Denroy Berbeck attempted to smuggle some drugs into Canada by swallowing capsules full of cocaine. He was caught. At trial he claimed he acted under duress. He was acquitted. The Crown appealed. The appeal was dismissed by the Court of Appeal, which held that the trial judge was merely offering advice, not direction, in telling the jury was a "no brainer": 2013 ONCA 241.
While ‘vacationing’ in Jamaica, Berbeck swallowed a bunch of capsules filled with cocaine. He then got on a plane and returned home to Toronto. Canada Border Services Agency (CBSA) officers were suspicious when they discovered that a visibly nervous Berbeck had gone to Jamaica for only four days, that he was travelling alone and that he had purchased his ticket with cash. An ion scan of some of Berbeck’s personal effects revealed the presence of cocaine. After several hours in CBSA custody, a couple of calls to duty counsel and after numerous interactions with CBSA officers Berbeck finally admitted to having swallowed the cocaine capsules. Berbeck was arrested and taken to hospital as a precaution. Shortly after being discharged from the hospital Berbeck expelled the pellets of cocaine.
At trial Berbeck admitted that he had knowingly brought the cocaine into Canada. He argued however that he was under duress and therefore not guilty of importing the drugs. The jury (and the trial judge) agreed. The Crown appealed.
The basis for the Crown appeal was the trial judge’s answers to questions posed by the jury. One of the things the jury was struggling with was the concept of “reasonable person”. The jury sought definition of this term of art.
The trial judge, after discussion with counsel, answered the question as follows:
Sometimes it’s a pity that you haven’t been to law school because for three years of law school we heard debates about the reasonable man. This is such an ancient legal concept that poems and books have been written about it, somewhat humorous. The mythical reasonable man is what I would refer to as an “objective standard”. Now let’s say that you have a relative, a young man who is a little simple, okay? Very gullible. And he’s been looking up at the sky and his father has told him that the moon is made of green cheese. And he believes that, okay? And he makes a decision based on that fact which is obviously wrong.
If a jury is coming to assess that decision, not subjectively from his point of view, but objectively, you would say well the reasonable man wouldn’t premise a decision on the fact that the moon is made of green cheese.
In the case of duress, most of the tests that you’ve had to deal with have been a mix of subjective and objective tests. We have said what a reasonable man in the same situation as Mr. Berbeck with the same life experience, the same background, would he have made the same decision that Mr. Berbeck did?
Well, if Mr. Berbeck had come in and said you know, this fellow came into my house just after breakfast with my Dad and he pointed a water gun at me. He said if you don’t take the drugs, I’m going to squirt you, and maybe the fellow told him that the plastic water gun was full of sulphuric acid which, of course, it wouldn’t hold.
Now, if he was really stupid he might have believed that, but objectively a reasonable man wouldn’t have believed that. Okay.
Now, we’ve been trying to read sort of between the lines and I don’t want to guess how far along you are or where your verdict is, but you’ve come to some problems with three and four. Okay.
Assuming for the purpose of this discussion without in any way trying to decide it for you, I am going to assume, for the purpose of answering this question – just a minute now – that you’ve at least been in a state of reasonable doubt whether threats of death or serious personal injury to Mr. Berbeck or his Dad caused him to do this, and they were operating on his mind when he chose to do it.
I am also going to assume once again without trying to read your mind, that you’ve got past number two, that the threats were of such gravity or seriousness that he believed they would be carried out, i.e., he thought these people were genuine. They were going to do him in if he didn’t do it.
Okay so let’s go to question three. The threats must be such that they might well have caused a reasonable person, placed in the same situation as Mr. Berbeck to act in the same way.
Put another way, would a person of reasonable firmness sharing the characteristics of Mr. Berbeck such as age and background, act in the same manner that he did. That is to say, the threats must be such as to overbear ordinary powers of human resistance.
Now, normally if you’re getting into a legal discussion in the Court of Appeal, and the Court of Appeal will tell you well, that’s just precisely the kind of question you leave to a jury. I have to say, without wanting to influence your decision, I consider myself to be a reasonable person and each of you presumably would do the same. And if I had to choose between my father or myself being murdered, or bringing half a pound of cocaine into Canada, that would be a no brainer. Yes, bringing it into Canada would be a crime, but what’s the alternative? Dying? Hello, what’s the problem?
I think a reasonable person would decide that bringing the cocaine is a lesser of two evils. And that’s really all we’re asking. So I don’t see why you’re having a big problem with that particular question.
It’s a decision that you have to make but let me tell you, remember I told you earlier you have three hundred years of living experience amongst you, and you just have to apply your common sense. If it was your child or your mother and the fellow said I’m going to blow your mother’s brains all over the dining room wall unless you bring a half a pound of cocaine into Canada, I have to say, I would say, yeah, in the suitcase, let’s get on the plane, because I don’t want my mother’s brains laid all over Canada. I don’t think that’s unreasonable. That to me is the easiest part of the whole case.
I don’t want to take it away from you and the Court of Appeal if this ever gets there will probably say the learned trial judge, in question marks, took the case from the jury by saying what he did. It’s your decision, but would it be unreasonable? Every one of us might have made a different decision, but having made that decision could any of us say it was reasonable looking at it objectively? Pretty hard hearted Hannah’s if … Okay?
So I hope that will give you some help with number three.
The question number four is, did he have an obvious safe avenue of escape?
Well, I’ve reviewed the evidence on that for you. To some extent you have to understand that the question of obvious safe avenue of escape depends on what Mr. Berbeck believed. That isn’t necessarily an objective test. He might have believed that the police in Canada were more corrupt than they actually are, right? He might have believed that his half-brother had a watcher in the secure area. If he genuinely believed that, then that impacts on his decision. If he has a genuinely held belief it doesn’t necessarily have to be reasonable, but whether it’s reasonable will help you decide whether he genuinely believed it. Are you with me?
So, again, if I hold a genuine belief or I claim a general belief that the moon is made out of green cheese, you might say well, I don’t believe that was genuine because it’s so totally unreasonable. So the two play off against each other.
…
If you have got as far as number three, to me that’s a no brainer, it’s your decision. Then you have to make the fourth decision whether Mr. Berbeck himself genuinely believed he didn’t have a safe avenue of escape, that the Crown has not negated that beyond a reasonable doubt, then he gets the benefit of that part of it too [para 19]
Immediately following this instruction and again on appeal the Crown argued that the examples offered by the trial judge were absurd.
The Court of Appeal held that although it would have been preferable for the trial judge to use the standard instruction, they were not persuaded:
(…) that what the trial judge did say amounts to a reversible error. While the examples he gave are extreme, I am of the view that the jury would not have been confused about the essential nature of the reasonable person standard. Clearly, the trial judge used strong language to let the jury know what he thought about the third element of the defence, as he had laid it out. He said, as far as he was concerned, it was a “no brainer” and he couldn’t understand why they were having difficulty with this question.
Despite this strong language, he nevertheless made it clear it was for the jury to decide. A trial judge is entitled to express an opinion on the evidence as strongly as the circumstances permit, so long as it is clearly advice and not direction [paras 27 and 28].
Short of telling the jury that choosing to import cocaine to prevent the death of a parent, it seems like the trial judge is simply offering “advice” not “direction”…oh wait, in this case the trial judge did say he would’ve chosen to import cocaine to prevent the death of a loved one. In fact the trial judge said:
…if it was your child or your mother and the fellow said I’m going to blow your mother’s brains all over the dining room wall unless you bring a half a pound of cocaine into Canada, I have to say, I would say, yeah, in the suitcase, let’s get on the plane, because I don’t want my mother’s brains laid all over Canada. I don’t think that’s unreasonable [para 19].
DGM