R v Ray 2020 ONCA 351

Facts

Marina Ray, a 60-year-old woman, was involved in legal proceedings with her ex-husband, Michael Ray, who sought equity in her home where they resided when they were married. Ms. Ray did not want to share the equity and asked her acquaintance, Victor Sokolovski, to help her find someone to kill Mr. Ray, and someone who would lend her $500 000. Mr. Sokolovski contacted the police who arranged for an undercover cop to act as a hitman. The interaction between this undercover cop and Ms. Ray was recorded by video. During the meeting, Ms. Ray provided information on the physical appearance and whereabouts of Mr. Ray. She provided the undercover cop with $2000 and requested that Mr. Ray be shot, drugged, and left for dead. Finally, the undercover agent and Ms. Ray made arrangements for her to pay the balance.


Ms. Ray was convicted of counseling the commission of an indictable offence (murder). She was sentenced to 5 years in prison. She sought a stay of the conviction on the grounds that police conduct entrapped her. She alleged the police exploited her vulnerabilities, which included insomnia, overmedicating, and distrust in the police; she claimed the police conduct was, therefore, an abuse of process and contended police entrapment. The trial judge found that there was no police misconduct. Ms. Ray appealed her sentence, claiming that she was under duress and should not be criminally sanctioned.


Issue

Should Ms. Ray’s sentence be set aside as a result of her claim that she was under duress when she sought a hitman to kill her husband? Should her conviction be stayed as a result of police entrapment?


Holding

No. The trial judge did not make an error in her factual findings or inferences that she drew from the case. The defence of duress does not apply, police entrapment did not occur and thus the sentence is upheld.


Reasoning

Ms. Ray suggests that the trial judge could have viewed certain evidence differently and, had she done so, Ms. Ray’s fear for her life and her grandchildren would have been interpreted as duress. The trial judge expressly rejected that Ms. Ray had acted out of fear. Thus, duress does not apply and is not available as a defence in this case. The Court of Appeal determined that the trial judge made no errors in her factual findings, and none of the trial judge’s reasons were inadequate.


Further Ms. Ray appealed to have the conviction stayed (stop the sentence from being imposed). A conviction may be stayed where the accused can show that she had been entrapped by police conduct. A police entrapment occurs when police provide a person an opportunity to commit a crime or induce the commission of a crime. The Court rejected this because Ms. Ray started all discussions about having her husband killed.


Notes:

Duress is available when an offence is committed by a person while under the compulsion of a threat made for the purpose of bringing about the commission of the offence. An act so compelled lacks moral voluntariness. Two elements of both the common law and statutory defences of duress are that the accused was the subject of a threat of death or serious bodily harm, and that she reasonably believed the threat would be carried out: R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14, at paras. 2, 17, 43 and 55.


A proceeding or entry of a conviction may be stayed where the accused shows police conduct amounting to entrapment. A stay should be granted only in the clearest of cases: R. v. Mack, [1988] 2 S.C.R. 903, at p. 977. Entrapment occurs when (a) police provide a person with an “opportunity” to commit an offence without having a reasonable suspicion that the person is already engaged in criminal activity or pursuant to a bona fide inquiry; or (b) police go beyond providing an opportunity and actually “induce” the commission of an offence: Mack, at pp. 964-965; R v. Ahmad, 2020 SCC 11, at paras. 15 and 23.

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