R. v. Hibbert (L.), (1995) 184 N.R. 165 (SCC)

• Judge: Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: July 20, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 184 N.R. 165 (SCC);84 OAC 161;AZ-95111090;[1995] 2 SCR 973;99 CCC (3d) 193;1995 CanLII 110 (SCC);[1995] ACS no 63;40 CR (4th) 141;EYB 1995-67434;[1995] SCJ No 63 (QL);184 NR 165;27 WCB (2d) 493;JE 95-1510

R. v. Hibbert (L.) (1995), 184 N.R. 165 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Lawrence Hibbert (appellant) v. Her Majesty The Queen (respondent)

(23815)

Indexed As: R. v. Hibbert (L.)

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé,

Sopinka, Gonthier, Cory, McLachlin,

Iacobucci and Major, JJ.

July 20, 1995.

Summary:

The accused was charged with attempted murder as a party to the offence under s. 21(1)(b) of the Criminal Code. Following a trial by judge and jury, the accused was convicted of the included offence of aggra­vated assault and was sentenced to four years' imprisonment. The accused appealed against conviction and sentence.

The Ontario Court of Appeal dismissed the conviction appeal, but allowed the sentence appeal and reduced the sentence to time served (15 months). The accused appealed, claiming that the trial judge erred in charg­ing the jury on the defence of duress.

The Supreme Court of Canada allowed the appeal and ordered a new trial. The trial judge failed to properly direct the jury on the defence of duress.

Criminal Law - Topic 202

Common law defences - Duress - Section 17 of the Criminal Code codified the common law defence of duress for "a person who commits an offence under compulsion of immediate death or bodily harm from a person who is present when the offence is committed" - Section 17 precluded the defence from applying to a charge of attempted murder - The Supreme Court of Canada stated that "s. 17 of the Code does not constitute an exhaus­tive codification of the law of duress. ... s. 17 applies only to persons who commit offences as principals . Accordingly, it remains open to persons who are liable as parties to offences to invoke the common law defence of duress, which remains in existence by virtue of s. 8(3) of the Code." - See paragraph 19.

Criminal Law - Topic 202

Common law defences - Duress - The Supreme Court of Canada stated that "the fact that a person who commits a criminal act does so as a result of threats of death or bodily harm can in some instances be relevant to the question of whether he or she possessed the mens rea necessary to commit an offence. Whether or not this is so will depend, among other things, on the structure of the particular offence in ques­tion - that is, on whether or not the mental state specified by Parliament in its definition of the offence is such that the presence of coercion can, as a matter of logic, have a bearing on the existence of mens rea. If the offence is one where the presence of duress is of potential relevance to the existence of mens rea, the accused is entitled to point to the presence of threats when arguing that the Crown has not proven beyond a reasonable doubt that he or she possessed the mental state for lia­bility." - See paragraph 45.

Criminal Law - Topic 202

Common law defences - Duress - The Supreme Court of Canada stated that "a person who commits a criminal act under threats of death or bodily harm may also be able to invoke an excuse-based defence (either the statutory defence set out in s. 17 [Criminal Code] or the common law defence of duress, depending on whether the accused is charged as a principal or as a party). This is so regardless of whether or not the offence at issue is one where the presence of coercion also has a bearing on the existence of mens rea. The mental states specified in ss. 21(1)(b) and 21(2) of the Criminal Code [parties to offences] are not susceptible to being 'negated' by dur­ess. Consequently, it is not open to persons charged under these sections to argue that because their acts were coerced by threats they lacked the requisite mens rea. Such persons may, however, seek to have their conduct excused through the operation of the common law defence of duress." - See paragraph 45.

Criminal Law - Topic 202

Common law defences - Duress - The Supreme Court of Canada stated that "an accused person cannot rely on the common law defence of duress if he or she had an opportunity to safely extricate himself or herself from the situation of duress. The rationale for this rule is simply that in such circumstances the condition of 'normative involuntariness' that provides the theoreti­cal basis for both the defences of duress and necessity is absent - if the accused had the chance to take action that would have allowed him or her to avoid commit­ting an offence, it cannot be said that he or she had no real choice when deciding whether or not to break the law. ... the question of whether a safe avenue of escape existed is to be determined accord­ing to an objective standard. When con­sidering the perceptions of a 'reasonable person', however, the personal circum­stances of the accused are relevant and important, and should be taken into account." - See paragraph 62.

Cases Noticed:

R. v. Carker (No. 2), [1967] S.C.R. 114, refd to. [para. 19].

R. v. Paquette, [1977] 2 S.C.R. 189; 11 N.R. 451, disapprvd. [para. 19].

Director of Public Prosecutions for Northern Ireland v. Lynch, [1975] A.C. 653 (H.L.), consd. [para. 21].

R. v. Lewis, [1979] 2 S.C.R. 821; 27 N.R. 451, refd to. [para. 25].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; 48 C.R.(3d) 289; 23 C.C.C.(3d) 289; [1986] 1 W.W.R. 481, refd to. [para. 25].

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161; 68 Nfld. & P.E.I.R. 281; 209 A.P.R. 281; 60 C.R.(3d) 289; 39 C.C.C.(3d) 118, refd to. [para. 25].

R. v. Martineau, [1990] 2 S.C.R. 633; 112 N.R. 83; 109 A.R. 321; 58 C.C.C.(3d) 353; [1990] 6 W.W.R. 97; 79 C.R.(3d) 129; 76 Alta. L.R.(2d) 1; 50 C.R.R. 110, refd to. [para. 25].

R. v. Logan, Logan and Johnson, [1990] 2 S.C.R. 731; 112 N.R. 144; 41 O.A.C. 330; 58 C.C.C.(3d) 391; 79 C.R.(3d) 169; 73 D.L.R.(4th) 40; 50 C.R.R. 152, refd to. [para. 25].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81, refd to. [para. 31].

Estabrooks Pontiac Buick Ltd., Re; New Brunswick v. Estabrooks Pontiac Buick Ltd., Estabrooks and Wolfe (1982), 44 N.B.R.(2d) 201; 116 A.P.R. 201 (C.A.), refd to. [para. 32].

R. v. Burke et al., [1987] 1 A.C. 417; 74 N.R. 1 (H.L.), refd to. [para. 34].

R. v. Howe - see R. v. Burke et al.

R. v. Kirkness, [1990] 3 S.C.R. 74; 116 N.R. 81; 69 Man.R.(2d) 81; 60 C.C.C.(3d) 97; 1 C.R.(4th) 91, refd to. [para. 37].

R. v. Jackson and Davy, [1993] 4 S.C.R. 573; 162 N.R. 113; 68 O.A.C. 161, refd to. [para. 37].

R. v. Jackson and Davy (1991), 51 O.A.C. 92; 68 C.C.C.(3d) 385 (C.A.), affd. [1993] 4 S.C.R. 573; 162 N.R. 113; 68 O.A.C. 161, refd to. [para. 42].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1; [1984] 6 W.W.R. 289; 42 C.R.(3d) 113; 13 D.L.R.(4th) 1; 14 C.C.C.(3d) 385, appld. [para. 51].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1; 55 C.C.C.(3d) 97; 76 C.R.(3d) 329; [1990] 4 W.W.R. 1, refd to. [para. 59].

R. v. Pétel (C.), [1994] 1 S.C.R. 3; 162 N.R. 137; 59 Q.A.C. 81, refd to. [para. 59].

R. v. Creighton, [1993] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321, dist. [para. 61].

R. v. Mena (1987), 20 O.A.C. 50; 34 C.C.C.(3d) 304 (C.A.), refd to. [para. 64].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 8(3), sect. 17, sect. 21 [para. 11].

Authors and Works Noticed:

Colvin, Eric, Principles of Criminal Law (2nd Ed. 1991), pp. 121 to 123 [para. 28].

Edwards, J. Ll. J., Compulsion, Coercion and Criminal Responsibility (1951), 14 Mod. L. Rev. 297, pp. 297 to 299 [para. 18].

Fletcher, George, Rethinking Criminal Law (1978), generally [para. 53].

Hart, H.L.A., Punishment and Responsi­bility (1968), pp. 39 [para. 57]; 154 [para. 58]

Horder, Jeremy, Autonomy, Provocation and Duress, [1992] Crim. L.R. 706, p. 709 [para. 49].

Mewett, Alan W., and Manning, Morris, Criminal Law (2nd Ed. 1985), pp. 112 [para. 32]; 113 [para. 29].

Mewett, Alan W., and Manning, Morris, Criminal Law (3rd Ed. 1994), pp. 268 [para. 33]; 520 [para. 24].

Oxford English Dictionary (2nd Ed. 1989) [para. 27].

Rosenthal, Peter, Duress in the Criminal Law (1989-90), 32 Crim. L.Q. 199, p. 200 [para. 18].

Smith, John Cyril, and Hogan, Brian, Criminal Law (7th Ed. 1992), p. 55 [para. 29].

Stuart, Don, Canadian Criminal Law: A Treatise (3rd Ed. 1995), p. 420 [para. 38].

Williams, Glanville, Textbook of Criminal Law (2nd Ed. 1983), p. 624 [para. 34].

Counsel:

Timothy E. Breen, for the appellant;

Gary T. Trotter, for the respondent.

Solicitors of Record:

Rosen, Fleming, Toronto, Ontario, for the appellant;

Ministry of the Attorney General, Toronto, Ontario, for the respondent.

This appeal was heard on January 30, 1995, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On July 20, 1995, Lamer, C.J.C., delivered the following judgment in both official languages for the Supreme Court of Canada.