On November 25, 1991, Cohen, a friend of the appellant, was shot four times in the lobby of his apartment building. The appellant had called for his friend Cohen to come downstairs from his apartment at which point another man, Bailey, shot Cohen four times when he came downstairs. Hibbert contends that he only acted the way he did (in calling Cohen downstairs) because Bailey threatened him and therefore the defence of duress should apply. Hibbert was acquitted of attempted murder at trial but convicted of aggravated assault; his appeal on the conviction was dismissed by the Court of Appeal, but his sentence was reduced.
- Does an action performed under duress remove the element of mens rea?
- When does s.17 of the Criminal Code apply?
- When does the common law defence of duress apply?
Appeal allowed, new trial ordered with corrected jury instructions.
Lamer, writing for a unanimous court, says that although he is bound by R v Creighton, there is a significant distinction between that case and the case at bar – it is a defence that is concerned here, so the ruling in Creighton that unmodified objective tests must be used in respect to homicide does not stand. He deems that a modified objective test is more appropriate for an excuse-based defence. The particular test to be employed is one that takes into account particular circumstances and human frailties, however he makes no reference to the circumstantial frailties in this case.
The court says that it is important to note that threats can have an effect on one's mental state, however this does not necessarily mean that someone who commits the actus reus of an offence does not possess the necessary mens rea required for conviction. This will depend on what the required mens rea of the offence is, and the facts of the case.
In the circumstances of the case, only the common law defence of duress that applies to Hibbert as he was not the principal actor. Section 17 only applies to principal actors in crimes; the common law applies to secondary actors and abettors. The "no legal way out" requirement in defence of duress only asks if there is a "reasonable legal alternative" determined using a modified objective test. In the case at bar, a reasonable person in Hibbert's shoes would not have thought that he had any reasonable alternatives.
The trial judge charged the jury that duress negated the mens rea of an offence, and was more than just an excuse, which was a mistake of law. While duress can apply as a defence and negate mens rea in extreme circumstances (desiring bank robbers to succeed so that your family would be freed from captivity, for example) and result in an acquittal, the circumstances of this case do not allow for this negation. Hibbert clearly knew what he was doing and he knew that he might cause Cohen's death.
- Section 17 only applies to principal actors in crimes; the common law defence of duress applies to secondary actors.
- Duress may be used as a defence either to negate mens rea or as an excuse-based defence under s. 17 or the common law defence of duress; the defence can always apply, but whether or not the coercion will mean that the mens rea is not present will depend on the particular charge and facts of the case.
- The common law defence only requires you to determine if the accused had a "reasonable legal alternative" using a modified objective test.