



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Berbeck, 2013 ONCA 241

DATE: 20130417

DOCKET: C54773

MacPherson, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Denroy Berbeck

Respondent

Howard Piafsky, for the appellant

Mark Halfyard and Breana Vandebeek, for the respondent

Heard: February 28, 2013

On appeal from the acquittal entered by Justice Kenneth
    A. Langdon of the Superior Court of Justice, sitting with a jury, dated October
    5, 2011.

MacFarland J.A.:

A.

overview

[1]

This is a Crown appeal from the acquittal of the respondent on a charge
    of importing cocaine from Jamaica into Canada on July 28, 2009.

[2]

The Crowns case went in largely by way of an Agreed Statement of
    Admissions, wherein both parties accepted the following facts:

1.

Jurisdiction
 the cocaine at issue was imported into Canada
    via Pearson International Airport in the City of Mississauga, Ontario, from
    Jamaica;

2.

Date
 the cocaine at issue was imported into Canada on July
    28, 2009;

3.

Identity
 the accused Denroy Berbeck who was arrested
    on the charge named in the indictment is the same Denroy Berbeck that is before
    the court;

4.

Continuity and Nature of Substance
 samples seized from
    the pellets swallowed and later expelled by Denroy  Berbeck were submitted
    to Health Canada for analysis and determined to be cocaine;

5.

Knowledge
 Denroy Berbeck knew there was cocaine inside
    the pellets he swallowed in Jamaica and later expelled once in Canada on July
    29, 2009.

[3]

The respondent relied on the defence of duress and that was the sole
    issue at trial.

B.

the facts

[4]

The respondent testified that he travelled to Jamaica to speak to his
    father about taking his medication for prostate cancer properly.  While he was
    there, his father told him that he was being harassed by the respondents half-brother,
    Delroy.
[1]
The respondent asserted that his father owed Delroy $10,000, which his deceased
    mother had left to Delroy and which Denroys father had spent.

[5]

The respondent testified that he called Delroy with the intention of
    telling him that he, the respondent, would repay his fathers debt. The
    telephone conversation with Delroy became acrimonious and the respondent hung
    up. However, Delroy called back later that day, apologized, and suggested the
    respondent come to his house.  When the respondent arrived, he saw Delroy and a
    police officer sitting on the porch. Delroy asked the respondent to bring
    cocaine into Canada for him as repayment for his fathers debt.  The respondent
    asserted that he refused, got in his car and left.

[6]

On the morning the respondent was scheduled to return to Canada, Delroy
    and the same police officer showed up at the respondents fathers house. 
    Delroy took cocaine pellets out of a bag he was carrying, pulled out a gun
    which he pointed at the respondent, and instructed the respondent to swallow
    the pellets. The police officer also pulled out a gun, which he pointed at the
    respondents head.  Both Delroy and the police officer threatened to shoot him
    if he did not swallow the drugs.  The respondent heard a click, which he believed
    to be the sound of Delroy racking the gun, preparing to fire it.  Delroy took
    out some orange juice, and the respondent started swallowing the pellets.  The
    officer left to stay with the respondents father outside.  By the time the
    respondent had swallowed about thirty pellets, he began to vomit and was
    permitted to stop.

[7]

According to the respondent, Delroy told him not to tell anyone, and
    that he would have people watching the respondent.  Delroy did not specify what
    this meant, but the respondent took it to mean he would have people watching
    him at the airport in Jamaica, on the flight, and beyond.  The respondent
    testified that he did not believe he could call the Jamaican police because he
    believed they were corrupt, and because a policeman was involved in the
    incident.  He agreed that the police in Jamaica are not like the police in
    Canada.

[8]

On July 28, 2009, the respondent flew from Jamaica to Toronto.  After
    passing through the primary inspection, he was interviewed by Canada Border
    Services Agency Officer Kevin Dixon.  Officer Dixon was tasked with locating
    people suspected of smuggling narcotics into Canada.  He testified that he
    interviewed the respondent at 6:32 p.m.  The respondent advised Officer Dixon
    that he had been in Jamaica for four days on vacation, and that he had
    purchased his ticket in cash.  He was travelling alone, and Officer Dixon
    testified that he appeared nervous when being interviewed.  Officer Dixon
    decided that further examination was warranted.

[9]

The respondent attended at the secondary inspection counter where
    Officer Dixon conducted a further inspection.  An ION scan test was performed
    on items in the respondents possession. It tested positive for cocaine.  By this
    time, Officer Dixon was of the view that the respondent had ingested drugs.  At
    7:57 p.m., the respondent was detained for a personal search pursuant to s. 98
    of the
Customs Act
, R.S.C., 1985, c. 1 (2nd Supp.).  He was read his
    rights to counsel and cautioned. The respondent consulted with duty counsel at
    8:10 p.m., and again at 9:37 p.m.

[10]

At
    around 11:00 p.m., prior to acknowledging that he had ingested cocaine, the
    respondent spoke to the CBSA officers. He advised them that he had stayed with
    his brother in Jamaica. He told the officers that his brother was a bad dude
    who had gotten into trouble trying to ship cocaine from Jamaica.  He added that
    his brother would put cocaine in the poles of suitcases and have females
    smuggle them into the United Kingdom.

[11]

CBSA
    officers Kyle Scrimgeour and Stephen Miller took over custody of the respondent
    at 3:00 a.m.  The respondent told Officer Scrimgeour that he did not see anyone
    in his family doing drugs other than marijuana, but repeated that his brother
    imported cocaine into other countries using couriers.

[12]

At
    6:28 a.m., CBSA officers Chris Tilden and Kevin Armstrong took custody of the
    respondent. The officers advised the respondent of his options and noted the
    risks involved in prolonging the situation should a capsule break in his
    stomach.  After reviewing these options for thirty to forty minutes, the
    respondent approached the officers, shook their hands, and stated that he had
    fucked up and confirmed that he had in fact ingested drugs.  He was then
    arrested and cautioned.

[13]

After
    his arrest, the respondent passed into the custody of Constables Jason Freeman
    and Scott Thompson of the RCMP.  They re-arrested him and took him to the
    hospital to get checked out as a precaution. Shortly after his release from
    hospital, he commenced passing pellets of cocaine.

C.

analysis

(1)

The Crowns Burden

[14]

In
R. v. Graveline
, 2006 SCC 16, [2006] 1 S.C.R. 609, the majority of the
    Supreme Court of Canada set out the Crowns burden when it appeals the
    acquittal of an accused.  At para. 14 of his reasons, Fish J. for the majority
    stated:

It has been long established, however, that an appeal by the
    Attorney General cannot succeed on an abstract or purely hypothetical
    possibility that the accused would have been convicted but for the error of
    law.  Something more must be shown.  It is the duty of the Crown in order to
    obtain a new trial to satisfy the appellate court that the error (or errors) of
    the trial judge might reasonably be thought, in the concrete reality of the
    case at hand, to have had a material bearing on the acquittal. The Attorney
    General is not required, however, to persuade us that the verdict would
    necessarily have been different.

This burden on the Crown, unchanged for more than half a
    century (see
Cullen v. The King
, [1949] S.C.R. 658), was explained
    this way by Sopinka J., for the majority, in
R. v. Morin
, [1988] 2
    S.C.R. 345:

I am prepared to accept that the onus is a heavy
    one and that the Crown must satisfy the court with a reasonable degree of
    certainty. An accused who has been acquitted once should not be sent back to be
    tried again unless it appears that the error at the first trial was such that
    there is a reasonable degree of certainty that the outcome may well have been
    affected by it.  Any more stringent test would require an appellate court to
    predict with certainty what happened in the jury room. That it cannot do.
    [Internal citation omitted.]

Speaking more recently for a unanimous court in
R. v.
    Setton
, [2000] 2 S.C.R. 595, 2000 SCC 50, the Chief Justice stated:

The parties agree that acquittals are not lightly
    overturned. The test as set out in
Vézeau v. The Queen
, [1977] 2
    S.C.R. 277, requires the Crown to satisfy the court that the verdict would not
    necessarily have been the same had the errors not occurred.  In
R. v. Morin
,
    [1988] 2 S.C.R. 345, this Court emphasized that the onus is a heavy one and
    that the Crown must satisfy the court with a reasonable degree of certainty. [Internal
    citation omitted.]

[15]

It
    is clear from the authorities that the Crowns burden in these circumstances is
    a heavy one.

(2)

The Charge

[16]

The
    trial judge did not, despite Crown counsels request that he do so, follow
Watts
    Manual of Criminal Jury Instructions
(Toronto:
    Thomson Carswell, 2005)
on the defence of duress.  Instead, he used
    his own four-part version which essentially covered the same ground.  He also
    provided the jurors with a decision tree framing each element of the duress
    defence as a question.  The questions in the decision tree read as follows:

1.

QUESTION ONE

Has the Crown proved beyond a
    reasonable doubt that, when Mr. Berbeck brought the drugs into Canada, threats
    of death or serious personal injury to himself or another person, were
NOT
the operative cause of his doing so?

If the answer to this question is
    YES, then you must find Mr. Berbeck guilty. Your deliberations are over.  If
    the answer to this question is NO, then you must go on to question 2.

2.

QUESTION TWO

Has the Crown proved beyond a
    reasonable doubt that the threats were
NOT
of such
    gravity or seriousness, that Mr. Berbeck believed they would be carried out?

If the answer to question 2 is YES,
    then you must find Mr. Berbeck guilty.  Your deliberations are over.  If the
    answer to question 2 is NO, then you must go on to consider question 3.

3.

QUESTION THREE

Has the Crown proved beyond a
    reasonable doubt that the threats were such that they would
NOT
have caused a reasonable person, placed in the same
    situation as Mr. Berbeck, to act in the same way?

If the answer to question 3 is YES,
    then you must find Mr. Berbeck guilty. Your deliberations are over.  If the
    answer to question 3 is NO, then you must go on to question 4.

4.

QUESTION FOUR

Has the Crown proved beyond a
    reasonable doubt that a reasonable person in Mr. Berbecks situation could
NOT
conclude that he had no safe avenue of escape?

If the answer to this question is
    YES, you must find Mr. Berbeck guilty.  Your deliberations are over.  If the
    answer to this question is NO, then you must find Mr. Berbeck NOT guilty.  Your
    deliberations are over.

[17]

There
    is no serious issue with the judges charge to the jury; the Crowns complaint
    arises from the manner in which the trial judge responded to the jurys
    questions.

(3)

The Jury Questions

[18]

The
    jury was sent out to deliberate shortly after 11:00 a.m. It is unclear from the
    transcript at what time their first question was received, but they were
    recharged and sent back to deliberate at 2:25 p.m. That first question is not
    pertinent to this appeal.  A second question was received at 5:05 p.m.  The
    question read:

[A]fter much deliberation at this time we are unable to come
    to a [unanimous] decision. We are having some difficulty with #3 and #4 for the
    defence of duress.  After your guidance earlier we were able to have a more
    focused [deliberation]. Our main difficulty with answering these questions is
    the term reasonable person.  We are wondering if there is a legal definition
    of this term, or if we should agree to disagree and remain undecidedalthough
    not ideal.

[19]

After
    a discussion with counsel, the trial judge answered the jurys question as
    follows:

Sometimes its a pity that you havent been to law school
    because for three years of law school we heard debates about the reasonable
    man. This is such an ancient legal concept that poems and books have been
    written about it, somewhat humorous.The mythical reasonable man is what I would
    refer to as an objective standard.  Now lets say that you have a relative, a
    young man who is a little simple, okay? Very gullible. And hes been looking up
    at the sky and his father has told him that the moon is made of green cheese. 
    And he believes that, okay?  And he makes a decision based on that fact which
    is obviously wrong.

If a jury is coming to assess that decision, not subjectively from
    his point of view, but objectively, you would say well the reasonable man
    wouldnt premise a decision on the fact that the moon is made of green cheese.

In the case of duress, most of the tests that youve had to
    deal with have been a mix of subjective and objective tests. We have said what
    a reasonable man in the same situation as Mr. Berbeck with the same life
    experience, the same background, would he have made the same decision that Mr.
    Berbeck did?

Well, if Mr. Berbeck had come in and said you know, this fellow
    came into my house just after breakfast with my Dad and he pointed a water gun
    at me.  He said if you dont take the drugs, Im going to squirt you, and maybe
    the fellow told him that the plastic water gun was full of sulphuric acid which,
    of course, it wouldnt hold.

Now, if he was really stupid he might have believed that, but
    objectively a reasonable man wouldnt have believed that.  Okay.

Now, weve been trying to read sort of between the lines and I
    dont want to guess how far along you are or where your verdict is, but youve
    come to some problems with three and four.  Okay.

Assuming for the purpose of this discussion without in any way
    trying to decide it for you, I am going to assume, for the purpose of answering
    this question  just a minute now  that youve at least been in a state of
    reasonable doubt whether threats of death or serious personal injury to Mr.
    Berbeck or his Dad caused him to do this, and they were operating on his mind
    when he chose to do it.

I am also going to assume once again without trying to read
    your mind, that youve got past number two, that the threats were of such
    gravity or seriousness that he believed they would be carried out,
i.e
.
, he thought these people were
    genuine. They were going to do him in if he didnt do it.

Okay so lets go to question three.  The threats must be such
    that they might well have caused a reasonable person, placed in the same
    situation as Mr. Berbeck to act in the same way.

Put another way, would a person of reasonable firmness sharing
    the characteristics of Mr. Berbeck such as age and background, act in the same
    manner that he did. That is to say, the threats must be such as to overbear
    ordinary powers of human resistance.

Now, normally if youre getting into a legal discussion in the
    Court of Appeal, and the Court of Appeal will tell you well, thats just
    precisely the kind of question you leave to a jury.  I have to say, without
    wanting to influence your decision, I consider myself to be a reasonable person
    and each of you presumably would do the same.  And if I had to choose between
    my father or myself being murdered, or bringing half a pound of cocaine into
    Canada, that would be a no brainer. Yes, bringing it into Canada would be a
    crime, but whats the alternative? Dying? Hello, whats the problem?

I think a reasonable person would decide that bringing the
    cocaine is a lesser of two evils.  And thats really all were asking. So I
    dont see why youre having a big problem with that particular question.

Its a decision that you have to make but let me tell  you,
    remember I told you earlier you have three hundred years of living experience
    amongst you, and you just have to apply your common sense. If it was your child
    or your mother and the fellow said Im going to blow your mothers brains all
    over the dining room wall unless you bring a half a pound of cocaine into
    Canada, I have to say, I would say, yeah, in the suitcase, lets get on the
    plane, because I dont want my mothers brains laid all over Canada. I dont
    think thats unreasonable. That to me is the easiest part of the whole case.

I dont want to take it away from you and the Court of Appeal
    if this ever gets there will probably say the learned trial judge, in question
    marks, took the case from the jury by saying what he did.  Its your decision,
    but would it be unreasonable?  Every one of us might have made a different
    decision, but having made that decision could any of us say it was reasonable
    looking at it objectively?  Pretty hard hearted Hannahs if  Okay?

So I hope that will give you some help with number three.

The question number four is, did he have an obvious safe avenue
    of escape?

Well, Ive reviewed the evidence on that for you. To some
    extent you have to understand that the question of obvious safe avenue of
    escape depends on what Mr. Berbeck believed. That isnt necessarily an
    objective test. He might have believed that the police in Canada were more
    corrupt than they actually are, right? He might have believed that his
    half-brother had a watcher in the secure area.  If he genuinely believed that,
    then that impacts on his decision.  If he has a genuinely held belief it doesnt
    necessarily have to be reasonable, but whether its reasonable will help you
    decide whether he genuinely believed it.  Are you with me?

So, again, if I hold a genuine belief or I claim a general
    belief that the moon is made out of green cheese, you might say well, I dont
    believe that was genuine because its so totally unreasonable. So the two play
    off against each other.



If you have got as far as number three, to me thats a no
    brainer, its your decision. Then you have to make the fourth decision whether Mr.
    Berbeck himself genuinely believed he didnt have a safe avenue of escape, that
    the Crown has not negated that beyond a reasonable doubt, then he gets the
    benefit of that part of it too.

[20]

The
    Crown immediately objected, on two bases.  First, the Crown argued that the
    trial judges examples of a reasonable person bordered on the absurd and
    distorted the appropriate legal standard. The examples suggested that unless a
    person believed the moon was made of green cheese or that a water gun pointed
    at ones head posed a real threat, that person was reasonable for the purpose
    of the defence of duress.

[21]

The
    Crowns second objection was in relation to the trial judges direction on the
    safe avenue of escape. The Crown argued that the trial judges remarks had
    taken out the reasonable person standard and replaced it with a purely
    subjective test requiring only that Mr. Berbeck really believed it in his
    mind.

[22]

The
    trial judge accepted this latter objection, called the jury back, and said:

I may have somewhat overstated the position with respect to the
    safe avenue of escape.  I may have left you with the impression that the only
    thing that mattered was whether Mr. Berbeck believed that he had a safe avenue
    of escape. But the question is first, did he believe he had a safe avenue of
    escape? Or had no safe avenue of escape? And, secondly, would this mythical
    reasonable person similarly situated, also hold the same belief.  In other
    words, the belief has to be a reasonable one on the facts that were before you.

So the question is, did he subjectively believe it and (b)
    objectively was his belief unreasonable?

If the Crown has not proved beyond a reasonable doubt that it
    was not, then he gets the benefit of that question.

[23]

On
    appeal, the Crown again takes issue with both the trial judges response on the
    reasonable person issue and his response on the safe avenue of escape issue.

[24]

On
    the first issue, the Crown submits, in essence, that the trial judges
    instruction signified to the jury that everything short of the patently
    ridiculous could be considered reasonable for the purposes of the reasonable
    person standard. In other words, the analogies placed the definition at the
    level of absurdity, not reasonableness.

[25]

It
    would have been preferable had the trial judge used the standard jury charge in
    response to the jurys question, which would have instructed the jury as
    follows:

A reasonable person is a person of the same age, sex, and
    background as [Denroy Berbeck], with average courage and the ordinary powers of
    resistance to external pressures that we expect of our fellow citizens.  The
    twelve of you are the best judges of whether the threats
could
have
    caused a
reasonable
person in the same circumstances to do as [Denroy
    Berbeck] did.

[26]

The
    trial judge did, when first outlining the elements of the defence of duress in
    his original charge, use language very similar to that of the model charge.  It
    might have been better if he had simply repeated that language in response to
    the jurys question.

[27]

That
    said, I am not persuaded that what the trial judge did say amounts to a reversible
    error.  While the examples he gave are extreme, I am of the view that the jury
    would not have been confused about the essential nature of the reasonable
    person standard.  Clearly, the trial judge used strong language to let the jury
    know what he thought about the third element of the defence, as he had laid it
    out.  He said, as far as he was concerned, it was a no brainer and he
    couldnt understand why they were having difficulty with this question.

[28]

Despite
    this strong language, he nevertheless made it clear it was for the jury to decide.
    A trial judge is entitled to express an opinion on the evidence as strongly as
    the circumstances permit, so long as it is clearly advice and not direction:
R.
    v. Lawes
(2006)
, 80 O.R.
    (3d) 192, at paras. 21 and 35, leave to appeal to S.C.C. refused, [2006]
    S.C.C.A. No. 175.  The trial judge did not, in my view, usurp the jurys function
    and I would not give effect to this ground of appeal.

[29]

On
    the second issue, the Crown submits that the trial judge misstated the test for
    safe avenue of escape in response to the jurys question.  The Crown accepts
    that the trial judge acknowledged his error and recharged the jury almost
    immediately that the test for safe avenue of escape had both a subjective and
    objective component.

[30]

However,
    the Crown argues that the trial judge subsequently instructed the jury on safe
    avenue of escape several more times, each time using a different formulation
    and each time making material errors.  In the Crowns words, [i]t is
    reasonable to infer given the number of different permutations of safe avenue
    of escape provided to the jury over the course of their deliberations that
    confusion would ensue.

[31]

In
    support of this argument, the Crown points to several interactions between the
    jury and the trial judge during the course of deliberations.  After the trial
    judge responded to the second question, for instance, the jury sent two more
    notes indicating that they were deadlocked on question four  whether or not a
    reasonable person in Mr. Berbecks position could not conclude that he had a
    safe avenue of escape.  The second note read:

After a good nights sleep and much thought we appear to remain
    [deadlocked].  As before, #4 continues to [be] of difficulty for us to be in [agreement]. 
    We have a few more questions that may help us reach a better understanding of
    what our thought process should/could be for this aspect of [duress].  Points
    of clarification are:

1.       Clarify
    safe avenue of escape in this context.

2.       In
    regards to coming to a decision, must we be absolute?  If a juror is unsure
    of their response to #4, and are swayed either way, are they then required to
    give the benefit to the defendant?

To be more clear, if someone
    says they are 95% leaning to one side for this aspect, is this good enough to
    say you are on either side, or do you remain in the middle?

Thank you again for your support,
    and we apologize for our ignorance.

[32]

In
    response to the jurys request that he clarify safe avenue of escape, the trial
    judge outlined for the jury the subjective and the objective requirements of that
    aspect of the duress defence.  He noted Mr. Berbecks testimony that the police
    in Jamaica were corrupt, and cautioned that [w]hat is important is not whether
    they were or are corrupt, but whether Mr. Berbeck believed they might be, and
    whether a reasonable person
might
also share that belief (emphasis
    added).  The trial judge further instructed the jury that Mr. Berbeck was
    entitled to the benefit of the defence [i]f Mr. Berbeck believed there was no
    safe avenue of escape, and if a reasonable person
might
have thought
    also that there was no safe avenue of escape (emphasis added).

[33]

The
    principal objection raised by the Crown to these formulations of the safe
    avenue of escape test is the trial judges use of the word might as opposed
    to the word would.  I agree with the Crown that the word would ought to
    have been used throughout the trial judges response in reference to the belief
    of the reasonable person.  In this respect, the advantage of using the standard
    charge becomes apparent.  Repetition of the tried and tested language avoids
    the pitfalls that will arise where more off-the-cuff responses are given to
    jury questions.

[34]

In
    my view, however, on the facts of this particular case, I do not accept that
    the jury would have been confused about the proper test for safe avenue of
    escape.  The trial judge concluded his response with the following formulation:

To answer this question you must consider whether a reasonable
    person of the same age and sex and background as Mr. Berbeck, a reasonable
    person having been threatened,
would
think that no safe means of
    escape [existed] in the circumstances.  It is for you to say. [Emphasis added.]

[35]

Further,
    the trial judge repeated that language in his response to the jurys final
    question, submitted several hours later, when he stated:

If Mr. Berbeck genuinely believed that he had no legal way out,
    and if a reasonable person standing in his shoes
would
find that he
    had no legal way out, then Mr. Berbeck is entitled to be acquitted.



However, if the Crown has proved beyond a reasonable doubt
    either that Mr. Berbeck did not genuinely believe he had no legal way out, or,
    that a reasonable person standing in his shoes
would not
think that he
    had a legal way out, then he doesnt get the benefit of the defence. [Emphasis
    added.]

[36]

In
    my view, the jury would have understood that they were required to determine
    whether Mr. Berbeck believed there was no safe avenue of escape, and if so,
    whether a reasonable person in his circumstances
would
have shared
    that belief.  I would not give effect to this ground of appeal.

[37]

The
    Crown raises two further objections to the trial judges responses to the
    jurys questions.  First, he points to the trial judges instruction on
    reasonable doubt in the context of safe avenue of escape.  Although the Crown
    acknowledges that the trial judge initially properly explained the concept of
    reasonable doubt, he refers to the trial judges concluding admonition:

Again, if there is
any doubt
on this issue, you must
    give the benefit of that doubt to Mr. Berbeck. [Emphasis added.]

[38]

The
    Crown objected after this instruction was given, arguing that the phrase any
    doubt was inconsistent with the concept of a
reasonable
doubt, and
    requested that the trial judge call the jury back to correct or modify his last
    statement.  In response, the trial judge accepted the submission of defence
    counsel that it would be inconceivable after instructing the jury that a doubt
    has to be reasonable half a dozen times that the jury would now think he was
    referring to any doubt at all.  He did not recall the jury.

[39]

I
    agree with the trial judge on this point.  He had already, in response to the third
    question, charged the jury quite extensively and thoroughly on reasonable
    doubt.  It is highly unlikely the jury would have been confused by the mere
    failure to include the word reasonable before the word doubt on this one
    occasion.

[40]

Finally,
    the Crown objects to the trial judges last formulation of the safe avenue of
    escape.  As I said above, the jury submitted a final question shortly before
    acquitting Mr. Berbeck.  Their note read:

Although your shared knowledge was greatly [appreciated] and
    helpful as it stands, we are still [deadlocked] 11-no 1-yes in regards to his
    guilt being proven. We need to ask the same question in a different [way]. Please
    [oblige] us one more time. What holds more weight? A [reasonable] person vs. what
    the Crown proved.

[41]

The
    trial judge answered the jurys question as follows:

The issue here is, did Mr. Berbeck have a safe avenue of escape,
    which I will even shorten further to make it easier and say a legal way out.
A
    legal way out being a way in which he need not have brought the drugs to
    Canada.
Legal way out.

If Mr. Berbeck genuinely believed that he had no legal way out,
    and if a reasonable person standing in his shoes would find that he had no
    legal way out, then Mr. Berbeck is entitled to be acquitted.

If you have a reasonable doubt whether thats the case, Mr. Berbeck
    is entitled to be acquitted.

However if the Crown has proved beyond a reasonable doubt
    either that Mr. Berbeck did not genuinely believe he had no legal way out, or,
    that a reasonable person standing in his shoes would not think that he had a
    legal way out, then he doesnt get the benefit of the defence.

I dont think I can make it much more [clear] than that.  You
    have to assess it from his personal point of view and you have to assess it
    from a point of view of a reasonable person standing in his shoes. Its kind of
    a double-barrelled thing. [Emphasis added.]

[42]

Again,
    after the jury retired, the Crown immediately objected to the use of the phrase
    a way in which he need not have brought the drugs to Canada.  She argued that
    it suggests that the safe avenue of escape stops as soon as he gets on the
    plane and [flies] through the air and [arrives] in Canada.  The trial judge
    did not accept the objection, responding that he had told the jury a number of
    times that the offence was a continuing one up until the [s. 98] customs
    search.

[43]

I
    think it unlikely that the jury would be confused by this particular response from
    the trial judge.  Their question and the trial judges response were addressed
    to the nature of the reasonable person standard.  The jury had not expressed
    any difficulty with the continuing nature of the offence of importing.  I would
    not give effect to this ground of appeal.

[44]

Overall
    I find the answers to the jurys questions were not confusing and the jury
    would not have had difficulty following those answers.  Appellate courts must
    review jury charges as a whole, adopting a functional approach; although juries
    must be instructed properly, we do not require perfection:
R. v. Jacquard
,
    [1997] 1 S.C.R. 314, at paras. 32 and 62;
R. v. Luciano
, 2011 ONCA 89,
    267 C.C.C. (3d) 16, at paras. 69 and 71.

[45]

The
    defence of duress is not an easy defence to explain to the legally trained, let alone a jury of twelve lay persons. I am satisfied that this jury knew that the defence of duress required the Crown to prove, beyond a reasonable doubt, that the accused did not believe he had no genuine safe avenue of escape and that a reasonable person in his circumstances would not think that there was no reasonable avenue of escape.

D.

Conclusion

[46]

In
    my view, the Crown has not met its heavy burden and I would dismiss the appeal.

Released:    April 17, 2013 JCM

J.
    MacFarland J.A.

I
    agree J.C. MacPherson J.A.

I
    agree S.E. Pepall J.A.







[1]
The two shared the same mother but had different fathers.


