The issue of a safe avenue of escape while under duress is a tricky one, and the case explored it in what is perhaps even too much depth. Over-analysis is a thing that is possible in law. Ultimately, at some point, a jury must determine whether the accused made the correct decision or not, based on available evidence; at the very least, an attempt to escape is always possible in all circumstances, regardless of how dangerous that attempt may be, so what the jury actually has to decide is if the accused correctly determined if one of the always existing avenues is safe, not if a safe avenue existed. This must be determined probabilistically, not in binary; any escape attempt always has a risk. Yet, "safe" implies certainty. It is consequently impossible to determine if an escape route is "safe" or not; the entire concept of a "safe avenue of escape" is entirely incoherent. What can be determined is only whether the hostage made an acceptable attempt at escape or not, based on the approximated probability of escaping safely, and this is necessarily a fully subjective calculation because it depends entirely on the hostage's perception of what the probability of escaping safely actually was. Further, if the issue is to be abstracted to its fullest generality, the question of whether the avenue of escape is safe is certainly not always the most important one to consider in determining whether the accused was restricted in their behaviour or not. In order for a balanced decision to be made, this available evidence needs to include both objective and subjective criteria regarding not just the ability to escape but also the consequences of it, rather than be restricted to the likelihood of safe escape itself from one or the other perspectives, and the weighting of each needs to be specific to each specific case at hand. For this reason, it is both difficult and perilous to try and construct any kind of legally binding precedent that forces the jury to focus on one or the other with primacy; the problems associated with an individual committing a crime under duress present a prime example of the inefficacy of a rule-based legal system and a strong argument in favour of a circumstance-based system.
Facts
In the case at hand, the defendant was brought at gunpoint to a friend's apartment, where he was ordered to ring the buzzer for the purposes of allowing the gunman entry. Entry was obtained. The gunman then shot the friend non-fatally, but was never apprehended. The defendant, however, turned himself in to police and ended up charged with and eventually convicted of aggravated assault, as a party to the crime.[1] His appeal in the case has to do with whether or not the court correctly explained the defence of duress to the jury.[2] The ruling of the Supreme Court in this case actually changed the nature of the defence of duress and ordered a new trial based on that new definition, so the question of whether the court correctly explained the defence is not directly relevant in the case.[3] Nor does the case attempt to determine if there was an avenue of escape available to the defendant or whether or not he took it, or even to clarify what that means, but only states that duress is not a valid defence if an avenue of escape is possible.[4]
Issue,
Decision, Analysis and Conclusions
While it should be noted that the case redefined existing case law in this area, it cannot be stated that stare decisis was a significant factor in the ruling. It is consequently not useful to refer to existing cases in examining the issue or analyzing the ruling. It is more useful to consider the situation in greater abstraction by considering some theoretical cases for the purposes of determining if the constructed and novel precedent, which depends on no existing precedent, is truly comprehensive or not.
Before discussing the issue further, let us consider the following imaginary case. Suppose a couple is being held at gunpoint, and the attacker threatens to severely wound one of them if the other doesn't agree to aid in the carrying out of a crime. Dialog is attempted, but is met with the attacker carrying out that threat. A short but objectively clear safe avenue of escape follows, but, knowing that escape would mean the certain death of the partner, the individual being coerced into the crime chooses not to take it. Whether it is argued that the decision to not escape resulted from a state of shock or from deep feelings of love, the proper administration of justice could not conclude that this person is responsible for the crime they are about to be forced into committing, despite the existence of an objectively clear escape route that was rejected, because it would result in the death of a loved one. The issue being drawn attention to is that, in rejecting the escape route, this deeply unfortunate individual is very much acting under duress. While the example is admittedly extreme, the point is that it is very much possible to be coerced into not escaping when the opportunity is available and that that coercion is, in context, indivisible from the coercion to commit the crime. The existence of a safe escape route is consequently not an objectively valid criteria to draw upon to negate a duress defence, although it may be valid in certain circumstances.
Another scenario to consider would be Stockholm syndrome, which is when somebody in a hostage situation empathizes with their captor. It's thought that this is a consequence of extreme duress.[5] Yet, it could very well lead to a situation in which a hostage ignores a safe avenue of escape and then "willingly" acts as a party to a crime precisely because they are under duress. This constructs the same paradox - the accused can only use the defence of duress if they do not escape when possible, yet they cannot escape when possible precisely because they are under duress. Indeed, any situation that produces extreme duress - including going into shock - could conceivably lead to the same paradox.
Unfortunately, any presented solution to this paradox will merely create another paradox and any solution to that another and so forth. For example, it could be claimed that the escape aspect of the duress defence is only relevant if the accused is of a sound state of mind; if the accused is not of a sound state of mind, she cannot be expected to escape, so the duress defence is valid, regardless of whether an escape route exists or not. However, consider a situation where the hostage is in a sound state of mind and the captor is not. In such a situation, the hostage may actually be in control, despite being held at gunpoint. It may follow that, in order to reduce the amount of harm done, the hostage cannot take the escape route when it is open precisely because she is in a sound state of mind and the captor is not; the sanity of the hostage may be the only thing preventing the captor from producing catastrophic harm. In such a case, should the hostage be punished for not escaping and then being coerced into a lesser crime, if not escaping means effectively preventing a catastrophic one? This is arguably applicable to the case at hand; while there was no valid escape route presented, the accused claims he pleaded with the gunman to not kill his friend[6] and this could have effectively saved his life. Again, this theoretical scenario of convicting a moderating voice for being a party to a lesser crime while in the process of preventing a greater one, all while under duress, and then claiming there was mental intent, would strongly question the integrity of the justice system. So, then it could be claimed that the existence of an escape route is only relevant if both the hostage and the captor are in a sound state of mind. Unfortunately, that would also open up a defence that could be used by those with legitimate intent, as arguing that the attacker is not in a sound state of mind could be used as an excuse for not escaping when there is no reason that the accomplice shouldn't have escaped, and in fact decided not to escape simply because they didn't want to. So, the criteria could be dramatically complicated to account for all of this, then. While this is a step in the right direction, it would open up another set of complex psychological questions about coercion and intent that, due to the nature of coercion, would no doubt be subject to paradoxical quandaries, as well.
Unfortunately, the unanimous court decision has attempted to provide stringent boundaries that ignore all of these concerns. It is stated that a defence of duress can never be used if a safe avenue of escape exists (although what the means is not defined, and could be expanded to include some, but not all, of the presented concerns) and that the criteria for determining if a safe avenue of escape is possible or not should be objective, relative to the reasonable person perspective, but then controlled for subjective bias. Specifically, it is stated that:
My conclusions on the second and third issues raised by the appellant can thus
be summarized as follows. 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. Furthermore, I believe that the internal logic
of the excuse-based defence, which has theoretical underpinnings directly
analogous to those that support the defence of necessity (as set out in Perka, supra), suggests that the question of whether or not
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.[7]
While this is presented as a way to weaken the stringency of an objective determination, it would still convict the person in several of the above cases, when conviction should occur in none of them. Further, I think it is clear that the previously explored examples disarm essentially all of the stated logic.
The sum of all of these concerns is that the relationship between mens rea and duress cannot be subjected to any kind of hard, abstract or objective rules but must be determined on an isolated, case-by-case basis. Neither the actual case at hand nor any of the presented theoretical cases can be abstracted into a set of rules that is fair, just and valid in all of the different circumstances and in all further foreseeable circumstances. As duress and coercion are (by definition) never a choice, concerns about deterrence, predictability and consistency should not be dwelled upon; maintaining consistency of law, in the situation of duress, is actually an obstacle to the proper administration of justice.
LAWS 2302,
mar, 2013
[1] R v. Hibbert, [1995] 2 S.C.R. 973, at para 2-11
[2] R v. Hibbert, [1995] 2 S.C.R. 973, at para 16
[3] R v. Hibbert, [1995] 2 S.C.R. 973, at para 63-68
[4] R v. Hibbert, [1995] 2 S.C.R. 973, at para 55
[5] http://www.fsc.yorku.ca/york/rsheese/psyc1010/wiki/index.php/Stockholm Syndrome: What Leads A Psychologically Healthy Person To Experience This Paradoxical Attachment
[6] R. v. Hibbert, [1995] 2 S.C.R. 973, at para 8
[7] R. v. Hibbert, [1995] 2 S.C.R. 973, at para 62