immediacy and presence requirements in s. 17 infringe the principle that constitutional rights should not be restricted in a manner that is arbitrary or unfair?
18 At issue also is whether s. 17 of the Criminal Code infringes s. 7 of the Charter by precluding access to the defence of duress where the threatened harm is directed not at the accused, but at a third party. The appellant puts forth a third issue, which is whether the trial judge’s exposition of the common law defence of duress to the jury was defective.
19 Before examining each issue, it should be noted that s. 17 of the Criminal Code places another restriction on the defence. It lists 22 offences, ranging from murder and sexual assault to less serious crimes such as robbery and arson, which are excluded from the scope of the defence. Importation of narcotics, and possession and use of a false passport, do not appear on this list. Thus, this appeal does not concern the constitutional validity of the list of excluded offences.
V. Analysis
A. Are Statutory Defences Owed Special Deference by Reviewing Courts?
20 The appellant argued in the Court below that statutory defences are not subject to Charter scrutiny. Laskin J.A. rejected this submission. The argument was recast somewhat before this Court. At the hearing, the appellant now appeared to concede that the scope of s. 17 is susceptible to Charter review, but maintained that the courts should assume a posture of deference when undertaking such an assessment. The prosecution contends it belongs to Parliament to decide when otherwise criminal conduct should be excused, because determining who can rely on the statutory defence of duress and in what circumstances is an inherently policy-driven exercise. The appellant asserts that the legislature is best placed to determine what constitutes “morally involuntary” conduct for the purpose of invoking s. 17 , given the difficult value judgments involved in defining duress. The appellant submits that the appropriate standard of review would restrict courts to consider simply whether the restrictions on the defence are irrational or arbitrary. As a corollary of its approach, the Crown did not seek to justify s. 17 under s. 1 of the Charter . Before the Court, it argued rather that, if properly construed, s. 17 would not even infringe the Charter .
21 It bears emphasizing that a statutory defence, like any other legislative provision, is not immune from Charter scrutiny. Section 24 of the Charter and s. 52 of the Constitution Act, 1982 command the judiciary to review the work of the legislature, according to the standards enshrined in those documents. As Iacobucci J. stated in Vriend v. Alberta, [1998] 1 S.C.R. 493, at pp. 566-67:
Democratic values and principles under the Charter demand that legislators and the executive take these into account; and if they fail to do so, courts should stand ready to intervene to protect these democratic values as appropriate. As others have so forcefully stated, judges are not acting undemocratically by intervening when there are indications that a legislative or executive decision was not reached in accordance with the democratic principles mandated by the Charter . . . .
22 Soon after the Charter came into force, Lamer J. (as he then was) pointed out in Re B.C. Motor Vehicle Act, supra, at pp. 496-97, that courts have not only the power but the duty to evaluate the substantive content of legislation for Charter compliance. In the realm of criminal law, the courts routinely review the definition of criminal offences to ensure conformity with Charter rights. This has included the mens rea element of an offence: e.g., R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154. These powers and responsibilities extend equally to statutory defences. Courts would be abdicating their constitutional duty by abstaining from such a review. Defences and excuses belong to the legislative corpus that the Charter submits to constitutional review by the courts.
23 Subject to constitutional review, Parliament retains the power to restrict access to a criminal defence or to remove it altogether. As Cory J. indicated for the majority in R. v. Finta, [1994] 1 S.C.R. 701, a withdrawal of a criminal defence will not automatically breach s. 7 of the Charter . Among other things, Finta raised the question whether the removal of the defence of obedience to or authority of de facto law for war crimes and crimes against humanity infringed s. 7 . Cory J. observed, at p. 865, that restricting the availability of a defence “will not generally violate s. 7 when a defence is inconsistent with the offence proscribed, in that it would excuse the very evil which the offence seeks to prohibit or punish”. Likewise, in R. v. Penno, [1990] 2 S.C.R. 865, the removal of drunkenness as a defence to a charge of impaired driving was deemed consistent with s. 7 .
24 The circumstances in this appeal are quite different from those in Finta and Penno. There is no suggestion that the defence of duress is inconsistent with the offences with which Ms. Ruzic was charged. Section 17 would not excuse the “very evil” that those offences seek to punish. In my view, the relevance of Finta and Penno to the present appeal is that limitations on a criminal defence may very well be consistent with s. 7 of the Charter . Thus, the issue is not whether the legislature may restrict or remove a criminal defence. It certainly can. The question for the courts is whether restricting the defence of duress accords with Charter rights.
25 The appellant urges the Court to take a significantly more restrained approach to reviewing statutory defences. At this point, the appellant seems to be asserting that an attitude of strong deference would be appropriate, even at the first stage of the constitutional analysis, while assessing whether an infringement of the Charter has taken place, prior to the justification stage under s. 1 . The appellant has failed to make a convincing case for the adoption of such a standard. Determining when to absolve a person for otherwise criminal behaviour is a value-laden exercise. However, statutory defences do not warrant more deference simply because they are the product of difficult moral judgments. The entire body of criminal law expresses a myriad of policy choices. Statutory offences are every bit as concerned with social values as statutory defences.
26 The issue of deference to the legislature’s policy choices is ordinarily considered at the s. 1 stage of a Charter analysis. Yet, even at the infringement stage of the inquiry, the legislature is acknowledged some latitude in its work. This is reflected, for example, in the interpretive presumption of constitutionality. This principle is based on the notion that Parliament intends to adopt legislation that is consistent with the Charter : see R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at pp. 322-27; P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at pp. 365-73. If a statutory provision is capable of an interpretation that is constitutional and one that is not, then the courts should choose the construction that conforms with the Charter : Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078; R. v. Mills, [1999] 3 S.C.R. 668, at paras. 22 and 56. (See also generally R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606.) There is no support in the case law, however, for the “irrational or arbitrary” threshold advocated by the appellant. I would accordingly reject it.
B. Is it a Principle of Fundamental Justice That Only Morally Voluntary Conduct Can Attract Criminal Liability?
27 Whether it is a principle of fundamental justice under s. 7 of the Charter that morally involuntary conduct should not be punished is a novel question before this Court. We are thus called upon to canvass once more the contents of the “principles of fundamental justice”, this time in the context of the defence of duress as framed by s. 17 of the Criminal Code .
28 The Court has on numerous occasions confirmed that the principles of fundamental justice “are to be found in the basic tenets of our legal system”: Re B.C. Motor Vehicle Act, supra, at pp. 503 and 512. McLachlin J. (as she then was) added in R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 603, that they may be distilled from “the legal principles which have historically been reflected in the law of this and other similar states”. Whether a principle qualifies as a principle of fundamental justice depends on an analysis of its nature, sources, rationale and essential role within our evolving legal system: Re B.C. Motor Vehicle Act, supra, at p. 513. In Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at pp. 590-91, Sopinka J. explained that the principles of fundamental justice must be capable of being articulated with some precision; they must be more than broad generalizations about our ethical or moral beliefs. He stated that they are the “principles upon which there is some consensus that they are vital or fundamental to our societal notion of justice” (p. 590).
29 The notion of moral voluntariness was first introduced in Perka v. The Queen, [1984] 2 S.C.R. 232, for the purpose of explaining the defence of necessity and classifying it as an excuse. It was borrowed from the American legal theorist George Fletcher’s discussion of excuses in Rethinking Criminal Law (1978). A person acts in a morally involuntary fashion when, faced with perilous circumstances, she is deprived of a realistic choice whether to break the law. By way of illustration in Perka, Dickson J. evoked the situation of a lost alpinist who, on the point of freezing to death, breaks into a remote mountain cabin. The alpinist confronts a painful dilemma: freeze to death or commit a criminal offence. Yet as Dickson J. pointed out at p. 249, the alpinist’s choice to break the law “is no true choice at all; it is remorselessly compelled by normal human instincts”, here of self-preservation. The Court in Perka thus conceptualized the defence of necessity as an excuse. An excuse, Dickson J. maintained, concedes that the act was wrongful, but withholds criminal attribution to the actor because of the dire circumstances surrounding its commission. He summarized the rationale of necessity in this way, at p. 250:
At the heart of this defence is the perceived injustice of punishing violations of the law in circumstances in which the person had no other viable or reasonable choice available; the act was wrong but it is excused because it was realistically unavoidable.
30 Extending its reasoning in Perka to the defence of duress, the Court found in R. v. Hibbert, [1995] 2 S.C.R. 973, that it too rests on the notion of moral voluntariness. In the case of the defences of necessity and duress, the accused contends that he should avoid conviction because he acted in response to a threat of impending harm. The Court also confirmed in Hibbert that duress does not ordinarily negate the mens rea element of an offence. Like the defence of necessity, the Court classified the defence of duress as an excuse, like that of necessity. As such, duress operates to relieve a person of criminal liability only after he has been found to have committed the prohibited act with the relevant mens rea: see also Bergstrom v. The Queen, [1981] 1 S.C.R. 539, at p. 544 (per McIntyre J.).
31 Thus duress, like necessity, involves the concern that morally involuntary conduct not be subject to criminal liability. Can this notion of “moral voluntariness” be recognized as a principle of fundamental justice under s. 7 of the Charter ? Let us examine possible avenues which have been put forward by the respondent towards such recognition.
1. Moral Voluntariness and Moral Blameworthiness
32 As we will see below, this Court has recognized on a number of occasions that “moral blameworthiness” is an essential component of criminal liability which is protected under s. 7 as a “principle of fundamental justice”. The respondent in the case as bar attempts to link the principles of “moral blameworthiness” and “moral voluntariness” as a means of securing the constitutional status of the defence of duress. Laskin J.A. in the Court below has followed

Court headnote

R. v. Ruzic Collection Supreme Court Judgments Date 2001-04-20 Neutral citation 2001 SCC 24 Report [2001] 1 SCR 687 Case number 26930 Judges McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis On appeal from Ontario Subjects Constitutional law Criminal law Notes SCC Case Information: 26930 Decision Content R. v. Ruzic, [2001] 1 S.C.R. 687, 2001 SCC 24 Her Majesty The Queen Appellant v. Marijana Ruzic Respondent and The Attorney General for Ontario, the Canadian Council of Churches and the Canadian Council for Refugees Interveners Indexed as: R. v. Ruzic Neutral citation: 2001 SCC 24. File No.: 26930. 2000: June 13; 2001: April 20. Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ. on appeal from the court of appeal for ontario Constitutional law – Charter of Rights – Fundamental justice – Criminal Code providing for defence of compulsion by threats -- Provision requiring that threat be of immediate death or bodily harm from a person who is present when offence is committed -- Whether immediacy and presence requirements of provision infringe principles of fundamental justice -- If so, whether infringement justifiable -- Canadian Charter of Rights and Freedoms, ss. 1 , 7 – Criminal Code, R.S.C. 1985, c. C-46, s. 17 . Criminal law – Defences – Duress – Criminal Code providing for defence of compulsion by threats -- Provision requiring that threat must be of immediate death or bodily harm from a person who is present when offence is committed -- Whether trial judge right in allowing common law defence of duress to go to jury – Whether trial judge adequately instructed jury on defence – Criminal Code, R.S.C. 1985, c. C-46, s. 17 . The accused was tried before a judge and jury on charges of unlawfully importing two kilograms of heroin into Canada, contrary to s. 5(1) of the Narcotic Control Act, and of possession and use of a false passport contrary to s. 368 of the Criminal Code . The accused admitted having committed both offences but claimed that she was then acting under duress and should thus be relieved from any criminal liability. She testified that a man in Belgrade, where she lived in an apartment with her mother, had threatened to harm her mother unless she brought the heroin to Canada. She also said that she did not seek police protection because she believed the police in Belgrade were corrupt and would do nothing to assist her. The accused conceded that her claim of duress did not meet the immediacy and presence requirements of s. 17 of the Code, which provides a defence for 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”. She successfully challenged the constitutionality of s. 17 under s. 7 of the Canadian Charter of Rights and Freedoms , raised the common law defence of duress and was acquitted. The Crown appealed the acquittal on the charge of importing heroin, but the Court of Appeal dismissed the appeal. Held: The appeal should be dismissed. Subject to constitutional review, Parliament retains the power to restrict access to a criminal defence or to remove it altogether. The question for the courts is whether restricting the defence accords with Charter rights. Statutory defences are not owed special deference by reviewing courts. Determining when to absolve a person for otherwise criminal behaviour is a value-laden exercise, but statutory defences do not warrant more deference simply because they are the product of difficult moral judgments. Although moral involuntariness does not negate the actus reus or mens rea of an offence, it is a principle which, like physical involuntariness, deserves protection under s. 7 of the Charter . 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 and branding him or her with the stigma of criminal liability would infringe the principles of fundamental justice if the person did not have any realistic choice. Section 17 of the Code breaches s. 7 of the Charter because it allows individuals who acted involuntarily to be declared criminally liable. The section limits the defence of duress to a person who is compelled to commit an offence under threats of immediate death or bodily harm from a person who is present when the offence is committed. The plain meaning of s. 17 is quite restrictive in scope. The phrase “present when the offence is committed”, coupled with the immediacy criterion, indicates that the person issuing the threat must be either at the scene of the crime or at whatever other location is necessary to make good on the threat without delay should the accused resist. Practically speaking, a threat of harm will seldom qualify as immediate if the threatener is not physically present at the scene of the crime. The immediacy and presence requirements, taken together, clearly preclude threats of future harm. While s. 17 may capture threats to third parties, the immediacy and presence criteria continue to impose considerable obstacles to relying on the defence in hostage or other third party situations. The underinclusiveness of s. 17 infringes s. 7 of the Charter . The Crown made no attempt before this Court to justify the immediacy and presence criteria according to the s. 1 analysis and has therefore failed to satisfy its onus under s. 1 . In any event, the criteria would likely not meet the proportionality branch of the s. 1 analysis. In particular, these requirements seemingly do not minimally impair the accused’s s. 7 rights. The common law defence of duress was never completely superseded by s. 17 of the Code, and remains available to parties to an offence. The common law defence has freed itself from the constraints of immediacy and presence and thus appears more consonant with the values of the Charter . The common law of duress, as restated by this Court in Hibbert, recognizes that an accused in a situation of duress not only enjoys rights, but also has obligations towards others and society. As a fellow human being, the accused remains subject to a basic duty to adjust his or her conduct to the importance and nature of the threat. The law includes a requirement of proportionality between the threat and the criminal act to be executed, measured on the objective-subjective standard of the reasonable person similarly situated. The accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat. The threat must be to the personal integrity of the person. In addition, it must deprive the accused of any safe avenue of escape in the eyes of a reasonable person, similarly situated. The Court of Appeal and the trial judge were right in allowing the common law defence of duress to go to the jury, and the trial judge adequately instructed the jury on the defence. In the future, when the common law defence of duress is raised, the trial judge should instruct the jury clearly on the components of this defence including the need for a close temporal connection between the threat and the harm threatened. The jury’s attention should also be drawn to the need for the application of an objective-subjective assessment of the safe avenue of escape test. Nevertheless, the trial judge’s charge, viewed in its entirety, contained all the elements required by the common law rules on duress. The criterion of the safe avenue of escape was well explained as was the objective component of this test. The law does not require an accused to seek the official protection of police in all cases. The requirement of objectivity must itself take into consideration the special circumstances in which the accused found herself as well as her perception of them. The trial judge drew the jury’s attention both to that objective component and to the subjective elements of the defence. As to the immediacy of the threat, the trial judge brought home to the jury the fact that the threat had to be a real threat affecting the accused at the time of the offence. This instruction at least implied that the jury had to consider the temporal connection between the threat and the harm threatened, although it would have been preferable to say so in so many express words. There was no misdirection either on the burden of proof. The accused must certainly raise the defence and introduce some evidence about it. Once this is done, the burden of proof shifts to the Crown under the general rule of criminal evidence. It must be shown, beyond a reasonable doubt, that the accused did not act under duress. Cases Cited Distinguished: R. v. Finta, [1994] 1 S.C.R. 701; R. v. Penno, [1990] 2 S.C.R. 865; referred to: R. v. Parris (1992), 11 C.R.R. (2d) 376; R. v. Langlois, [1993] R.J.Q. 675; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Vriend v. Alberta, [1998] 1 S.C.R. 493; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Seaboyer, [1991] 2 S.C.R. 577; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Perka v. The Queen, [1984] 2 S.C.R. 232; R. v. Hibbert, [1995] 2 S.C.R. 973; Bergstrom v. The Queen, [1981] 1 S.C.R. 539; R. v. Daviault, [1994] 3 S.C.R. 63; R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. DeSousa, [1992] 2 S.C.R. 944; R. v. Chaulk, [1990] 3 S.C.R. 1303; Rabey v. The Queen, [1980] 2 S.C.R. 513; R. v. Parks, [1992] 2 S.C.R. 871; R. v. Stone, [1999] 2 S.C.R. 290; R. v. Carker, [1967] S.C.R. 114; Paquette v. The Queen, [1977] 2 S.C.R. 189; R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1; R. v. Martin, [1989] 1 All E.R. 652; R. v. Abdul-Hussain, [1998] E.W.J. No. 4183 (QL); Re A (Children) (Siamese Twins Decision), [2000] E.W.J. No. 4875 (QL); R. v. Howe, [1987] 1 All E.R. 771; R. v. Gotts, [1992] 1 All E.R. 832; Lynch v. Director of Public Prosecutions for Northern Ireland, [1975] 1 All E.R. 913; R. v. Lewis (1992), 96 Cr. App. R. 412; R. v. Heath, [1999] E.W.J. No. 5092 (QL); R. v. Graham, [1982] 1 All E.R. 801; R. v. Hudson, [1971] 2 Q.B. 202; R. v. Hurley and Murray, [1967] V.R. 526; R. v. McCafferty, [1974] 1 N.S.W.L.R. 89; R. v. Dawson, [1978] V.R. 536; R. v. Abusafiah (1991), 24 N.S.W.L.R. 531; R. v. Palazoff (1986), 43 S.A.S.R. 99; R. v. Lawrence, [1980] 1 N.S.W.L.R. 122; R. v. Brown (1986), 43 S.A.S.R. 33; R. v. Williamson, [1972] 2 N.S.W.L.R. 281; Osborne v. Goddard (1978), 21 A.L.R. 189; United States v. Jennell, 749 F.2d 1302 (1984); United States v. Contento-Pachon, 723 F.2d 691 (1984); United States v. Marenghi, 893 F. Supp. 85 (1995); Esquibel v. State, 576 P.2d 1129 (1978); People v. Harmon, 232 N.W.2d 187 (1975); State v. Toscano, 378 A.2d 755 (1977); Rhode Island Recreation Center v. Aetna Casualty & Surety Co., 177 F.2d 603 (1949); New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; R. v. Heywood, [1994] 3 S.C.R. 761. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 24 . Constitution Act, 1982, s. 52 . 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)], 368. Narcotic Control Act, R.S.C. 1985, c. N-1 [rep. 1996, c. 19, s. 94], s. 5(1). Authors Cited Côté, Pierre-André. The Interpretation of Legislation in Canada, 3rd ed. Scarborough, Ont.: Carswell, 2000. Côté-Harper, Gisèle, Pierre Rainville et Jean Turgeon. Traité de droit pénal canadien, 4e éd. Cowansville, Qué.: Yvon Blais, 1998. Findlay, Mark, Stephen Odgers and Stanley Yeo. Australian Criminal Justice, 2nd ed. Melbourne: Oxford University Press, 1999. Fletcher, George P. Rethinking Criminal Law. Boston: Little, Brown, 1978. Gillies, Peter. Criminal Law, 4th ed. Sydney: LBC Information Services, 1997. Hall, Jerome. General Principles of Criminal Law, 2nd ed. Indianapolis: Bobbs‑Merrill, 1960. Klimchuk, Dennis. “Moral Innocence, Normative Involuntariness, and Fundamental Justice” (1998), 18 C.R. (5th) 96. LaFave, Wayne R., and Austin W. Scott, Jr. Substantive Criminal Law, vol. 1. St. Paul, Minn.: West Publishing, 1986. O’Connor, Desmond, and Paul A. Fairall. Criminal Defences, 3rd ed. Sydney: Butterworths, 1996. Parent, Hugues. “Histoire de l’acte volontaire en droit pénal anglais et canadien” (2000), 45 McGill L.J. 975. Parent, Hugues. Responsabilité pénale et troubles mentaux: Histoire de la folie en droit pénal français, anglais et canadien. Cowansville, Qué.: Yvon Blais, 1999. Shaffer, Martha. “Scrutinizing Duress: The Constitutional Validity of Section 17 of the Criminal Code ” (1998), 40 Crim. L.Q. 444. Smith, Sir John. Smith & Hogan: Criminal Law, 9th ed. London: Butterworths, 1999. Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994. APPEAL from a judgment of the Ontario Court of Appeal (1998), 41 O.R. (3d) 1, 164 D.L.R. (4th) 358, 112 O.A.C. 201, 128 C.C.C. (3d) 97, 18 C.R. (5th) 58, 55 C.R.R. (2d) 85, [1998] O.J. No. 3415 (QL), addendum reported at 41 O.R. (3d) 39, 165 D.L.R. (4th) 574, 115 O.A.C. 361, 128 C.C.C. (3d) 481, [1998] O.J. No. 4732 (QL), dismissing the Crown’s appeal from the accused’s acquittal on a charge of unlawful importation of heroin. Appeal dismissed. Croft Michaelson and Morris Pistyner, for the appellant. Frank Addario and Leslie Pringle, for the respondent. Gary T. Trotter and John McInnes, for the intervener the Attorney General for Ontario. Marlys Edwardh and Jill Copeland, for the interveners the Canadian Council of Churches and the Canadian Council for Refugees. The judgment of the Court was delivered by 1 LeBel J. – On April 29, 1994 Marijana Ruzic, a Yugoslav citizen, landed at Pearson Airport in Toronto carrying two kilograms of heroin strapped to her body and a false Austrian passport. When the heroin was found on her, she was arrested, charged and tried for possession and use of a false passport and unlawful importation of narcotics. At trial, Ruzic successfully challenged the constitutionality of s. 17 of the Criminal Code, R.S.C. 1985, c. C-46 , raised the common law defence of duress and was acquitted by a jury. The Crown appealed the acquittal without success to the Ontario Court of Appeal. This appeal now raises, as a core issue, the constitutional validity, under s. 7 of the Canadian Charter of Rights and Freedom, of s. 17 of the Criminal Code and more precisely of some of the conditions restricting the admissibility of the defence of duress. For reasons differing in part from those of the Court of Appeal, I will suggest that s. 17 of the Criminal Code be declared unconstitutional in part, that the acquittal of the respondent Ruzic be upheld and that the appeal be dismissed. I. Facts 2 The respondent Marijana Ruzic was born in Belgrade in the former Yugoslavia. She was 21 years old when she entered Canada. When heroin was discovered on her, she was charged with three offences, two of which proceeded to trial: possession and use of a false passport contrary to s. 368 of the Criminal Code , and unlawful importation of a narcotic contrary to s. 5(1) of the Narcotic Control Act, R.S.C. 1985, c. N-1. 3 Ms. Ruzic admitted having committed both offences but claimed that she was then acting under duress and should thus be relieved from any criminal liability. She testified that, two months before her arrival in Canada, a man named Mirko Mirkovic approached her while she was walking her dog in the streets of Belgrade, where she lived in an apartment with her mother. She described him as a “warrior” and believed he was paid to kill people in the war. An expert witness testified at trial that, in 1994, large paramilitary groups roamed Belgrade and engaged in criminal and mafia-like activities. The same expert maintained that people living in Belgrade during that period did not feel safe. They believed the police could not be trusted. There was a real sense that the rule of law had broken down. 4 From there began a series of encounters between Mirkovic and the respondent while she was walking her dog. Each time he approached her, he knew more about her, although she had shared no details of her life with him. He phoned her at home. He told her he knew her every move. Ms. Ruzic alleged that his behaviour became more and more intimidating, escalating to threats and acts of physical violence. On one occasion, he burned her arm with a lighter. On another, he stuck a syringe into her arm and injected her with a substance that smelled like heroin and made her nauseous. She indicated that these physical assaults were coupled with sexual harassment and finally threats against her mother. 5 On April 25, 1994, Mirkovic phoned the respondent and instructed her to pack a bag and meet him at a hotel in central Belgrade. Once there, he allegedly strapped three packages of heroin to her body and indicated that she was to take them to a restaurant in Toronto. He gave her the false passport, a bus ticket from Belgrade to Budapest and some money. He told her to fly from Budapest to Athens, and then from Athens to Toronto. When she protested, he warned her that, if she failed to comply, he would harm her mother. 6 Ms. Ruzic arrived in Budapest on April 26. Late that evening, she boarded a plane to Athens, where she arrived early the next day. She then purchased a ticket to Toronto. She missed that flight, exchanged her ticket for the next available flight, and left for Toronto two days later, on April 29. 7 During the two months prior to her journey to Canada, Ms. Ruzic testified that she did not tell her mother or anyone else about Mirkovic. She was afraid he would harm whoever she told. She did not seek police protection because she believed the police in Belgrade were corrupt and would do nothing to assist her. She maintained that she followed Mirkovic’s instructions out of fear for her mother’s safety. She made no attempt while in Budapest or Athens to seek the assistance of police or other government officials. Similarly, before her arrest, she did not ask any Canadian authorities for help. She asserted that she believed the only way she could protect her mother was to obey Mirkovic’s orders. II. Constitutional and Statutory Provisions 8 Canadian Charter of Rights and Freedoms 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. 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. 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). III. Judicial History A. Ontario Court (General Division) 9 Ms. Ruzic was tried before Herold J. and a jury. Her main line of defence was that she acted under duress. She conceded that her claim of duress did not meet the immediacy and presence requirements of s. 17 of the Criminal Code . Mirkovic’s threats were not of “immediate” death or bodily harm and he was not “present” when she committed the offence. Furthermore, the threats were directed at her mother. She accordingly challenged the constitutionality of s. 17 under s. 7 of the Charter , in order to raise the common law defence of duress that, in her mind, did not incorporate the requirements of immediacy and presence. 10 Herold J. accepted her submissions, holding that s. 17 of the Criminal Code infringes s. 7 of the Charter and cannot be justified under s. 1 . Rather than setting out the grounds for his conclusion in any detail, he adopted the reasoning of two previous judgments in which s. 17 was found unconstitutional: R. v. Parris (1992), 11 C.R.R. (2d) 376 (Ont. Ct. (Gen. Div.)), per Thomas J., and R. v. Langlois, [1993] R.J.Q. 675 (C.A.), per Fish J.A. He then instructed the jury on the common law defence of duress, which is preserved by virtue of s. 8(3) of the Criminal Code . The jury acquitted Ms. Ruzic on both charges. The Crown appealed the acquittal on the charge of importing heroin to the Court of Appeal for Ontario. B. Ontario Court of Appeal (1998), 41 O.R. (3d) 1 11 Writing for the Court of Appeal, Laskin J.A. upheld the trial judge’s finding that the immediacy and presence requirements in s. 17 infringe s. 7 of the Charter . First, he maintained that it would violate the principles of fundamental justice to convict a person whose actions are morally involuntary. He held that this Court in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, and subsequent cases had recognized, as a principle of fundamental justice, the requirement that the morally blameless should not be punished. He likened moral voluntariness to moral blameworthiness. Those who act in a morally involuntary fashion, he stated, are not morally blameworthy for what they do. It follows that it would be contrary to s. 7 of the Charter to attach criminal liability to their conduct. In the alternative, he found such similarity between moral blamelessness and moral involuntariness that it would be as unfair to punish morally involuntary conduct as it would be unjust to punish morally blameless behavior. 12 Second, Laskin J.A. held that the immediacy and presence restrictions in s. 17 are poor measures of moral voluntariness. They deny access to the defence to an accused who is threatened with future injury. In addition, they render the defence unavailable to persons whose family members are the target of the threatened harm. As he explained at p. 32: The underlying problem with the immediacy and presence restrictions is that they do not adequately capture all morally involuntary conduct. Perka and Hibbert hold that the essence of involuntary conduct is the absence of a realistic choice or a safe avenue of escape. The mother whose child is abducted, or Mr. Langlois whose family is threatened, or Ms. Ruzic who lives where the police cannot help her or her mother, or the battered spouse who cannot leave her abusive relationship, do not have a realistic choice but to commit a criminal offence, even though the threatened harm is not immediate and the threatener is not present when the offence is committed. He concluded that the immediacy and presence requirements contravene s. 7 of the Charter because they permit the conviction of persons whose conduct is morally involuntary. 13 Laskin J.A. also endorsed an alternative basis for finding that s. 17 violates s. 7 . It is that the immediacy and presence restrictions risk punishing persons contrary to the principle of fundamental justice that the deprivation of a right must not be arbitrary or unfair. In his view, these criteria conflict with Parliament’s purpose in providing the defence in the first place, which is to excuse acts that are morally involuntary. 14 Third, Laskin J.A. held that the violation of s. 7 was not saved by s. 1 . He specified three reasons for so finding: the appellant made no submissions regarding s. 1 , there are no decisions of this Court in which a breach of s. 7 has been justified, and the immediacy and presence requirements in s. 17 do not satisfy the proportionality component of the s. 1 analysis. He declared s. 17 of no force or effect to the extent that it prevents an accused from relying on the common law defence of duress. He then added that this declaration applied only to those offences not listed in s. 17 as an excluded offence. 15 Last, Laskin J.A. concluded that Herold J. did not misdirect the jury on the elements of the common law defence of duress. The trial judge was not required to use the word “immediate” or “imminent” in his explanation of that defence. The operative test was whether the accused had a safe avenue of escape, assessed on a reasonableness standard taking into account the personal circumstances of the accused. While the trial judge might have described the objective nature of the standard more clearly, Laskin J.A. surmised that his instructions, on this question, did not amount to a reversible error. IV. Issues 16 Lamer C.J. stated the following constitutional questions: 1. Do the requirements in s. 17 of the Criminal Code, R.S.C. 1985, c. C-46 , that a threat must be of immediate death or bodily harm and from a person who is present when the offence is committed infringe the rights of an accused person as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms ? 2. If the answer to Question 1 is yes, is the said infringement of the s. 7 rights a reasonable limit that can be demonstrably justified under s. 1 of the Canadian Charter of Rights and Freedoms ? 3. Does s. 17 of the Criminal Code, R.S.C. 1985, c. C-46 , infringe the rights of an accused person as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms by precluding access to the defence of duress where the threat is to a third party? 4. If the answer to Question 3 is yes, is the said infringement of the s. 7 rights a reasonable limit that can be demonstrably justified under s. 1 of the Canadian Charter of Rights and Freedoms ? 17 The first and central question before us is thus framed in the same way that it was in the courts below: do the immediacy and presence requirements in s. 17 of the Criminal Code infringe s. 7 of the Charter , and, if so, can they be justified under s. 1 ? This question raises several subsidiary matters: -- Are statutory defences owed special deference by reviewing courts? -- Is it a principle of fundamental justice that only morally voluntary conduct can attract criminal liability? -- Do the immediacy and presence requirements in s. 17 infringe this principle? Is a broader interpretation of s. 17 possible as argued by the appellant, in order to avoid a declaration of unconstitutionality? – What can the common law tell us on the defence of duress? – If there is a violation of s. 7 , can it be justified under s. 1 ? -- As an alternative question, do the immediacy and presence requirements in s. 17 infringe the principle that constitutional rights should not be restricted in a manner that is arbitrary or unfair? 18 At issue also is whether s. 17 of the Criminal Code infringes s. 7 of the Charter by precluding access to the defence of duress where the threatened harm is directed not at the accused, but at a third party. The appellant puts forth a third issue, which is whether the trial judge’s exposition of the common law defence of duress to the jury was defective. 19 Before examining each issue, it should be noted that s. 17 of the Criminal Code places another restriction on the defence. It lists 22 offences, ranging from murder and sexual assault to less serious crimes such as robbery and arson, which are excluded from the scope of the defence. Importation of narcotics, and possession and use of a false passport, do not appear on this list. Thus, this appeal does not concern the constitutional validity of the list of excluded offences. V. Analysis A. Are Statutory Defences Owed Special Deference by Reviewing Courts? 20 The appellant argued in the Court below that statutory defences are not subject to Charter scrutiny. Laskin J.A. rejected this submission. The argument was recast somewhat before this Court. At the hearing, the appellant now appeared to concede that the scope of s. 17 is susceptible to Charter review, but maintained that the courts should assume a posture of deference when undertaking such an assessment. The prosecution contends it belongs to Parliament to decide when otherwise criminal conduct should be excused, because determining who can rely on the statutory defence of duress and in what circumstances is an inherently policy-driven exercise. The appellant asserts that the legislature is best placed to determine what constitutes “morally involuntary” conduct for the purpose of invoking s. 17 , given the difficult value judgments involved in defining duress. The appellant submits that the appropriate standard of review would restrict courts to consider simply whether the restrictions on the defence are irrational or arbitrary. As a corollary of its approach, the Crown did not seek to justify s. 17 under s. 1 of the Charter . Before the Court, it argued rather that, if properly construed, s. 17 would not even infringe the Charter . 21 It bears emphasizing that a statutory defence, like any other legislative provision, is not immune from Charter scrutiny. Section 24 of the Charter and s. 52 of the Constitution Act, 1982 command the judiciary to review the work of the legislature, according to the standards enshrined in those documents. As Iacobucci J. stated in Vriend v. Alberta, [1998] 1 S.C.R. 493, at pp. 566-67: Democratic values and principles under the Charter demand that legislators and the executive take these into account; and if they fail to do so, courts should stand ready to intervene to protect these democratic values as appropriate. As others have so forcefully stated, judges are not acting undemocratically by intervening when there are indications that a legislative or executive decision was not reached in accordance with the democratic principles mandated by the Charter . . . . 22 Soon after the Charter came into force, Lamer J. (as he then was) pointed out in Re B.C. Motor Vehicle Act, supra, at pp. 496-97, that courts have not only the power but the duty to evaluate the substantive content of legislation for Charter compliance. In the realm of criminal law, the courts routinely review the definition of criminal offences to ensure conformity with Charter rights. This has included the mens rea element of an offence: e.g., R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154. These powers and responsibilities extend equally to statutory defences. Courts would be abdicating their constitutional duty by abstaining from such a review. Defences and excuses belong to the legislative corpus that the Charter submits to constitutional review by the courts. 23 Subject to constitutional review, Parliament retains the power to restrict access to a criminal defence or to remove it altogether. As Cory J. indicated for the majority in R. v. Finta, [1994] 1 S.C.R. 701, a withdrawal of a criminal defence will not automatically breach s. 7 of the Charter . Among other things, Finta raised the question whether the removal of the defence of obedience to or authority of de facto law for war crimes and crimes against humanity infringed s. 7 . Cory J. observed, at p. 865, that restricting the availability of a defence “will not generally violate s. 7 when a defence is inconsistent with the offence proscribed, in that it would excuse the very evil which the offence seeks to prohibit or punish”. Likewise, in R. v. Penno, [1990] 2 S.C.R. 865, the removal of drunkenness as a defence to a charge of impaired driving was deemed consistent with s. 7 . 24 The circumstances in this appeal are quite different from those in Finta and Penno. There is no suggestion that the defence of duress is inconsistent with the offences with which Ms. Ruzic was charged. Section 17 would not excuse the “very evil” that those offences seek to punish. In my view, the relevance of Finta and Penno to the present appeal is that limitations on a criminal defence may very well be consistent with s. 7 of the Charter . Thus, the issue is not whether the legislature may restrict or remove a criminal defence. It certainly can. The question for the courts is whether restricting the defence of duress accords with Charter rights. 25 The appellant urges the Court to take a significantly more restrained approach to reviewing statutory defences. At this point, the appellant seems to be asserting that an attitude of strong deference would be appropriate, even at the first stage of the constitutional analysis, while assessing whether an infringement of the Charter has taken place, prior to the justification stage under s. 1 . The appellant has failed to make a convincing case for the adoption of such a standard. Determining when to absolve a person for otherwise criminal behaviour is a value-laden exercise. However, statutory defences do not warrant more deference simply because they are the product of difficult moral judgments. The entire body of criminal law expresses a myriad of policy choices. Statutory offences are every bit as concerned with social values as statutory defences. 26 The issue of deference to the legislature’s policy choices is ordinarily considered at the s. 1 stage of a Charter analysis. Yet, even at the infringement stage of the inquiry, the legislature is acknowledged some latitude in its work. This is reflected, for example, in the interpretive presumption of constitutionality. This principle is based on the notion that Parliament intends to adopt legislation that is consistent with the Charter : see R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at pp. 322-27; P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at pp. 365-73. If a statutory provision is capable of an interpretation that is constitutional and one that is not, then the courts should choose the construction that conforms with the Charter : Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078; R. v. Mills, [1999] 3 S.C.R. 668, at paras. 22 and 56. (See also generally R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606.) There is no support in the case law, however, for the “irrational or arbitrary” threshold advocated by the appellant. I would accordingly reject it. B. Is it a Principle of Fundamental Justice That Only Morally Voluntary Conduct Can Attract Criminal Liability? 27 Whether it is a principle of fundamental justice under s. 7 of the Charter that morally involuntary conduct should not be punished is a novel question before this Court. We are thus called upon to canvass once more the contents of the “principles of fundamental justice”, this time in the context of the defence of duress as framed by s. 17 of the Criminal Code . 28 The Court has on numerous occasions confirmed that the principles of fundamental justice “are to be found in the basic tenets of our legal system”: Re B.C. Motor Vehicle Act, supra, at pp. 503 and 512. McLachlin J. (as she then was) added in R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 603, that they may be distilled from “the legal principles which have historically been reflected in the law of this and other similar states”. Whether a principle qualifies as a principle of fundamental justice depends on an analysis of its nature, sources, rationale and essential role within our evolving legal system: Re B.C. Motor Vehicle Act, supra, at p. 513. In Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at pp. 590-91, Sopinka J. explained that the principles of fundamental justice must be capable of being articulated with some precision; they must be more than broad generalizations about our ethical or moral beliefs. He stated that they are the “principles upon which there is some consensus that they are vital or fundamental to our societal notion of justice” (p. 590). 29 The notion of moral voluntariness was first introduced in Perka v. The Queen, [1984] 2 S.C.R. 232, for the purpose of explaining the defence of necessity and classifying it as an excuse. It was borrowed from the American legal theorist George Fletcher’s discussion of excuses in Rethinking Criminal Law (1978). A person acts in a morally involuntary fashion when, faced with perilous circumstances, she is deprived of a realistic choice whether to break the law. By way of illustration in Perka, Dickson J. evoked the situation of a lost alpinist who, on the point of freezing to death, breaks into a remote mountain cabin. The alpinist confronts a painful dilemma: freeze to death or commit a criminal offence. Yet as Dickson J. pointed out at p. 249, the alpinist’s choice to break the law “is no true choice at all; it is remorselessly compelled by normal human instincts”, here of self-preservation. The Court in Perka thus conceptualized the defence of necessity as an excuse. An excuse, Dickson J. maintained, concedes that the act was wrongful, but withholds criminal attribution to the actor because of the dire circumstances surrounding its commission. He summarized the rationale of necessity in this way, at p. 250: At the heart of this defence is the perceived injustice of punishing violations of the law in circumstances in which the person had no other viable or reasonable choice available; the act was wrong but it is excused because it was realistically unavoidable. 30 Extending its reasoning in Perka to the defence of duress, the Court found in R. v. Hibbert, [1995] 2 S.C.R. 973, that it too rests on the notion of moral voluntariness. In the case of the defences of necessity and duress, the accused contends that he should avoid conviction because he acted in response to a threat of impending harm. The Court also confirmed in Hibbert that duress does not ordinarily negate the mens rea element of an offence. Like the defence of necessity, the Court classified the defence of duress as an excuse, like that of necessity. As such, duress operates to relieve a person of criminal liability only after he has been found to have committed the prohibited act with the relevant mens rea: see also Bergstrom v. The Queen, [1981] 1 S.C.R. 539, at p. 544 (per McIntyre J.). 31 Thus duress, like necessity, involves the concern that morally involuntary conduct not be subject to criminal liability. Can this notion of “moral voluntariness” be recognized as a principle of fundamental justice under s. 7 of the Charter ? Let us examine possible avenues which have been put forward by the respondent towards such recognition. 1. Moral Voluntariness and Moral Blameworthiness 32 As we will see below, this Court has recognized on a number of occasions that “moral blameworthiness” is an essential component of criminal liability which is protected under s. 7 as a “principle of fundamental justice”. The respondent in the case as bar attempts to link the principles of “moral blameworthiness” and “moral voluntariness” as a means of securing the constitutional status of the defence of duress. Laskin J.A. in the Court below has followed

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