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Criminal - Voluntariness (2). Rodriguez Anzola v. Canada (Citizenship and Immigration) [possibility of '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. Barac
In R. v. Barac (Ont CA, 2023) the Court of Appeal considered the issue of voluntary statements, here on a US border crossing:(2) The appellant’s answers to the BSOs’ questions were voluntary
[43] The appellant submits that his answers to the questions he was asked at the border were involuntary at common law and therefore inadmissible at trial. The core of his argument is that the compulsion to answer truthfully under the Customs Act operates as a threat within the meaning contemplated in R. v. Oickle, 2000 SCC 38, [2002] 2 S.C.R. 3. The appellant does not allege a violation of his s. 7 Charter right against self-incrimination, nor does he challenge the constitutionality of the Customs Act.
[44] It is settled law that statutory compulsion, on its own, does not render a statement involuntary at common law for the purpose of criminal proceedings: Walker v. The King, 1939 CanLII 2 (SCC), [1939] S.C.R. 214, at p. 217; Marshall v. The Queen, 1960 CanLII 18 (SCC), [1961] S.C.R. 123; R. v. Slopek (1974), 1974 CanLII 1553 (ON CA), 21 C.C.C. (2d) 362 (Ont. C.A.), at p. 365. The fact that the Customs Act allows for the imposition of fines and imprisonment makes no difference. So does the Highway Traffic Act, R.S.O. 1990, c. H.8, which was the statute at issue in Walker, Marshall, and Slopek.
[45] The appellant does not point to any other source of threat. Nor does he allege that the border authorities involved in this case made promises or created an atmosphere of oppression that could raise a reasonable doubt as to the voluntariness of his statements. Accordingly, this ground of appeal must fail. . R. v. Groves
In R. v. Groves (Ont CA, 2023) the Court of Appeal considered the voluntariness of statements:[31] An assessment of the voluntariness of a statement requires a contextual consideration of any whether there were threats or promises, oppression, an operating mind, or other police trickery: R. v. Oickle, 2000 SCC 38, 147 C.C.C. (3d) 321, at paras. 69-71. The approach to be taken by an appellate court in its assessment of a trial judge’s finding of voluntariness was recently restated by the Supreme Court of Canada in R. v. Tessier, 2022 SCC 35, at para. 43:A finding of voluntariness calls for deference unless it can be shown that it was tainted by a palpable and overriding error. An appellate court may only intervene where the error is overriding and determinative in the assessment of the balance of probabilities with respect to that factual issue. The standard of review associated with the finding of voluntariness is tied to the idea that the analysis under the confessions rule must be a contextual one in which bright line rules are few. Where the law is properly understood and the relevant circumstances considered, the trial judge is best placed to measure that context and make the relevant findings. [Citations omitted.] . R. v. Bharwani
In R. v. Bharwani (Ont CA, 2023) the Court of Appeal considers the doctrine of voluntariness:(b) The law of voluntariness
[216] The voluntariness doctrine is only triggered where the recipient of the statement is a person in authority. Only where this is established must the Crown prove beyond a reasonable doubt that the statement was voluntary: R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449, at para. 48; R. v. T.(S.G.), 2010 SCC 20, [2010] 1 S.C.R. 688, at paras. 20, 22; R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 35; R. v. Oickle, 2000 SCC 38, [2000] S.C.R. 3, at paras. 41-71; and R. v. Tessier, 2022 SCC 35, 473 D.L.R. (4th) 317, at paras. 39, 68.
[217] There is no absolute definition of a person in authority. While those in authority tend to be individuals involved in the arrest, detention, interrogation or prosecution of the accused, others can fall within this list: Hodgson, at para. 32; R. v. A.B. (1986), 1986 CanLII 4624 (ON CA), 26 C.C.C. (3d) 17 (Ont. C.A.), at p. 26. The test is a largely subjective one, inquiring into “whether the accused, based on his or her perception of the recipient’s ability to influence the prosecution, believed either that refusing to make a statement to the person would result in prejudice, or that making one would result in favourable treatment”: Grandinetti, at para. 38.
[218] However, there is also an objective component that accompanies the subjective. For the receiver of a statement to be categorized as a person in authority the accused’s subjectively-held belief must be reasonable: Hodgson, at para. 34; Grandinetti, at paras. 37-39.
[219] There is nothing to support the suggestion that a psychiatrist is necessarily a person in authority. While some courts have found that a psychiatrist is a person in authority, those cases turn on their specific facts: R. v. Getkate, [1998] O.J. No. 6329 (Gen. Div.); R. v. Feldberg, 1999 ABQB 738, 252 A.R. 158; R. v. Leggo, 2003 BCCA 392, 133 C.C.C. 149; and R. v. Fowler (1982), 1982 CanLII 3843 (NL CA), 4 C.C.C. (3d) 481 (Nfld. C.A). Other decisions have concluded that psychiatrists are not persons in authority: R. v. Bertrand (1991), 1991 CanLII 7392 (ON SC), 2 O.R. (3d) 659 (Gen. Div.); R. v. Perras (1972), 1972 CanLII 868 (SK CA), 8 C.C.C. (2d) 209 (Sask. C.A.), aff’d 1973 CanLII 157 (SCC), [1974] S.C.R. 659; and R. v. Parnerkar (1974), 1974 CanLII 1521 (SK CA), 17 C.C.C. (2d) 113 (Sask. C.A.). Therefore, a case-specific analysis is required.
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