Wednesday 10 October 2012

DURESS:  Is  it  a  valid  excuse  for  committing  murder?

A difficult question to answer is; is the common law defence of acting under duress available to an accused who is a party to the offence of murder when he aids the murderer as an accomplice?
I will give you a brief background of a horrific mass murder that took place in Ontario, Canada on April 8, 2006. All of the 8 victims and all of the 6 accused were or had been members of or associated with the Bandidos Motorcycle Club; a club that was in competition with the Hells Angels. The victims were killed execution style and their bodies were placed in cars in various parts of the area after they were killed.

 Three of the accused were the shooters and the other three accused were parties to the offence by assisting the shooters.

The common law defence of duress has been notionally available to accused persons on a number of occasions in Canada.  Justice Lamer of the Supreme Court of Canada in the Hibbert case made it clear that duress only becomes relevant after the mens rea (criminal intent) and actus reus (criminal act) have been established. Where the defence is applicable, it then operates to excuse what would otherwise be a criminal act. This leads to the possibility that an accused might testify that he participated in the murders, but only did so under duress.

 It is, perhaps, not surprising that a question of this magnitude had never been squarely addressed in the appellate courts of Canada before. Section 17 of the Canadian Criminal Code codified the common law defence of duress, and stated clearly that it did not apply to the crime of murder. Thereafter, there was no reason for the issue of duress to arise in a murder case, because it was statutorily precluded. What that means that if someone points a gun at your head and he tells you to cut the throat of a victim and you believe that the person with the gun will shoot you dead if you don`t do as he says, you still can`t kill the other person and not be convicted of murder. That does seem unfair but fair or not, that is the law in Canada. The most you could hope for from the court is a reduction of the charge from first degree murder to second degree murder.

Question #1: Is duress available to a person who commits murder?
This issue was raised in a Superior Court and the Crown (prosecutor) asked the court to answer three questions. They were;

 1. Is duress notionally available to a person who commits murder?

2. Is duress notionally available to a person who is a party to murder?

3. If the answer is “yes” to either of the preceding questions, then when can the Crown lead evidence bearing on whether there is an air of reality to the defence?
The term air of reality meant whether or not there was a justifiable reason why the accused should fear being killed by the shooters if they didn’t assist the shooters in killing the eight victims.

 In R. v. Carker, Justice Ritchie speaking for the Canadian Supreme Court, held that “in respect of proceedings for an offence under the Canadian Criminal Code  the common law rules and principles respecting ‘duress’ as an excuse or defence have been codified and exhaustively defined in section 17.  That section is reproduced below:

“A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).” unquote
The three accused that brought in the argument that they should avail themselves of the ‘defence of necessity’ had participated in the murder of the eight men indirectly. Under section 17 of the Criminal; Code, that form of defence wouldn’t normally be available to them. Nevertheless, their lawyers pressed on.

 In the Paquette case that was also heard in a Superior Court, it involved a robbery, during the course of which an innocent bystander was shot. The accused was not present at the scene of the murder and did not participate in it. He did however drive the two perpetrators to and from the scene of the robbery, but they told the police that he did so under threats of death. The Crown alleged that Paquette was a party to the murder under section 21(2), on the basis that he and the perpetrators had formed an intention in common to commit robbery, and murder was a probable consequence. Because the charge was murder, the Crown argued that the accused was precluded by section 17 from raising duress as a defence.

Section 21(2) of the Canadian Criminal Code states;

 21. (1) Every one is a party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

 In other words, the section presumes that when you are party to an armed robbery, you have to know that there is a possibility that the victim may be killed. That being the law, the Crown was correct in arguing that Paquette was party to the murder, even if his role was only indirect. For example, if he gave a loaded gun to the man who killed the robbery victim and he knew that the gun was going to be used in an armed robbery, he would be just as guilty as the man who did the shooting and killed the victim. It follows that had Paquette not driven the shooter to the scene of the robbery, the robbery wouldn`t have taken place at that particular time and the victim would not have been killed.

 As a matter of statutory interpretation, Section 17 has been held to apply only to a person who actually “commits” the offence. A person who is a party to the offence under s. 21(2) was held not to be constrained by this section, and is free to raise the common law defence of duress. This result is due to section 8(3) of the Code, which preserves the availability of common law defences, except where they are inconsistent with subsequent legislation.

 That subsection states that every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge, continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with Act or any other Act of Parliament.

 Justice Maitland of the Superior Court hearing the Paquette case expressly stated the following;

Section 21(1) is not applicable because the offence to which he is alleged to be a party is murder, and it is clear that he did not commit murder, nor did he aid or abet in its commission. The Paquette decision has come to stand for the proposition that Section 17 only applies to those who actually commit the offence, and not to persons who are parties to the offence either under section 21(2) or under section 21(1)(b) or (c).
Question #2: Is duress available to a person who is a party to murder?

The way in which this question is worded raises an issue of terminology, which is a common feature throughout the cases and scholarly works on this issue. As already noted, section 21(1) defines a ‘party to an offence’ as including the person who actually commits it, as well as those who aid or abet in its commission. Nevertheless, it has become a common practice for aiders and abettors of a criminal act that has been committed to be referred to as ‘parties’, as indeed Justice Lamer of the Supreme Court of Canada  had said in the Hibbert case. 
Furthermore, question #2 must be understood to ask whether the common law defence of acting under duress is available to a party to murder, since the statutory version found in section 17 does not apply to parties to any crime committed. Since the House of Lords in England has considered this question directly, and whereas no Canadian court has explicitly done so to date, Justice Heeney while dealing with this issue in the Bandidos murders, looked into this issue further. 

 A. The English Position:

A case arose during the troubles in Northern Ireland. The appellant Lynch and two others were charged with the murder of a police constable. The appellant had driven the gunmen to and from the scene of the murder. He raised the defence of acting under duress, testifying that he was acting under the orders of one of the perpetrators, who was well known as a ruthless gunman, and was afraid that if he did not obey, he would be shot.
Lord Morris of Borth-Y-Gest of the House of Lords said in part;

 “Writers on criminal law have generally written that whatever may be the extent to which the law has recognized duress as a defence it has not been recognized as a defence to a charge of murder.” unquote

 Lord Morris sought to draw a distinction between the person who actually takes the life of the innocent victim, and one who merely aids or abets the killing. He placed heavy reliance on the dissenting opinion of Justice Bray in R. v. Brown and Morley, from the Supreme Court of South Australia, which was quoted in the concurring speech of Lord Wilberforce who said in part;

 “The reasoning generally used to support the proposition that duress is no defence to a charge of murder is, to use the words of Blackstone, (who) cited that “he ought rather to die himself, than escape by the murder of an innocent”. Generally speaking I am prepared to accept this proposition. Its force is obviously considerably less where the act of the threatened man is not the direct act of killing but only the rendering of some minor form of assistance, particularly when it is by no means certain that if he refuses, the death of the victim will be averted, or conversely when it is by no means certain that if he complies, the death will be a necessary consequence. It would seem hard, for example, if an innocent passer-by seized in the street by a gang of criminals visibly engaged in robbery and murder in a shop and compelled at the point of a gun to issue misleading comments to the public, or an innocent driver compelled at the point of a gun to convey the murderer to the victim, were to have no defence.unquote

 In Lord Simon’s view, duress could not be held to be a defence to murder without overruling the famous and longstanding decision of R. v. Dudley and Stephens, a 1881 case. In that case, the two accused were in a lifeboat without food or water. They killed and ate the ship’s boy who was with them. The accused would have died before they were rescued had they not done so, and the boy would probably have died before them. It was a clear case of necessity: they killed the boy only to avoid certain death themselves. Nevertheless, their conviction for murder was upheld on appeal, although the sentence was reduced. . The decision was based on the special sanctity that the law attaches to human life and which denies to a man the right to take an innocent life even at the price of his own life or another’s life.

 Lord Griffiths said;

 “For centuries it was accepted that English criminal law did not allow duress as a defence to murder. It was so stated in Hale’s Pleas of the Crown repeated by Blackstone in his Commentaries on the Laws of England and so taught by all the authoritative writers on criminal law. It was accepted by those responsible for drafting the criminal codes for many parts of the British Empire and they provided, in those codes, that duress should not be a defence to murder. In R. v. Tyler and Price a 1838 case, Justice Denman told the jury in emphatic language that they should not accept a plea of duress that was put up in defence to a charge of murder against those who were not the actual killers.” unquote

 Lord Griffiths also said;

 “If the defence is not available to the killer, what justification can there be for extending it to others who have played their part in the murder. I can, of course, see that as a matter of common sense one participant in a murder may be considered less morally at fault than another. The youth who hero-worships the gang leader and acts as look-out man whilst the gang enters a jeweller’s shop and kills the owner in order to steal is an obvious example. In the eyes of the law, they are all guilty of murder, but justice will be served by requiring those who did the killing to serve a longer period in prison before being released on licence than the youth who acted as look-out. However, it is not difficult to give examples where more moral fault may be thought to attach to a participant in murder who was not the actual killer; I have already mentioned the example of a contract killing, when the murder would never have taken place if a contract had not been placed to take the life of the victim. Another example would be an intelligent man goading a weak-minded individual into a killing he would not otherwise commit.” unquote

The late Justice Sopinka of the Supreme Court of Canada said in Rodriguez v. British Columbia (Attorney General) et al, (and others) in 1993, , there is a “generally held and deeply rooted belief in our society that human life is sacred or inviolable”. Every person, be he one or many, young or old, healthy or infirm, disabled or fully able, is deserving of the equal protection of the law. In my view, it can never be proportional for one person to sacrifice the life of an innocent victim to save his own. It simply does not lie in the mouth of anyone to say “you will die so that I can live”. unquote
This gives rise to the following question: if you are threatened with death unless you kill an innocent victim, what “should” you do? What does society expect from you in that situation? To allow a duress defence for murder is to say that you should go ahead and cooperate, and we will absolve you from criminal liability. The common law, on the other hand, expects that if someone demands that you participate in the killing of an innocent, you should not cooperate, even if under threat of death. It is abundantly clear that the values of our society, which give the highest priority to the sanctity of human life, accord with the common law, and demand that its citizens resist and refuse to take innocent lives, even under threat of losing their own.

 Judge Heeney when deciding whether or not the three men who abetted the crime of murder that was conducted by the three shooters said as his final statement;

 It is my task to declare what the law is. I have arrived at my conclusions guided by the collective wisdom of the House of Lords and the “consensus of centuries”. I am satisfied that duress is not an available defence to murder at common law, and that this exception accords with the proportionality requirement that forms part of this defence. I am similarly satisfied that our law makes no distinction between one who is a party to murder as having committed the offence, and one who is a party to murder as an aider or an abettor. All are equally culpable. A common law duress defence is, therefore, unavailable to anyone who is a party to the offence of murder under section 2.(1).” unquote
The jury convicted all six men of first degree murder for the deaths of the eight men and in accordance with Canada’s law with respect to their first degree murder convictions; they were all sentenced to life in prison with no eligibility to apply for parole until they have served a minimum of 25 years in prison. Even then, they might not be released from prison considering the gravity of their collective crime.  

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