Criminal Law

• Author: International Law Group

On April 30, 1994. Marijana Ruzic, a citizen of the former Yugoslavia, arrived in Canada with two kilos of heroin strapped to her body. Canadian authorities charged her (1) with importing heroin in violation of the Narcotic Control Act and (2) with using an illegal passport. At her jury trial, the defendant conceded that she had engaged in both violations but contended that she was then acting under such duress as would relieve her of any criminal liability.

According to her story, Marko Markovic had accosted defendant on a Belgrade street, telephoned her on many occasions and assured her that he would harm her mother if she did not deliver some heroin to a restaurant in Toronto. Markovic once burned her arm with a lighter and injected her with some sort of drug that made her sick. Defendant believed that Markovic had been a paid killer during the war. She admitted failing to go to the local police because she believed that they were crooked themselves.

Section 17 of the Canadian Criminal Code recognizes a defense to crime for one "who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed." Realizing she did not come within its purview, defendant persuaded the trial court of the unconstitutionality of Section 17 under Section 7 of the Canadian Charter of Rights and Freedoms. Section 7 provides that: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." After she asserted the common law defense of duress, the jury acquitted her.

The Crown filed for review of the acquittal on the heroin charge but the Court of Appeal dismissed the case. Upon a further appeal by the Crown, the Supreme Court of Canada dismisses. As a matter of first impression, the Court declares that, while moral involuntariness does not nullify the actus reus or the mens rea of a criminal offense, it is a principle of fundamental justice which merits protection under the Charter. The penalty and taint of criminal liability should apply only to voluntary conduct which is the product of free will and bodily control, unimpeded by outside curbs. Imprisoning a person and branding him or her as a criminal contravene basic principles of justice if the individual lacked any realistic choice but to commit the crime.

In its plain meaning, Section 17 of the Code, in practical effect...