The Hart Case: A Long Way From Wray?

Upon review of the newest Supreme Court of Canada case, the much-anticipated Hart case on the admissibility of confessions resulting from Mr. Big investigations, it is worthwhile to return to the basics. Certainly Mr. Justice Moldaver, in his majority decision, did when he concluded that in the first prong of the applicable evidentiary test is the judicial weighing of the probative value of the evidence against the prejudicial effect. Although Justice Moldaver returns to the 1981 Rothman case as a basis for this “old school” rule, the evidential principle comes from the 1971 Wray case.

John Wray was charged with what was then called non-capital murder – a capital murder was punishable by death and at that time was reserved for the killing of on-duty police officers and prison guards. The victim was shot during the course of a robbery and there were no witnesses to the actual shooting. It was only through the police investigation, namely a lengthy police questioning, that John Wray ultimately signed a statement indicating where he disposed of the rifle used to shoot the victim. The rifle was found in the place so indicated and Wray was charged. At trial, after a voir dire on the admissibility of Wray’s statement, the trial judge ruled the statement inadmissible as it was not voluntarily given. This ruling was not the subject of the subsequent appeals. The issue on appeal was the trial judge’s further ruling that Wray’s involvement in the finding of the rifle was inadmissible as well. The Ontario Court of Appeal unanimously upheld the trial judge’s decision. The majority of the Supreme Court of Canada, with Mr. Justice Martland writing the decision, allowed the appeal and sent the matter back for a new trial.

Although this is a case where the evidence was found to be admissible, it is the principles enunciated in this case which impacted the manner in which trial judge’s viewed admissibility of evidence thereafter. Now, it must be remembered that this case is pre-Charter and yes, there is such an animal. It should also be remembered – and I will not try to sound as if I am nagging – that there are important admissibility issues to consider separate from the usual Charter based arguments. The first consideration when faced with a confession in a case is to review the voluntariness of the statement to ensure the statement was given freely and without hope or advantage. So, although Wary is certainly pre-Charter and if determined today, the analysis under the Charter lens would no doubt differ, the case started a line of reasoning, which can be traced to the Hart decision we have today. What is also fascinating about this line of reasoning is to see how this discretionary evidential principle of exclusion or admissibility – whichever way you want to view it – starts as a very restrictive and rarely to be exercised act to the pro forma requirement of a “new common law rule” as articulated by Justice Moldaver in Hart.

Justice Martland’s reluctance to “approve” of a discretionary exclusion of evidence is palpable. Yet, the English authorities require it.  He clarifies the difference between the “unfortunate” effect on the accused of relevant admissible evidence, which would be prejudicial to the accused and the “allowance of evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling, which can be said to operate unfairly.” Of special note are the adjectives or qualifiers used by Justice Martland when he finally articlulated the discretion as arising “where the admission of evidence, though legally admissible, would operate unfairly, because, as stated in Noor Mohamed, it had trivial probative value, but was highly prejudicial.” Notice the emphasis added. The added practical difficulty for Justice Martland with excluding evidence on the basis of “unfairness” was the interpretation of that word. In Martland’s view, therefore, the discretionary exclusion of relevant and probative evidence should be “very limited.” This restrictive view of the discretion was reiterated in the Hogan case, in which Justice Martland was a member of the majority.

Within a decade of the Wray judgment, as per the Rothman case, the limited discretion reluctantly approved of by Justice Martland is referred to as an “exclusionary rule” by the then, Justice Lamer, concurring with the majority. Interestingly, Justice Lamer refers to the Wray principle, while Justice Martland writing for the majority does not. Rothman sets out the test to determine whether or not a person taking a statement from an accused is a “person in authority” and broadened the circumstances in which a statement may not have been given freely and voluntarily.

Post Rothamn, the evidential world changed as common law evidential rules become imbued with Charter values. But this transition was not easily done or easily accepted. In Corbett, the Supreme Court of Canada struggled with the constitutionality of s. 12 of the Canada Evidence Act, which permitted the questioning of any witness, including the accused person, on his or her criminal convictions. Although the decision is unanimous in the sense that all six members agreed that s. 12 of the CEA was constitutional and recognized the trial judge, under common law, had the discretion to exclude admissible evidence (however Justices McIntyre and Le Dain did not see this discretion as permitting a trial judge to circumvent a clear legislative directive as found in s.12), there was disagreement over the exercise of that discretion. Thus, it is in Corbett, where Justice Martland’s reticent discretionary rule becomes a fully recognizable discretion in the trial judge to exclude admissible, yet prejudicial evidence. But Corbett, although not mentioned in the Hart case, seems to raise similar concerns. Through the exclusionary discretion of the trial judge, together with other evidential rules that limit the use to be made of the evidence, the law protects the right of the accused to a fair trial, which includes, as stated by the then Chief Justice Dickson, the right “not to be convicted except on evidence directly relevant to the charge in question.” This protection “strives to avoid the risk of prejudicing an accused’s trial.” These words are echoed by Justice Moldaver in the Hart case as he speaks of the “risks inherent in the Mr. Big confessions,” which require a legal response in order to protect “accused persons, and the justice system as a whole” from “abusive state conduct.” It is, therefore, Martland’s reluctant rule, the seemingly rare discretion, which blossomed under the Charter lens, which the Hart Court turns to as the legal protection needed. Yes, we have come a long way since Wray and there is no looking back.

Section 23.1: The "Limitless" Criminal Law - Episode 28 of the Ideablawg Podcasts on the Criminal Code of Canada

One of the interesting learning moments for me, resulting from this Criminal Code podcast, is the realization that the criminal law has changed in the past three decades, which, in common law time, is a fairly short period of time. Certainly, this section, which we will consider today, s. 23.1 of the Criminal Code, is an example of how the Code can and does change the practice of criminal law. To give perspective, s. 23.1 was added to the Code in the 1985 amendments, while I was in law school. I recall those amendments mostly because I had to “re-learn” the section numbers of the Criminal Code. I particularly recall how the assault section, s. 244, was changed to the section number we use today – s. 265 - and my fear that I would never be able to remember the new section numbers. Considering I needed to look up what the old section number was to write this blog, I wonder how I could have been so worried. What I was not too concerned with at the time was the change caused by s. 23.1, which in hindsight was certainly a much bigger deal than the mere section number changes.

Section 23.1 reads as follows:

For greater certainty, sections 21 to 23 apply in respect of an accused notwithstanding the fact that the person whom the accused aids or abets, counsels or procures or receives, comforts or assists cannot be convicted of the offence.

Therefore, it is possible for an accused to be convicted of counseling a crime even if the person actually committing the crime is not guilty or cannot be tried and/or convicted. For example, an adult who involves children under twelve in the drug trade can still be convicted as a party even though the children, who are actually committing the crime, cannot be convicted, according to s. 13 Code, as they are statutorily debarred on the basis of age. For more on section 13 of the Code, read or listen to my previous podcast. Additionally, even though an accused who commits a counseled crime while under duress would have a valid legal defence, the person who counseled such an offence under s. 22, may still be convicted. It is also possible for an accused to be convicted as an accessory after the fact even if the fugitive offender is ultimately acquitted of the crime from which he or she was escaping. I will return to accessory in a moment as this particular mode of crime has been viewed as different than the other modes and has caused more legal controversy despite s. 23.1.

Based on the above, particularly the “Oliver Twist” example, it does make sense that the Crown be able to prosecute secondary participants on a separate basis than the main offenders. However, prior to 1985 this was not the case. This did not mean that a person involved in a crime, in circumstances where they might be a party or a counselor or an accessory, could not be charged. Indeed, prior to these amendments the charge of conspiracy was usually laid against the secondary accused. However, as we will see when we finally do arrive at the conspiracy section 465, to found a conviction under the conspiracy section is quite complicated. Certainly, more complicated than basing the offender’s participation through the party section.

Although this concept or ability to prosecute was easily accepted after 1985 for participating as a party or as a counselor to a crime, the issue of being tried as an accessory after the fact, where the fugitive offender was not convicted, was not. To understand the special status of being an accessory after the fact, we must consider the Supreme Court of Canada Vinette case from 1975. In the Vinette case, the accused Vinette was charged as an accessory after the fact to a murder committed by Vincent by assisting Vincent to dispose of the victim’s body. Vincent entered a plea of guilty to manslaughter and at Vinette’s trial, Vincent’s plea, as a “confession,” was admitted against Vinette. Vinette was convicted by the jury but the conviction was quashed by the Court of Appeal on the basis that Vincent’s plea was not admissible against the co-accused Vinette. Mr. Justice Pigeon, writing on behalf of the majority, allowed the Crown’s appeal and upheld the conviction. In Justice Pigeon’s view, the elements of being an accessory after the fact differs from the main offence and therefore is a separate charge. Thus, the usual evidentiary rules pertaining to admissions made by co-accused do not apply and Vincent’s statements are admissible. According to Justice Pigeon, not only was a charge of accessory separate from the main offence but also by its very nature must be committed after the main offence. This chronological requirement also suggested that the main offender must be tried and convicted before the accessory could be found guilty. However, after a line of cases which tried to decipher Justice Pigeon’s suggestion, it was determined that as the Vinette decision made no mention of the now s. 592, which permitted an accessory to be indicted before the main offender, the chronological argument carried no validity. We will eventually come to s.592 and revisit this conundrum.

In any event, the idea that being an accessory after the fact was a unique charge, which was intimately tied to the main offence resulted in a line of cases questioning s. 23.1 in relation to s. 23. In fact, in the delightful decision of the Honourable Justice Woods, on behalf of the British Columbia Court of Appeal in the 1993 Camponi case, the historical common law significance of being charged as an accessory after the fact was traced in light of s. 592 and s. 23.1. Again, I want to keep back some discussion of this for the much, much later s. 592 podcast but needless to say Justice Woods found no problem with trying an accessory after the fact before the main offender and no problem finding an accessory guilty even if the main offender was acquitted. To that end, and in reference to s.23.1, Justice Woods remarked at paragraph 25 of the decision that:

This section was enacted in 1986, c. 32, s. 46. with what must be regarded as an unusually confident legislative tone, it announces an intention to bring greater certainty to the law relating to ss. 21-23 of the Code. Whether it has achieved that lofty goal will be for history to decide. Suffice it to say that in the context of the present discussion its intent seems to have been to put the quietus to any lingering notion that s. 592 preserved, or was intended to preserve, the essence of the common law rule relating to accessories after the fact.

Finally the matter appeared to be truly put to rest when the 1997 Nova Scotia Court of Appeal FJS (also known as Shalaan) case came to the same conclusion as Camponi and this decision was affirmed with brief reasons by the Supreme Court of Canada. Interestingly, the controversy continued, not in the law courts per se but between the lines in the annotated Criminal Codes. In the commentary under s. 23.1, Martin’s Annual Criminal Code references the Supreme Court of Canada FJS case in support of the position that an accessory after the fact could be convicted even if the main offender was acquitted, while in Allan Gold’s The Practitioner’s Criminal Code, as least as of the 2008 version, the commentary dismissed the Supreme Court of Canada’s decision as decided per incuriam.

But we are not finished with this section and the myriad of case law this section has garnered. Recently, on April 3, 2014, the Supreme Court of Canada dismissed the leave application in the Huard case, which raised the constitutionality of the well-established principle, as really encapsulated by s. 23.1, that a party may be convicted of a more serious offence than that of the main offender. In that case, Mr. Huard was convicted as a party to a first-degree murder even though the principal offender was only convicted of second-degree murder. Counsel argued that the principles of fundamental justice, as guaranteed under s. 7 of the Charter, requires that those less morally culpable should not be punished more severely than those more morally culpable. Mr. Justice Watt, on behalf of the Ontario Court of Appeal, dismissed the argument as he found the “mere common law rule” relied upon was not a principle of fundamental justice and s. 23.1 “makes it clear” that a party can be convicted even if the main offender is acquitted or not even tried. As an aside, the Appellant in the Camponi case relied upon an article written by Justice Watt, which he wrote prior to his appointment to the Bench, on accessory after the fact and the ambiguities found in s. 592. This shows that the connections in the Canadian criminal law are indeed endless and it appears that they may be unlimited too!

Episode 28 of the Ideablawg Podcasts on the Criminal Code - Section 23.1

Section 21- Modes of Participation By Being A Party To An Offence Part One: Episode 23 of the Ideablawg Podcasts on the Criminal Code of Canada

In the next few sections, we are leaving behind the housekeeping/general sections of the Code and moving into modes of participation or the various ways an accused can participate in a crime. The general section heading is called “Parties To Offences,” although it is section 21, which deals with the specific concept of parties to an offence. Yet, the general heading is apt as “party” means to participate in an event, while s. 21 specifies, in legal terms, what is required to be a party under that section.

Before we go to that section, we must step back and consider the concept of “secondary liability.” Secondary liability is where one party (participant in an event) is not directly involved but assumes or is deemed responsible for the actions of another party who is directly involved. This type of liability, in the civil arena, has long been recognized at common law. Examples of such liability are vicarious liability and corporate liability, particularly in the area of copyright and patents.

In the criminal law, however, secondary liability has limited application, partly due to the Charter, which prohibits criminal liability and punishment on those individuals who are deemed responsible for the actions of others on the basis the individual has no mens rea for the crime or often no actus reus as well. Traditionally, in criminal law, as stated by Justice Estey in the 1985 Canadian Dredge & Dock Co case, “a natural person is responsible only for those crimes in which he is the primary actor either actually or by express or implied authorization.” This was reinforced through the application of section 7 of the Charter, when the SCC, in the 1985 Re B.C. Motor Vehicle Act, emphasized the minimum mens rea requirement for a crime required some form of mens rea, which could be found in objective liability. Thus, secondary liability, which required no mens rea on the part of the person deemed responsible, was contrary to the fundamental principles of criminal law and, therefore, contrary to the Charter.

An example of permissible vicarious liability can be found in the quasi-criminal or regulatory field such as speeding offences based on photo radar. A license plate of a speeding vehicle is caught on camera but the speeding ticket is sent to the owner of the vehicle, whether or not the owner was the actual perpetrator. Thus the owner has neither the mens rea (which in the regulatory field, depending on the punishment, is considered Charter appropriate) or the actus reus for the offence yet is still deemed guilty for purposes of the highway traffic regulation. Such a deeming of liability would be unacceptable in the criminal law as the components of a crime (criminal intention and prohibited act) would be absent and as the Charter requires some form of mens rea be present where an accused person may be subject to incarceration upon conviction. However, in the regulatory field, where public safety is at a premium and the stigma of a criminal conviction is absent, as long as the possibility of jail is not an option upon conviction, vicarious liability is acceptable.

Although this form of secondary liability is not found in the criminal law the traditional common law concepts of parties is acceptable as the accused person, in the party scenario, is criminally liable based on his or her participation in the crime albeit not as the principal or main offender. Parties may have lesser roles in the crime but their participation, in terms of criminal intention and action, is directly connected to them and to the commission of the crime, making them personally criminally responsible.

The parties sections in the Code therefore anticipate two situations of persons deemed parties: one situation as found in the following section 22 of the Code embrace those accused who induce others to commit crimes, with or without that accused person’s direct involvement in the criminal act and the other situation, as in s. 21 involve those accused persons who help others commit crimes.

Now let’s turn to section 21. There are four types of parties to an offence as outlined in this section.

The first type of party is found under section 21(1)(a) and is as follows:

s. 21. (1) Every one is a party to an offence who

         (a) actually commits it;

This may seem contrary to the party principles I just outlined but in fact it is a prosecutorial aide. This subsection, by making a principal or main offender (in other words the accused person who actually commits the offence) a party to an offence, relieves the Crown from specifying in the Information or at trial whether an accused person is the principal offender or a party. Thus, the Crown need not prove at trial that any specific accused was the principal offender as long as the Crown proves each accused knowingly assisted or abetted the other. This means multiple accused can be convicted as parties without anyone being convicted as a principal.

The second type of party is as follows:

s. 21. (1) Every one is a party to an offence who

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

Here, the person becomes a party by “aiding” another person, be that person a party or principal, in the commission of the offence. Here, the word “aid” means providing assistance. The party may “aid” by doing something or by failing to do something. The Crown must prove the accused aided as the actus reus or prohibited act of being a party. Remember that the Crown must not only prove an accused is a party but must also prove the elements of the offence to which the accused is a party.

The third way of becoming a party is under s. 21(1)(c):

s. 21. (1) Every one is a party to an offence who

(b) abets any person in committing it.

The actus reus here is abetting, which, according to the SCC in R v Greyeyes, includes "encouraging, instigating, promoting, and procuring" the crime.

To “aid” or “abet” are distinct forms of liability but what is the difference? The best way to explain the difference is through the following example: a person who distracts a security guard in a store so another person can steal an item, is acting as a party to the offence of theft by “aiding” the principal who took the item. Conversely, a sales clerk who encourages and allows another person to take an item is “abetting.”

However, in both of these forms of liability, the mere presence of the accused at the scene of the crime is not enough to convict the accused as a party nor is the mere inaction or passive acquiescence of the accused enough to convict. In the seminal Supreme Court of Canada (SCC) case on the issue, Dunlop and Sylvester v The Queen from 1979, the two accused were charged, with others, for a “gang” rape but were acquitted by the majority of the SCC as, according to the evidence, the two saw the rape but they did not encourage or assist in the act. Neither did they try to stop it, they simply left. Morally wrong - yes -but not legally responsible.

Mere presence and passive acquiescence may be enough if accompanied by other factors such as prior knowledge of the principal’s intention or if the presence of the accused prevents the victim from escaping or receiving assistance. Also, a failure to render assistance may be enough to make an accused person a party if that person was under a legal duty to act. For example, merely watching a crime being committed does not make someone a party unless the person is a police officer (let’s make this easy and say on duty and in the execution of that duty) and is therefore under a legal duty to stop the crime.

The Crown must also prove the mens rea requirement for s. 21(1) by showing the accused intended to assist or encourage the principal accused. However, the Crown need not prove that the accused knew the exact details of the crime to be committed. The accused need only be aware of the type of crime to be committed and must be aware of the circumstances necessary to constitute the offence. A final caution: motive is not intention. The accused need not desire the end result for the mens rea requirement.

If the accused is charged as a party to a murder, the mens rea requirements for murder are applicable. Therefore, the Crown must prove that the accused party intended death or was reckless whether or not death ensued. This requirement is Charter based and requires the Crown prove the accused person had subjective foresight of death. Due to this high level of liability, an accused party may be acquitted of being a party to the murder, even if the principal offender is convicted of murder, but convicted as a party to a manslaughter, which requires a much lower level of mens rea found in the objective foresight of bodily harm. (Click on the hyperlinks for the case authority)

The fourth type of liability as a party under section 21(2), common intention, will be the subject of our next podcast!

Episode 23 of the Ideablawg Podcast on the Criminal Code of Canada: Section 21(10 - Parties - Modes of Participation

Let’s Be Clear: The Supreme Court of Canada and the Enhanced Credit Cases

The enhanced credit trilogy cases released by the Supreme Court of Canada are truly a lesson in clarity on many levels. First, the main judgment in the Summers case, written by Madame Justice Karakatsanis, is clear, concise (at least for a SCC judgment) and readable. Second, the main basis for dismissing the Crown appeal is the government’s lack of clarity in defining the meaning of “circumstances” that justify enhanced credit under s. 719(3.1). Conversely, third, is the seemingly clear intention of the government to “cap” the credit at a 1:1.5 ratio. However, fourth, are the clearly defined and “well-established” and “long-standing” sentencing principles, which included enhanced credit for the lack of parole eligibility during pre-trial custody. In order to “overturn” these principles, Parliament must, fifthly, use clear and explicit language in the legislation.

What is also clear about this judgment (sixth) is that the Court is engaging in a dialogue with the government. If the government wants to change the law, they must do so, well, clearly – the government cannot hide behind value-laden words such as “truth” and “transparency.” However, the Court, albeit in an aside in paragraph 56 of the Summers judgment, also places a caveat on the government’s ability to change entrenched legal principles when Justice Karakatsanis states “Parliament does, of course, have the power to exclude these circumstances from consideration (barring a constitutional challenge).” Certainly, this advice is clear: if the government chooses to change legislation, then any changes must be consistent with the Charter.

Parliament, the ball is now in your “court!”

Section 17 – The Statutory Defence of Duress: Episode 19 of the Ideablawg Podcasts on the Criminal Code of Canada

In previous podcasts we have discussed the category of legal defences called justifications and excuses. We know that despite codification our criminal law permits an accused person to raise at trial a common law defence, as long as it is not inconsistent with the Code. There are purely common law defences such as the excuse of necessity (which by the way is exemplified in the seminal case taught in every first-year law school criminal law course – Regina v Dudley and Stevenson – where the two accused charged with murder committed cannibalism when their ship floundered in the high seas and they were forced to drift on a lifeboat – think Life of Pi without the animals) but there are also common law defences, which are subject to codification and found in the Criminal Code. The excuse of duress is one such defence from the common law, which appears in the Code under the section we are contemplating today, section 17.

When we first look at this section, and it is a long one, we realize that the word “duress” is never used in section 17. We therefore immediately feel that what we are about to look at and think about is not the same as the common law defence of duress. This is a correct assumption, on the face of this section. When we look behind this section however and look at the case law, which has developed in conjunction with the advent of the Charter on the mechanics of this section, we will see that in reality this section entitled “Compulsion By Threats” is really very similar to the common law version and only differs in terms of what category of accused person can use this section and for which offences.

Section 17 reads as follows:

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).

Before we dissect this section to have a clearer understanding of it, I want to remind you of the key elements of the class of defences we call excuses.

Both the actus reus and the mens rea of the offence must be proved beyond a reasonable doubt by the prosecution before a legal excuse or for that matter a legal justification can be used as a defence. This means that the case against the accused is made out and, but for this defence, the accused would be found guilty. In light of that prerequisite, the class of defences known as excuses acknowledge the wrongfulness of the conduct but as a result of the circumstances facing the accused person, the accused should not be held criminally responsible for his or her criminal actions. However, the circumstances facing the accused must be dire, in other words, the defence of excuse can only be used in emergency situations. It is therefore the accused’s reaction to these dire situations, which cause society to excuse or absolve their conduct.

Excuses are a concession to human frailty and therefore reflect our humanity in two ways. First, this defence realizes that as individuals, as part of our humanity, we may act inappropriately in order to preserve our life or others. Secondly, as humans we understand that we are not perfect and that our laws must bend to this truth in order to have a compassionate society.

Despite the above, the situations in which excuses can be used are very restrictive because we fear that permitting too broad an excuse for criminal conduct will result in cases where we as a society may not be so sympathetic. So, the rule of law draws a line between what is excused and what is not. The difficulty then becomes, where to draw this line in order to remain true to our humanity without losing it.

As I already mentioned, the section is a reflection, albeit as we will see an imperfect one, of the common law defence of duress and thus this section was in the 1892 Criminal Code under section 12. This original section, except for certain language changes, is virtually the same as the now section 17. Not much changed over the years to this section and yet, as I have already mentioned, the section has changed dramatically since 2001 when the Supreme Court of Canada gave this section a constitutional make-over in R v Ruzic.

The Court in Ruzic, under the auspices of section 7 of the Charter, found that the statutory duress defence was too restrictive, particularly in relation to its common law partner, which even with s.17, could be used by parties to an offence. In the Court’s view, the statutory defence, available only to principal offenders, should not be more restrictive than the common law. In order to re-balance s. 17, the Court took out those passages in the section, which did not accord with the common law equivalent. Even so, the Court did not remove the offences for which the defence was available, choosing to leave those changes, if desired, to the government.

In light of this, let’s return to section 17 and this time, I will edit the section to accord with the Ruzic decision:

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).

Even with these changes the defence is a difficult one to employ. According to the newest Supreme Court of Canada case, in Ryan, the defence can only be used on the following bases:

1. There must be a threat of death or bodily harm;
2. The threat can be directed at the accused or a third party;
3. The accused must reasonably believe that the threat will be carried out;
4. There must be no safe avenue of escape, evaluated on a modified objective standard;
5. There must be a close temporal connection between the threat and the harm threatened;
6. There must be proportionality between the harm threatened and the harm inflicted by the accused, evaluated on a modified objective standard;
7. The accused cannot be a party to a conspiracy or association whereby he or she is subject to compulsion as long as the accused actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association;
8. The accused must be the principal offender and;
9.  

In closing, there are a few items to note. First, the modified objective test is a creation of the Supreme Court of Canada in the series of cases on the meaning of criminal negligence. A discussion on this “test” and whether it is in fact a modifying one can be found in one of my previous blogs entitled The Subjective/Objective Debate Explained.

Second, the common law defence of duress in Canada is not restricted by type of offence, even though, in the UK the common law defence of duress cannot be used in a homicide charge, be the accused principal or a party.

Third, despite section 8(3) of the Code, which holds that common law defences continue unless they are altered or are inconsistent with the Code, section 17 changed to become more aligned to the common law as opposed to the common law defence changing to become more aligned to the Criminal Code iteration. This is because the common law defence of duress is for parties to an offence and the statutory defence is only for principal offenders. It is this distinction allows the common law defence to stand apart from the Code.

Fourth, even though Ruzic changed section 17, the Code does not reflect this change. One has to read the case law in order to know how the section should actually be implemented. This insistence by the federal government not to reflect court imposed Charter changes to sections is something that will come up again in the Code and in these podcasts. Indeed, there are whole sections, such as s.230 of the Code known as the constructive murder section, which have been struck down by the courts as constitutionally invalid and yet still appear in our Criminal Code. Why this is so is a matter of speculation but one wonders if the government believes that a differently composed court will take a different view or that the Charter may somehow change in the future. Either way, it is an oddity that these sections remain as they do as a vestige of the pre-Charter past.

Finally, there is much to be said about the recent Supreme Court of Canada decision in Ryan, which precluded the use of the duress defence in a situation where the accused was an abused woman who contracted an undercover police officer to kill her husband.  I will not, however, discuss those issues here in this podcast. Instead, I invite you to access my previous blog on the matter entitled Not To Make Excuses, But - The (Un)Responsiveness of the Supreme Court of Canada To Duress. I have also written on the application of the “air of reality test,” which is the threshold test used to determine if, in the circumstances of a case, a legal defence will be available to an accused in my blog entitled Poof! Into Thin Air – Where Have All The Defences Gone?: The Supreme Court of Canada And The Air Of Reality Test. I am currently writing a full article on this issue for publication.

We will of course come to further sections in the Criminal Code codifying common law defences where we will continue to peek back at the common law to frame the statutory doppelganger in the Code. 

Episode 19 of the Ideablawg Podcast on the Criminal Code of Canada: Section 17 - The Statutory Defence of Duress