COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Alvin, 2015 ONCA 252

DATE: 20150414

DOCKET: C57247

Hoy A.C.J.O., Feldman and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Isaiah Andrell Alvin

Appellant

Robin K. McKechney, for the appellant

Jason Wakely, for the respondent

Heard and released orally:  March 17, 2015

On appeal from the conviction entered by Justice Guy F.
    DeMarco of the Ontario Court of Justice, dated June 20, 2013.

ENDORSEMENT

[1]

The trial judge concluded that the failure of the officer preparing
    the information to obtain to disclose the criminal record of a confidential
    informant breached s. 8 of the
Charter
.  However, the breach fell at
    the less serious end of the continuum on the first branch of the
Grant
inquiry and, balancing all the
Grant
factors, the trial judge admitted
    the evidence in issue.

[2]

The appellant argues that the trial judge erred in concluding that the
    failure to disclose the confidential informants criminal record fell at the
    less serious end of the continuum on the first branch of the
Grant
inquiry.  He also argues that the trial judge misapprehended the evidence
    because he did not highlight inconsistencies in the surveillance evidence
    relied on to confirm the information provided by the confidential informant.

[3]

We see no basis to interfere with the trial judges decision.  He
    accepted that the officer who prepared the information to obtain was motivated
    by the belief that it was necessary not to provide disclosure of the
    confidential informants criminal record to preserve the anonymity of the
    informant.  It is apparent from the record that the trial judge assumed the
    informant had a criminal record.  The trial judge found that there was nothing
    misleading on the question of credibility of the informant and that the
    applying officer did not exaggerate the information on which he relied.  And
    while there were inconsistencies in the surveillance evidence, both versions
    describe activities consistent with drug transactions.

[4]

This appeal is accordingly dismissed.

Alexandra
    Hoy A.C.J.O.

K.
    Feldman J.A.

Paul
    Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Aravena, 2015 ONCA 250

DATE: 20150416

DOCKET: C53435, C53310, C57090,

C53786, C57574

Doherty, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marcelo
    Aravena, Brett Gardiner,

Wayne
    Earl Kellestine, Frank John Mather,

Dwight
    Mushey

Appellants

Delmar Doucette and Daniel Santoro, for Marcelo Aravena

Christopher D. Hicks and Aliki Yorgiadis, for Brett
    Gardiner

Michael Dineen, for Wayne Earl Kellestine

Dirk Derstine and Janani Shanmuganathan, for Frank John
    Mather

James L. D. Miglin, for Dwight Mushey

John Corelli, Alexander Alvaro and Holly Loubert, for
    the respondent

Heard: September 15, 16, 17, 18, 2014

On appeal from the convictions entered on October 29,
    2009 by Justice Thomas A. Heeney of the Superior Court of Justice, sitting with
    a jury, and the sentences imposed on October 30, 2009.

Doherty and Pardu JJ.A.:

Background

[1]

During the evening and early morning of April 7-8, 2006, eight members
    of the Toronto Bandidos motorcycle gang were shot and killed on a farm property
    owned by Wayne Kellestine.  Michael Sandham, Frank Mather, Marcelo Aravena,
    Brett Gardiner, Dwight Mushey, and Wayne Kellestine were all charged with eight
    counts of first degree murder.  After a lengthy trial, the jury convicted
    Sandham, Mushey and Kellestine of eight counts of first degree murder.  The
    Crown had alleged that these three had actually perpetrated the murders.  The
    jury convicted Frank Mather and Marcelo Aravena of manslaughter on the first
    homicide and seven counts of first degree murder on the other homicides.  The
    jury convicted Brett Gardiner of manslaughter on the first two homicides and first
    degree murder on the other six counts.  It was the Crowns position that
    Mather, Aravena and Gardiner had aided and abetted in the murders.

[2]

Kellestine, Mushey, Mather, Aravena and Gardiner appeal their
    convictions.  Sandham initially appealed, but has abandoned his appeal.

[3]

It was the Crowns position that the massacre at Kellestines farm was
    the culmination of internal strife within the Bandidos motorcycle gang organization.
    The American Bandidos were unhappy with the Toronto chapter.  They believed that
    the Toronto chapter was not complying with directions from American
    headquarters.  Kellestine was a dissident member of the Toronto chapter.  The
    American Bandidos ordered Kellestine to pull the patches (expulsion from the
    organization akin to excommunication) from the rest of the members of the Toronto
    chapter.

[4]

The Winnipeg group of Bandidos was also unhappy with the Toronto chapter.
    The Toronto chapter had refused the Winnipeg group full status.  Acting on
    instructions from the United States, Sandham, Aravena, Gardiner, Mushey and
    M.H.
[1]
travelled from Winnipeg to Kellestines farm in southwest Ontario to assist in
    the pulling of the patches.  Mather, a friend of Kellestine, was staying with
    Kellestine at his farm.

[5]

On the Crowns theory, Kellestine persuaded eight members of the Toronto
    Bandidos to come to his farm under the pretence of a meeting to discuss
    Bandidos business.  While waiting for the arrival of the Toronto Bandidos, the
    farm team, consisting of the Winnipeg Bandidos, Kellestine and Mather,
    prepared for the arrival of the Toronto Bandidos by assembling and cleaning
    firearms, and putting on gloves.  The Manitoba licence plates were removed from
    a car parked in the yard, so that the Toronto Bandidos would not suspect that
    the Winnipeg group was at the farm.  Aravena was responsible for opening the
    gate to let each of the four cars containing the Toronto Bandidos into Kellestines
    fenced yard.  Mather, Aravena and Gardiner were to stay in the farmhouse.  Kellestine
    established radio communication between the farmhouse and the barn, and placed
    Mather and Gardiner in charge of monitoring a police scanner located in the
    house.

[6]

It was understood that pulling the patches of the Toronto Bandidos was
    likely to be a violent affair.  The Toronto members referred to themselves as
    the No Surrender Crew, meaning they would never voluntarily give up their
    club patches.  During the preparations before the arrival of the Toronto
    Bandidos, Kellestine, on more than one occasion, told the others that, [i]f we
    kill one we kill them all.

[7]

Sandham hid in the loft of the barn awaiting the arrival of the Toronto
    Bandidos.  Mushey and M.H. hid outside of the barn.  Kellestine escorted the eight
    Toronto Bandidos into the barn.  Gunfire erupted.  Sandham, from his position
    in the loft and wearing a bullet proof vest, shot and killed Raposo, the first
    victim (count one).  Kellestine also opened fire, injuring several of the other
    Toronto Bandidos.  He ordered them to the ground.  Mushey and M.H., armed with
    firearms, rushed into the barn when they heard the shots.  Mather and Aravena,
    armed with a shotgun and a baseball bat, respectively, also rushed to the barn
    to help when they heard the shots.

[8]

Kellestine, with the help of the others who stood guard, confined the
    Toronto Bandidos in the barn, confiscating their weapons, keys, cell phones and
    identification.  Kellestine pretended there were guys on the roof ready and
    willing to shoot should the Toronto Bandidos put up any opposition.  Aravena
    helped Kellestine maintain this ruse.

[9]

In the ensuing hours, the remaining Toronto Bandidos were escorted out
    of the barn one by one, placed in a car and shot, execution style.  Kellestine,
    Sandham, and Mushey were the shooters.

[10]

All
    of the appellants participated in extensive efforts to clean up the farm,
    destroy evidence and transport the bodies and vehicles to other locations.

[11]

It
    was the position of the Crown at trial that all of the murders were first
    degree murders either because they were planned and deliberate, or
    alternatively, with the exception of the first homicide, because they were
    committed in the course of an unlawful confinement of the victims.

Grounds of Appeal

[12]

Counsel
    for the various appellants diligently advanced several grounds of appeal.  The
    court required submissions from the Crown on five of the grounds of appeal
    argued on behalf of the appellants.  These reasons will address only those five
    grounds of appeal.  They are:

·

Did the trial judge err in law in holding that the common law
    defence of duress was not available to persons charged as parties to a murder?

·

Did the trial judge err in holding that there was an evidentiary
    basis upon which Mather and Aravena could be convicted as aiders or abetters
    under the constructive first degree murder provision?

·

Did the trial judge err in holding that there was an evidentiary
    basis upon which the jury could find that Gardiner aided and abetted in the
    first degree murders alleged in counts three to eight?

·

Did the trial judge err in his instructions to the jury as to the
    potential evidentiary effect of Aravenas post-offence conduct?

·

Did the trial judge err in holding that M.H. was a confidential
    informant in respect of his dealings with the Winnipeg police and could not be
    questioned about those activities?

Issue #1: Duress

THE DURESS RELATED ISSUES AT TRIAL

[13]

Counsel
    for the Crown and the accused requested a pre-trial ruling on the availability
    of duress as a defence to murder. The trial judge ruled that duress was not
    available as a defence to murder regardless of whether an accused was alleged
    to be a perpetrator or a party to the murder:
R. v. Sandham
(2009), 70
    C.R. (6th) 203 (Ont. S.C.). In a second ruling, the trial judge held that
    duress was available as a defence to the included offence of manslaughter.

[14]

After
    the evidence was completed and during pre-charge submissions, counsel for
    Aravena and Mather argued that the jury should be instructed on the defence of
    duress as it applied to the included offence of manslaughter on at least some
    of the murder charges. Counsel for Gardiner did not seek a duress instruction
    as it applied to manslaughter.

[15]

The
    trial judge held that because there was no evidence that Mather, who did not
    testify, was threatened by anyone, there could be no air of reality to a
    duress defence for him on any of the charges. With respect to Aravena, who did
    testify, the trial judge held that there was some evidence of an implied threat
    directed at Aravena by Kellestine. He further held, however, that Aravena had
    voluntarily placed himself in a situation in which he knew he could be
    compelled by Kellestine to commit criminal acts. The trial judge held that in
    putting himself in that position, Aravena had lost any potential claim to a
    duress defence on the included offence of manslaughter on any of the murder
    charges.

[16]

In
    his necessarily lengthy jury instructions, the trial judge made brief reference
    to the threat allegedly made against Aravena by Kellestine. The trial judge
    told the jury:

Duress is not available as a matter of law to a charge of
    murder, and for other legal reasons I need not get into, it is entirely
    irrelevant to this case. In a nutshell, it is not open to anyone to say to an
    innocent victim you will die so that I can live.

THE DURESS ARGUMENTS ON APPEAL

[17]

None
    of the appellants argue that the trial judge erred in holding that on the
    evidence adduced at trial, there was no air of reality to a duress defence for
    any appellant on the included offence of manslaughter on any of the charges.
    However, Aravena, Mather and Gardiner submit that the trial judge erred in law
    in his pre-trial ruling that the common law defence of duress was not available
    on the murder charges.

[18]

The
    Crown did not allege that the appellants, Aravena, Mather and Gardiner, had
    actually committed any of the murders. The Crown contended that each were
    aiders and abettors in the murders. These appellants submit that the common law
    defence of duress is available in Canada to persons charged as parties to a
    murder, and that the trial judge, in holding to the contrary, misread binding
    authority from the Supreme Court of Canada and ignored binding authority from
    this court.

[19]

Aravena,
    Mather and Gardiner further argue that the pre-trial ruling precluding reliance
    on the defence of duress prejudiced them at trial. Mather and Gardiner contend
    that the trial could well have taken a different evidentiary course had the
    trial judge correctly ruled on the pre-trial motion that duress was a potential
    defence to persons charged with aiding and abetting a murder. Aravenas
    argument in support of his prejudice claim is different. Aravena submits that
    by willingly placing himself under Kellestines control in respect of certain
    criminal activities (unlawful confinement), he may have foreclosed the defence
    of duress as it related to manslaughter, but the defence remained available on
    the murder charges.

[20]

In
    response, the Crown submits that the trial judge properly held that the common
    law defence of duress is not available on a charge of murder regardless of the
    nature of the alleged participation in the murder. The Crown further submits
    that even if the defence was available as a matter of law to alleged aiders and
    abetters to a murder, the trial judges ruling caused no prejudice to Gardiner,
    Mather or Aravena. The Crown notes that all three had a full opportunity to
    develop a duress defence as it related to manslaughter, if so inclined.

[21]

Gardiner
    made no attempt to develop the defence and did not suggest at trial that there
    was any evidence to support a duress defence. Mather led no evidence of any
    threats that could possibly give the defence an air of reality. The Crown
    contends that Gardiner and Mather cannot overcome the absence of any air of
    reality to the duress defence in the trial record by inviting this court to
    speculate as to what might have happened had the trial judge ruled that the
    defence was available on the murder charges. Crown counsel contends that it is
    fanciful to suggest that Mather or Gardiner, having chosen to lead no evidence
    of a duress defence in response to manslaughter, would have advanced a duress
    defence on the murder charges. Finally, Crown counsel observes that there is
    still nothing in either the trial record or the appeal record to suggest any
    air of reality to a duress claim advanced by Gardiner or Mather.

[22]

With
    respect to Aravena, the Crowns no substantial wrong argument goes as follows.
    First, the trial judge was wrong to hold that the evidence gave an air of
    reality to Aravenas claim of implied threats of a sufficient nature to invoke
    a duress defence. The Crown contends that the evidence simply does not support
    that conclusion. Second, the Crown submits that the trial judges reasons for
    holding that Aravenas association with Kellestine rendered the duress defence
    unavailable on the manslaughter charges are equally applicable to the murder
    charges.

[23]

In
    sum, the Crown submits the accused suffered no substantial wrong or miscarriage
    of justice even if the duress defence was available as a matter of law on the
    murder charges. The Crown submits that, on the evidence, there was no air of
    reality to that defence.

THE DEFENCE OF DURESS

[24]

Ever
    since
R. v. Paquette,
[1977] 2 S.C.R. 189, there have been two
    different duress defences in Canada. The statutory duress defence set out in s.
    17 of the
Criminal Code
applies to persons who have actually
    committed an offence and whose liability rests on s. 21(1)(a) of the
Criminal
    Code
. We will refer to these individuals as perpetrators. The common law
    defence of duress, preserved by s. 8(3) of the
Criminal Code,
applies
    to persons whose liability flows from s. 21(1)(b) or (c) (aider or abettor) or
    s. 21(2) (common design). We will refer to these individuals as parties.
[2]

[25]

The
    anomaly, if not confusion, created by
Paquette
has been significantly
    mitigated by the recent duress jurisprudence. The statutory language of the
    duress defence in s. 17 has undergone significant constitutional surgery: see
R.
    v. Ruzic
, 2001 SCC 24,
[2001] 1 S.C.R. 687. The common law defence and what remains of the statutory
    defence have also been reworked to more effectively reflect their mutual
    underlying rationale: see
R. v. Hibbert,
[1995] 2 S.C.R. 973;
R.
    v. Ryan
, 2013 SCC 3,

[2013]
    1 S.C.R. 14, at para. 44. As the law presently stands, the essential elements
    of the two duress defences are largely the same:
Ryan,
at para. 81.

[26]

The
    elements of both the statutory and the common law defences of duress are
    helpfully summarized in
Ryan,
at para. 81.

·

There must be an explicit or implicit threat of present or future
    death or bodily harm. The threat can be directed at the accused or a third
    party.

·

The accused must reasonably believe that the threat will be carried
    out.

·

There is no safe avenue of escape. This element is evaluated on a
    modified objective standard.

·

A close temporal connection between the threat and the harm
    threatened.

·

Proportionality between the harm threatened and the harm
    inflicted by the accused. The harm caused by the accused must be equal to or no
    greater than the harm threatened. This is also evaluated on a modified
    objective standard.

·

The accused is not a party to a conspiracy or association whereby
    the accused is subject to compulsion and actually knew that threats and
    coercion to commit an offence were a possible result of this criminal activity
    conspiracy or association.

[27]

If
    the defence is available in law, and the evidence gives an air of reality to
    the defence, an accused is entitled to an acquittal unless the Crown disproves
    one or more of the essential elements of the defence on a reasonable doubt
    standard: D. Stuart,
Canadian Criminal Law,
6th ed. (Toronto: Carswell,
    2011), at p. 493; see also
R. v. Perka
, [1984] 2 S.C.R. 232, at pp. 257-58.

THE DEFENCE OF DURESS AND MURDER

Is the Law Settled?

[28]

Section 17 expressly provides that the statutory defence of duress does
    not apply to the offences listed in the section. Murder is one of those
    offences.
[3]
Subject to a successful constitutional challenge
[4]
,
    the perpetrator of a murder cannot avoid culpability even if he or she
    committed murder in the face of a true kill or be killed option.

[29]

The
    trial judge, after an analysis of
Paquette
and an extensive review of
    common law authorities from other jurisdictions, determined that the common law
    defence of duress was not available to persons charged with murder regardless
    of whether they were charged as perpetrators or parties. It was, therefore,
    unnecessary for him to consider the constitutionality of the murder exception
    in s. 17:
Sandham
, at para. 124. As the Crown alleged that all of the
    appellants who raise duress on appeal were parties to the murders, the
    constitutionality of the murder exemption in s. 17 is not directly in issue on
    this appeal.

[30]

An
    examination of the common law defence of duress in Canada begins with
Paquette
.
Paquette
was concerned with liability for murder under s. 21(2) of the
Criminal Code
. A man was shot and killed during a robbery. The Crown
    contended that the accused had joined in a common design to commit robbery and
    that he knew or ought to have known that the others might intentionally cause
    bodily harm while carrying out the robbery. The accused alleged that he only
    assisted the others in the robbery because his life was threatened.

[31]

Martland
    J., for the entire court, relied on
Lynch v. Director of Public
    Prosecutions for Northern Ireland
, [1975] A.C. 653 (H.L. Eng.). In
Lynch
,
    a slim majority had accepted that the common law defence of duress was
    available to a person charged as a party to a murder. After extensive citation
    from
Lynch
, Martland J. embraced the majority position
,
at
    pp. 196-97:

I am in agreement with the conclusion reached by the majority
    that it was open to Lynch, in the circumstances of that case, to rely on the
    defence of duress, which had not been put to the jury. If the defence of duress
    can be available to a person who has aided and abetted in the commission of
    murder, then clearly it should be available to a person who is sought to be
    made a party to the offence by virtue of s. 21(2).

[32]

Although
Paquette
turned on liability through s. 21(2) of the
Criminal Code
and not liability as an aider or abettor under s. 21(1)(b) or (c), several
    Canadian appellate courts, including this court, have treated
Paquette
as holding that the common law defence of duress is available to persons
    charged as aiders and abettors to a murder:
R. v. Ruzic
(1998), 128
    C.C.C. (3d) 97 (Ont. C.A.), at para. 49, affd 2001 SCC 24, [2001] 1 S.C.R. 687;
R. v. Curran
(1977), 38 C.C.C. (2d) 151 (Alta. C.A.), at pp. 154-55,
    leave to appeal refused, [1978] 1 S.C.R. xi;
R.
v. Hartford and
    Frigon
(1979), 51 C.C.C. (2d) 462 (B.C. C.A.), at p. 467;
R. v.
    Pelletier
(1986), 29 C.C.C. (3d) 533 (B.C. C.A.), at p. 542;
R. v.
    Amarales
, 2008 ONCA 692, 237 C.C.C. (3d) 148, at paras. 87-88;
R. v.
    Earhart
, 2010 ONCA 874, 272 C.C.C. (3d) 475, leave to appeal refused,
    [2011] S.C.C.A. No. 397.
[5]

[33]

Laskin
    J.A., writing for the court in
Ruzic
, summarized the holding in
Paquette,
at para. 49:

But the court held that s. 17 applies only to persons who
    commit offences themselves, that is, as principals. It does not apply to
    persons who commit offences as parties.
Persons charged as parties can rely
    on the common law defence which, in Canada, does not exclude any offence from
    its reach
. [Emphasis added.]

[34]

As
    the statutory defence applied in
Ruzic,
the comments of Laskin J.A. as
    to the reach of the common law defence are
obiter
. The Supreme Court
    of Canada in
Ruzic
made no reference to our colleagues
obiter
and expressly refrained from any comment on the offences exempted from the
    statutory defence of duress:
Ruzic
, at para. 19.

[35]

In
Hibbert
, the accused was charged
    as an aider to an attempted murder and ultimately convicted of aggravated
    assault. He relied on the common law defence of duress and the trial judge left
    the defence with the jury. While the primary importance of
Hibbert
lies in its explanation of the difference between
    the
mens rea
required
    of a party to an offence and the defence of duress, Lamer C.J., for the court,
    appeared to confirm the holding in
Paquette
that the
    common law defence of duress is available to a person charged as an aider and
    abettor in a murder. He said, at para. 38:

Finally, I am satisfied that the interpretation of the
mens
    rea
for liability under s. 21(1)(b) that I am proposing will not result in
    unjust convictions in cases involving coercion by threats of death or bodily
    harm, since in these cases the common law defence of duress will remain
    available to the accused.

[36]

After
    overruling
Paquette
as it relates to the
mens rea
required
    for party liability, Lamer C.J. said, at para. 44:

I hasten to point out, however, that overturning this holding
    in
Paquette
does not affect the validity of that cases first aspect,
    namely,
that the common law defence of duress continues to apply in cases
    involving party liability under s. 21 of the Code
. Furthermore, it can be
    noted in passing that, on the facts of
Paquette
,
the accuseds
    acquittal could well have been supported on the basis of the excuse provided by
    the common law defence of duress
rather than on the notion that his
    intention to assist in the commission of the robbery was negated by duress.
    [Emphasis added.]

[37]

The
    trial judge, at para. 67, read the above passage in this way:

It is important to note that Lamer C.J. was referring to
    robbery, not murder, in suggesting that the common law defence of duress would
    be available.

[38]

We
    do not agree with that interpretation. The reference by the Chief Justice to
    the accuseds acquittal in the passage from
Hibbert
must refer to
    Paquettes acquittal on the murder charge. Paquette

was only charged
    with murder. He was not charged with robbery.

[39]

Hibbert
s apparent acceptance of duress as a defence to a
    charge of attempted murder fortifies our view that
Hibbert
confirms
Paquette
s

holding that the common law
    defence of duress is available to those charged with aiding or abetting a
    murder. The difference between the murderer and the attempted murderer lies
    only in achievement of the intended goal. No meaningful distinction can be
    drawn between the person who, under threat, aids in a murder and the person
    who, under the same threat with the same intent, engages in the same conduct
    yet, for reasons that may have nothing to do with his effort or his intent,
    does not end up assisting in a killing: see
R. v. Gotts
, [1992] 2 A.C.
    412 (H.L. Eng.), at pp. 425-26; David Ormerod,
Smith and Hogans Criminal
    Law,
13th ed. (Oxford: Oxford University Press, 2011), at pp. 361-62.

[40]

On
    the authorities as they stood at the time of the trial judges reasons, we
    think he erred in holding that he was not bound by those authorities to
    recognize that the common law defence of duress was available to persons
    charged as parties to a murder: see
R. v. P.C.
, 2012 ONSC 5362, 99
    C.R. (6th) 116. However, subsequent to the trial judges decision, the Supreme
    Court delivered its reasons in
Ryan
. After outlining the elements of
    the statutory and common law defences of duress, and to a large degree
    reconciling the two defences, the court turned briefly to the remaining
    differences between the statutory defence and the common law defence. The
    court, at para. 83, identified two differences, the second of which speaks
    directly to the issue at hand:

The second [difference] is that the statutory version of the
    defence has a lengthy list of exclusions
whereas it is unclear in the
    Canadian common law of duress whether any offences are excluded
. This results
    in the rather incoherent situation that principals who commit one of the
    enumerated offences cannot rely on the defence of duress while parties to those
    same offences, however, can.

We

accordingly leave to another day the questions of
    the status of the statutory exclusions and what, if any, exclusions apply at
    common law
. [Emphasis added.]

[41]

Ryan
continues the modification and reconciliation of the
    common law and statutory duress defences. In doing so,
Ryan
leaves open the question of whether any offences
    should be excluded entirely from the reach of those defences. In the face of
    that direction, it falls to this court to answer the question left open in
Ryan
, through reference to basic criminal law principles,
    the

juridical rationale underlying the duress defence, the
    elements of the duress defence as outlined in the controlling jurisprudence,
    the fundamental principles enshrined in the
Charter,
and the common
    law authorities from other jurisdictions.

What Should the Common Law Be?

[42]

Our
    analysis proceeds from three premises. First, the duress defence to be
    considered is the defence as it has been described and defined in
Hibbert
,
Ruzic
and
Ryan
. As explained in
Ruzic
, at paras.
    58-59, the competing individual interests of the accused and the victim and the
    very real public order concerns engaged when a duress defence is advanced
    require that the defence be subject to reasonable, but strict standards. The
    analysis assumes that the defence proffered meets those strict standards; see
    also
Perka
, at pp. 250-51.

[43]

Second,
    the analysis assumes that the person advancing the defence has the full
mens
    rea
required of an aider and abettor to murder. That is, the person knows
    that the perpetrator intends to kill the victim and he acts intending to assist
    the perpetrator in the killing: see
R. v. Kirkness
, [1990] 3 S.C.R.
    74, at p. 88;
R. v. Briscoe
, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras.
    16-18. In short, regardless of the nature of the assistance provided, the party
    advancing the defence fully intends to assist in the murder of an innocent
    third party.

[44]

Third,
    on this analysis, there are only two potential solutions. Either duress is a
    full defence, resulting in an acquittal and subject to the normal requirement
    that if the evidence gives rise to the defence the Crown must disprove the
    defence, or duress is not a defence to murder.

[45]

Various
    law reform bodies and academic commentators have considered other choices,
    including recognizing duress as a partial defence that would reduce murder to
    manslaughter (as in the case of provocation), and reversing the burden of proof
    as it relates to the defence: see, e.g., The Law Commission,
Murder,
    Manslaughter and Infanticide
(No. 304) (London, UK: The Law Commission,
    2006), at pp. 111, 116. Recognizing duress as a partial defence to murder is a
    legislative remedy that goes beyond the scope of judicial interpretation of the
    common law. No other jurisdiction recognizes the common law defence of duress
    as a partial defence. As to reversing the burden of proof, there are obvious
    constitutional implications to that approach. The now extensive duress and
    necessity jurisprudence from the Supreme Court of Canada does not suggest any
    reversal of the burden of proof. This court cannot take the bold step of
    reversing the burden absent submissions offering persuasive grounds for doing
    so: see
R. v. Stone
, [1999] 2 S.C.R. 290, at paras. 179-80, per
    Bastarache J., and at para. 48, per Binnie J., dissenting.

[46]

The
    analysis begins with a bedrock principle of the criminal law. Criminal
    liability requires voluntary conduct. Voluntariness reflects individual choice
    and with choice comes responsibility for ones actions. Society can properly
    hold individuals to account if they choose to act. Where there is no choice,
    punishment of the actor is incompatible with individual autonomy and arguably
    serves no utilitarian value. Not surprisingly, voluntariness has been described
    as a principle of fundamental justice protected by s. 7 of the
Charter
:
    see
Ruzic
, at para. 43;
R. v. Daviault
, [1994] 3 S.C.R. 63, at
    pp. 91-92;
R. v. Luedecke
, 2008 ONCA 716, 236 C.C.C. (3d) 317, at para.
    53.

[47]

Voluntariness
    as a criminal law term is most often used in its narrow physical sense to refer
    to a willed and volitional act. The condemned man who walks to his death acts
    voluntarily in the narrow physical sense of the word. He wills his legs forward
    to meet his hangman rather than require another to carry him to his end. This
    narrow physical concept of voluntariness does not assist persons who act under
    duress. Those persons, like the condemned man, engage in willed volitional
    conduct. They choose to engage in criminal conduct rather than suffer the harm
    threatened:
Ruzic
, at para. 44.

[48]

Voluntariness
    has been extended beyond physical voluntariness to explain the rationale
    underlying the defences of necessity and duress. In
Perka
,
at pp. 248-49, Dickson J. described
    necessity as a common law defence that could excuse what was otherwise criminal
    conduct. He referred to the rationale for excusing criminal conduct as resting:

[O]n a realistic assessment of human weakness, recognizing that
    a liberal and humane criminal law cannot hold people to the strict obedience of
    laws in emergency situations where normal human instincts, whether of
    self-preservation or of altruism, overwhelmingly impel disobedience.

[49]

Relying
    on G. Fletcher,
Rethinking Criminal Law
(Boston: Little, Brown, 1978),
    Dickson J., at p. 249, linked the operation of the necessity defence as an
    excuse to the voluntariness requirement:

Literally this voluntariness requirement simply refers to the
    need that the prohibited physical acts must have been under the conscious
    control of the actor. Without such control, there is, for purposes of the
    criminal law, no act. The excuse of necessity does not go to voluntariness in
    this sense. The lost alpinist who on the point of freezing to death breaks open
    an isolated mountain cabin is not literally behaving in an involuntary fashion.
    He has control over his actions to the extent of being physically capable of
    abstaining from the act. Realistically, however, his act is not a voluntary
    one. His choice to break the law is no true choice at all; it is
    remorselessly compelled by normal human instincts. This sort of involuntariness
    is often described as moral or normative involuntariness.

[50]

In
Hibbert
, at para. 54, the court embraced the
Perka
analysis as
    applicable to the common law defence of duress, holding that conduct that fell
    within the scope of the common law defence should be viewed as normatively
    involuntary and, therefore, not subject to criminal liability.
Ruzic
built on the rationale developed in
Perka
and
Hibbert
,
    distinguishing, at paras. 32-41, between moral involuntariness and moral
    blameworthiness. A persons conduct could be morally involuntary in the sense
    that she had no realistic choice, but that does not necessarily make her
    conduct morally blameless. The duress defence excuses, it does not justify.

[51]

In
    Ruzic
, at para.

47,
    LeBel J., for the court, accepted that the concept of moral or normative
    involuntariness, like physical involuntariness, was a principle of fundamental
    justice protected by s. 7:

Although moral involuntariness does not negate the
actus
    reus
or
mens rea
of an offence, it is a principle which,
    similarly to physical involuntariness, deserves protection under s. 7 of the
Charter
.
    It is a principle of fundamental justice that only voluntary conduct
    behaviour that is the product of a free will and controlled body, unhindered by
    external constraints  should attract the penalty and stigma of criminal
    liability. Depriving a person of liberty and branding her with the stigma of
    criminal liability would infringe the principles of fundamental justice if the
    accused did not have any realistic choice.

[52]

As
    explained in
Ruzic
, at paras. 34-47, the concept of moral
    involuntariness as a principle of fundamental justice rests on an acceptance of
    individual autonomy and choice as essential preconditions to the imposition of
    criminal liability. If, on a reasonable assessment of the circumstances, it
    must be said that an accused had no realistic choice but to act as he did,
    fundamental justice requires that the accused not be branded a criminal for so
    acting. Society may regret or even deplore the accuseds 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: see
Perka
, at pp. 249-50.
Ryan
, at para. 40, confirmed
    the status of moral involuntariness as a principle of fundamental justice
    protected by s. 7 of the
Charter
.

[53]

Moral
    involuntariness does not depend exclusively on an individuals perception that
    she had no realistic choice but to act as she did. Moral involuntariness is
    measured, in part, on the basis of societys expectation of appropriate and
    normal resistance to pressure:
Perka
, at p. 259. Professor Yeo offers
    this helpful description of moral involuntariness:

The term moral involuntariness alludes to the nature of the
    concept as well as to how and why it operates to exculpate a defendant of the
    crime charged. Beginning with involuntariness, this embodies a fundamental
    organizing principle of our criminal law, which is [t]he treatment of criminal
    offenders as rational, autonomous and choosing agents. In the context of a
    plea of necessity, a defendant is pleading that the circumstances placed him or
    her in a predicament that forced him or her to make a choice when, in different
    circumstances, the choice would not otherwise have been made. Turning to the
    adjective moral appearing in the term, this stipulates that social policy and
    values form an integral part of this concept. The inquiry raised by moral
    involuntariness is therefore whether, taking into account all relevant social
    policy considerations, the circumstances that impacted on the defendants
    ability to choose freely a course of action, rendered him or her not criminally
    responsible.
[6]

[54]

The
    social policy considerations infused into the concept of moral voluntariness
    recognize that excuses which provide a defence for what is otherwise criminal
    behaviour cannot be entirely subjective. Excuses must take into account a
    variety of societal concerns, including the need to maintain social order and
    to protect persons who are the innocent victims of those who act under threats
    from others:
Ruzic
, at para. 58.

[55]

Societal
    policy concerns germane to the assessment of moral involuntariness manifest
    themselves in the elements of the duress defence as described in
Ruzic
and
Ryan
. The no safe avenue of escape criterion and the requirement
    of a close temporal connection between the threat and the harm threatened serve
    to restrict the defence to circumstances in which the absence of a realistic
    choice manifests itself in objectively discernable circumstances. Referring to
    these two requirements, the court in
Ryan
observed, at para. 52:

The addition of [these] common law requirements to replace the
    now defunct immediacy and presence elements of s. 17 thus act to temper the
    once purely subjective belief as to the threat. Furthermore, they bring the
    statutory provision in line with the principle of moral involuntariness.
    Considering that societys opinion of the accuseds actions is an important
    aspect of the principle, it would be contrary to the very idea of moral
    involuntariness to simply accept the accuseds subjective belief without
    requiring that certain external factors be present.

[56]

Social
    policy concerns also pervade the proportionality requirement of the duress
    defence: see
Yeo
, at pp. 26-27. In
Ryan
, at para. 54, the
    court described proportionality as a crucial component of the defence of
    duress which derives directly from the principle of moral involuntariness;
    see also Paciocco, at p. 286.

[57]

The
    proportionality requirement ultimately separates those society is prepared to
    excuse for yielding to threats from those society decides should not have
    succumbed to the pressure. Proportionality in the context of the duress defence
    is assessed on a modified objective standard:
Ryan
, at para. 72.

[58]

Proportionality
    is the product of two different but related evaluations. First, the harm
    threatened must be equal to or greater than the harm inflicted in response to
    the threat. Second, the accuseds choice to inflict harm must accord with what
    society expects from a reasonable person similarly situated in that particular
    circumstance:
Ryan
, at para. 73.

[59]

In
    many circumstances, the first evaluation will also answer the second, in that
    the imposition of greater harm than the harm threatened will inevitably fail to
    meet societys expectations. In some circumstances, however, the second
    evaluation may be determinative. Take for example a man who inflicts bodily
    harm on a young child to avoid similar bodily harm to himself. The harm
    inflicted may be no greater than the harm avoided, but a jury may decide that a
    reasonable person similarly situated would have resisted the threat and refused
    to inflict the harm on the child. If the jury so concluded, the duress defence
    would fail.

[60]

The
    criminal association exclusion further defines and limits the concept of moral
    involuntariness as applied to duress. A person who by association with a
    criminal organization or criminal endeavour voluntarily assumes the risk of
    being compelled by threats to engage in criminal conduct cannot rely on that
    compulsion to excuse his criminal conduct.
Ryan
explains at para. 77:

This is consistent with the principle of moral involuntariness.
    An accused that, because of his or her criminal involvement, knew coercion or
    threats were a possibility cannot claim there was no safe avenue of escape, nor
    can he or she truly be found to have committed the resulting offence in a
    morally involuntary manner.

[61]

Moral
    involuntariness as a principle of fundamental justice is a reflection of the
    central importance of individual autonomy and choice in the imposition of
    criminal liability. The statutory and common law defences of duress, as
    developed in
Hibbert
,
Ruzic
and
Ryan,
take moral
    voluntariness as both the rationale for the duress defence and as the justification
    for the strict limits on the availability of the defence. In doing so, the
    court has adhered to its oft repeated admonition that the common law must be
    developed and applied in accordance with the values and principles enshrined in
    the
Charter
: see, e.g.,
R. v. Rodgers
, 2006 SCC 15, [2006] 1
    S.C.R. 554, at para. 18;
R. v. Golden
, 2001 SCC 83, [2001] 3 S.C.R. 679,
    at para. 86.

[62]

In
    the same way that the principle of moral involuntariness has played a central
    role in shaping the elements of the common law defence of duress, it must
    figure prominently in any assessment of whether any offences, and in particular
    murder, should be excluded from the reach of that defence. The Crowns claim
    that the common law defence of duress does not reach persons charged as parties
    to murder can be accepted only if the Crown can demonstrate either that the
    exclusion of murder is compatible with the principle of moral involuntariness
    or that the exclusion is a justifiable limitation on that principle.

[63]

Whether
    excluding murder from the duress defence is consistent with the principle of
    moral involuntariness turns on the rationale underlying the defence and the
    interaction between that rationale and the proportionality requirement. Duress
    operates as an excuse and not a justification. While a person told to kill or
    be killed could perhaps never justify killing the innocent third party as the
    lesser of two evils, it is much more difficult to assert that the two harms are
    not of comparable gravity:
R. v.
Latimer
, 2001 SCC 1, [2001]
    1 S.C.R. 3, at para. 31.

[64]

Because
    duress operates as an excuse, harms of comparable gravity satisfy at least the
    first arm of the proportionality inquiry. The principle of moral
    involuntariness recognizes that the criminal law is designed for the common
    man, not for a community of saints or heroes:
Ruzic
, at para. 40. The
    criminal law cannot demand acts of heroism, but must instead set standards of
    conduct which ordinary men and women are expected to observe if they are to
    avoid criminal responsibility:
R. v. Howe
, [1987] A.C. 417 (H.L. Eng.),
    at p. 430; see also
Lynch,
at p. 670.

[65]

Moral
    involuntariness by its very nature demands a fact-intensive inquiry. Neither
    prong of the proportionality requirement will always favour sacrificing ones
    own life over assisting in the murder of another. Choosing to aid in the murder
    of another will not always amount to choosing an evil greater than the evil
    threatened. 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.

[66]

Nor,
    on any realistic view, can a decision to assist in a murder to avoid a harm threatened
    always fall below the standard of what society expects from a reasonable
    person similarly situated in [the] particular circumstance:
Ryan,
at
    para. 73. Consider, for example, a person who had no connection to the Bandidos
    or to the meeting at Kellestines farm, but who happened to attend at the farm
    for some innocent purpose that night. Assume Kellestines 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
    Kellestines order and give up his own life? Could it be said that the person
    had a realistic choice? We think not.

[67]

In
    taking the view that the duress defence could excuse a choice to assist in a
    murder, we of course do not suggest that the defence would be readily made out.
    Indeed, the duress defence is strictly limited and is not easily accessible in
    any situation. Moreover, the greater the harm caused by yielding to the threat,
    the more difficult it will be for an accused to make out the defence,
    particularly on the proportionality element. If an accused chooses to assist in
    a murder, it may well be that nothing short of a threat of immediate death to
    that person or some other person could ever satisfy the proportionality
    requirement.
[7]

[68]

The
    trial judge accepted that a
per se
exclusion of murder from duress
    would result in the conviction and punishment of morally involuntary conduct.
    He said, at para. 85:

However, it is clear that in both the defence of necessity and
    the defence of duress, there is the additional requirement of proportionality.
    Even where an act is morally involuntary, the law will not excuse a person from
    committing an act that is disproportionate to the harm with which he is
    threatened.

[69]

The
    trial judge continued, at para. 110:

[D]enying a duress defence for murder could result in an
    accused being convicted for a crime that is morally involuntary, but that
    results from the fact that killing an innocent person fails the test of
    proportionality, which is a separate part of the defence. It is grounded in the
    victims right to life that is guaranteed in s. 7 of the
Charter
. To
    the extent that the rights of the victim are given priority to those of the
    accused, this results from the balancing of the interests of the accused as
    against the protection of society.

[70]

The
    trial judge treated the proportionality requirement in the duress defence as
    operating outside of the principle of moral involuntariness. On his analysis,
    the defence captured only conduct that is both morally involuntary and
    proportional. Proportionality required a balancing of the competing rights of
    the victim and the accused. In the case of murder, that balancing always
    favoured the victim.

[71]

The
    trial judge did not have the benefit of the reasons in
Ryan
. In those reasons,
the court made it
    clear that the proportionality requirement in the duress defence derives
    directly from the principle of moral involuntariness:
Ryan
, at para.
    54. The proportionality requirement serves, along with other elements of the
    defence, to identify conduct that is morally involuntary and therefore
    incapable of supporting a criminal conviction.

[72]

As
    the trial judge acknowledged, on his approach, a separate proportionality
    analysis that balanced the rights of an accused against the victims right to
    life would permit the criminalization of morally involuntary conduct.  Presumably
    on this approach, a victims right to life could equally permit the
    criminalization of physically involuntary conduct.

[73]

In
    our view, while the victims right to life is a crucial factor in assessing
    whether an accuseds conduct is proportional and therefore morally involuntary,
    the victims right to life cannot render conduct that is otherwise involuntary
    punishable under the criminal law.  A proportionality requirement which looks
    to whether an accused had any realistic choice is an essential component of the
    moral involuntariness inquiry.

[74]

In
    holding that duress is not available as a defence to persons charged with
    murder, the trial judge relied on a long line of English authorities reaching
    back over 200 years. With the solitary exception of the majority judgment in
Lynch
,
    English authorities have consistently excluded murder from the common law
    defence of duress: see, e.g., Blackstone,
Commentaries on the Laws of
    England
, vol. 4 (Oxford: Clarendon Press, 1769), at p. 30; G. Williams,
Criminal
    Law: The General Part
, 2d ed. (London: Stevens & Sons Limited, 1961),
    at pp. 759-61; R. Card,
Card, Cross and Jones: Criminal Law
, 17th ed.
    (Oxford: Oxford University Press, 2006), at pp. 789-91;
R. v. Howe
(1986), [1987] A.C. 417 (H.L. Eng.);
Abbott v. The Queen
, [1977] A.C.
    755 (P.C.);
R. v. Hasan
, [2005] UKHL 22, [2005] 2 A.C. 467.

[75]

The
    English authorities provide two main reasons for denying the duress defence to
    persons charged with murder. First, these authorities argue that permitting
    duress as a defence to murder strengthens the hand of terrorists and other
    criminal organizations. Allowing duress as a defence to murder encourages
    criminals to use threatened intermediaries as a means of conducting their
    criminal activity and encourages those putative intermediaries to yield to the
    threats rather than resist.

[76]

This
    is essentially a deterrence-based policy argument.  Whatever the merits of the policy
    argument, it cannot withstand the head-on collision with the principle of moral
    involuntariness, now entrenched in s. 7 of the
Charter
.  Even if
    punishing morally involuntary conduct would deter criminal organizations from
    coercing others into criminal acts and deter threatened persons from engaging
    in criminal acts, punishment of those whose conduct is morally involuntary will
    still infringe on the individuals right to liberty in a manner that is
    contrary to the principles of fundamental justice.  Unless that infringement
    can be justified under s. 1 of the
Charter
, criminal policy goals, no
    matter how legitimate, cannot be pursued at the expense of the constitutional
    protections afforded by s. 7 of the
Charter
.

[77]

Furthermore,
    even if the principles of fundamental justice did not operate as a brake on an
    unfettered policy of deterrence, the validity of the deterrence argument is dubious.
    The argument assumes that persons subject to the sorts of threats that would
    engage the duress defence would take the time to consider their options in
    light of the manner in which they might be treated by the criminal law were
    they to be arrested and prosecuted at some point in the future. Surely, a
    person faced with a true kill or be killed option would have little regard
    for how the criminal law might react to the choice she makes. Any concern she
    might have about future punishment would be trumped by a more immediate concern
    about her own survival.

[78]

We
    are also unable to see how excluding murder from the defence of duress would
    deter terrorists and other criminal organizations from using coercion to
    conscript others to assist in crime. The terrorist or organized criminal is
    guilty of the crime regardless of whether the coerced party has a defence. We
    cannot see how the criminal would have any interest in what the law might
    eventually do to the coerced party.

[79]

There
    is nothing in the Canadian experience to support the contention that accepting
    duress as a defence to persons charged as parties to murder would encourage
    criminal organizations to employ duress or would encourage individuals to yield
    to threats. Duress has been an accepted defence to persons charged as a party
    to murder in several Canadian provinces, including Ontario, for many years. We
    are unaware of any data or commentary suggesting that the availability of this
    defence has created problems in the enforcement or administration of the
    criminal law. Nor do we know of any such data in various civil jurisdictions in
    which duress is an accepted defence to murder or in those common law
    jurisdictions which have expanded duress to murder by statute.
[8]

[80]

The
    second reason advanced in the English cases and relied on by the trial judge
    for excluding murder from the duress defence rests on the assertion that the
    innocent victims right to life is inherently more valuable than any right of
    the accused. As the trial judge put it, at para. 99:

In considering whether an accused will be excused for murdering
    a victim to save his own life, we are dealing with precisely what LeBel J. was
    referring to: the conflicting interests of the accused and the victim. Both
    want to live. Both have a right to life. Their interests are equivalent and in
    direct conflict. In such a situation, the common law has established a
    hierarchy, and has held that the interests of the victim must prevail.

[81]

That
    position reflects a conception of duress as a justification: see, e.g.,
R. v.
    Dudley and Stephens
(1884), 14 Q.B.D. 273, at pp. 286-88;
Howe
, at
    pp. 430-33. On that view, duress is not a defence to murder because killing the
    innocent victim is never justified: it cannot be said that taking one life to
    save another is the lesser of two evils, or that the harm avoided is greater
    than the harm caused. Justifying the killing of the innocent victim would
    require prioritizing the right to life of one over the right to life of
    another. That kind of evaluation is both unworkable and inconsistent with
Charter
values.

[82]

Canadian
    criminal law does not, however, regard duress as a justification. As outlined
    above, duress is an excuse. 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. The harm caused/harm avoided inquiry in
    an excuse-based defence, looks not to the promotion of the greater good (the
    harm avoided is greater than the harm caused), but rather for a level of
    comparable harm (the harm caused is not out of proportion to the harm avoided).

[83]

An
    individual told to kill or be killed cannot make a decision that will fully
    vindicate the right to life, especially if the choice is between the lives of
    two equally innocent third parties. Whatever the threatened person decides, an
    innocent life may well be lost. A
per se
rule which excludes the
    defence of duress in all murder cases does not give the highest priority to the
    sanctity of life, but rather, arbitrarily, gives the highest priority to one of
    the lives placed in jeopardy.

[84]

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.

Conclusion

[85]

The
    common law defence of duress has been available to persons charged as parties
    to murder in Ontario for at least 35 years. We would hold that the defence as
    strictly defined in the recent Supreme Court jurisprudence remains available to
    persons charged as parties to murder. In our view, that holding is consistent
    with the nature of the duress defence, basic criminal law policies, and the
    operative principles of fundamental justice.

[86]

The
    constitutionality of the murder exception to the duress defence in s.  17 of the
Criminal Code
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.

DID THE RULING THAT DURESS WAS NOT
    AVAILABLE AS A DEFENCE TO MURDER PREJUDICE THE APPELLANTS?

(i)

Gardiner

[87]

Counsel
    for Gardiner does not submit that there was an air of reality to a duress
    defence on the evidence as it stood at trial. He is correct in not advancing
    that argument. There was no evidence that Gardiner acted under duress as
    defined in
Ruzic
and
Ryan
. His trial counsel did not even
    request that the defence be left with the jury on the included offences of
    manslaughter.

[88]

Counsel
    for Gardiner submits that had the trial judge correctly held that duress is
    available for murder, Gardiner may have adduced evidence capable of giving an
    air of reality to the defence. Counsel suggests that Gardiner may have
    testified or that trial counsel may have introduced information through other
    witnesses that would have supported the defence of duress. Counsel attempts to
    overcome the obviously speculative nature of this submission by pointing to
    evidence that Gardiner was afraid during the carnage at Kellestines farm and
    that he took orders from the perpetrators of the murders during the confinement
    and murders. Counsel suggests that this evidence provides the evidentiary
    kernel from which the duress defence may well have been developed had the trial
    judge not erroneously ruled that it was not available on the murder charges.

[89]

We
    cannot accept this submission for several reasons. First, the evidence said to
    suggest to the possibility of a duress defence for Gardiner does no such thing.
    A fearful subordination to the orders of others is miles from the kind of
    conduct required to bring the duress defence into play: see
R. v. Mena
(1987)
, 34 C.C.C. (3d) 304 (Ont. C.A.),
    at p. 320. Gardiners subservience is not a substitute for the kind of threat
    that would be required to lend an air of reality to a duress defence in these
    circumstances.

[90]

Second,
    Gardiner had every opportunity to develop or at least lay out evidence in
    support of his duress defence at trial if such evidence existed. Gardiner could
    have done so by way of a proffer of evidence as part of the pre-trial motion on
    the availability of the defence. Gardiner could also have developed the
    evidence to advance a duress defence on the manslaughter charges. Gardiners
    decision not to adduce any evidence relevant to duress despite the availability
    of the defence on the manslaughter charges suggests to us that either there was
    no such evidence, or that counsel made a tactical decision that Gardiner was
    better off not attempting to advance a duress defence. As was stressed on
    several occasions at the trial, the duress defence could have opened the
    evidentiary door to Crown evidence detailing the criminal activities of the
    Bandidos and the chain of authority that prospective members agreed to when
    they became affiliated with the gang. As Gardiners counsel at trial
    acknowledged, such evidence could cause significant harm to the defence.

[91]

It
    is always possible that things might have gone differently at trial had a trial
    judge made different pre-trial rulings. In our view, however, it puts too
    little weight on legitimate finality interests in the criminal law to suggest
    that the mere possibility that things might have gone differently should
    vitiate a verdict. With respect, counsel for Gardiners submissions go no
    further than to speculate about what might have occurred. That speculation runs
    firmly against the grain of what actually occurred. We see no realistic
    possibility that Gardiner could have or would have put the duress defence in
    play on the murder charges had the trial judge ruled that the defence was
    available: see
R. v. Khawaja
, 2012 SCC 69, [2012] 3 S.C.R. 555, at
    paras. 90-91.

(ii)

Mather

[92]

The
    appellant Mather, like Gardiner, does not challenge the trial judges ruling
    that there was no air of reality to a duress defence to any of the manslaughter
    charges. Also, like Gardiner, counsel for Mather argues that but for the trial
    judges erroneous pre-trial ruling, he may have testified and the strategy
    pursued at trial may have been different.

[93]

In
    support of this submission, counsel speculates as to what Mather may have said
    had he chosen to testify. That speculation is not helpful. Furthermore, counsel
    offers no reason why, if Mather could have offered evidence to support a duress
    defence, he did not do so on the manslaughter charges. In our view, the effect
    of the trial judges erroneous holding that duress was not available as a
    defence to murder must be measured by reference to the trial record. Taking
    that measurement, we conclude that Mather suffered no prejudice.

(iii)

Aravena

[94]

Aravena
    testified that he was present when Kellestine shot and killed John Muscedere
    (the second murder). He further testified that immediately after killing
    Muscedere, Kellestine threatened to kill Aravena and his family if Aravena
    talked.

[95]

Aravenas
    trial counsel (not Mr. Doucette) argued that Kellestines threat after
    Muscederes murder provided a basis upon which the trial judge should leave the
    defence of duress on the included offence of manslaughter in counts three
    through eight. Counsel did not suggest that the duress defence was available
    for manslaughter on the first two murder counts.

[96]

The
    trial judge correctly held that Kellestines express threat after Muscederes
    murder was not the kind of threat that could support a duress defence. The
    threat was not made to coerce Aravena to commit a crime, but was made to secure
    his silence about a crime Kellestine had already committed.

[97]

The
    trial judge, however, considered Kellestines express threat in conjunction
    with the rest of the evidence and decided that, on the totality of the
    evidence, there was an air of reality to Aravenas claim that he had acted
    under an implied threat of death if he did not do as he was told.

[98]

The
    trial judge ultimately held, however, that the duress defence was not available
    to Aravena because, on the unchallenged evidence, Aravena had:

[V]oluntarily put himself into the clutches of an organization
    where he will be subject to compulsion, and specifically into the clutches of
    his tormentor, Wayne Kellestine, the National Sergeant at Arms of that
    organization, who was issuing the orders and who made the threat, on Aravenas
    evidence.

That renders the defence of duress unavailable on Aravenas own
    evidence, and on the authority of
Li
that I just quoted, it deprives
    the defence of an air of reality.

[99]

On
    appeal, counsel for Aravena accepts that the trial judge properly ruled that
    the criminal association exception precluded Aravenas reliance on duress as a
    defence to manslaughter. He submits, however, that it does not follow that the
    exception also foreclosed the defence on the murder charges. Counsel relies on
    the trial judges observation drawing that very distinction:

Although it is not necessary for the purposes of the decision I
    have arrived at, it is nevertheless useful to remember that we are not talking
    about Aravena being ordered or compelled to kill anybody. If we were, that
    would be murder, and the duress defence would be unavailable for that reason.

Instead we are talking about more benign orders, to keep watch
    over the Toronto Bandidos until they can safely be transported back to Toronto.
    That is certainly well within the realm of orders that, on the evidence, a
    person attempting to be a good Bandido prospect would be expected to follow,
    and on the evidence, did follow.

[100]

Counsel submits
    that the criminal association exception to the duress defence operates only to
    exclude the type of criminal conduct an accused knew she could be compelled to
    perform when he voluntarily joined the criminal organization. Counsel concedes
    that there was no air of reality to a claim that Aravena did not know that he
    could be required to unlawfully confine others as a member of Kellestines
    group. That knowledge excluded the duress defence on the manslaughter charges
    because those charges were based on the unlawful confinement of the victims.
    Counsel goes on to argue, however, that it was very much an open question whether
    Aravena knew that as a consequence of submitting to Kellestines authority he
    could be required to assist Kellestine in a murder. Counsel submits that the
    question of what Aravena knew should have been left with the jury as part of a
    duress instruction.

[101]

The Crown
    responds that even if the duress defence was available as a matter of law, the
    defence was not available to Aravena on the evidence and therefore this court
    should apply the curative proviso in s. 686(1)(b)(iii). Counsel submits that on
    the entirety of the evidence, there was no air of reality to Aravenas
    assertion that he acted under the threat of death or bodily harm. Crown counsel
    also argues that the trial judges holding that the criminal association
    exception foreclosed the defence on the manslaughter charges is equally
    applicable to the murder charges.

[102]

The trial
    judges finding that there was an air of reality to an implied threat by
    Kellestine against Aravena was based on his careful review of the entirety of
    the evidence, especially Aravenas testimony. We would not interfere with that
    finding. Deference to the trial judges finding does not, however, end the
    matter. The trial judge found an implied threat based in large part on
    Aravenas evidence of Kellestines direct threat made against him and his
    family after the second murder. Without that direct threat, the evidence could
    not, in our view, support the trial judges finding of an implied threat to
    kill or cause bodily harm to Aravena if he did not cooperate.

[103]

In our view, the
    trial judges finding of an implied threat sufficient to support a duress
    defence must be taken in reference to the murders after Kellestines express
    threat (counts three through eight). There was no air of reality to a claim
    that Aravena acted under a threat of death when he aided or abetted in the
    second murder.  A consideration of whether the failure to leave the defence of
    duress prejudiced Aravena must therefore accept the jurys verdict on count two
    and proceed on the basis that Aravena was a full and willing participant in the
    second murder.

[104]

Any claim by
    Aravena that he acted under duress after the second murder and that he did not
    know he could be compelled to assist in murders when he associated himself with
    Kellestines criminal activities, loses all credibility in the face of the
    jurys finding that Aravena willingly assisted Kellestine in the second murder.
    Even on the appellants approach to the criminal association exception, the
    duress defence is excluded by that exception on counts three to eight.

[105]

Apart entirely
    from whether the trial judges finding of an implied threat applies only to
    counts three through eight, we agree with the Crowns submission that the
    criminal association exception rendered duress unavailable to Aravena.

[106]

The association
    exception is part of both the common law and statutory defence of duress.
    Section 17 excludes from the defence persons who are a party to a conspiracy
    or association whereby the person is subject to compulsion. The common law
    exclusion is similarly focussed to exclude persons who knew that their
    participation in a conspiracy or criminal association came with a risk of
    coercion and/or threats to compel them to commit an offence:
Ryan,
at
    para. 75.

[107]

Under the
    statutory and the common law defence, the criminal association exception denies
    the duress defence to those who willingly enter into relationships in which
    they know they may, by virtue of that relationship, be compelled by threats of
    bodily harm or death to commit crimes. A person who freely and knowingly
    subjects herself to the risk that she will be coerced into committing a crime
    voluntarily assumes the risk of acting under that coercion. Her eventual
    criminal conduct is, therefore, morally voluntary:
Ryan,
at para. 77.
    The requisite moral voluntariness is provided by that persons decision to
    willingly place herself in a situation in which she knows she can be coerced
    into committing a crime. The Crown must still prove any
mens rea
required for the offence charged. It is at that stage that the accuseds
    foresight of the crimes she could be compelled to commit may have some
    relevance to the accuseds liability.

[108]

The
    appellants submission that an accused must know the criminal organization
    might compel her to commit the crime charged finds no support in the Canadian
    authorities. The Canadian cases focus on the accuseds willing assumption of
    the risk she might be coerced into committing a crime, and not on the specific
    criminal activity either foreseen or eventually committed as a result of that
    coercion. This approach is consistent with the voluntary assumption of risk
    rationale for the exception: see
Ryan
, at paras.
75-77;
Ruzic
, at para. 70;
R. v. Li
(2002), 162 C.C.C. (3d) 360
    (Ont. C.A.), at paras. 20-33.

[109]

The English
    cases stand against the proposition that the criminal association exception
    excludes duress as a defence only to crimes which the accused anticipated she
    might be coerced into committing: see
R. v. Sharp
(1987), 85 Cr. App.
    R. 207 (Eng. C.A.), at p. 214;
R. v. Shepherd
(1987), 86 Cr. App. R.
    47 (Eng. C.A.), at pp. 51-52;
R. v. Ali
, [2008] EWCA Crim. 716, at
    para. 12;
Hasan
, at paras. 29-39. For example, in
Shepherd
,
    the court approved of the following excerpt from a trial ruling:

It is not merely a matter of joining in a criminal enterprise;
    it is a matter of joining in a criminal enterprise of such a nature that the defendant
    appreciated the nature of the enterprise itself and the attitudes of those in
    charge of it, so that when he was in fact subjected to compulsion he could
    fairly be said by a jury to have voluntarily exposed himself and submitted
    himself to such compulsion.

[110]

In
Hasan
,
    the House of Lords considered the ambit of the criminal association exception
    at some length. The court was asked to confirm the holding in
R. v. Baker
,
    [1999] 2 Cr. App. R. 335 (Eng. C.A.), at p. 344, that the exception foreclosed
    the defence only if the accused knew he might be coerced into committing criminal
    offences of the type for which he is being tried.

[111]

The law lords
    unanimously rejected this submission and declared
Baker
wrongly
    decided. Lord Bingham began with a description of the policy underlying the
    duress defence. He referred to and relied on both
Perka
and
Ruzic
for the proposition that the defence of duress must be strictly controlled and
    limited:
Hasan
, at para. 22. That control became particularly
    important in the context of offences committed by or on behalf of terrorists
    and other kinds of criminal organizations.

[112]

After a detailed
    review of the English cases, Lord Bingham held, at paras. 37-38:

The defendant is, ex hypothesi, a person who has voluntarily
    surrendered his will to the domination of another. Nothing should turn on
    foresight of the manner in which, in the event, the dominant party chooses to
    exploit the defendants subservience.

The policy of the law must be to discourage association with
    known criminals, and it should be slow to excuse the criminal conduct of those
    who do so. If a person voluntarily becomes or remains associated with others
    engaged in criminal activity in a situation where he knows or ought reasonably
    to know that he may be the subject of compulsion by them or their associates,
    he cannot rely on the defence of duress to excuse any act which he is
    thereafter compelled to do by them.
[9]

[113]

The principle of
    moral involuntariness is given full effect by a criminal association exception
    that forecloses the duress defence if an accused voluntarily enters into a
    criminal organization knowing there is a risk he may be compelled by threat of
    bodily harm or death to commit a crime. The voluntary assumption of that risk
    provides the choice necessary to justify criminal conviction and punishment.
    The criminal association exception properly focuses the inquiry on whether an
    accused willingly chose to subject himself to the risk he would be coerced into
    committing a crime. Not only is that focus consistent with the principle of
    moral voluntariness, it also furthers legitimate policy concerns which demand
    strict limitations on the availability of the defence, especially in the
    context of crimes committed for or on behalf of criminal organizations.

[114]

On any view of
    the evidence, Aravena willingly put himself under Kellestines authority
    knowing Kellestine could compel him to engage in criminal activity. Having made
    the choice to submit to Kellestines coercion, it does not lie in Aravenas
    mouth to argue that when Kellestine in fact compelled him to engage in murder,
    he had no realistic choice. Aravena had made his choice.

CONCLUSION ON DURESS

[115]

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. That error caused no
    substantial wrong or miscarriage of justice to Gardiner, Mather or Aravena, as
    on the evidence there was no air of reality to that defence on any of the
    charges.

Issue #2: The Liability of Mather and
    Aravena under the Constructive First Degree Murder Provisions

[116]

Aravena and
    Mather argue that standing guard as they did could not amount to an essential substantial
    and integral part of the murders.  They argue that without that level of
    participation, the Crown could not establish the causation requirement under
    the constructive first degree murder provisions:  see
R. v. Harbottle
,
    [1993] 3 S.C.R. 306.

[117]

After the shots
    were fired, killing Raposo, Mather and Aravena rushed to the barn where the
    other Toronto Bandidos were being held.  Mather was armed with a gun and
    Aravena had a baseball bat.  The two men stood guard in the barn over the
    remaining Bandidos as each victim was led outside, one at a time, to be shot and
    killed.  Aravena took possession of the gun for short periods of time.  He also
    supported Kellestines false claim made to the captives that there were back
    up shooters on the roof.  Aravena fetched drinks from the farmhouse, and
    assisted in the search of the cars for weapons, keys, cell phones and
    identification.

[118]

Aravena and
    Mather, together with Kellestine, Sandham, Mushey and M.H. took control of the
    larger group of eight bikers.  But for the subjugation of the victims, they
    could not have been led outside, one by one, to be executed.  Aravena and
    Mather maintained control over the victims while Kellestine, Mushey and Sandham
    met outside to discuss next steps, and watched the remainder as two of the farm
    team accompanied each of the victims outside.  The domination of the victims
    prevented them from escaping or fighting back.  The forcible confinement and
    killings were all part of the same course of events.  As observed in
R. v.
    Ferrari
,
2012 ONCA 399,
    287 C.C.C. (3d) 503 (Ont. C.A.), at para. 87, by Rosenberg J.A., I do not
    doubt that in some circumstances, participation in unlawful[ly] confining the
    victim can also be the foundation for active participation in the killing.

[119]

As the Crown
    aptly observed, this was an execution assembly line.  The trial judge did not
    err in leaving first degree murder with the jury.

Issue #3: Gardiners
    Liability for Murder on Counts Three to Eight

[120]

Gardiner did not
    participate in the unlawful confinement or the shooting.  The jury must have
    convicted him on the basis that he was a party to a planned and deliberate
    murder.  Once he realized that the first two victims had been killed, the jury
    clearly inferred that he also realized that the plan if we kill one we kill
    them all was to be carried out.  He then returned to the farmhouse, and if he
    followed his orders, would have continued to monitor the scanner.  He cleaned
    out the trunk of one of the vehicles before the last victim was shot and placed
    in a passenger seat of that car.

[121]

Gardiner argues
    that there was no evidence that he did any act to aid or abet the last six
    murders and that mere presence was insufficient to make him a party.

[122]

The trial judge
    instructed the jury as follows:

To be liable as an aider or abettor  and this covers both of
    those second and third categories, it is not enough that a person was simply
    there when a crime was committed by someone else. In other words, just being
    there does not make a person guilty as an aider or abettor of any or every
    crime somebody else commits in the persons presence. Being a spectator while
    someone else commits a crime does not make the spectator liable. There is no
    legal duty to intervene and stop a murder or any other crime.

On the other hand, if a person knows that someone intends to
    commit an offence; and goes to or is present at a place when the offence is committed
    for the purpose of helping or encouraging the other person commit the offence,
    his presence can be evidence of aiding or abetting.

Just as mere presence at the commission of an offence does not
    make a person liable as an aider or abettor, the fact that a person is not
    present at the commission of an offence does not necessarily mean he is not
    liable as an aider of abettor. If a person knows that a crime is going to be
    committed by the principal, and does an act or acts that help or encourage the
    commission of that offence, with the intention of helping or encouraging the
    commission of that offence, he can be held liable as an aider or abettor, even
    if he is not present when the offence is actually committed.

[123]

The above-quoted
    instruction is consistent with that approved by this court in
R. v. McLeod
,
[1982] O.J. No. 59 (C.A.), at para. 2.
    An accused who is at or near the scene, with the intention of providing acts of
    assistance if necessary is more than merely present.  That conduct can
    constitute aiding and abetting.  The jury was properly instructed.

[124]

Gardiner
    assisted in preparation of the firearms.  His job was to monitor the scanner
    for police activity and warn the rest of the farm team, if necessary.  The jury
    must have found that he knew of the plan to kill all, if one was killed, that
    he knew after the second killing that the plan would be implemented, and that
    he was there to follow orders and assist as required.  This was a reasonable
    finding on the record.  Gardiner was not there by chance.  We do not accept
    that Gardiners conviction on six counts of first degree murder was
    unreasonable.

Issue #4: The Instruction on
    Aravenas Post-Offence Conduct

[125]

Aravena admitted
    in his evidence that he travelled from Winnipeg to Ontario in the hopes of
    advancing in the Bandidos hierarchy.  After the murder, he was elated and
    excited to have earned a prospect patch.

[126]

Here the trial
    judge instructed the jury in the following terms:

There is another potential use of the post-offence conduct that
    you heard. One of the elements you will be considering as you deliberate is
    whether the accused committed planned and deliberated murder. Sometimes,
    evidence as to what a person does after a crime has been committed can
    constitute circumstantial evidence of a pre-existing plan. To use a gruesome,
    but real, example, evidence that the body was cut up into pieces after the
    murder can be connected to the purchase by the accused, before the murder, of
    surgical instruments, to constitute circumstantial evidence of a pre-existing
    plan to commit murder and butcher the body. In our case, the evidence relied
    upon this regard is the evidence of Bandido-related activity by the accused
    Mushey, Aravena and Sandham in Winnipeg following the demise of the deceased,
    which it relies on as circumstantial evidence of a pre-existing plan to
    eliminate the Toronto chapter and elevate the status of the Winnipeg chapter
    and its members.

[127]

Aravena submits
    that the trial judge ought to have instructed the jury that the evidence of his
    conduct after the killings was of no probative value as to the degree of
    culpability for the homicides, as it was equally consistent with guilt of
    manslaughter, second degree murder and first degree murder.

[128]

In
R. v.
    White
,
2011 SCC 13, [2011]
    1 S.C.R. 433, the court stated at para. 42:

Thus,
Arcangioli
and
White

(1998)
should be understood as a restatement, tailored to specific circumstances, of
    the established rule that circumstantial evidence must be relevant to the fact
    in issue. In any given case, that determination remains a fact-driven exercise.
    Whether or not a given instance of post-offence conduct has probative value
    with respect to the accuseds level of culpability depends entirely on the
    specific nature of the conduct, its relationship to the record as a whole, and
    the issues raised at trial. There will undoubtedly be cases where, as a matter
    of logic and human experience, certain aspects of the accuseds post-offence
    conduct support an inference regarding his level of culpability.

[129]

Here, Aravenas
    happiness right after the killing suggests a number of logical possibilities:

a)

He had obtained the goal to which he aspired;

b)

The events at the farm were not shocking or unexpected, but had unfolded
    in accordance with a plan;

c)

He knew about the plan; and/or

d)

He aided the killers with knowledge of the plan.

[130]

As a matter of
    logic and human experience, Aravenas conduct after the killing was relevant to
    whether he was a party to a planned and deliberate murder.

Issue #5: The Ruling that M.H. was a Confidential
    Informant in Respect of Prior Dealings with the Winnipeg Police

[131]

At trial, the
    Crown sought a ruling prohibiting the defence from cross-examining M.H. about
    his previous relationship with police.  Counsel for Aravena, Mushey and Mather
    who responded to the Crowns motion took the position that M.H.s confidential
    informer privilege had been waived or lost by his subsequent conduct.  On the
    return of the motion, counsel for Sandham submitted for the first time that he
    wanted to hear oral evidence on the motion from M.H. and his police officer
    handler and raised the question of whether M.H. was previously an agent instead
    of a confidential informant.  Sandham had not filed any material on the motion,
    nor had he asked the Crown to have the two witnesses present.  Neither witness
    was there, although counsel for M.H. had flown to London to assert his claim to
    informer privilege.

[132]

The Crown was
    prepared to argue the motion on the basis of the material filed, the relevant
    portions of the preliminary inquiry transcript.  The trial judge ordered that
    the motion would proceed on the basis of the material filed by the Crown and
    defence.

[133]

He did not err
    in exercising his discretion in this manner. A trial of this duration,
    complexity, and number of parties and witnesses requires careful management.
    Trials which spin out of control and end up lasting far longer than necessary
    deprive other litigants who are ready to proceed of their day in court.

[134]

M.H. asserted a
    claim to privilege in relation to his contacts with Winnipeg police before the
    shooting of the eight Toronto Bandidos.  He expressly waived any privilege
    related to his contacts with police after the shootings.

[135]

Counsel for
    Mushey indicated in submissions to the trial judge, I have no submissions to
    make, Your Honour, as to whether or not he was an informer or agent.  Im
    standing here before you intending to make my submissions on the assumption
    that he is a confidential informant.

[136]

Counsel went on
    to argue that since it had been revealed at the preliminary inquiry that M.H.
    was an informant with a long standing relationship with a particular officer, the
    informer privilege no longer applied.  He argued that there was no need for the
    protection offered by the confidential informer privilege, as M.H. was in a
    witness protection program.  He wanted to question M.H. about his prior contacts
    with police as a confidential informant with a view to undermining M.H.s
    credibility.

[137]

Counsel for
    Aravena submitted that since M.H. had told a police officer other than his
    Winnipeg handler that he had acted as a confidential informant in the past, he
    must be taken to have given up all claim to the privilege.  Counsel for Mather
    agreed with the submissions by Mushey.  Kellestine did not wish to pursue this
    line of questioning.  The other counsel had no submissions to make on this
    issue.

[138]

The issue as to
    whether an individual is a state agent, as opposed to a confidential informant
    is a question of mixed fact and law, and is owed some deference:
R. v. N.Y
.,
    2012 ONCA 745, 294 C.C.C. (3d) 313, at para. 114.

[139]

As observed in
R.
    v. G.B.
, 146 C.C.C. (3d) 465, [2000] O.J. No. 2963 (C.A.), at para. 10, [i]n
    general terms, the distinction between an informer and an agent is that an
    informer merely furnishes information to the police and an agent acts on the
    direction of the police and goes into the field to participate in the illegal
    transaction in some way.

[140]

Here the trial
    judge expressly concluded that M.H. was a confidential informant and not an
    agent in his dealings with the Winnipeg police.  He indicated in his ruling on
    the confidential informant motion,
R. v. Sandham
, [2008] O.J. No. 5804
    (S.C.), at para. 13, that, [t]he evidence is clear and uncontradicted that
    M.H. has indeed been a confidential informant since approximately 1997 and, at
    para. 19, that the evidence is that M.H. was only recruited as an agent for
    purposes of the investigation of these matters before the court.  These
    findings were reasonably open to the trial judge on the evidence before him and
    the arguments by counsel.  There was no evidence that M.H. participated in the
    illegal activities which were the subject of his reports to police.

[141]

The evidence
    which Mushey points to for the first time, on appeal, that on one occasion the
    handler asked M.H. for a copy of floor plans of a clubhouse, or on occasion
    asked for specific information, does not amount to sufficient evidence of
    direction as to undermine the trial judges conclusions.

[142]

The appellant
    also argues that the handler coerced M.H. into acting as an informant.  The
    evidence established that M.H. provided information to police in the
    expectation that his participation would remain confidential.  There can be no
    doubt that he was risking his life in providing the information.  Even if there
    were misconduct on the part of the handler, which we do not necessarily accept,
    the need for protection of the confidential informant is not diminished.

[143]

The appellants
    do not pursue the argument here that the confidential informant privilege was
    waived or lost.

[144]

The trial judge
    did not err in concluding that M.H. could not be questioned about his prior
    contacts with Winnipeg police.

Conclusion

[145]

This was a
    difficult and lengthy trial.  This court has had the benefit of careful and
    thorough arguments presented on behalf of the appellants and the Crown.  We are
    satisfied that the appeal must be dismissed.  The trial judge fairly and
    carefully instructed the jury.  His charge was well structured, and equipped
    the jury to grapple with the evidentiary and legal issues presented.  His
    failure to hold that the common law defence of duress was available to persons
    charged as parties to murder caused no prejudice to any of the appellants.

[146]

The appeals are
    dismissed.

Released: DD  APR 16 2015

Doherty J.A.

G. Pardu J.A.

I agree David Watt
    J.A.

[1]
M.H., a Bandidos accomplice in the murders, became a Crown witness in exchange
    for immunity.

[2]
In distinguishing between perpetrators and parties in the defence of duress,
Paquette
overruled
R. v. Carker
,
[1967] S.C.R. 114.
Carker
had described the defence of duress in s. 17
    as an exhaustive codification of the duress defence. New Zealand appellate
    courts in interpreting a provision that is very similar to s. 17 have also held
    that the statutory provision is exhaustive and applicable to perpetrators and parties
    alike: see
R. v. Akulue
,
[2013] NZSC 88, at para. 22, fn. 45. It can be fairly said that the
    justification either in policy or in the language of s. 17 for the distinction
    drawn in
Paquette
is far from compelling.

[3]
Murder has always been excluded from the statutory defence in Canada: see
The
    Criminal Code, 1892
, S.C. 1892, c. 29, s. 12; see also Criminal Code Bill
    Commission,
Report of the Royal Commission Appointed to Consider the Law
    Relating to Indictable Offences
(London: Eyre and Spottiswoode, 1879), at
    p. 68.

[4]
In
R v. Sheridan
, [2010] O.J. No.
    4884 (S.C.), the trial judge rewrote section 17 to permit a duress defence to a
    person charged as a perpetrator in a murder.

[5]
Contrary to this line of authority, Fish J.A., writing for the Quebec Court of
    Appeal, in
R. v. Langlois
, [1993] R.J.Q. 675, 80 C.C.C. (3d) 28 (C.A.),
    at pp. 31-32, noted in passing that the common law defence of duress had not
    been available for murder since the pronouncement of the House of Lords in
R.
    v. Howe
, [1987] A.C. 417 (H.L. Eng.).

[6]
S. Yeo, Revisiting Necessity (2010) 56 C.L.Q. 13, at p. 20. Some commentators
    prefer the phrase normative involuntariness: see D. Paciocco, No-one Wants
    to be Eaten:  The Logic and Experience of the Law of Necessity and Duress
    (2010) 56 C.L.Q. 240, at p. 250. See also, Stuart, at p. 489.

[7]
In
Latimer
, at para. 40, the court left open the question of whether
    necessity could provide a defence in a homicide situation. The court opined
    that [i]t is difficult  to imagine a circumstance in which the
    proportionality requirement could be met for a homicide. We leave open, if and
    until it arises, the question of whether the proportionality requirement could
    be met in a homicide situation. The proportionality requirement in necessity,
    unlike duress, is a purely objective one.

[8]
See Payam Akhavan, Should Duress Apply to All Crimes? A Comparative Appraisal
    of Moral Involuntariness and the Twenty Crimes Exception Under Section 17 of
    the Criminal Code (2009) 13 Can. Crim. L. Rev. 271, at pp. 277-78, 282-84
    (pointing out that the penal codes of France and Germany do not exclude duress
    as a defence to murder yet no evidence suggests that the availability of duress
    in those jurisdictions facilitates organized killing); W.R. LaFave,
Substantive
    Criminal Law
, 2d ed., vol. 2 (St. Paul: Thomson West, 2003), at p. 81
    (noting that Alaska, Arkansas, Connecticut, Delaware, Hawaii, New York, North
    Dakota, Pennsylvania, South Dakota, Texas and Utah allow duress as a defence to
    murder by statute).

[9]
English law, unlike the Canadian law, applies an objective test in considering
    the accuseds knowledge that the criminal organization might compel him to
    commit a crime: see
Ryan
, at para. 80.