Necessity and Aiding a Murder Under Duress – Ty Schmidt

The common law defences of necessity and duress have been well established at this point in time. Necessity has been an option in common law at least since the 1884 case of R v Dudley & Stephens (“Dudley & Stephens”) and it has since been expounded upon and more precisely defined by Canadian courts over the last forty years in particular. In 1984, the Supreme Court of Canada’s decision (“the Court”) in R v Perka (“Perka”) established the preconditions for a defence of necessity which are (to phrase them succinctly) imminent peril, no legal alternative available, and proportionality between the danger and the harm. Necessity had another spotlight in the high-profile 2001 case of R v Latimer (“Latimer”), in which the Court determined that there must be an air of reality to each of the requirements in order for it to be an available defence. The defence of duress is very closely linked to necessity, and, at times, even appears synonymous, although duress most often means that someone is being forced by another party to do something against their own volition. To illustrate this similarity, the Court’s decision in R v Hibbert (“Hibbert”) explained that duress follows the same preconditions as necessity and it must follow a modified objective standard where the accused’s particular circumstances must be considered. Hibbert also establishes that a person must have no “safe avenue of escape” in order for duress to clear them of moral voluntariness.

The recent 2020 decision of R v Ducharme (“Ducharme”) represents a situation where necessity and duress were used as defences for the accused being a party to the crime of murder. In Ducharme, two inmates at Stony Mountain Institution were found guilty of murdering another inmate and allegedly aided in the planning and carrying out of this crime by a third inmate, Aaron Ducharme. Defence counsel were of the position that the accused was under duress to assist the attackers. The rest of this paper will consist first of a brief summary of the relevant facts and circumstances in Ducharme, followed by an examination of how necessity and duress were able to acquit the accused of his charges.

Facts and Circumstances

Adrian Fillion was stabbed a total of 52 times while in his cell, and the attack was carried out by Peter Fisher and Kevin Edwards. Both individuals, as well as Ducharme, were inmates in the maximum security “I” range at Stony Mountain Institution. After the attack, video surveillance shows the accused running toward the shower, where Fisher was, and quickly retrieving the murder weapon (a shank) that had just been thrown on the floor from the shower, in a clandestine exchange for his sandal. Ducharme then took the shank and placed it in a trash can in the common area of the range. Security footage also showed the accused hailing Fillion to his cell just prior to the attack as well as meeting with Fisher and Edwards multiple times earlier throughout the day. This video footage led the Crown to the position that Ducharme participated in the planning, execution, and clean-up of the murder and that he “was the lynchpin in a coordinated plan, and without his part, the crime could not have taken place”. Crown counsel argued that the video proved Ducharme’s guilt beyond a reasonable doubt. Defence counsel would argue that many of the submissions based on this silent footage were completely speculative and not sufficient to condemn the accused.

The accused gave testimony that would ultimately be much more telling of the extent of his role in the murder. Firstly, he denied having any prior knowledge of a plan to kill Fillion and maintained that the task of weapon disposal was randomly thrust upon him by Fisher after the attack. Fisher yelled at Ducharme to bring his sandals to the shower, where he insisted that Ducharme take the weapon and threatened to kill the accused if he did not comply. The accused asserted that the only reason he did comply is because he legitimately feared for his life at this point. He had previously been bullied and degraded by Fisher and Edwards and had previously witnessed Edwards stab three people in June 2018.

Regarding the footage that suggested Ducharme lured Fillion to his cell, he testified that it was in order to complete a drug exchange that had been arranged prior – Ducharme acknowledged that one of his roles in prison was dealing drugs. The accused also asserted that he did not bring the weapon to correctional officers because he thought there was no way he could do that without being seriously harmed for being a “snitch”.

Analysis

The first portion of Justice McCarthy’s analysis (“McCarthy J”) consisted of her assessment of the video evidence, which she concluded did not prove beyond a reasonable doubt that the accused was actually aiding and abetting the plot to murder Fillion. However, there was still undeniable proof that the accused had become an accessory after the fact just on the basis that he did take the weapon and attempt to dispose of it. Since it was argued that he did so out of necessity, the final portion of the judgement applied the principles of duress to the facts at hand. Citing Hibbert, the requirements for the defence of duress are:

1) There must be an urgent situation of clear and imminent peril,

2) Compliance with the law must be demonstrably impossible, and

3) There must be proportionality between the danger facing the accused and the harm caused by his unlawful acts.

McCarthy J believed that all three of these requirements are met. She accepted the evidence that the accused was truly intimidated by Fisher and Edwards and that he had witnessed Edwards stab three people. She also accepted the evidence that Ducharme was consistently bullied in his day-to-day life in the “I” range due to all of the chores he ran for many of the inmates. When the accused had picked up and disposed of the knife, he was probably aware that Fisher and Edwards had just harmed Filion and this “rendered his choice to pick up the shank when ordered to do so effectively involuntary in the normative sense of the word.” A reasonable person in the same circumstances would not likely think they had any choice in such a situation. It was also accepted that the accused felt that no other option – such as bringing the weapon to security – was available to him, seeing as Fillion had just been murdered in such a short time. A reasonable person in similar circumstances would probably have a very real fear of retribution for being a “snitch.” In concluding on the matter, McCarthy J stated that she did “not find that the accused had any safe and viable alternative to disposing of the weapon” and accordingly had to acquit the accused on all charges.