Three Bandidos motorcyle gang members were charged with multiple counts of first-degree murder by aiding and abetting three others in killing their intended targets, by opening a gate, monitoring police scanners and carrying weapons. The three claimed they acted under duress, because they would have been killed otherwise.INA FASSBENDER/Reuters
People who find themselves in a "kill or be killed" situation can claim duress as a defence to murder, even though the Criminal Code explicitly rules it out, the Ontario Court of Appeal said Thursday.
Until now, claiming the right to kill an innocent person to save one's own life has been seen as the greater of two evils. But the court had a different way of looking at duress, offering the hypothetical example of someone faced with killing an innocent person or having their own child be killed. "The putative victims are equally innocent," the court said.
The court cited a principle that criminal law is not designed for "a community of saints or heroes," but for ordinary people making voluntary moral choices. And sometimes those choices are no more free than the choice of a condemned man walking to the gallows, the court said.
"Society may regret or even deplore the accused's failure to 'rise to the occasion,' but it cannot, in a criminal justice system predicated on individual autonomy, justly criminalize and punish conduct absent a realistic choice," Justice David Doherty wrote in a 3-0 ruling. The court was not asked to rule on the constitutionality of the law barring duress as a defence to murder, but said that law is probably unconstitutional.
The decision came in the appeals of several bikers charged in the 2006 massacre of eight members of the Bandidos motorcycle gang at a farm outside London. Three were charged with multiple counts of first-degree murder by aiding and abetting three others in killing their intended targets, by opening a gate, monitoring police scanners and carrying weapons. The three claimed they acted under duress, because they would have been killed otherwise. (The trial judge who found them guilty ruled that duress was not a defence to aiding in a murder or committing murder. The Crown agreed.)
The appeal court found the men guilty anyway, saying they were not truly under duress. One of the three, for instance, Marcel Aravena, had "willingly put himself" under the control of Wayne Kellestine, one of the mobsters who had participated in the multiple killings, the court said.
But the court defended the principle at issue. "Consider, for example, a person who had no connection to the Bandidos or to the meeting at Kellestine's farm, but who happened to attend at the farm for some innocent purpose that night. Assume Kellestine's group took him captive and held him in the barn while Kellestine removed and murdered two of the victims. If that person was then ordered under threat of death by Kellestine to assist in the removal and murder of the next victim, would society expect the ordinary (not the heroic or exceptional) person to refuse Kellestine's order and give up his own life? Could it be said that the person had 'a realistic choice?' We think not."
France and Germany do not bar duress as a defence to murder, and 11 U.S. states have laws declaring duress can be a defence to murder.
Toronto lawyer Daniel Santoro, who represented Mr. Aravena, said the ruling is the first by an appeal court in Canada to affirm that duress can be used as a defence to murder. "It recognizes that sometimes people are put into horrible situations where they have no realistic choice, and trying to punish someone in that situation as a murderer is not fair," he said. But it is not easy to prove. "The reality is that it's an extremely hard argument to win."
In England, courts have said that allowing duress as a defence to murder would encourage terrorists and organized criminals to use others to do their killing. But Justice Doherty said that was a dubious claim.