R. v. Willis (T.A.W.),

• Jurisdiction: Manitoba
• Judge: Joyal
• Neutral Citation: 2015 MBQB 114
• Citation: 2015 MBQB 114,(2015), 318 Man.R.(2d) 209 (QB),318 ManR(2d) 209,(2015), 318 ManR(2d) 209 (QB),318 Man.R.(2d) 209
• Date: 03 July 2015
• Court: Court of Queen's Bench of Manitoba (Canada)

R. v. Willis (T.A.W.) (2015), 318 Man.R.(2d) 209 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. JL.018

Her Majesty The Queen v. Treyvonne Anthony Warner Willis (accused)

(CR 14-01-33426; 2015 MBQB 114)

Indexed As: R. v. Willis (T.A.W.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Joyal, C.J.Q.B.

July 3, 2015.

Summary:

The accused was charged with first degree murder. He filed an application challenging the constitutionality of s. 17 of the Criminal Code, which stipulated that the defence of duress was not available to perpetrators of murder. The accused submitted that this exclusion violated s. 7 of the Charter.

The Manitoba Court of Queen's Bench dismissed the application. The exclusion of murder from the application of s. 17 did not violate s. 7 of the Charter, and even if it did, the violation would be justified under s. 1 of the Charter.

Civil Rights - Topic 3165.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Defences (incl. denial of) - Section 17 of the Criminal Code stipulated that the defence of duress was not available to perpetrators of murder - An accused charged with murder argued that this exclusion violated s. 7 of the Charter - The Manitoba Court of Queen's Bench stated "Where a provision of the Criminal Code specifically provides that a defence is to be expressly excluded, one should assume that Parliament has purposefully determined that the criminal act in question is of such a nature that not only is the disapprobation of society warranted, but also, the act cannot and should not be justified or excused by the excluded defence. Such a legislative provision will not generally violate s. 7 when a defence is inconsistent with the offence prescribed in that it would excuse the very evil which the offence seeks to prohibit or punish. In addressing s. 7 of the Charter, courts must remember to construe the content and scope of the principles of fundamental justice in a way so as to recognize not only the interest of the person who claims his liberty has been infringed, but also the rights of third parties, victims and broader societal interests." - See paragraphs 34 and 35.

Civil Rights - Topic 3165.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Defences (incl. denial of) - Section 17 of the Criminal Code stipulated that the defence of duress was not available to perpetrators of murder - An accused charged with murder argued that this exclusion violated s. 7 of the Charter - The Manitoba Court of Queen's Bench disagreed - The content or scope of the principle of moral involuntariness did not extend to murder because, inter alia, killing could never satisfy the proportionality requirement central to the defence of duress - It was inherently disproportionate to choose the certain death of an innocent person over the fear of the possibility of death or bodily harm to oneself or a loved one - If the law permitted duress as a defence to murder, it would in effect be refusing to protect the life of the innocent victim - It was difficult to conceive that the killing of an innocent victim could ever be considered the sort of morally involuntary act about which it could be said that the perpetrator had no other realistic choice - See paragraphs 39 to 48.

Civil Rights - Topic 3165.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Defences (incl. denial of) - Section 17 of the Criminal Code stipulated that the defence of duress was not available to perpetrators of murder - An accused charged with murder argued that this exclusion violated s. 7 of the Charter - The Manitoba Court of Queen's Bench disagreed - The content or scope of the principle of moral involuntariness did not extend to murder because of, inter alia, the primacy the law accorded to the sanctity of human life - The life of a murder victim had to be equally protected by s. 7 of the Charter - Section 17 attempted to reflect the proposition that human life should not be depreciated by allowing life to be taken - See paragraphs 49 to 54.

Civil Rights - Topic 3165.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Defences (incl. denial of) - Section 17 of the Criminal Code stipulated that the defence of duress was not available to perpetrators of murder - An accused charged with murder argued that this exclusion violated s. 7 of the Charter - He submitted that it was anomalous for Parliament to adopt and implement an international agreement that allowed duress as a defence to war crimes (Rome Statute of the International Criminal Court), while at the same time maintaining an exclusion for murder in domestic law - The Manitoba Court of Queen's Bench rejected this argument - The long-standing consensus in Canada and other similar jurisdictions was that duress could not excuse murder - Even if the Rome Statute was interpreted so as to allow duress as a defence to murder, such an interpretation was not determinative of the principles of fundamental justice under s. 7 of the Charter - At best, international agreements might serve as an interpretive tool in discerning the scope of Charter rights - The principles or rules adopted at international law were not necessarily the same as domestic laws unless Parliament had expressly chosen to implement and adopt such laws - See paragraphs 55 to 66.

Civil Rights - Topic 3165.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Defences (incl. denial of) - [See Civil Rights - Topic 8348 ].

Civil Rights - Topic 3165.8

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Moral involuntariness - [See second and third Civil Rights - Topic 3165.4 ].

Civil Rights - Topic 8316

Canadian Charter of Rights and Freedoms - General - Application - Proportionality test - [See Civil Rights - Topic 8348 ].

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See first and fourth Civil Rights - Topic 3165.4 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - Section 17 of the Criminal Code stipulated that the defence of duress was not available to perpetrators of murder - An accused charged with murder argued that this exclusion violated s. 7 of the Charter - The Manitoba Court of Queen's Bench held that s. 17 did not violate s. 7 of the Charter, and even if it did, the violation was justified under s. 1 of the Charter - The statutory exclusion of murder from the duress defence advanced pressing and substantial objectives, namely (1) the expression of society's disapprobation for murder, and (2) the maintenance of the strictest disincentive to cooperate with criminal threats in order to preserve life, public order and security - There was a rational connection between these objectives and the means chosen to achieve them - Nothing short of a categorical ban or exclusion of murder from the defence of duress would protect the life of innocent victims - Section 17 impaired s. 7 of the Charter as little as reasonably possible to achieve the objectives - It only denied the defence of duress to actual perpetrators - The overall effects of the law were not disproportionate to Parliament's objectives - The law provided a viable alternative defence (self-defence) which did not involve killing an innocent person or a loss of liberty - See paragraphs 81 to 92.

Criminal Law - Topic 226

General principles - Statutory defences or exceptions - Compulsion (duress) - [See second, third and fourth Civil Rights - Topic 3165.4 and Civil Rights - Topic 8348 ].

International Law - Topic 5

General - Incorporation into domestic law - [See fourth Civil Rights - Topic 3165.4 ].

Statutes - Topic 515

Interpretation - General principles - International convention - Effect of - [See fourth Civil Rights - Topic 3165.4 ].

Cases Noticed:

R. v. Ryan (N.P.), [2013] 1 S.C.R. 14; 438 N.R. 80; 324 N.S.R.(2d) 205; 1029 A.P.R. 205; 2013 SCC 3, refd to. [para. 14].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 15].

R. v. Aravena (M.) et al. (2015), 333 O.A.C. 264; 2015 ONCA 250, refd to. [para. 18].

R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161, refd to. [para. 27].

R. v. Ruzic (M.), [2001] 1 S.C.R. 687; 268 N.R. 1; 145 O.A.C. 235; 2001 SCC 24, refd to. [para. 27].

R. v. Latimer (R.W.) (2001), 264 N.R. 99; 203 Sask.R. 1; 240 W.A.C. 1; 2001 SCC 1, refd to. [para. 32].

R. v. Finta, [1994] 1 S.C.R. 701; 165 N.R. 1; 70 O.A.C. 241, refd to. [para. 33].

R. v. Demers (R.), [2004] 2 S.C.R. 489; 323 N.R. 201; 2004 SCC 46, refd to. [para. 35].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 40].

R. v. Dudley and Stephens (1884), 14 Q.B.D. 273, refd to. [para. 41].

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

R. v. Burke et al., [1987] A.C. 417; 74 N.R. 1 (H.L.), refd to. [para. 43].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 45].

Carter et al. v. Canada (Attorney General) et al. (2015), 468 N.R. 1; 366 B.C.A.C. 1; 629 W.A.C. 1; 2015 SCC 5, refd to. [para. 50].

Kazemi Estate v. Islamic Republic of Iran, [2014] 3 S.C.R. 176; 463 N.R. 1; 2014 SCC 62, refd to. [para. 65].

R. v. D.B., [2008] 2 S.C.R. 3; 374 N.R. 221; 237 O.A.C. 110; 2008 SCC 25, refd to. [para. 69].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [para. 69].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 69].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 73].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

R. v. Videoflicks Ltd., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 73].

Harvey v. New Brunswick (Attorney General) et al., [1996] 2 S.C.R. 876; 201 N.R. 1; 178 N.B.R.(2d) 161; 454 A.P.R. 161, refd to. [para. 73].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161, refd to. [para. 74].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1, refd to. [para. 74].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 74].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 75].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 76].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 76].

R. v. Labba - see R. v. Johnson et al.

R. v. Johnson et al., [1994] 3 S.C.R. 965; 174 N.R. 321; 76 O.A.C. 241, refd to. [para. 77].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 79].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 17 [para. 3].

Authors and Works Noticed:

Great Britain, Report of Royal Commission Appointed to Consider the law Relating to Indictable Offences (1879), p. 43 [para. 28].

Counsel:

Michael Conner, Charles Murray, Daniel Chaput and Chantal Boutin, for the Crown;

Ursula Goeres and Chantal English, for the accused.

This application was heard before Joyal, C.J.Q.B., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on July 3, 2015.