R.+v.+Ruzic


 * Mix-up resulted in 2 Ruzic summaries - I thought I'd post mine as well anyway as it exists!

The accused, Ruzic, travelled from Belgrade to Canada. She was attempting to enter Canada with a fake passport and to import two kilograms of heroin into Canada. The accused claimed that a man had approached her in Belgrade two months earlier and over time his behaviour included increasingly intimidating threats and acts of violence. He also made threats against the accused’s mother. The accused states that he then gave her a false passport and tickets in order to fly (with the heroin) to Toronto. If she did not do so, he threatened that he would harm her mother.
 * __Facts__**

//Criminal Code section, defence of duress//: Compulsion by threats R.S., 1985, c. C-46, s. 17; R.S., 1985, c. 27 (1st Supp.), s. 40.
 * 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).

__Judicial History__ Trial: Jury acquitted the accused on both charges, on the basis that s. 17 of the //Criminal Code// infringes s. 7 of the //Charter//. C.A. (Ontario): dismissed appeal.

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//? --- Yes 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//? No 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? No 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//? - NO
 * __Issues (__**__taken directly from text – as stated by Lamer C.J.**) & Holdings:**__


 * __Reasoning (LeBel J.)__**

__A. Are statutory defences owed special deference by reviewing courts?__ · Parliament may restrict access to or remove a criminal defence. However, statutory offence is not immune from //Charter// scrutiny. When a statutory provision has two possible interpretations, one of which that would denote constitutionality and another that would not, courts should choose the construction that conforms with the //Charter//. In this case, restricting the defence of duress (in s. 17) does not accord with //Charter// rights.

__B. Is it a Principle of Fundamental Justice that only morally voluntary conduct can attract criminal liability?__ · Principles of Fundamental Justice: “principles upon which there is some consensus that they are vital or fundamental to our societal notion of justice” [Sopinka J. in // Rodriguez v. British Columbia (Attorney General) //, [1993] 3 S.C.R. 519]. · Moral involuntariness: occurs when a person has no realistice choice whether to break the law when faced with perilous circumstances. · Perka: defence of necessity rests on this notion. //Hibbert//: duress also rests on notion of moral voluntariness. It does not negate the mens rea of an offence – it provides relief after the establishmet of //mens rea//.

· It is a departure from Perka and Hibbert to equate moral invountariness with moral innovence – morally involuntary conduect is no always inherently blameless. **“It is not a principle of fundamental justice that morally involuntary acts should not be punished”** [para. 41].
 * Moral Voluntariness and Moral blameworthiness**

· This draws on a fundamental principle of criminal law – that an act must be voluntary in order to attract criminal liability. · Duress does not negate //mens rea// nor //actus reus per se//, but it is relevant in the context of s. 7 after they have been established. · Moral voluntariness linked to physical voluntariness (Dickson J. in //Perka//). They are both underpinned by the concept of autonomy in attributing criminal liability. Both intentional conduct and the capacity to choose are key to criminal liability; there is an assumption in criminal law that individuals are autonomous and freely choosing agents. · Moral involuntariness deserves protection under s. 7 of the Charter, similarly to physical involuntariness.
 * Moral voluntariness and voluntariness in the physical sense**

__C. Do the Immediacy and Presence Requirements in s. 17 infringe the principles of involuntariness in the attribution of criminal responsibility?__ · Neither s. 17 nor preceding decisions state that threatened harm must be against the accused. However, the defence of duress, under s. 17, requires immediacy and presence of threat. If the threatener is absent at the scene of the offence or temporally removed, there is a severe obstacle to the imposition of the defence. · S. 17 therefore breaches s. 7 of the Charter as it allows individuals acting involuntarily (under a distant threat) to be held criminally liable.

__D. The common law of duress__ · The common law of duress in Canada has been freed from the constraints of immediacy and presence in //Paquette// and //Hibbert//**. In both of these cases, the court deemed the common law defense available to parties spatially or temporally removed from immediate threat despite s. 17.** · The test applied to duress [//Hibbert//] is an objective-subjective standard involving the **gravity of threats and existence of an avenue of escape. This is assessed from the perspective of a similarly situated (background and essential characteristics) reasonable person.** · In addition, in the case of necessity **evidence should be introduced of clear and imminent peril at the point in time where complying complying with the law is demonstrably impossible** [//Perka//]. Duress and necessity share the same juristic principles [//Hibbert//]. · Common law rules in England and Australia appear to align with these principles, and while related common law in the U.S. is not unanimous. __E. The breach of s. 7 of the //Charter//__ · As it excludes threats of future harm to the accused or third parties, s. 17 is underinclusive and thus infringes s. 7 of the //Charter//. It violates basic principles of fundamental justice, and thereby may jeopardize the liberty and security of persons who have acted involuntarily.

__F. Can the Infringement be justified under s. 1 of the //Charter?//__ · The government bears the burden of justifying a Charter infringment. The appellant in this case has failed to do so. Furthermore, s. 7 violations are difficulty saved by s. 1. //__(G: argument not addressed)__//

__H. The jury charge__ · Herold J., at trial, informed the jury that the threat had to be real and affecting the accused at the time of the offence. The jury therefore would likely have considered the temporal connection between threat and harm. Also, there was no misdirection on the burden of proof (on accused to raise the defence and relevant evidence, then Crown under general rule of criminal evidence).