The Ontario Court of Appeal has dispelled any doubts about the availability of the defence of duress in murder cases under the common law.
“The trial judge erred in law by holding that the common law defence of duress was not available to persons charged as parties to a murder,” says the appeal ruling in R. v. Aravena.
“Choosing to aid in the murder of another will not always amount to choosing an evil greater than the evil threatened,” wrote justices David Doherty and Gladys Pardu for the panel also including Justice David Watt.
“For example, a person may be presented with a choice between taking the life of an innocent third party and the killing of her own child. The putative victims are equally innocent. Surely, the harms flowing from either choice are ‘of comparable gravity.’”
The appeal court, however, was careful to point out duress is not a justification, but merely an excuse that would be take into consideration.
“The person excused from criminal liability is not said to have accomplished a greater good, but is rather said to have had no realistic choice but to act as she did,” said the ruling.
In the same ruling, the court commented on an exception in s. 17 of the Criminal Code, which bars the use of duress as defence for murder.
“The constitutionality of the murder exception to the duress defence in s. 17 of the Charter is not before the court. However, it follows from this analysis that, subject to any argument the Crown might advance justifying the exception as it applies to perpetrators under s. 1 of the Charter, the exception must be found unconstitutional.”
Toronto lawyer James Morton says the decision clarifies the law around this issue significantly.
“There was a question whether [the defence of duress for murder] existed in common law. Some judges and some legal commentators thought it didn’t exist in common law,” says Morton. “This decision makes it pretty clear that for Ontario anyway . . . it does exist at common law and it manages to clarify that it also exists in the statute.”
In reaching its conclusion, the court looked at previous cases and also undertook a philosophical analysis. To kill another person due to threat to one’s own life is to value one’s life over another, the court said, but to disregard duress as defence for killing someone is to value the life of the victim over the life of the person who killed under duress.
“The availability of the defence of duress cannot be settled by giving automatic priority to the right to life of the victim over that of an accused. Instead, the right to life of the victim must be factored into the proportionality assessment as part of the broader moral involuntariness inquiry,” the judges wrote.
Morton adds the ruling suggests it may well have been a valid defence for convicted killers like Karla Homolka, the wife and accomplice of serial killer Paul Bernardo, to argue they participated in the killings because they would have been killed otherwise.
But that defence did not work in the case before the court. In Aravena, members of the notorious Bandidos biker gang appealed their murder conviction arguing, in part, that they participated in the massacre of the Toronto chapter of the gang in 2006 because they feared for their lives.
The appeal court found there was “no air of reality” to this claim.
Morton says while the availability of the defence of duress is established, the court is making it clear it’s not “a get-out-jail card for people.”