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Criminal - Duress. Rodriguez Anzola v. Canada (Citizenship and Immigration) ['voluntariness' as a general defence, and an element of Charter s.7 fundamental justice] [IMPORTANT]
In Rodriguez Anzola v. Canada (Citizenship and Immigration) (Fed CA, 2026) the Federal Court of Appeal allowed an appeal, this brought against the dismissal of "the appellant’s application for judicial review of a decision of the Immigration Division (the ID) of the Immigration and Refugee Board of Canada (IRB)", this regarding an ID finding that the appellant was "inadmissible to Canada on grounds of serious criminality pursuant to paragraph 36(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (the Act) for having committed an offence in her country of origin (trafficking or carrying illegal drugs) which, if committed in Canada, would constitute an offence under an Act of Parliament – here the Controlled Drugs and Substances Act, SC 1996, c. 19 – punishable by a maximum term of imprisonment of at least 10 years".
In the above immigration inadmissibility 'serious criminality' context, the court considers 'duress' in it's criminal role, it's close (and very important) relationship with 'voluntariness' - and as an element of Charter s.7 fundamental justice:(b) The central importance of the defence of duress in Canadian criminal law
[67] The defence of duress has two sources in Canadian criminal law: section 17 of the Criminal Code, RSC 1985, c. C-46 (the Criminal Code), which essentially excuses a person for a criminal act they commit when threatened or compelled by another person, and the common law. In R. v. Ruzic, 2001 SCC 24 (Ruzic), the Supreme Court held that it is a principle of fundamental justice that "“only voluntary conduct – behaviour that is the product of a free will and controlled body, unhindered by external constraints – should attract the penalty and stigma of criminal liability”" (Ruzic at para. 47).
[68] At issue in Ruzic was whether some of the restrictions to the defence of duress set out in section 17 of the Criminal Code – the "“immediacy”" and "“presence”" restrictions requiring the accused to show that he/she was compelled to commit the offence under threats of immediate death or bodily harm from a person who is present when the offence is committed – accorded with the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) (the Charter). The Supreme Court ruled that they did not.
[69] While the Supreme Court recognized that the legislator could restrict – and even remove– a criminal defence and that a withdrawal of a criminal defence would "“not automatically breach s. 7 of the ""Charter”" (Ruzic at para. 23), it held that the principles of fundamental justice require that criminal liability only result from morally voluntary conduct. As a result, it ruled the impugned restrictions to be in breach of section 7 of the Charter on the ground that those restrictions allowed individuals to be found guilty of involuntary actions (Ruzic at paras. 48 and 55). The Supreme Court further concluded that these restrictions were not saved by section 1 of the Charter (Ruzic at para. 91). In arriving at these conclusions, it underscored that "“[t]he treatment of criminal offenders as rational, autonomous and choosing agents [was] a fundamental organizing principle of criminal law”" (Ruzic at para. 45).
[70] A few years later in R. v. Ryan, 2013 SCC 3 (Ryan), the Supreme Court underlined the breadth of the constitutional protection enjoyed by the defence of duress when it observed that "“important aspects”" of its statutory version had been found to be unconstitutional in Ruzic (Ryan at para. 36).
[71] In concluding as it did in Ruzic, the Supreme Court reaffirmed that criminal liability "“is founded on the premise that it will be borne only by those persons who knew what they were doing and willed it”" (Ruzic at para. 34). In other words, the rationale underlying duress is that of moral involuntariness, a concept entrenched as a principle of fundamental justice (Ryan at para. 23, citing Ruzic at para. 47). This is so crucial that lack of moral voluntariness entitles the offender "“to a complete and unqualified acquittal”" (Ruzic at para. 43 quoting from Rabey v. The Queen, 1980 CanLII 44 (SCC), [1980] 2 S.C.R. 513, at p. 522).
[72] Therefore, moral involuntariness, which serves as the underlying rationale for duress, engages the most basic, fundamental and organizing principles of criminal liability in Canadian criminal law, meaning that to allow individuals who acted involuntarily to be declared criminally liable violates our Constitution (Ruzic at paras. 45 and 55). Put differently, in Canada, the Charter dictates that a crime committed by someone who acted involuntarily is not punishable and cannot attract the stigma of criminal liability. Put yet another way, duress strikes right at the core of criminal liability and so, legally speaking, the accused must be treated for all Canadian legal purposes as if the accused has never committed a criminal offence.
[73] In Ruzic, the Supreme Court stressed that although it does not "“negate ordinarily ""actus reus”" (a guilty act) nor does it "“ordinarily negate ""mens rea”" (a guilty mind), and rather operates as an excuse, duress, "“in its ‛voluntariness’ perspective”", can "“more justifiably fall within the ‘principles of fundamental justice’, even after the basic elements of the offence have been established.”" This is because, unlike the concept of "“moral blamelessness”", duress, in that perspective, can "“more easily be constrained”" (Ruzic at para. 42).
[74] It is rational to conclude, therefore, that voluntariness is an "“essential ingredient”" to any criminal offence in Canada, which means that if a foreign conviction results from the commission of an involuntary act because of duress, then that conviction cannot be regarded as equivalent in Canadian law as lack of voluntariness, cuts to the root of any criminal conviction such that Canada should not recognize a foreign conviction if it occurred in such circumstances. . R. v. Richer
In R. v. Richer (Ont CA, 2025) the Ontario Court of Appeal considered the defence of duress:[16] Duress is a defence that only applies in situations where the accused has been compelled to commit a specific offence under threats of death or bodily harm. ....
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[18] I see no reviewable error in the trial judge’s ruling on the defence of duress. As the trial judge correctly noted one of the elements of the defence of duress under both statute and common law, as discussed in R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14, at para. 81, is that there must be an explicit or implicit threat of present or future death or bodily harm.
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[23] I see no basis to interfere with the trial judge’s conclusion that the appellant’s evidence did not disclose the kind of threat that was required to lend an air of reality to a duress defence. The trial judge’s conclusion is supported by this court’s decision in R. v. Mena (1987), 1987 CanLII 2868 (ON CA), 34 C.C.C. (3d) 304 (Ont. C.A.), at para. 50, where Martin J.A. held that "[t]he threat required to invoke duress may be express or it may be implied" but that “[m]ere fear does not constitute duress in the absence of a threat, either express or implied” (emphasis added). This court has also held that “[a] fearful subordination to the orders of others is miles from the kind of conduct required to bring the duress defence into play”: R. v. Aravena, 2015 ONCA 250, 323 C.C.C. (3d) 54, at para. 89. . R. v. Dhatt
In R. v. Dhatt (Ont CA, 2023) the Court of Appeal considered the defence of duress:[25] The appellant also submits that the trial judge erred in the way she dealt with the defence of duress. I disagree.
[26] In accordance with R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14, the trial judge outlined the five elements of duress, which may be summarized as follows:(i) that the accused was threatened with death or bodily harm unless he or she committed the offence;
(ii) that the accused reasonably believed the threat would be carried out;
(iii) that the accused had no safe avenue of escape from the harm threatened, evaluated against the actions of a reasonable person in the same circumstances;
(iv) that the threat caused the accused to commit the offence; and
(iv) that the harm caused by committing the offence was not disproportionate to the harm threatened, evaluated against the behaviour we expect of reasonable person in the same circumstances. [27] The trial judge correctly noted that if the Crown proved beyond a reasonable doubt that any of the five elements were not present, the defence of duress was not available to the appellant. She found that the Crown had proven that four of the five elements were not present. In my view, these findings were open to her on the record and are subject to deference on appeal.
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