Big Newf and duress, 11 years for carfentanil trafficking, and an increased award for firing an articling student
This week on Legally Speaking with Michael Mulligan:
Duress is a defence, sometimes referred to as an excuse, for the commission of a criminal offence.
The rationale for the defence is the idea of moral involuntariness.
These are the requirements for the defence:
- There must be an explicit or implicit threat of present or future death or bodily harm. The threat can be directed at the accused or a third party.
- The accused must reasonably believe that the threat will be carried out.
- There is no safe avenue of escape. This element is evaluated on a modified objective standard.
- A close temporal connection between the threat and the harm threatened.
- Proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened. This is also evaluated on a modified objective standard.
- The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy, or association.
Once the accused person demonstrates that there is an “air of reality” with respect to each element of the defence, the Crown would need to prove that the defence does not apply.
In the case discussed, the accused, and his brother, were on the same unit in jail as a man known as Big Newf.
Big Newf demanded that the accused smuggle drugs into the jail. If the accused didn’t do this Big Newf, who had a reputation for violence, would harm the accused, or his brother.
Big Newf arranged for a surety to help the accused get bail and then the person acting as a surety had the accused swallow and insert drug packages into his rectum. The accused was then required to turn himself into the police to get readmitted to jail.
The accused did not think he had any safe avenue of escape because Big Newf, and his associates, had access to his brother who was still in jail.
The trial judge, and the Ontario Court of Appeal, both concluded that the Crown had not proven that the defence of duress did not apply.
Also on the show, the BC Court of Appeal upholds an 11-year jail sentence, for a man with no previous record, who plead guilty to trafficking in carfentanil.
The man had been selling drugs online and shipping the drugs via Canada Post. Online advertising for the drugs included statements such as “one of the premium Fentanyl vendors in Western Canada.”, “carfentanil … [w]hen used responsibly … is proven to be very safe”, and “we have the best stealth period”.
Finally, on the show, a BC Court of Appeal decision increasing the wrongful dismissal award in favour of an articling student who was fired by her principal is discussed.
The court described the lawyer’s conduct as “high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinarily standards of decent behaviour.”
The fired student was awarded $118,934 in general damages, $25,000 in punitive damages, $50,000 in aggravated damages, and $10 for breaching an articling agreement.
Follow this link for a transcript of the show and links to the cases discussed.