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R. v. Carker

[1967] SCR 114 Court SCC Decision date 1966-12-19 English

Delivered by Judgment of the Court

Contents

Judgment of the Court

RITCHIE J.:-This is an appeal by the Attorney General of British Columbia from a judgment of the Court of Appeal' of that Province, from which Mr. Justice MacLean dissented, and by which it was ordered that the respondent's conviction for unlawfully and wilfully damaging public property and thereby committing mischief, should be set aside and that a new trial should be had. At the trial the respondent admitted having damaged the plumbing fixtures in the cell where he was incarcerated at Oakalla Prison Farm in British Columbia but, through his counsel, he sought to introduce evidence to show that he had committed this offence under the compulsion of threats and was therefore entitled to be excused for committing it by virtue of the provisions of s. 17 of the Criminal Code 1 (1966), 48 C.R. 313, 4 C.C.C. 212.
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and that he was also entitled to avail himself of the common law defence of "duress" having regard to the provisions of s. 7 of the Criminal Code.
Under the latter section it is provided that:
J. The italics are my own.
I agree with the learned trial judge and with MacLean J.A. that in respect of proceedings for an offence under the Criminal Code the common law rules and principles respecting "duress" as an excuse or defence have been codified and exhaustively defined in s. 17 which reads as follows:
At the outset of the proceedings at the trial in the present case and in the absence of the jury, Mr. Greenfield, who acted on behalf of the accused, informed the Court that he intended to call evidence of compulsion and duress and he elected to outline the nature of this evidence which was that the offence had been committed during a disturbance, apparently organized by way of protest, to damage property at the Prison Farm in the course of which a substantial body of prisoners, shouting in unison from their separate cells, threatened the respondent, who was not joining in the disturbance, that if he did not break the plumbing fixtures in his cell he would be kicked in the head, his arm would be broken and he would get a knife in the back at the first opportunity.
The question which the learned trial judge was required to determine on Mr. Greenfield's application was whether the proposed evidence which had been outlined to him indicated a defence or excuse available at law; he decided that it did not and the majority of the Court of Appeal having taken a different view, the Attorney General now Ca,,zn appeals to this Court.
There can be little doubt that the evidence outlined by Greenfield, which was subsequently confirmed by the evidence given by the ringleaders of the disturbance in mitigation of sentence, disclosed that the respondent committed the offence under the compulsion of threats of death and grievous bodily harm, but although these threats were "immediate" in the sense that they were continuous until the time that the offence was committed, they were not threats of "immediate death" or "immediate grievous bodily harm" and none of the persons who delivered them was present in the cell with the respondent when the offence was committed. I am accordingly of opinion that the learned trial judge was right in deciding that the proposed evidence did not afford an excuse within the meaning of s. 17 of the Criminal Code.
In the course of his most thoughtful judgment in the Court of Appeal, Mr. Justice Norris had occasion to say: With the greatest respect it appears to me that the question of whether immediate threats of future death or grievous bodily harm constitute an excuse for committing a crime within the meaning of s. 17 and the question of whether a person can be "present" within the meaning of that section when he is locked in a separate cell from the place where the offence is committed are both questions which depend upon the construction to be placed on the section and they are therefore questions of law and not questions of fact for the jury. See Vail v. The Queen' and The Queen v. Sikyea .
In support of the suggestion that the threat in the present case was "immediate and continuous" Mr. Justice Norris relied on the case of Subramaniam v. Public Prosecutor', in which the Privy Council decided that the trial judge was wrong in excluding evidence of threats to which the appellant was subjected by Chinese terrorists in
Malaya. In that case it was found that the threats were a continuous menace up to the moment when the appellant was captured because the terrorists might have come back at any time and carried them into effect. Section 94 of the
Penal Code of the Federated Malay States, which the appellant sought to invoke in that case provided:
The distinctions between the Subramaniam case and the present one lie in the fact that Subramaniam might well have had reasonable cause for apprehension that instant death would result from his disobeying the terrorists who might have come back at any moment, whereas it is virtually inconceivable that "immediate death" or "grievous bodily harm" could have come to Carker from those who were uttering the threats against him as they were locked up in separate cells, and it is also to be noted that the provisions of s. 17 of the Criminal Code are by no means the same as those of s. 94 of the Penal Code of the Federated
Malay States; amongst other distinctions the latter section contains no provision that the person who utters the threats must be present when the offence is committed in order to afford an excuse for committing it.
Both Mr. Justice Norris and Mr. Justice Branca in delivering their separate reasons for judgment in the Court of
Appeal, expressed the view that the evidence which was tendered should have been admitted on the issue of whether the respondent acted wilfully in damaging the prison plumbing or whether he was so affected by the threats uttered against him as to be incapable of adopting any other course than the one which he did.
The relevant provisions of the Criminal Code read as follows:
372(1) Every one commits mischief who wilfully
Ritchie J.
(a) destroys or damages property, . . .
Every one who commits mischief in relation to public property is guilty of an indictable offence and is liable to imprisonment for fourteen years.
On this phase of the matter, Mr. Justice Norris had this to say:
In making the ruling which he did the learned trial judge deprived the appellant of what could be a substantial defence to the charge or an excuse under s. 17 without hearing the evidence. The jury could not decide whether the act was in fact wilful. This was not a matter on which the judge might rule. The length to which the evidence might go to disprove the essentials of the charge or to prove the requirements of s. 17 could never in the absence of the evidence of witnesses be apparent either to the learned judge or to the jury.
With the greatest respect, this portion of Mr. Justice Norris' reasons for judgment appears to overlook the fact that "the length to which the evidence might go . . ." was fully outlined to the learned judge by counsel for the respondent when he was making the application.
In this regard it is important to bear in mind the fact that "wilful" as it is used in Part IX of the Criminal Code is defined in s. 371 (1) which reads, in part, as follows: 371(1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event.
The evidence outlined to the learned trial judge discloses that the criminal act was committed to preserve the respondent from future harm coming to him, but there is no suggestion in the evidence tendered for the defence that the accused did not know that what he was doing would "probably cause" damage. Accepting the outline made by defence counsel as being an accurate account of the evidence which was available, there was in my view nothing in it to support the defence that the act was not done "wilfully" within the meaning of s. 371(1) and 372(1) of the Criminal Code and there was accordingly no ground to justify the learned trial judge in permitting the proposed evidence to be called in support of such a defence.
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Cases cited

  • 48 C.R. 313 48 C.R. 313

Statutes and regulations cited