Summary

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Summary

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Charter of Rights – Criminal law – Constitutional law – Fundamental justice – Defences – Duress – Conviction for first degree murder – Whether duress an available defence to murder charge – Whether “criminal association” exception operates to exclude duress defence to murder charge – Whether the Court of Appeal erred in failing to find that the exclusion of the defence of duress for the offence of murder, under s. 17 of the Criminal Code, R.S.C., 1985, c. C-46 contravenes s. 7 of the Canadian Charter of Rights and Freedoms, because it allows a person to be found criminally liable for morally involuntary conduct and is overbroad, and cannot be saved by s. 1 of the Charter – Charter of Rights, ss. 1, 7.

The applicant faced death threats over a drug debt. The dealers threatening him also wanted Ms. Tran killed for an unrelated reason. In order to avoid the threat, the applicant chose to commit the murder of Ms. Tran. The applicant explained to the police that it was “necessary at the time”, because “[i]t was like my life or her life.” The applicant confessed to his crime. At his trial by judge and jury for first degree murder, the applicant sought to put forward the defence of duress based on his claim that this was a situation of kill or be killed. The applicant brought a pre-trial application asserting that s. 17 of the Criminal Code, R.S.C., 1985, c. C-46 violated s. 7 of the Charter of Rights. Both the trial court and the Court of Appeal upheld the validity of s. 17 of the Code. The trial proceeded on the basis that the applicant could not rely on the defence of duress. The applicant was convicted of first degree murder and was sentenced to life imprisonment without eligibility for parole for 25 years. The appeal was dismissed.

Lower Court Rulings