



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Norman, 2021 ONCA 321

DATE: 20210514

DOCKET:
    C66720

Fairburn
    A.C.J.O., Jamal and Coroza JJ.A.

BETWEEN

Her
    Majesty the Queen

Appellant

and

Francis
    Norman

Respondent

Howard Piafsky, for the appellant

Ingrid Grant and Sara Samet, for the
    respondent

Heard: October 28, 2020 by video conference

On appeal from the acquittal entered by
    Justice Stuart W. Konyer of the Ontario Court of Justice on February 1, 2019,
    with reasons reported at 2019 ONCJ 51.

Coroza J.A.:

A.

OVERVIEW

[1]

The respondent, Francis Norman, was tried in the
    Ontario Court of Justice on three counts of trafficking and two counts of
    breach of probation. At trial, he conceded that he smuggled drugs into the
    Central East Correctional Centre (the C.E.C.C.) by secreting them inside his
    body. He also conceded that he was bound by the probation orders in question. However,
    he claimed that he was acting under duress, due to another inmates threats
    made to him and his brother. The trial judge concluded that there was an air of
    reality to the defence of duress and that the Crown had failed to prove beyond
    a reasonable doubt that the defence did not apply. The respondent was acquitted
    of all charges.

[2]

On this appeal, the appellant Crown argues that
    the trial judge erred in finding that there was an air of reality to the duress
    defence. The Crown asks this court to allow the appeal, set aside the acquittal,
    and order a new trial. For the following reasons, I would dismiss the appeal.

B.

THE EVIDENCE

[3]

The respondent is no stranger to jails. He has a
    criminal record and, by the time of trial, had been in and out of jail for the past
    seven years. Between February 22 and March 12, 2018, he was in custody at the
    C.E.C.C. During this period, the respondents brother was also in custody at
    the C.E.C.C. This was his brothers first time in custody. At some point, the
    respondent asked correctional officers to be placed in the same unit as his
    brother. He was worried about his brothers inexperience, and he wanted to
    protect him from other inmates.

[4]

According to the respondent, another inmate,
    known to him as "Big Newf," asked him on two occasions to smuggle
    drugs into the jail. The respondent initially declined, but Big Newf told him
    that the respondent and his brother would be stabbed if he did not comply. The
    respondent took this threat seriously, because he knew Big Newf by reputation
    and believed that he was affiliated with the Hells Angels. The respondent had previously
    been incarcerated in the same jail as Big Newf, and he witnessed him possessing
    make-shift weapons and assaulting other individuals.

[5]

The respondent also testified to a specific
    instance where Big Newf used violence to achieve his goals. At some point, Big
    Newf decided that he wanted the job of unit cleaner. The evidence at trial was
    that the role of cleaner was a sought-after position within the institution, as
    cleaners enjoyed extra privileges like additional time outside their cells,
    even during periods of lockdown. Big Newf asked the then cleaners in the
    respondents unit to resign, so that he and an associate could take over in
    that role. When the cleaners refused to cede this role to Big Newf, he arranged
    for other inmates to assault the cleaners, resulting in their removal from the
    unit. The correctional staff then appointed Big Newf and his associate as the
    new cleaners.

[6]

As a result of this experience, the respondent
    believed that Big Newf enjoyed tremendous power and influence at the C.E.C.C. Accordingly,
    after Big Newf made the threats, he feared for his and his brothers safety and
    agreed to participate in Big Newfs plan.

[7]

Big Newf arranged for a surety for the
    respondent to help him obtain bail. On March 12, 2018, the respondent was
    released on bail under the supervision of his surety, a female associate of Big
    Newf. He was taken to what he described as a trap house  a place where drugs
    were stored, purchased, and consumed  in Keswick, Ontario. While there, he was
    watched by the female associate, as well as a separate, male associate of Big
    Newf. He was asked to help grind marijuana and package drugs. At one point, the
    male associate placed a gun on the table in front of the respondent while he
    told the respondent what to do. The respondent testified that this made him uncomfortable.
    He believed that it was an implicit threat to him, to ensure his compliance
    with the plan.

[8]

The respondent stayed at this home until March
    21, 2018. On that day, he was given packages of drugs to swallow or insert in
    his rectum. He was then taken to Oshawa where, on the instructions of Big
    Newfs associates, he reported himself to the police. The respondent had an outstanding
    warrant and was arrested by the police.

[9]

After his arrest, he was held in custody in
    Oshawa for over 24 hours. During this period, the appellant did not seek
    assistance from any of the police officers with whom he came into contact. Eventually,
    the respondent was taken to court for a bail hearing and, later, back to the C.E.C.C.
    Again, the respondent did not alert anyone to his situation. When he returned
    to the C.E.C.C., he set off an alarm during a routine body scan. Correctional
    staff suspected that there were drugs hidden in the respondents body and
    placed him in a segregation cell to monitor him.

[10]

On March 23, 2018, correctional officers at the
    C.E.C.C. observed the respondent in distress. He was screaming that he did not
    want to die, burn, or blow up. He also appeared to be talking to his brother,
    who was not present. He said that there were packages inside him and he thought
    that one had burst. A nurse was called, who ultimately decided that the
    respondent should be taken to the hospital.

[11]

Correctional officers searched the respondents cell,
    seizing packages of drugs found there. The respondent excreted more drug
    packages while at the hospital. On his return to the C.E.C.C., he became
    increasingly agitated and made statements suggesting that he was afraid for his
    and his brothers life.

C.

THE TRIAL JUDGES REASONS

[12]

At trial, the respondent conceded that he trafficked
    drugs by smuggling them into the C.E.C.C. and that he was bound by the
    probation orders in question. Accordingly, the sole issue was whether his
    defence of duress succeeded.

[13]

After discussing the facts, the trial judge
    reviewed the defence of duress as it exists under both s. 17 of the
Criminal
    Code
, R.S.C., 1985, c. C-46 and the common law. He referenced the
    principles established in the Supreme Court of Canadas two leading duress
    decisions,
R. v. Ruzic
, 2001 SCC 24, [2001] 1 S.C.R. 687 and
R. v.
    Ryan
, 2013 SCC 3, [2013] 1 S.C.R. 14.

[14]

The trial judge observed that duress is an
    excuse which 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
. He also noted that per
Ruzic
and
Ryan
, the
    statutory defence of duress under s. 17 is supplemented by the common law
    defence of duress.

[15]

The trial judge also observed that in order for a
    defence to be considered by a trier of fact, they must first be satisfied that the
    defence has an air of reality. This meant that [t]here [was] an evidentiary
    burden on the accused to lead sufficient evidence to put the defence in play by
    establishing an air of reality. He explained that, in order [t]o establish an
    air of reality, there must be some evidence on each element of the defence
    which, if believed by a reasonable jury, could result in an acquittal. The
    trial judge then stated that if the accused were to meet this burden, the onus would
    shift to the Crown to prove beyond a reasonable doubt that the accused did not
    act under duress.

[16]

The arguments at trial focused on the narrow
    question of whether there was an air of reality to the respondents claim that
    he had no safe avenue of escape, one of the elements of the defence. The
    trial judge recognized that the existence of a safe avenue of escape is to be
    determined on an objective standard and adjusted for subjective circumstances.
    Further, an accuseds asserted belief that they lacked a reasonable alternative
    is not sufficient, standing alone, to give an air of reality to the defence.
    The trial judge noted that the question is whether a reasonable person, with a similar
    history, personal circumstances, abilities, capacities, and human frailties as
    the accused would, in the particular circumstances, reasonably believe there
    was no safe avenue of escape.

[17]

At para. 31 of his reasons, the trial judge concluded
    that the respondent had demonstrated that there was an air of reality to the no
    safe avenue of escape element of duress, stating:

[i]n my view, [the respondent]
    has tendered sufficient evidence to lend an air of reality to his claim that he
    had no safe avenue of escape
. He cogently
    explained why he formed this belief, in large part due to his particular
    knowledge and experience within the C.E.C.C. It is beyond serious dispute that
    jails are inherently violent and dangerous environments, and that stronger
    inmates with networks prey on weaker inmates who lack such affiliations.
[The respondents] claim that he felt there was no safe avenue
    that could afford adequate protection to both him and his brother while they
    remained in custody is, in my view, a reasonable one. His explanation for why
    he believed that approaching correctional staff would not protect him or his
    brother was sensible. Similarly, his explanations for why he failed to try and
    escape or alert authorities once he himself was released from custody  the
    fear of repercussions to his brother  was also sensible
. I find there
    is an air of reality to his claim of duress in the particular circumstances of
    this case. [Emphasis added.]

[18]

Accordingly, the trial judge went on to consider
    whether the Crown had proven beyond a reasonable doubt that the respondent did
    not act under duress. In his view, the Crown failed to do so. He concluded that,
    although the respondent had alternatives available to him other than complying
    with the scheme, he was left with a reasonable doubt that a realistically safe
    alternative existed in the circumstances. The trial judge was of the view that
    the respondents conclusion  that the only way to protect both himself and his
    brother was to comply with Big Newfs demands  was reasonable in the
    circumstances.

D.

THE GROUND OF APPEAL

[19]

The Crown raises a single ground of appeal. The
    Crown argues that the trial judge erred in concluding that there was an air of
    reality to the "no safe avenue of escape" element of duress. The
    Crown submits that on the respondents own evidence, he had an obvious and safe
    means of escape and no trier of fact could reasonably come to any other
    conclusion.

[20]

The respondent contends that the appeal should
    be dismissed because there was clearly an air of reality to his defence of
    duress. The defence was well supported in the evidence and the trial judge did
    not commit any error in deciding that he had met his burden.

E.

DISCUSSION

(1)

The Appellants Argument

[21]

The Crown does not take issue with the trial
    judges recitation of the relevant legal principles. Nor does the Crown argue
    that the trial judge failed to provide sufficient reasons. The Crowns argument
    on appeal is a narrow one, arguing that the trial judge erred in finding that
    there was an air of reality to the defence of duress. The Crown contends that the
    trial judge failed to address how the respondents numerous opportunities to
    seek help, available over the course of a month leading up to his apprehension
    for the subject offences, impacted his claim of duress. In particular, the
    Crown focuses in on the last 24-hour period that the respondent was in police custody.
    During that period of time, the respondent was away from the C.E.C.C., away
    from Big Newf, and away from Big Newfs associates.

[22]

In order to place the Crowns submission in
    context, I will first briefly review the elements of duress. Next, I will
    review the air of reality inquiry and explain what is required for a defence to
    be considered by a trier of fact. Finally, I will assess the Crowns argument on
    appeal that the trial judge erred by concluding that there was an air of
    reality to the duress defence.

(2)

Duress

[23]

The defence of duress is properly characterized
    as an excuse, animated by the rationale of moral involuntariness:
Ryan
,
    at para. 23. As the trial judge noted, it is a defence grounded in both statute
    and the common law. However, the essential elements of the two duress defences
    are largely the same:
R. v. Aravena,
2015 ONCA 250, 323
    C.C.C. (3d) 54, at para. 25, leave to appeal refused, [2015] S.C.C.A. No.
    497;
Ryan
, at para. 81.

[24]

The trial judge accurately summarized the elements
    of the defence of duress under both statute and common law. For ease of
    reference, I repeat the common elements of both forms of the defence, as discussed
    in
Ryan
, at para. 81:

a.

There must be an explicit or implicit threat of
    present or future death or bodily harm. The threat can be directed at the
    accused or a third party.

b.

The accused must reasonably believe that the
    threat will be carried out.

c.

There is no safe avenue of escape. This element
    is evaluated on a modified objective standard.

d.

A close temporal connection between the threat
    and the harm threatened.

e.

Proportionality between the harm threatened and
    the harm inflicted by the accused. The harm caused by the accused must be equal
    to or no greater than the harm threatened. This is also evaluated on a modified
    objective standard.

f.

The accused is not a party to a conspiracy or
    association whereby the accused is subject to compulsion and actually knew that
    threats and coercion to commit an offence were a possible result of this
    criminal activity, conspiracy, or association.

[25]

Finally, if the defence is available in law,
    and the evidence gives an air of reality to the defence, an accused is entitled
    to an acquittal unless the Crown disproves one or more of the essential
    elements of the defence on a reasonable doubt standard:
Aravena
, at
    para. 27.

(3)

The Air of Reality Inquiry and Duress

[26]

When a trial judge is asked to conclude whether
    a defence has an air of reality, they must determine whether there is direct evidence
    upon which a properly instructed jury, acting reasonably,
could
base an acquittal if it believed the evidence to
    be true:
R. v. Cinous
, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 82-83.
    Regardless of who elicited the evidence, if there is direct evidence on each
    element of the defence, the defence must be left with the trier of fact:
Cinous,
at para. 88. If circumstantial evidence is relied on, the trial judge must
    engage in a limited weighing to determine if the circumstantial evidence is
    reasonably capable of supporting the requisite inferences necessary to
    support the defence: at paras. 89-90. A trial judge does not draw determinate
    factual inferences, but rather comes to a conclusion about the field of factual
    inferences that could reasonably be drawn from the evidence: at para. 91.

[27]

The inquiry into whether there is an air of
    reality to a defence is not intended to assess the likelihood of success for that
    defence: see
R. v. Cairney
, 2013 SCC 55, [2013] 3 S.C.R. 420, at para.
    21;
R. v. Suarez-Noa
, 2017 ONCA 627, 139 O.R. (3d) 508, at para. 41,
    leave to appeal refused, [2018] S.C.C.A. No. 142. Instead, this inquiry
    requires a determination of whether the accused can point to something in the
    evidence capable of reasonably supporting the factual inferences that would at
    least leave the trier of fact with a reasonable doubt about the existence of
    each of the essential factual elements of the defence:
R. v. Ronald
,
    2019 ONCA 971, at para. 44.

[28]

Finally, whether an air of reality exists for a
    potential defence is a question of law, reviewable on a standard of
    correctness:
Cinous
, at para. 55;
R. v. Tran
, 2010 SCC 58,
    [2010] 3 S.C.R. 350, at para. 40.

(4)

Did the Trial Judge Err in Concluding That There
    Was an Air of Reality to the Defence of Duress?

[29]

The trial judge concluded, at para. 31 of his
    reasons, that the respondent had tendered evidence sufficient to lend an air of
    reality to his claim that he had no safe avenue of escape. This paragraph is
    reproduced earlier in my reasons. Although the trial judges reasons on this
    issue are brief, they must be read in light of the evidence that was before the
    trial judge, the submissions of counsel, and other portions of the reasons.

[30]

At trial, both parties focused their submissions
    on the safe avenue of escape element of duress. Therefore, the trial judge
    decided to focus his analysis on this issue.

[31]

The Crowns primary complaint on appeal is that
    the trial judge misapplied the modified objective standard of the no safe
    avenue of escape element of duress. The Crown contends that the trial judge
    rendered the objective component of this element meaningless, as he failed to
    address how the numerous opportunities open to the respondent to safely extract
    both himself and his brother impacted the air of reality of his claim. In my
    view, a careful examination of the trial judges reasons dispels this argument.

[32]

Importantly, this appeal is not about whether
    this court would have reached the same conclusion as the trial judge on whether
    there was an air of reality to the appellants suggestion that he had no safe
    avenue of escape. Rather, the question on appeal is whether the trial judge
    understood the operative modified objective test to be applied when determining
    whether there is an air of reality to this element of the defence of duress and
    whether that test was properly applied. I see no error in how the trial judge
    approached the matter.

[33]

Paragraph 29 of the trial judges reasons
    demonstrates that he understood the modified objective component of the element
    of duress involving a safe avenue of escape. The trial judge specifically cited
    to this courts decision in
R. v. D.B.M.
, 2016 ONCA 264, which adopted,
    at para. 7, the Court of Appeal of Albertas commentary on this element in
R.
    v. Keller
, 1998 ABCA 357, 131 C.C.C. (3d) 59, at para. 24:

the existence of a safe avenue of escape is
    to be determined on an objective standard and is adjusted for subjective
    circumstances. The belief of the accused that he had no reasonable alternative
    is not sufficient to give an air of reality to the defence simply because the
    belief is asserted. The question is whether a reasonable person, with similar
    history, personal circumstances, abilities, capacities and human frailties as
    the accused, would, in the particular circumstances, reasonably believe there
    was no safe avenue of escape and that he had no choice but to yield to
    coercion.

[34]

The trial judge then referenced this courts
    decision in
R. v. Li
(2002), 162 C.C.C. (3d) 360, quoting from para.
    29 of that decision:

[i]n applying [the duress defence], the law
    does not require an accused to seek the official protection of police in all
    cases. The requirement of objectivity must take into consideration the special
    circumstances in which the accused finds himself or herself as well as his or
    her perception of those circumstances (
R. v. Ruzic, supra
,

at
    pp. 31 and 40).

[35]

The trial judges reasons reflect that he understood
    that he had to focus on what a reasonable person would do, bearing in mind the
    respondents situation and personal characteristics:
R. v. Willis
,
    2016 MBCA 113, 344 C.C.C. (3d) 443, at paras. 183-184, leave to appeal refused,
    [2017] S.C.C.A. No. 45. The trial judges reasons further reflect that this is
    how he approached the task.

[36]

First, the trial judge found that the respondent
    cogently explained why he formed the belief that he lacked a safe avenue of
    escape, in large part due to the respondents knowledge of both the C.E.C.C.
    and Big Newf. While others may not have found the respondents evidence as
    compelling as the trial judge, it was open to him to conclude that there was an
    air of reality to the respondents claim that, for his brothers and his sake,
    he believed that he lacked a safe avenue of escape. This is particularly true
    given that the respondent explained that he had been in and out of jail for
    over seven years and understood the politics of the inmate system. Both he and
    his brother were on the same range as Big Newf. He had previously witnessed Big
    Newf carry a homemade knife and assault other inmates. He also explained how
    Big Newf had used violence to assume the role of unit cleaner  a highly
    sought-after position in the jail  and that he was affiliated with others in
    the C.E.C.C. This evidence was not challenged.

[37]

Second, the trial judge also observed that the
    respondent provided a sensible explanation for his belief that approaching
    correctional staff would not protect him or his brother. This finding was
    supported by the evidence of Cst. Benson, a police officer stationed at
    the C.E.C.C. Cst. Bensons evidence was that violence causing injury is a daily
    occurrence in the C.E.C.C.; that there were gangs operating there, including
    the Hells Angels; and that inmates suspected of talking to the police, or otherwise
    acting as rats, are subjected to violence.

[38]

The trial judges conclusion on this point was fortified
    by other evidence introduced at trial. Once the respondent was back at the C.E.C.C.,
    he was intimidated by another inmate despite being in segregation. Furthermore,
    although he was transferred to Quinte Detention Centre, he was the victim of a
    serious assault there by other inmates who threatened him not to implicate anyone
    at his upcoming judicial pretrial. Therefore, there was objective, unchallenged
    evidence that placing the respondent in segregation or transferring him to
    another institution would not necessarily protect him from harm.

[39]

Third, the trial judges finding about why the
    respondent did not attempt to escape the scheme or alert authorities once he
    was released from custody was also available on the evidence. The respondents
    evidence was that, although it was possible to attempt an escape from the trap
    house, he was threatened by Big Newfs armed associate while there. The
    respondent also knew that his brother continued to be on the same range as Big
    Newf, and he feared the potential repercussions of non-compliance with the
    scheme. It was open to the trial judge to conclude that any attempt to flee, or
    to otherwise refuse to carry out the plan, would be communicated to Big Newf.

[40]

During argument, the Crown pointed to portions
    of the respondents cross-examination where the respondent agreed that the
    police could have taken steps to protect his brother. Taken in isolation, these
    portions suggest that there was no air of reality to the defence. However, I
    agree with the respondent that those answers must be considered in the broader
    context of his evidence, namely that he believed that he and his brother would
    be harmed if he reported the scheme.

[41]

In conclusion, I do not accept that the trial
    judge erred in his application of the air of reality test. I would dismiss the
    appeal.

[42]

Before leaving this matter, I wish to comment
    on one aspect of the Crowns submissions in this court on the broader concerns
    engaged here, should this court dismiss the appeal. The Crown argues that the
    respondents story reads like a recipe for other inmates to claim that they were
    coerced into similar schemes. The Crown contends that if the respondents
    argument succeeds, it will be due to the uncontroversial notion that jails are
    inherently violent places. On the trial judges analysis, therefore, there
    could be no avenue safe enough for the respondent to have removed himself from
    the situation, rendering the objective component of this analysis meaningless.

[43]

In the circumstances of this case, I do not
    accept this argument. Nothing about this case changes the law of duress. Nor
    does anything in this case change the courts remarks in
Ruzic
that courts
    must apply strict standards for the application of the defence to prevent its
    abuse: at para. 59.

[44]

This appeal is not about whether this court
    would have reached the same conclusion as the trial judge. Instead, the appeal
    was argued on a very narrow ground, namely, whether there was evidence before
    the trial judge upon which he
could
reasonably
    infer that the claim of duress succeeded. The issue was not whether this court
    would have come to the same conclusion as the trial judge in this case.

[45]

This was an unusual case. The respondents
    brother was in custody at the same time, and on the same range, as Big Newf.
    According to the respondent, his brother remained there while the respondent
    was on the outside, attempting to comply with Big Newfs demands. The trial
    judge concluded that there was an air of reality to the defence of duress in
    the circumstances of this case. In my view, he did not err in reaching that
    conclusion.

F.

DISPOSITION

[46]

For these reasons, I would dismiss the appeal.

Released: May 14, 2021 J.M.F.

S. Coroza J.A.

I agree. Fairburn A.C.J.O.

I agree. M. Jamal J.A.


