 And welcome to this one of the highlights of our mooting year. The judge's names have already been mentioned, but I would like to take this opportunity to start by saying a very special thank you to them, to the Honorable Justice Linda Lee Oland and Honorable Justice David Ferrar from the Nova Scotia Court of Appeal, and to Ms. Julia Cornish QC, who is the President of the Nova Scotia Barristers Society. As you all know, we depend a great deal on the legal profession and the judiciary to be a part of our community and to help us out. And this is yet another example of that assistance. It's greatly appreciated. I'd also like to acknowledge our mooters for the evening, Alicia Wilbert, Timothy Hennigan, Ian Willenius, and Amelia Morehouse. Congratulations on making it this far. We're all looking forward to a great show of advocacy this evening. You're joining a tradition that began in 1927. That's the Smith Shield. As I said, it is one of the highlights of the year. It's made possible by the very kind funding of Stuart McKelvie. And we have here tonight Scott Campbell. Scott, thank you very much. Please take back to your colleagues our great thanks for their support for this event. We really do appreciate it. I want to thank Professor Shapiro for preparing the problem and also Associate Dean to Turbid and his assistant Tatiana for organizing the event. Warn everybody this event is being audio and video taped. Please also take a moment right now to turn off your electronic devices. Thank you. Following the event there will be some photos taken of the judges and the participants. And then everyone is welcome to come up to the third floor faculty lounge for a reception. Before I turn it over now to the presiding judges, I want to say two things to our four mooters. First of all, regardless of the outcome this evening, you're all winners. You're here because you're really good. You were selected to be here because of your skills and your performance. So you are winners. It's just the nature of the adversarial system that in the end someone has to win and someone has to lose. But please remember that you are winners. Second thing is I don't know where you'll end up three or five or 10 years from now and whether you'll do any appellate advocacy, but I just want to reiterate that the kinds of skills you learn when you're doing appellate mooting are highly transferable. Persuasion, teamwork, hard work, time management, persuasive communication, thinking on your feet, problem solving, these are all really important skills. And I'm sure you've already learned a lot from getting this far in your mooting lives. So thank you everyone for being here and I'll now turn it over to our presiding judges. Thank you, Dean Cameron. This matter of Daniel Estevez versus Her Majesty the Queen on appeal from the Supreme Court of Canada. All right, the party's ready to proceed. Ms. Wilbert, I understand that you'll be the first person arguing. Whenever you're ready, please. Good evening, my lord, my ladies. This is the matter of Estevez and Her Majesty the Queen. My name is Alicia Wilbert and I, along with my colleague, Timothy Henahan, are acting as counsel for the appellate, Mr. Daniel Estevez. I'm joined by my friends, Ian Willenius, and Malia Morehouse, who represent the respondents, Her Majesty the Queen. I'll be addressing the first issue before the court. Whether the exclusion of the defense of duress for murder under section 17 of the criminal code violates section seven of the charter. My colleague, Mr. Henahan, will be addressing the second issue, whether the section seven violation can be saved under section one. The facts of this matter are set out at page four of our factum, so unless this honorable court should like me to recite those facts, I propose to proceed directly to argument. No question for you. Would it make any difference if there was a little change in the facts that it was in his brother, that it was someone he did not know? Would that change the nature of your argument? If the facts changed and Mr. Estevez did not know the appellate, is that what you're asking? Yes, it did. Did not know the accused. No, did not know the person that they wanted him to kill. They said, we want you to kill the, or he did not know the person that they were going to kill. So they have someone in their custody and they said, listen, we want you to kill the crown prosecutor or we're gonna kill this guy and he doesn't know him. I think what we need to focus on here is that the facts present are that Mr. Estevez did know the accused and that is critical to this case. So potentially if the facts were different that may have some impact. However, it does not change that section 17 and it's exclusion for murder violates section seven of the charter. It was cited in the facts that section 17 is to protect innocent lives. This is an objective that my friend touches on later that is clearly not met. So in your argument today, one of the things you're gonna focus on is the protection of the innocent life, which in this case is that of the crown prosecutor, is that so? What we're going to focus on today is whether Mr. Estevez's actions were morally involuntary and as such, whether section 17 violates the principle of fundamental justice that moral involuntariness cannot attract criminal liability. And what do I do with the principle of the sanctity of life, particularly an innocent life? Yes, that's a great question, my lady. If we're looking at the sanctity of life and looking at Ms. Godot's sanctity of life, we also must consider Fernando's sanctity of life. And if we're looking at both victims' sanctity of life, we cannot be weighing those lives because that is more of a justification. Rather, the defense of duress is an excuse-based defense which acknowledges the wrongfulness of the conduct. However, it recognizes that in extreme circumstances the accused actions must be understood and excused. So when looking, if we're just going to look at Ms. Godot's section seven, right, that was violated, we also have to consider Fernando's. And specifically in this case, we need to consider Mr. Estevez's right to liberty, which was violated here. I guess that's why I asked the question as to whether it made a difference that Fernando was the brother of Daniel and if Fernando had been someone he did not know, that shouldn't make any difference to your argument, should it? Yes, I agree, my lord. My lord, my ladies, Daniel Estevez is a victim here. His twin brother Fernando was kidnapped, dismembered, and held hostage by one of the most violent, notorious gangs in the world. Daniel was put in an unthinkable position. He either kills Martin Godot or allows his twin brother to be tortured and murdered at the hands of MS-13. Daniel Estevez is not a criminal. Rather, he did what any reasonable person would do and he protected his family. At the heart of this case, section 17 of the criminal code is at the center of this appeal. This provision expressly precludes Daniel Estevez from invoking the defense of duress under any and all circumstances. Daniel Estevez had no realistic alternative and he acted as any reasonable person who would do in the circumstance. And yet, because of this outdated provision, he is barred from accessing the defense of duress and he will spend life in prison. From the way I read the facts, it appears that your client concluded that the effect of his action would be to save his brother, but there's no facts about that and was it reasonable for him to conclude that by killing someone, he was definitely saving someone else or should he not have contemplated the possibility that the result of his action would be two dead people instead of one? It's a great question, my lady. On the facts, we do not know what happens to Mr. Estevez, his brother, Fernando. However, what is important is what Daniel Estevez and what a reasonable person would have thought about those, about the threats. And on the facts, the MS-13 are notoriously violent gang. They do not make empty threats and Fernando's death was certain. And alternatively, I will argue that Daniel Estevez did everything that he possibly could to avoid killing Martín Godot. And this was evidenced by the fact that when he followed through with the demands of MS-13, he leaned in and whispered, pretend you're dead, hoping that she could make it through alive. And subsequently, when the phone call ended, he immediately called the police and he called an ambulance. These are simple. I appreciate that. But if he was so convinced of the violence of this gang, why would he not contemplate the possibility that regardless of what he did, his brother would be killed? And why wasn't that an important consideration for him before he made his own decision to cause harm to another? Moral involuntariness recognizes that the accused's actions were not his own. He was compelled by such extreme circumstances that his choice to act was no choice at all. He was compelled by natural instinct and his actions were not his own. Thank you. The respondents have said that I'm sure that you read their fact. What do you say about those alternatives in this case? Yes, my friend has cited some alternatives. However, the appellants submit that the alternatives that were suggested by the respondent are making baseless assumptions of MS-13's intentions. All we knew on the facts and all our client knew on the facts was that MS-13 wanted Ms. Godot dead. They did not ask him to stop the extradition process. So tampering with DOJ files, kidnapping Martin Godot, or deleting computer files would not have solved that objective. On the facts, Daniel Estevez was told to murder Martin Godot and to do it instantly or Fernando would be killed. He had no time to negotiate. The phone call was made via FaceTime. He had to act instantly and he had to follow through with threats or his brother would die. Part of this case is the constitutionally entrenched principle that only voluntary conduct can attract criminal liability. Daniel's actions were morally involuntary and as such, by bearing him access to the only defense available to him, his Section 7 Right to Liberty is violated. Moral involuntariness was entrenched as a principle of fundamental justice by the Supreme Court of Canada in Rusek. This principle recognizes that criminal liability can only be fairly imposed if a person makes a conscious choice to act free from external pressure. In this, Section 17 violates this principle of fundamental justice because as will be shown here, it is possible to commit murder in a morally involuntary way. Daniel Estevez's actions were morally involuntary because he was deprived of any realistic choice but to commit the offense and his actions were proportionate. Firstly, Mr. Estevez was deprived of any route to legally or safely remove himself from the situation of duress. In a kill or be killed scenario, it may be argued that the accused could use negotiation, flight or even self-defense to avoid committing or breaking the law. However, these options are not available when the accused is not the object of the threat. Here, Mr. Estevez's brother Fernando was the object of the threats and he was being held hostage in Guatemala. In third-party hostage scenarios, safe avenues of escape are drastically different. The accused can either seek police assistance or do nothing and allow their family member to suffer. In this case, Mr. Estevez was unable to rely on law enforcement. Upon receiving the initial text message, he went to the police who were unable to say Fernando due to corruption in the government. While effective police enforcement may be available to some accused, it was not available to Fernando or Daniel Estevez. Additionally, my friend argues that a reasonable person in Mr. Estevez's position who was deprived of any realistic alternative could have just let their brother die. However, this cannot possibly be the standard that we are held to in Canadian criminal law. In suggesting that Fernando, in suggesting that Mr. Estevez should have let Fernando die, the crown is arguing that when placed in a situation of duress, forced into a situation of duress and deprived of any realistic alternative that an accused has two options. One, they can let their family member be tortured and killed, or two, they can commit an offense and go to jail for 25 years. I thought you said earlier when I asked you the question that it didn't make a difference that it was a family member, that the analysis would be the same if it was a stranger. So what difference does it make that it's his brother? What you're doing is choosing one life over another, and in what society is that ever acceptable? To that, my lord, I submit that we are not weighing lives here. When we are using the defense of duress, it is an excuse-based defense. We are not weighing one life over the other. Rather, we are acknowledging that Mr. Estevez had no realistic choice and he was deprived of any opportunity to act on his own free will. And as such, we are not choosing lives here. The defense of duress acknowledges the wrongfulness of the conduct while recognizing that there are extreme circumstances where the accused's actions are not his own. Well, he is weighing, you have to weigh it because he has to weigh between whether he's gonna let his brother die or a stranger die or some other person die or Ms. Godot. And he decides, he decides which one of those people are going to die. And what gives him that right under, and if you look at section seven, the Charter of the Right to Life, Liberty and the Security of the Person, what about Ms. Godot's Right to Life, Liberty and the Security of the Person? How can he as an individual make that choice? I submit, my lord, that he did not make a conscious choice to act. Rather, he was compelled by natural human instinct. And any reasonable person in the accused's position would have acted in the same way. And that is what was required from the standard of moral involuntariness. First, the accused must have been deprived of any realistic choice to act. And second, he must have conducted himself in accordance with what a reasonable person, similarly situated, would do. More than once you have said, he did what any reasonable person would have done. How do you know that? Like maybe somebody else would have said, this is a really hard choice. And choose the other way. And that is an option that my friend has raised in his factum. However, I submit that that cannot possibly be the standard that we are held to in criminal law. The Canadian law expects reasonableness, not heroism. And a reasonable person is not a perfect person. And a reasonable person placed in unreasonable circumstances may make less than heroic choices. Daniel Estevez should not be held to the standard of a hero. Council, I struggle with this, I will admit, because we're well aware of instances where, for example, a parent has put themselves in peril for the sake of saving their child. If he truly wanted to save his brother, he was the person that was useful to this gang. And if he had harmed himself or even killed himself, his usefulness to the gang would have been at an end. And he thus might have freed his brother. So if we're well aware of examples where people sacrifice themselves rather than cause harm to another, why is that not part of the contemplation of what a reasonable person might do? So you're suggesting that Daniel Estevez should have sacrificed himself in this situation? It seems to me that if we're talking about innocent person being sacrificed, there are three innocent people here that we're discussing. There's both the person who ultimately caused the death of someone else. There's the brother who's in peril of his death, whose outcome is uncertain. And there is a woman who is only dead because of his actions who otherwise would have survived the whole incident. And so it seems to me that there are three lives that could have been considered here. So he had three choices to make. And he chose the one that would cause the least distress to himself. So he made a conscious choice of that. I submit that the choice that Daniel Estevez made is not the least harmful to himself because now he must live for the rest of his life knowing that he committed this grave act. And the appellants acknowledge that the conduct of Mr. Estevez was grave. However, we respectfully submit that the harm threatened was substantially graver. His brother was being threatened to be dismembered. In fact, the MS-13 went as far as to say that they would cut off a body part every week and mail it to Daniel Estevez for a full year. We cannot say that that harm is not significantly graver. And all that really is required from the standard as required in Latimer and subsequently confirmed in Ryan is that the harms are of comparable gravity. And here the appellants submit that they definitely are. Lastly, for conduct to be morally involuntary, the harm caused must be proportionate to the harm threatened. And the Supreme Court in Ryan concluded that proportionality is an inherent component of moral involuntariness. We must consider that his actions were of comparable gravity as we just discussed and that he conducted himself in accordance of a reasonable person similarly situated. A paragraph 28 of my friend's factum, he acknowledges that proportionality, or sorry, he states that proportionality requires the harm threatened or the harm prevented to be greater than the harm caused. However, respectfully submit that is simply not the law. As required in Ryan, the harms have to be of comparable gravity. In this case, MS-13 presented Daniel with an unthinkable ultimatum. Either he kills Martin Godot or his twin brother would be tortured and brutally murdered. Daniel Estevez complied with MS-13's demands and as a result, he saved his brother an unimaginable torture. On the other hand... Wait, I thought we didn't know that. We don't know what happened. That is correct. However, at the time, my lady, that was what Daniel Estevez knew, that his brother, if he did not comply with MS-13's demands, he knew that his brother, or he reasonably believed that his brother would be tortured and subsequently killed. What possible reasonable belief could he have that they wouldn't kill him? Why would they not kill him? This gang is notorious. They're gonna live up to their word and that's a reasonable thing for him to believe. Could you restate the question, my lord? Yes, you say he reasonably believed they would kill him if he didn't do this, but why would they reasonably believe that they wouldn't kill him if he did this? If they were such a bad group of people. At the time that the threats were made, Mr. Estevez was acting on the best knowledge that he had and his best chance at keeping his brother alive was to comply with those demands. He acted on instinct and he did what he was told and that was the best chance he had at keeping his brother alive. So his duress now been watered down, so if he got a chance of doing something that it warrants killing someone else, that if there's a chance his brother's gonna live after this, then he's entitled to rely on the defense of duress. I argue, my lord, that we don't know if there was a chance that his brother would live and the defense of duress is a strict, stringent test. There are six criteria in which the accused must meet in order to be able to use the defense of duress. What we are arguing here is that our client has access to the defense of duress. Mr. Estevez did everything he could to prevent Ms. Godot from dying and while his efforts to mitigate the fatal act were unsuccessful, he called the police, he called an ambulance and he tried to avoid killing her. But you've already admitted that the actus reis and the mens rea of murder have been made out so those facts don't mean anything to your analysis, do they? The actus reis and the mens rea have been made out for this offense, however, in this situation, we have to look at all the circumstances to determine what a reasonable person would do in Mr. Estevez's situation. I see you're getting sure in time so we're gonna stop asking you some questions. My lords, my ladies, make no mistake, Daniel Estevez is a victim here. On the facts it is indisputable that the commission of murder was morally involuntary. Daniel had no realistic choice but to commit the offense. His actions were of comparable gravity and he acted as everyone in this room would have. Daniel Estevez is not a criminal. Like Martin Godot and Fernando Estevez, he is a victim of MS-13's heinous crimes. Section 17's exclusion of murder is redundant, outdated, and an egregious violation of Daniel Estevez's right to liberty. I just have to ask, I'm sorry, but the indulgence of my presiding judge, you had just started to talk about proportionality and talked about the first feature. The second feature, of course, is societal expectation. Is societal expectation and society's code of values not reflected in our criminal code? So basically what is happening there is that our legislature, as the representative of our society has said, duress is not available. It's a hard choice. This is the choice we're making. You're not ever gonna have to make that choice. What's wrong with that? To that, my lady, I submit that while Parliament does enact our laws, they must be subject to Charter's scrutiny, which is the job of the judiciary to ensure that Parliament's laws that they enact are good law and that they comply with the Constitution and are rights guaranteed under the Charter of Rights and Freedoms. So while Section 17 was enacted, and mind you, was enacted into the criminal code in 1892 and the wording has not substantially changed, while I submit that Parliament does enact the laws, they are subject to Charter's scrutiny. Thank you very much. Good evening, my lord and my ladies. My name is Timothy Heenahan, and I'm appearing as counsel for the appellant, Daniel Estevez. It's been said that hard cases make bad law, but it's perhaps equally true that bad laws make easy cases hard. The exclusion of the defense of duress for murder is bad law. It does nothing to protect innocent lives or to stop terrorism. All it does do is ensure the imprisonment of the morally involuntary actor. Now my colleague has established that statutory exclusion is a textbook violation of the Section 7 right to liberty. The onus thus flips the crown to prove on a rigorously applied pre-ponderance of probability test, that this limit on liberty is of the sort that can be quote, demonstrably justified in a free and democratic society in accordance with Section 1 of the Canadian Charter of Rights and Freedoms. Now the appellants and the respondents, we are in agreement that the exclusion has multiple pressing and substantial legislative objectives, among them the protection of innocent life, stymying terrorism, and ensuring that people do not too readily succumb to commit murder. But it's the means by which the law pursues these objectives that render it surely unconstitutional. For the exclusion is irrational, it's an egregious infringement of the right to liberty, and it confers little, if any benefit, upon the greater public good. Now the onus is on the crown to show that the exclusion is rationally connected to the aforementioned legislative objectives. And my friend submits at paragraph 40 of their factum that there is a quote straightforward, rational connection between the exclusion and the objective of protecting innocent life. By deterring the commission of murder under duress, innocent life must be saved, they suggest. But deterrence is only effective when there is a true choice to be made. And the absence of a true choice is an essential element of any duress analysis. In order for the defense to apply, the accused must have had no safe avenue of escape, and they must have reasonably believed that the threats being made against them, or in this case a third party, were going to be carried out. They'll have been reduced to nothing more than an automaton, compelled by remorseless human instinct to carry out their crimes. A man dying of hunger, he's going to eat food even if that means stealing. A hiker stranded in the cold is going to break into a cabin even if that means trespassing. And if a man is handed a gun and told to kill a stranger or watch his whole family murder before his eyes, he's going to do what it takes to protect the ones he loves. Council, I'm concerned about that example because that's not the same level of proportionality as you find in this case because you're talking about one versus three and that's not the case that we're presented with. The case is one life over another. And so I would suggest that that is not necessarily an apt analogy here. Can you comment? Respectfully, my lady, I would suggest that it is an apt analogy. At the section one portion of the analysis, we're looking to weigh the infringement on the Canadians at large as opposed to the specific infringement in question. That's more appropriate for the section seven analysis. So we're looking to imagine anybody whose liberty could be infringed by this law such that the comparison applies. I see. The exclusion of the defense of duress for murder, it's built on that irrational premise. It punishes people for making a choice when in actuality there was no realistic choice to be made. Now with respect to the effectiveness of the exclusion in advancing the alternative legislative objective of stopping terrorism, the notion that this exclusion deprives terrorists of a tool for committing their acts, that is plainly false and it's false on the facts of this case. With or without the exclusion, duress has been and will continue to be a tool for carrying out terrorism. Terrorists and criminals, they don't care about the potential imprisonment of those they're exploiting. Any more than they care about the lives of the innocent civilians, they're having murdered. So is there not a societal... If you go that way, duress is not a defense and thereby increase public security because the actor knows where he stands and it's always important for every member of the public to know what the law says is the law. So you're saying that the ambiguity that the existence of this law kind of resolves is a positive. I think that it might assist with the terrorism example. Right. It's not gonna affect the terrorists, the people who are making the threat, but it might affect what the actor does when he thinks about his choices. He knows it's going to be criminal liability, it's going to be life imprisonment, which at a minimum is going to be 25 years before parole and maybe that will stop terrorism because the actor is taken out of the picture. What do you say to that? Well, lady, respectfully, I would say to look at the six elements of the duress analysis, they are extremely stringent and exacting and they don't allow for the kind of wiggle room that can sometimes hypothetically be posed when people are making their case for the exclusion remaining. Bear in mind that the accused must reasonably be believed that the threat being made against them or a third party will be carried out. If that pre-exit isn't met, if they're concerning themselves with legal defenses, that's probably a pretty good indicator of the fact that there is a safe avenue of escape or that they don't believe that the threat is as grave as it could be. If you are at the point, I posit that you are concerning yourself with a potential imprisonment that you're facing for your crime, you're probably not under duress under the strict duress analysis. Now again, in this case, we are not arguing to apply the duress analysis directly to the facts. We're arguing that the defensive duress be available to be raised and those requirements are stringent and exacting and respectfully, my lady, with respect to the notion that the exclusion somehow stymies terrorism. In Bedford, the Supreme Court established that the crown is well-placed to call social science or expert evidence to suggest that the benefit conferred upon a law is the extent of the benefit conferred by the law upon the greater public good, pardon me. No social science evidence has been introduced to suggest that this law confers any benefit, which is curious given that there are many common law jurisdictions, including American states that border Canada that don't have the exclusion in place. So if there is evidence that this law does anything to thwart terrorism, if there's a threat of this outbreak of duress-related murders that would not have been committed but for the absence of the exclusion, we welcome the crown to call that evidence before this court today. We have not seen it. Now, the onus is also on the government to show that the right to liberty has been impaired as minimally as possible, that there is not a less drastic alternative available for pursuing the aforementioned legislative objectives. Now at the outset, it's hard to imagine a more extreme impairment of the right to liberty than the exclusion of the only defense that can keep the accused from facing a mandatory minimum sentence of 25 years. The obvious alternative, as acknowledged by my friend, is eliminating the exclusion altogether and allowing the accused to raise the extremely stringent and exacting defense of duress. Vital to a successful application of any defense of duress, pardon, is that the harm threatened against the accused be of comparable gravity to the harm inflicted by the accused. And additionally, that the actions of the accused accord with what society would expect of the reasonable person, similarly situated, and my colleague touched on this as well. If the accused cannot satisfy both of these elements, we are in agreement that they will deservedly be convicted. We're simply looking for access to the defense, not that it will automatically be applied. Now my friend submits that the categorical exclusion is minimally impairing because it is the only way of reflecting the prevailing societal consensus that murder can never be excused and that this consensus has been communicated by our democratically elected government. But the notion that the societal consensus is that murder under duress can never be excused, that is flatly incorrect. First, as my colleague noted, the impugned exclusion is a relic of the first criminal code of camp that was implemented in the late 19th century in the years following confederation, a century before the charter was introduced and an additional 15 years on top of that before moral involuntariness was recognized as a principle of fundamental justice. Additionally, if we want to follow my friend's logic that acts of parliament are the best expression of societal consensus, well, we would point to parliament's 2000 enactment of the Crimes Against Humanity and War Crimes Act. And the CAHWCA in section 11 explicitly allows for those accused of genocide, war crimes, and crimes against humanity to invoke the defense of duress in proceedings before a Canadian court. So if my friend's logic is to be carried to its logical extreme, they suggest that Canadians are never okay with excusing one isolated incident of murder under the criminal code, but we are okay allowing the accused to raise the defense of duress for mass murder, perhaps the only crime, more heinous. Can I clarify something? Absolutely. I mean, you've gotten this wrong. It's confusing. I... I'm sorry, I didn't hear you. Just wanna make sure I understand you accurately. I understand that you're arguing strenuously that the defense of duress exists, but did I hear you say that you can see that it's possible that your particular client in this instance may not be someone who will qualify for what you say should be the defense of duress? Because I thought I heard you resist applying it in this specific instance. Am I accurate there? I can see that now is not the time for resolving that question. And... So for your client in this particular case, this is not necessarily the right instance. Perhaps not. Right now we're just talking about the availability of the defense of duress. If you want me to comment on the availability of that defense to my client, I could, but... I just wanted to understand if I heard you accurately when you said you're not necessarily saying your client would qualify under the definition that you would have us adopt, but that you feel that it should be available to your client and others like him, even if he doesn't necessarily qualify. Is that accurate? Exactly. And the defense of duress, just the six elements are established in Ryan, so it's... The appellants submit that the 2000 enactment of the Crimes Against Humanity and War Crimes Act is a better reflection of contemporary Canadian values than the 1892 enactment of section 17 of the criminal code. As stated by the Supreme Court in Roussic and myriad other decisions across all common law jurisdictions, the law does not expect heroism. It expects reasonableness. Now at the final stage of the section one analysis as laid out in Oaks, we weigh the negative impact of the law on protected rights against the beneficial effect of the law in terms of the greater public good and the negative impact has been established. The accused is deprived of the opportunity to argue their case and their merits. Their right to liberty is violated to the gravest possible degree as they face a life in prison for a crime they had no realistic choice but to commit. Now to justify an infringement of this grave degree, the beneficial effects for the greater public good would have to be enormous. And as I've stated before in Bedford, the court says you are free to call social science evidence to suggest that those beneficial effects exist and none has been called here. Now my friend does warn, citing a potential beneficial effect, that quote, without the exclusion, international criminal gangs would be beyond punishment because they're out of jurisdiction. International criminal gangs will remain international with or without the exclusion in place. The exclusion does nothing to address the issue of jurisdiction of the criminal gangs. Now my friend suggests at paragraph 51 that if the gangs are not brought to justice because they're out of jurisdiction, then someone must be. They state that it is quote, unacceptable, that no one be held accountable for the murder, that this means there is quote, no justice for those lives lost. But holding the morally involuntary actor responsible, that's not justice. That's accountability for accountability's sake. If the true wrongdoer can't be brought to justice, we don't just go looking for an innocent scapegoat to take their place in jail so that we can sleep a little easier at night. That's a witch hunt. Isn't all that parliament's doing when they talk about that is looking at proportionality and saying, listen, it's never gonna be proportionality when you take one life for another. We can't have you measuring those types of things and have individuals measuring those types of things. So let's take that off the table for those types of crimes. And so don't argue the duress in these certain circumstances. And isn't it as simple as that? And then the question is whether or not taking that proportionality out of the equation is something that's justified by parliament. Yes, I would say that if parliament had recently introduced section 17 of the criminal code, if they'd recently introduced the exclusion, that would be a good indication of parliamentary intent and of the contemporary societal consensus. But again, the criminal code was introduced in 1892 and indeed it has not been amended and perhaps that's for reasons of political expediency. I'm probably not positioned to comment, but the 2000 enactment of the Crimes Against Humanity and War Crimes Act suggests that parliament is okay with the invocation of the defense of duress but only in cases of genocide and crimes against humanity. So it's a vexing situation in the law wherein duress is available for mass murder. That's parliament said that in 2000 or duress is not available for murder and parliament said that in 1892. The defense of duress has been around for a long time. It has. It has. The principle of moral and voluntariness, respectfully, is relatively new. It was introduced in 2001 with Roussik and as a result of that, the law has perhaps been a bit dragging its feet to catch up, but parliament, while we accept that it is one of the great indicators of what societal consensus is, it's not perfect. And in Canada, we don't have parliamentary supremacy. We have a conversation, we have a dialogue between the judiciary and parliament. You talk about it being a relic, but of course it's still the law in England, for example. You didn't mention England. You didn't mention Australia. You didn't mention New Zealand. And many American jurisdictions. And all the ones, except the ones that you mentioned where they have picked it up, all those ones. Certainly, my lady. It's not exactly a relic. Perhaps that's fair and I'll soften my rhetoric a little bit. With respect to those other jurisdictions, I would submit that those jurisdictions do not have a Canadian Charter of Right and Freedoms. They do not have the principle of moral and voluntariness enshrined by the Supreme Court. They might, to be frank, but. But with respect to this case, with respect to this case, we're simply referring to the applicability of the Canadian Charter here. And it's important to note that the Supreme Court has never found that a section seven violation can be saved under section one. Due primarily to the fundamental nature of the rights in question. A motor vehicle act that goes so far as to state that only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like, could section one possibly save a section seven violation. Now my friend does cite a 2015 decision from the Ontario Court of Appeal. That's RV Michaud. As evidence of the fact that there is one example in the 35 year history of the Canadian Charter of Rights and Freedoms, of a section seven violation being justified under section one. And this is true. But in paragraph 112 of Michaud, the judge makes it explicitly clear that regulatory offenses, which were at issue in Michaud, do not attract the same level of moral blame worthiness as criminal offenses. The regulatory nature of an offense colors the judicial interpretation of its constitutionality, pardon me, with the result that regulatory offenses are subject to a far lower standard of charter scrutiny than criminal offenses. The word war is a legal term of art in Canada. Wars are started once the government issues of formal declaration. This has happened once in 1939. It is not the case here unless the Supreme Court intended to introduce ambiguity into the law in Bedford. We cannot accept this nebulous definition of the word war. To conclude, if you took your children to a puppet show tonight. And at some point during the performance, something offensive was said on stage. After the show, you wouldn't go up afterwards and berate the puppet. You'd reprimand the person pulling the strings. And it's the fate of the puppets that this exclusion affects and no one else. Criminals will use duress to carry out crimes, whether or not the exclusion exists. That is what makes them criminals. Those truly under duress, they're going to follow their instincts regardless of the legal defenses available to them. That's what happens when you've been deprived of a choice. The exclusion is ineffective, it's anachronistic, and it does nothing for the greater public good. And for these reasons, it must be struck. Thank you. If I suggest to my children that I take them to a puppet show, they'd be locking me up. This is not a referendum on puppet shows right now. The response, prepare to proceed. Quiet, please. Quiet. Thank you. Good evening, my lord, my ladies. My name is Ian Wolenius, and together with my colleague, Malia Morehouse, we represent the respondent in this matter, The Crown. This appeal requires this court to consider fundamental ethical, moral, philosophical questions that have gone debated and argued for centuries in society. And all that to say, there are no easy answers to this. But when individuals can't find easy answers to their problems, society steps in. And society must have a clear and uniform answer to the question of when it is appropriate to take another life. And that is the role that is performed by section 17 and the offenses that it excludes from its protection. My friend, Mr. Heena Henn, suggested that the issue in this case is whether or not his client, Daniel Estevez, has access to the defense of duress. But in truth, if Mr. Estevez was not acting in a way that was morally involuntary, then there is no injustice here and his rights under section seven have not been violated. The issue that I will argue before you hear today is whether or not the exclusions in section 17 for the offensive murder infringe Mr. Estevez's right to life, liberty and security of the person under section seven. And the Crown's position is that although Mr. Estevez's right to liberty is engaged, his conviction and imprisonment would be in accordance with the principles of fundamental justice. I'd like to propose three arguments that support this conclusion. First, moral involuntariness as a principle of fundamental justice must be limited to situations where the accused is forced into acting, where his conduct is not merely pressured but is the only realistic choice. Second, I will argue that the social values that inform the entire duress analysis and the principle of moral voluntaryness itself must be found in the criminal code and in the enactments of parliament. And third, I will argue that in this case, Daniel Estevez's actions were not proportionate to the threat that he faced. And therefore his actions were morally voluntary and were a choice on his part. The principle of moral involuntariness was identified in Ruzich, but its tradition is very longstanding. It wasn't merely introduced in 2001. This is a principle that the Supreme Court identified in Ruzich that was the foundation of the defense of duress. And in Ruzich, they merely granted it charter protection. But it's been a principle since we've had a legal system that only voluntary conduct may attract criminal responsibility. The Supreme Court in Ruzich made an analogy between physically involuntary conduct, pardon me, and morally involuntary conduct. And the analogy they used was that if a criminal gave someone a knife, closed their hand around it and stabbed an innocent victim, that that was involuntary and of no choice of the actor. And in Ruzich, they said situations like this can exist when a person is forced to act through threats. Now the analogy may not apply directly here because as others have pointed out, the Supreme Court was talking about a murder. But we don't know all of the other facts in that case. And I would argue that the point of the analogy is to show that its conduct which is forced, where someone has their hand on your elbow, shoving the knife in, that is what really matters. And so there has been suggestions, for example, in the formulations of Justice LaBelle in Ruzich, that conduct which is not freely chosen or which is pressured should be subject to charter protection. That when it's pressured, that's what we should care about. But in fact, it must be compelled, it must be forced. Because plenty of choices in everyday life are pressured. There are external constraints on all choices that we make. If you go to the grocery store, you may buy milk on Monday instead of Tuesday because the price is lower. But, and that choice is directed by forces that are outside of your control. But that is not what moral and voluntariness means. Moral and voluntariness is the analogy of having someone force you physically to do it. But the force is in your mind, is in what your morality forces you to do, that you only had one choice. Council, if I can ask, then you heard the appellant argue that at the end of the day, his client in effect became a puppet and therefore had no free will and no ability to make choices. What do you say is meant about that? I would say that my friend, Ms. Wilbert, also talked about him having to make an unimaginable choice between doing nothing and between killing Ms. Gadot. And I would submit that that is the choice that exists, that certainly it is a difficult choice, but he did, Mr. Estevez made a choice to choose one life over another and that is not acceptable in our society. Thank you. That's very easy to say that it's not acceptable in our society. But what's wrong with what Mr. Heenan said that we could do is if we strike it down, you still have the common law defense of duress, which is very stringent in its conditions. Why not allow the courts to look at that and say whether or not that should be sanctioned or whether it shouldn't be? My colleague, Ms. Morhouse, will talk in greater detail about the impact that Section 17 has. But from the perspective of Section 7, the importance of the law is in providing this moral buttress to an accused who, this moral support to an accused who is placed in an unimaginable situation and who has the law on their side in making what society deems is the right choice, the choice not to take another life when you're put under threat. But you just said it's an unimaginable situation. He's got to make one choice or the other. And why is it that there's a cookie cutter way of dealing with that? Why would we not allow it to look at the facts of each and every case and decide whether or not in those particular circumstances that it's culpable homicide supposed to be excused by the defense of duress? I would say that this is a societal choice that no person should have to make that choice between two lives. And that as a society, we don't wanna perform that valuation in courts as well. That that choice has been made for us by ourselves but also by parliament. Because the moral code, as exemplified in the criminal code, is not merely an agglomeration of individual values. This is a collection of societal values and societal choices that some may not agree with but that we must follow as this is our societal moral code. Do you agree that Mr. Estevez's actions here were morally involuntary? No, I do not. He made a choice. His actions were morally voluntary. And I'll get into the proportionality analysis and why exactly he had choices. So if you're coming to that, please carry on. As we've already discussed at length here today, proportionality and realistic choices and realistic alternatives are critical to the defense of duress and the analysis that goes with it. If the accused had, pardon me, only a proportionate act where the accused had no reasonable alternatives is capable of triggering a situation of moral involuntariness. And the reasonable person in the circumstances is the test that we must look at. Not whether Mr. Estevez felt that this was the only choice that he could contemplate in his mind but whether it was the only choice that a reasonable person in his circumstances would have done. And a reasonable person is imbued with the social values of society. A reasonable person knows that parliament has denounced murder even under threat. And a reasonable person would have cultivated other alternatives. So my friend Ms. Wilbert says that Daniel Estevez was acting on the knowledge that he had at the time but a reasonable person would have asked questions when he was told you must murder this person. Well the reason that there's a caveat with respect to the reasonable person, it's a reasonable person in that circumstance. So you don't always act with the niceties of asking questions and thinking it over in your mind. It's kind of like self defense. You don't have to fight the force with force. It can be a greater force than the force that's going to put on you. At the time you're making the decision, you don't have to, you have to do it in the split second of time, you have to do it. And the question is would a reasonable person in those circumstances do what he did? Not what a reasonable person would have done. Surely my lord, but it's important to note that Daniel Estevez had several months between the first threat and the final threat that led to his killing Martin Godot. It is in that circumstance that he should have been asking questions, that he should have been cultivating his options. And when that critical moment came, he still had options to negotiate to seek other help or indeed to do nothing and avoid what was ultimately a greater harm in the eyes of society and in the eyes of a reasonable person who would have been placed in those circumstances. So I'll talk about what my friend, Ms. Wilbert, has said that the harms must be of comparable gravity. This phrase was used in Latimer and was referred to in Ruzich but was not referred to in Ryan at all. The Supreme Court in Ryan said the harm avoided must be equal or greater than the harm caused. And the second point that I will make about this is that in Latimer, this conclusion that the harm must be of comparable gravity is undercut only a few paragraphs later when they said at paragraph 40 that it is difficult at the conceptual level to imagine a circumstance in which the proportionality requirement could be met for a homicide. So in Latimer, when they made this phrasing about comparable gravity, they then say that there will never be something that's proportionate to a homicide. And surely they were contemplating a life for a life. And so the phrase that the appellants rely on as far as determining what proportionality is was undercut in exactly the same case from which it stems. And another thing that I will say about this is even if we adopt the formulation of comparable gravity, the harm that Daniel Estevez caused was far greater than the harm that would have been caused had he taken other options. The harm that would have been caused by MS-13 to his brother Fernando. Because that harm must be analyzed from the perspective of society, from the reasonable person in the circumstances. And so what's critical is that Mr. Estevez was following the instructions of a terrorist group, was carrying out this activity on behalf of terrorists and furthering their objectives. And this is something that is very detrimental to society. Society surely has an interest in avoiding the objectives of terrorists being carried out. And that must factor into the analysis. And that makes this harm much greater. Assume more of the view that a reasonable person in the same circumstances as Mr. Estevez was on that occasion would have done exactly what he did. Then where did we go from there? Then unfortunately for me, I think we would have to find that that was morally involuntary conduct. Right, but even though it was morally involuntary, we're precluded from applying the defense of duress because of the provisions of section 17. In effect, yes. That would be your answer. But what I would also say is that the social values that are core to both the duress analysis and to moral and voluntariness, those social values that imbue the reasonable person and with which lens we view conduct, those are all found in the criminal code and are reflected in the exclusion in section 17. So although the act may have been proportionate as far as the harms were concerned, that social value still must factor into the analysis. And so a reasonable person in the circumstances, if that person imbued with the values of society truly would have done exactly the same thing, then there is a charter infringement. But that's not the case here because a reasonable person who has all of these social values inherent in them would not have done this. And there are many, quote unquote, reasonable people who would disagree on this. And this disagreement, this lack of consensus is evidence that a reasonable person would not always choose to murder someone. That there are many in society who believe that murder is not acceptable, even under threat. And if we're not going to accept Parliament's word for it, despite what I've argued already, then we must look to that lack of consensus that not everyone would choose this. One side says everybody would choose this and the other side says not everybody would choose this and there's no follow-up sentence in either case. Just a comment. No, unfortunately, my lady, I wish this case for more fun, but it's not. Now I would like to speak to something that Mr. Heenahan brought up, which is that these social values, he says are relic, but these social values underlying duress were not only implemented in 1892, but have been reexamined in the charter era, that there have been multiple reform efforts towards the defensive duress since the 1982 implementation of the charter. So in the 1980s, the Law Reform Commission of Canada undertook efforts to adapt and change the law of duress. Now these implementations, these changes were never implemented, but what's important is that all of these reform efforts in the charter era, with the context of section seven, all maintained that murder was never defended by duress, was never excused, even under threat. So they're not a relic of the past. These are current issues that society still believes that parliamentarians and researchers and law reform critics of the law still believe have a place in our legal system. Reform proposals have recognized that there is value in keeping this bright line rule that accused when placed in this situation must have something else to rely on besides their own individual morality, that they can point to society as saying, this is the acceptable choice and the only acceptable choice that I can make is not to do anything, is not to murder. I can ask you, your opponent argued that we should be influenced by Canada's adoption of the Crimes Against Humanity and More Crimes Act and the availability of duress as a defense for people who've been involved in more crimes, genocide, and that would appear to be a relatively recent enactment of parliament. How does that affect the arguments that you've been making before us? My colleague, Ms. Morehouse, will talk a little more about how that enactment and international law is not directly applicable and is not binding in this case. But what I would say is that those crimes are not murder. That yes, they are similar in many ways to murder. Someone ends up dead. Someone ends up dead in many, or maybe many people end up dead. But there are also circumstances in genocide that do not result in murder or death but are still genocide. There are circumstances in crimes against humanity and war crimes that do not involve murder or loss of life. But if we accept that in some of these instances, you may have someone who's been responsible for many people ending up dead. What do you say to the argument that somehow or other, the law of duress would extend to protect them but not extend to protect a single individual who feels compelled in a similar set of circumstances? Respectfully, my lady, and I hope I'm not spoiling anything from my colleague's argument, but we would argue that those commitments do not apply to murder. That murder and its relationship to duress have a longstanding principle in our law and in the common law in common law countries that murder is not excused by duress. And so although there may have been enactments about other offenses, which may be similar in many ways, they did not address murder. And while we may draw some conclusions about crimes that are similar to murder, this case is specifically about murder. And if they wanted to excuse murder by duress, they surely would have said so. Just gonna ask you a quick hypothetical because I see your time is getting short, but you talked about murder would never be an appropriate response. Let's say, for example, that Mr. Estevez has two brothers and they're both with MS-13 and they're on the other end of the line as they are and they say, you go kill her or we're gonna kill your brother, one of your brothers. He doesn't do it. Boom, they shoot the first brother. Then they say, okay, now you better go do it now or we're gonna shoot your second brother. Would that ever be justified in that circumstances? Is that more morally involuntary than what you've indicated now because we know they're gonna carry out the threat? I would point to your question earlier when you asked my friend how we knew that MS-13 would actually release Fernando when Daniel Estevez committed this murder, that the uncertainty of harm to Fernando Estevez and the certainty of death from Iscadoe, the difference between those is enough to make this not a proportionate act. No, I understand that. I understand your argument on that point but I'm changing the facts a little bit because yours is a categorical denial of the use of this defense in any case of murder. It would still be murder but he knew that he killed one brother and then they turn the gun on the other brother and say, go do it now or else. And in that particular circumstance, duress is still not available under your analysis. Respectfully my lord, even in that case, the social values that underlie moral voluntariness would force the accused to not comply. That our social expectations are that an accused will not commit murder even under serious threat. And so would you say that a reasonable person in the situation of Mr. Estevez in the circumstance which I gave you would do the same thing that he did, kill Ms. Godot? I'll take a moment to think about it but respectfully my lord, that doesn't relate to the impact on Mr. Estevez's charter rights that at the section seven stage we're concerned with whether or not his right to liberty has been infringed in a way that's not in accordance with the principles of fundamental justice. And there may yet be, as I alluded to in my factum, there may yet be unforeseeable or other circumstances that may lead to what we can see are a section seven violation but that did not happen in this case and it does not justify finding a section seven breach. Thank you. If I may, I'll take 30 seconds to conclude. Sure. Thank you. In conclusion, the refusal to allow Daniel Estevez's claim to defense for the crime of murder does not breach section seven of the charter because his conviction would be done in accordance with the principles of fundamental justice and in particular with the principle of moral involuntariness. Because Daniel Estevez's actions were morally voluntary, he made a choice. My friends have both alluded to very difficult choices but that was still a choice. He had options and if he didn't have options he should have sought out more and a reasonable person would have sought out more. Ultimately, the harm that he committed is not proportionate to the harm that he avoided and he has not met the test for duress and therefore there is no violation of his rights. Thank you. Whenever you're ready. Good evening, my ladies and my Lord. My name is Malia Morehouse and I'm also appearing on behalf of the Crown tonight. My co-counsel has just addressed for us whether or not section 17 is infringed section seven. And now I move on. If you do not accept his persuasive arguments, I put to this court that despite an infringement, section 17 is saved by section one of the charter. This case addresses a question of morality. That has been debated for many years. That question is whether one can claim duress for the crime of murder. We know that people may commit murder for any number of reasons, such as infidelity, jealousy, or even for money. And while those individual people might feel justified in what they did, we as a society find this type of behavior reprehensible. The moral compass of society has indicated that we will not accept this behavior. Crimes are a societal wrong as in they are wrong committed not just against the individual, but against our society. While individuals may differ in their moral compass, our laws and our criminal code reflect what the collective society finds as unacceptable behavior. They assert this through our democratically elected government who implements the laws and they have done so through section 17 and they have decided that duress cannot be used as a defense to murder. For the reasons I will discuss, duress must be excluded as a defense and this is based on an application of section one. Section one embodies an analysis that balances both the risks and the benefits of a law across the population. The question that I will answer today is whether the broader public interest justifies the infringement of section seven. Today I will take this court through an application of the Oaks test and I will show that there are multiple pressing and substantial objectives that are rationally connected to the law. Then I will show that the law is minimally impairing because the alternatives do not achieve the objectives. And lastly, I will show that proportionality does exist and that there are additional salatory benefits to keeping this rule in place. Before diving into the Oaks test, I do want to address the issue that my friend has raised on whether or not section one will ever apply to a section seven infringement. Firstly, I'd like to point that the case law does not say that section one should never be looked at and so it is still a required analysis that I believe this court should consider today. And secondly, I find that this is the perfect case for the application of section one for a number of reasons. My friend points out in paragraph 59 of his factum, a quote from the case reference three motor vehicle act. And it says, section one may for reasons of administrative expediency successfully come to the rescue of an otherwise violation of section seven but only in cases arising out of exceptional conditions such as natural disasters, the outbreak of war, epidemics and the like. My friend has narrowly interpreted the definition of war to mean only when the Canadian government formally declares a war such as in the Second World War. This is an unfair characterization because war can take on different methods such as the Cold War of the 80s. Yet in these situations, they could still require that the government needs to make important decisions regarding our national security in order to protect our nation. And I would also like to point out that in that quote, they mentioned the outbreak of war and not just the word war, which means that it would be perfectly reasonable for the government to need to implement some sort of legislation before the outbreak of the war. And also from that quote, the case, it also says the exceptional conditions such as natural disasters, epidemics and the likes. And I would put to this quote that the word the likes means that this list that the Supreme Court has proposed is not a closed list. And I do submit to this quote that the war on terror is an exceptional circumstance. There is no denying that the formation of radical groups is a real issue. And this is evidenced by the fact like groups like ISIS that have grown exponentially in years or from major cities that have been attacked such as the Aleppo car bombing of this year, the Manchester arena attacks as well from this year, the Paris attacks in 2015, and not to mention the numerous attacks on Syria that has created a refugee crisis that is the biggest humanitarian emergency of our era. I'd like to get to the specific because I think it is the specific that's important here. We can't lose sight of the fact we have an actual appellant. And in this case, what I understand the appellant's council is seeking is not anything more wide sweeping than simply the possible availability of an excuse for committing a, what would otherwise be a murder in a circumstance where that doesn't exist right now. And I didn't hear them suggested that it should be a wide standard that it should be readily available, but that in very narrow and carefully controlled circumstances that this is something that should be available as a possibility, not a certainty, but a possibility. Bringing it down to the more specific level, isn't that a reasonable approach to take? Doesn't section one contemplate something like that? Well, what I would, this gets very much so into my arguments in regards to the Okatesse self. And when we talk about that individual level, what I would say is that when you talk about an individual person, that is the job of section seven in a sense to look at whether or not this particular person's right has been infringed because by virtue of looking into section one, we would already have said that somebody's right has been infringed in this case. So we are saying that there is these narrow cases where somebody's right has been infringed. So do we lose our focus on the individual when we have to ask the questioners to whether or not the infringement is justifiable? Do we then ignore the rights of the individual because of the section one consideration? No, and this gets into the next point that I wanted to make in regards to this, whether or not we should consider section one at all, which is one of the recent Supreme Court of Canada case, which was Carter and Canada, which noted that when you are, once again, said that when you're dealing with section seven, it can be difficult to justify an infringement because often the competing social interests are not as important as those section seven rights. Yet, I find that in this case, we have two competing section seven rights as we have the right to life of Ms. Godot to deal with in this case as well. So I would say that, well, if we would like to, of course, bring up the fact that we have Mr. Estevez in this case, we also need to realize that Ms. Godot is on the other side. And I think that this law, what it is doing is it is protecting people like Ms. Godot, the people whose life has been lost in this scenario. And I think that that is a sufficient reason to talk about these broader aspects. Thank you. So I think that now that we have established that I believe section one is important to look at in this scenario, I think that it is important now to move on to the actual Oaks test. And the first step is, of course, setting out the pressing and substantial objectives, which my friend has already conceded, the crown has made out. And those pressing and substantial objectives are at paragraph 39 of my factum. And they are the protection of the right to life, the value of the statement denying the defense for murder and deprivation of a tool of terror. Next, we must show that these objectives are rationally connected, which in this case, they are. And this part of the test asks whether the law was a rational means for the legislature to pursue its objective. This is simply to ensure that a government does not make arbitrary laws. And it is relatively easy to see in this scenario that that threshold is met because there is nothing arbitrary in the noted objectives. Both reason and logic tell us that a law which prevents a defense to murder clearly is achieving the goal of expressing society's disappropriation for murder, as well as protecting the right to life, such as the right to life of Miss Godot. It also falls from logic that to disallow the defense would create an incentive to subcome to the threats. Since if you commit the crime, you go to jail, which is the highest deterrence method that we have in Canada. And with that, I move to the next part of our test, which is the minimal impairment test. In this case, the government should be given deference on the legislative choice to exclude the defense of duress for murder. The court should avoid substituting legislative opinions in this case. And that is because section seven is the place where one argues whether or not a single person is affected by the law and whether or not it is overbroad. Whereas section one is by virtue of looking into it, we have decided the person is already affected. And the goal of minimal impairment is to ask whether the legislature could have designed a law that infringes the rights to a lesser extent. So this is time to consider now whether the legislature had any reasonable alternatives. And Justice Matthews in the Supreme Court of Canada decision argued that the element of proportionality in duress was sufficient to identify the rare cases where someone was morally involuntary. My friend also submits that. And so the only alternative that they have now proposed is that to remove the exclusion altogether. And there are two main reasons why this is problematic. The first is that leaving the question of whether to acquit an individual to proportionality runs the risk of being over-inclusive and letting too many people off. And the objectives of the law will not be achieved through removing this exclusion. This issue of duress is plagued by the question of whether murder will ever be proportional. Leaving the question of the applicability of duress to proportionality is inherently flawed though. We know from Ryan that proportionality is not meant to be a utilitarian balancing of the right to life. We are supposed to look at the second part of the proportionality test that Ryan has pointed out. And that is whether the actions of the accused accord with what society expects them to do in the circumstances. And now I put that this part of the test means that there's a deontological approach to morality here. And deontology refers to a type of approach where our moral questions are answered by rules. And this is exactly what our criminal code is. The moral questions answered by our laws in the code. And thus I would say that section seven is one of those rules in that it gives us the answer to the second part of the proportionality test from Ryan. Rather than leaving that question to be uncertain. We know the answer because the answer is what society thinks. And it is what they have told the government through the democratically elected government. The reason this rule is better left is because individually people can differ on their stance on this issue as we have seen already today. And when you propose to someone the classic philosophical problem, the trolley problem, people will give fascinating and different answers. And while this is interesting, it is not something that should be debated in the courts or with the jurors as they are meant to be the triers of facts in these cases. So leaving this question of proportionality will result in the application of duress being both too broad and too uncertain. So it is better to keep this law in place. So this brings me now to the second part. Where's the uncertainty in the application of the common law defense of duress? It's very well established. It's been set up by the Supreme Court of Canada in Ryan with which I have some familiarity. So where is the uncertainty in the application of the test, the common law test of duress? Well, as my friends have already noted, the test is very stringent and of course the test for common law is the same as the test for the statute that we now have because of Rizek. But what I would put to this court is I would just put to this court that the speaking around about the common law defense is that there is a different scenario than the one that we are dealing with now. One because obviously the common law defense is meant for aiders and the betters. And it's a different scenario than the person who I think personally has done the act in this case. And so while I believe your point is interesting, I don't think it necessarily has an impact on the question of constitutionality that we are dealing with today. Well, the first, as I read the first part, both of the statutory and the common law tests are exactly the same. There must be an explicit or implicit threat of present or future, death or bodily harm described directed either accused or a third party. So they apply it in the same circumstances. And so at the end of the day, when you talk about you have someone who has had their section seven rights breached, which is life, liberty and security of the person, obviously one of the most serious breaches you can have. Why not just leave it to the courts to do the proportionality test to determine whether or not the defense should be available. And what I would say in regards to the common law one is like I said, if you're claiming the common law defense, then you aren't the person who like I said has done the killing yourself. And I think that society's views would differ between both the common law and this question of the person who actually does the killing. So to give an example, I think society would say if somebody threatened your life so you'd have to die or you mop up the blood. I think most society would say mop up the blood, whereas society would differ if you say your life is threatened or you kill the person. I think society would have different answers in those. And I think in regards to when it's eight or isn't a betters, our courts will be better and the jurors will be better able to answer those questions because they're not as severe as the question of will you kill someone personally to save your life or save the life of your loved one in this case. So moving on to the second problem that there is with proportionality and this is that it doesn't achieve the objectives of the law. And minimal impairment is a determination of whether a less intrusive means would achieve the same objective or would achieve the same objective as effectively. And removing the exclusion does not achieve the pressing and substantial objectives that I've already noted. It clearly doesn't achieve these objectives because it doesn't protect the victim. By removing the exclusion we are saying it is okay to kill them in certain circumstances. It also does not achieve the objective of guiding individuals to what we know is the moral choice not to kill. It encourages those individuals to keep sooner to threats because they know that the defense of duress could potentially be available to them. Removing that exclusion removes the only legislative deterrence that we have that requires resistance to the threats. Besides completely ignoring the objectives, the alternatives also mean that justice will not be achieved in this scenario. If we take this case, we see that MS-13 was able to threaten Mr. Estevez from a place of safety for them because they were able to evade capture. Mr. Estevez was MS-13's only link to be able to get at Miskado. Without him they could not have infiltrated a secure building to do the act of killing Miskado. While this puts the accused in a difficult situation, it must be seen that a law that prevents MS-13 from infiltrating our Department of Justice is an important law that must be upheld. So you're saying that if the law stays the same that it will have that effect? Yes, I would say that with the law in place, then Mr. Estevez would have in this scenario would not have helped MS-13. And what the result of that would have been would have been that either Miskado would not have died or that MS-13 would then have had to find a way to potentially try and commit the murder themselves which would then expose them and allow our justice system to be able to apprehend them. I'm a bit confused because we currently have a law that doesn't make that excuse available to him but it didn't prevent him from committing the action of murdering Miskado. And what I would say to that, of course it is a difficult scenario and my friend has put that potentially someone would do this in the scenario anyways but life imprisonment is the highest deterrence method that we can possibly ingrain in our system as we do not have the death penalty. So the only thing that we can do is of course put this person in prison for life and whether or not at the end of the day that person has decided to ignore the law or not, they will be punished for something that they knew they did was morally wrong. Thank you. To the puppet example, the people who who are the two perpetrators here are the terrorists and yet in the result what you are arguing for is a man who was faced in a very difficult and immediate situation making what he thought was a good choice. Maybe not the best choice but one of the ones that he had and so as a result of that he has attracted criminal liability. He has been stigmatized, convicted, sent away. We don't even know his own family situation and so that's general deterrence in your view. He's an example for everybody else. Are we really just doing Monday morning quarterbacking here and looking for somebody, anybody to blame when really this person is not the person to blame? Where's the justice in that? Well what I would say to that is when we look at it that way we are looking at the aftermath of this scenario and well of course the aftermath is the unfortunate result of Mr. Estevez. What we need to focus on, I believe in section one is that we are looking at something that is the greater public good and that greater public good is that this law is in place to hopefully prevent other scenarios like Mr. Estevez so people will know that their only choice is not to succumb to the threats and of course, individually people may make those different decisions themselves but the law should still stand because it still says what society wants and it still is focusing on protecting society when we look at it from this broader aspect. Is that, do you need an evidentiary burden for that from the crown's point of view to show that in fact that the leaving this law in place will have the deterrent effect that you think it will? Are you asking- Or is it just speculation? Are you asking the burden that is on the crown today? Yes. Well the burden for the crown today is a balance of probabilities. Right, but what, do they have to lead evidence on that point that this is going to have that sort of effect when they're looking at the section one analysis? Yes, I believe that we of course have to bring and I think I've already mentioned some of the evidence as to why we think that this would work and I think one of those is that we've had this law in place since 1892 and this is our first case that we have before the courts where active terror was committed against Canada and that a crown prosecutor was targeted and our legal justice system was infiltrated in a sense by MS-13. So I think that partially shows that this law does have this effect that I am claiming that it will have and I think that while we do have Mr. Esteved who of course went against the law here that I think most people in most cases will abide by this law because the risk to them is not only do they get life in prison if they do this but they also have to live with the fact that they killed somebody, they took a life and that is not an easy thing to live with and I think that most people would choose not to do that especially when they know that they are subcoming to a threat from a terrorist and what they know is a wrong thing to do and so I think that most people would indeed adhere to section 17. You can take a minute to wrap up. So to conclude, section 17 must be upheld in this case to ensure certainty that society and the individuals will be protected and to prevent the abuse of the law to commit the heinous crime of murder. While this is a difficult decision to make some concessions to human frailty go too far. While some might do wrong here, that does not make it right. It remains wrong and sometimes too much of a wrong to be excused. So we submit to this court that this appeal be dismissed and that the Supreme Court of Canada's decision be upheld. Thank you very much. Any rebuttal? Okay, well thank you very much for your arguments and your written materials. The court will adjourn and come back with a decision very shortly. Thank you. Before we, excuse me, before we give you our decision we're gonna have a few brief words for the motor, some constructive comments. So we'll start with Ms. Cornish first. Thank you. I wanna say to all the mooters, I know how daunting this must be. I've been a practicing lawyer for more than 30 years. One of my classmates who's now a judge, I was telling her that I still go to court with that feeling in the pit of my stomach. She says, when I stop having that feeling I should stop practicing law. So I know because I live it every day how daunting it is to get up in a courtroom-like setting and have to present and not know what's coming at you. So I commend all of you for doing a wonderful job with that and we do appreciate that and we do appreciate that you made it quite, quite difficult for us. Turning first to the appellants. I thought you both did a really nice job of augmenting your factum. I think that through what you presented to us your arguments became certainly much clearer. Alicia, not fun to have to go first. I think we probably peppered you with the most questions because I know by the time we hear from the fourth person we might be getting a little tired and the questions are not maybe flowing quite as smoothly. So that was daunting. You handled that well, I thought because that's very tough to do. And both of you, Tim, as well, I think again, good job answering the questions, good job coming up with ways to make your factum more vivid and with examples that made us truly understand your arguments, so I appreciated that from both of you. Turning to the respondents you both had, I felt a very nice presentation style. You were easy to listen to. You didn't appear to be thrown when we were asking you questions and of course it's the job up here to ask the difficult questions. I thought you both dealt with that well and again helped us understand the arguments that you're making in your factum. So I think that you made this because of the question of the law that's there, I think you made it a much more difficult decision for us than it might have otherwise been and that's to all of your credit. So thank you very much. This is Alder. I've been a judge since 1998 now. Sounds pretty incredible even when I say that myself. The quality of the factum that we're presented here was excellent. I can tell you that if I had received this material in my real work life, my downtown job, I would have been very pleased. It was really good to see the amount of research that went into it, whether it was reference to the international court that was raised by the appellant, whether it was the Michele case that was dug up by the respondents. It was quite easy to see the amount of diligent, careful effort and selection that went into those factum. I talk about the fact of first because for appellant court judges, that's the first thing we see and that's what we're left with to write our decisions. So it's hugely important and when you're doing your legal writing and research, just keep that in mind, right? Judges rely on your factum. I was so pleased that no one read their factum. Believe it or not, that still happens now and again in court. Of course, I've read the factum, maybe more than once. So when somebody starts out reading me parts of their factum, whether at the outset or during their presentation, I'm always thinking to myself, kill me now. But of course you'll never hear me say that. But for us, it's important that you get our attention, you get it quickly and you maintain that and all of you were able to do that today. So what makes an effective counsel in my view is quite simply somebody who helps the court because we're the ones who are stuck with that hard decision at the end of saying whether it's A or B. And more difficult why it's A or B. So it isn't always the greatest orator or the most aggressive litigation style or whatever. It's actually that whole thing about helping the court and how you know what help the court needs is usually found in the questions that it asks. Those are where we're kind of stuck trying to sort out things and looking for guidance. So I was quite impressed today that all of you withstood the questions. A couple of you were actually a bit bold in your answers and disagreed with the person who raised the question. That's always good to see courage. However, we never hold it against you, right? We'd rather candor than avoidant. So none of you withered under questioning and that's a great credit to you. So I just wanted to say that many, many years ago I argue this may shield. I didn't win. But you know, if you don't win, things could be worse. You might end up as an appellate court judge. You know, it's totally right. Hopefully you'll get a better job than that though. Something that pays some money. It's funny that there are a number of appellate judges on our appeal court that actually have argued this moot over the years. Jamie Saunders has argued it as well. So that's what you strive to do. Maybe it's a good start. I echo the comments of my colleagues. I like Justice Olin, start with the fact that you cannot necessarily win your case with the fact that but you sure can lose it. And because it's the first thing that we say, see, excuse me, first thing that we see and the first thing that puts the first impression in our minds and that can be very difficult to overcome at the end of the day, no matter how good an oral advocate you are. We meet, discuss the fact that before we hear the oral argument. So always be clear and concise in your factum. It's important to be brief. You don't need to be repetitive. Get to the point, make your point, and move on. I too have been involved in moots, although I went to UNB, so maybe that doesn't count as much, but so did the dean, but. And when I ever go to one of these moots and I've done a number of them and I do the Gale Cup every year, I'm thinking I would never be able to rise to the level of the quality of the students that are arguing these cases today. It's a whole different world. And every time I think I can't see anything better, I do. And tonight's another example of that. You come in here, there's a big crowd, you're nervous. It's a very, very difficult question. You got this crazy trial judge in Rine making this decision that nobody could understand at the time and then Justice Olin was on the Court of Appeal and she upheld me. And so the Supreme Court of Canada did the same thing that we did. They weren't gonna put her in jail either, but they just didn't, they found another way not to do it. But it's a very, very difficult case, very difficult fact scenario and something that's, I'm sure we're gonna see more of in the future in light of the things that we are seeing going on now. So all of you did a great job. The clear, concise arguments stood there, took our questions. We were, Alicia, we were a little more difficult with you, but you complained that Professor Shapiro, because he told us at dinner, he said, you know, come out of the gate really fast and. And so that's what we follow orders. So we did that. But in any event, great job. And we're now in a position where we can announce the winners. And I'm going to announce the runners up first. And this is the Leonard A. Kitts Prize in Advocacy for Skills in Legal and Oral Argument. And the winners of the Leonard A. Kitts Prize is Alicia Wilbert and Timothy Hennigan. And that should tell you that the winner of the Smith Shield is Ian Willanus and Malina Morehouse. We will, I guess there's some photo ops going to happen here. And then we will be around at the reception if anybody has any questions or comments they'd like to make to us about how we conducted ourselves.