R. v. Aravena (M.) et al., 2015 ONCA 250

• Judge: Doherty, Watt and Pardu, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 16, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 250;(2015), 333 O.A.C. 264 (CA)

R. v. Aravena (M.) (2015), 333 O.A.C. 264 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AP.018

Her Majesty the Queen (respondent) v. Marcelo Aravena, Brett Gardiner, Wayne Earl Kellestine, Frank John Mather, Dwight Mushey (appellants)

(C53435; C53310; C57090; C53786; C57574; 2015 ONCA 250)

Indexed As: R. v. Aravena (M.) et al.

Ontario Court of Appeal

Doherty, Watt and Pardu, JJ.A.

April 16, 2015.

Summary:

In 2006, eight members of the Toronto chapter of the Bandidos motorcycle gang were invited to Kellestine's farm. Kellestine (a dissident member of the Toronto chapter) and five other accused (members of the Winnipeg chapter) lay in wait. One of the eight Toronto members was shot and killed almost immediately upon entering the property's barn. The seven remaining members were held at gun point, then executed one by one. The farm was cleaned up and the bodies and vehicles were disposed of. The five accused were charged with eight counts of first degree murder. M.H. (another Winnipeg member who was an accomplice to the murders) became a Crown witness in exchange for immunity. The Crown's position at trial before a judge and jury was that all of the murders were first degree murder because they were planned and deliberate or, alternatively, because they were all (with the exception of the first killing) committed during the commission of an unlawful confinement. Three of the accused (Sandham, Mushey and Kellestine) were convicted of eight counts of first degree murder. Two of the accused (Mather and Aravena) were convicted of manslaughter (first killing) and seven counts of first degree murder. The final accused (Gardiner) was convicted of two counts of manslaughter and six counts of first degree murder. All six accused appealed their convictions. Sandham later abandoned his appeal. The grounds of appeal were: "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 Aravena's 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?".

The Ontario Court of Appeal dismissed the appeal. The common law defence of duress was available to persons charged as parties to the offence of murder as aiders and abettors. However, the accused were not prejudiced by the error, as there was no air of reality to the defence of duress respecting two of the accused. Respecting the third accused, the defence of duress did not apply because of the criminal association exception. There was no error in finding that one of the accused's (Gardiner) participation was capable of constituting aiding and abetting. There was also no error in ruling that M.H., as a confidential informant, could not be cross-examined respecting his prior dealings with Winnipeg police.

Criminal Law - Topic 202

General principles - Common law defences - Duress - The Crown's theory on first degree murder charges against six accused was that three of the accused did not kill the victims, but were guilty as parties for aiding and abetting those accused that actually pulled the trigger - Section 17 of the Criminal Code expressly excluded the defence of duress where the offence was murder - The trial judge ruled that the common law defence of duress was not available to accused charged with murder regardless of whether they were charged as perpetrators or parties - The Ontario Court of Appeal held that "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. The constitutionality of the murder exception to the duress defence in s. 17 of the Charter is not before the court. However, it follows from this analysis that, subject to any argument the Crown might advance justifying the exception as it applies to perpetrators under s. 1 of the Charter, the exception must be found unconstitutional." - See paragraphs 13 to 86.

Criminal Law - Topic 202

General principles - Common law defences - Duress - The Crown's theory on first degree murder charges against six accused was that three of the accused did not kill the victims, but were guilty as parties for aiding and abetting those accused that actually pulled the trigger - The accused were members of a criminal biker gang - The trial judge wrongly decided that the defence of duress was not available to the accused as parties to the offence of murder - The Ontario Court of Appeal dismissed the accused's conviction appeals notwithstanding the error - Respecting two of the accused, there was no air of reality to the defence of duress, as there was no evidence of threats of death if they did not participate - Respecting the third accused, the criminal association exception to duress precluded the application of the defence - Having voluntarily chosen to become associated with a criminal organization engaged in criminal activity in a situation where he knew or ought reasonably to have known that he might be subject to compulsion to participate in criminal activity, the third accused could not rely on duress to excuse his culpability in a criminal act he was thereafter compelled to participate in - The voluntary assumption of risk provided the choice necessary to justify criminal conviction and punishment - See paragraphs 87 to 114.

Criminal Law - Topic 202

General principles - Common law defences - Duress - The Ontario Court of Appeal referred to a summarization of the elements of both the statutory and common law defences of duress: "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." - See paragraph 26.

Criminal Law - Topic 226

General principles - Statutory defences or exceptions - Compulsion (duress) - [See third Criminal Law - Topic 202 ].

Criminal Law - Topic 2746

Attempts, conspiracies, accessories and parties - Parties to offences - What constitutes abetting - Eight members of the Toronto chapter of the Bandidos motorcycle gang (victims) were invited to Kellestine's farm under false pretences - Kellestine (a dissident member of the Toronto chapter) and five other accused (members of the Winnipeg chapter) lay in wait - One of the accused (Gardiner) was not present in the barn when the first two victims were shot - He assisted in the preparation of firearms in advance of the victims' arrival and was responsible for monitoring the police scanner in the farmhouse - After the first two victims were killed, Gardiner ran to the barn - He was told to return to monitor the scanner - The other six victims were executed one at a time - A jury convicted Gardiner of first degree murder as a party for aiding and abetting those who actually did the killing - The jury clearly inferred that Gardiner knew that the plan was that if one victim was killed, all would be killed - Gardiner appealed on the ground that he could not be an aider or abettor because he was not present when the victims were killed - The trial judge had charged the jury that, inter alia, "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 that he is not liable as an aider or abettor." - The Ontario Court of Appeal held that the verdict was reasonable - The court stated that "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 constituted aiding and abetting. The jury was properly instructed." - See paragraphs 120 to 124.

Criminal Law - Topic 4726.2

Procedure - Information - Indictable offences - Cross-examination of informant by accused - In 2006, eight members of the Toronto chapter of the Bandidos motorcycle gang were invited to Kellestine's farm - Kellestine (a dissident member of the Toronto chapter) and five other accused (members of the Winnipeg chapter) lay in wait - All eight members were shot and killed - The five accused were charged with eight counts of first degree murder - M.H. (another Winnipeg member who was an accomplice to the murders) became a Crown witness in exchange for immunity - The trial judge prohibited the accused from cross-examining M.H. about his previous relationship with police in Winnipeg (well before the murders), finding that M.H. was a police informant (confidential informant privileged not waived or lost) rather than a police agent who was subject to cross-examination - The Ontario Court of Appeal held that the trial judge did not err in finding that M.H. could not be cross-examined about his prior contacts with Winnipeg police - The court stated that "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" - The finding that M.H. was a confidential informant as opposed to a police agent was reasonably open to the trial judge on the evidence - See paragraphs 131 to 144.

Cases Noticed:

R. v. Paquette, [1977] 2 S.C.R. 189; 11 N.R. 451, refd to. [para. 24].

R. v. Carker, [1967] S.C.R. 114, refd to. [para. 24, footnote 2].

R. v. Akulue, [2013] NZSC 38, refd to. [para. 24, footnote 2].

R. v. Ruzic (M.), [2001] 1 S.C.R. 687; 268 N.R. 1; 145 O.A.C. 235; 2001 SCC 24, refd to. [para. 25].

R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161, refd to. [para. 25].

R. v. Ryan (N.P.), [2013] 1 S.C.R. 14; 438 N.R. 80; 324 N.S.R.(2d) 205; 1029 A.P.R. 205; 2013 SCC 3, refd to. [para. 25].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 27].

R. v. Sheridan, [2010] O.J. No. 4884 (Sup. Ct.), refd to. [para. 28, footnote 4].

Lynch v. Director of Public Prosecutions for Northern Ireland, [1975] A.C. 653 (H.L.), refd to. [para. 31].

R. v. Ruzic (M.) (1998), 112 O.A.C. 201; 128 C.C.C.(3d) 97 (C.A.), refd to. [para. 32].

R. v. Curran (1977), 7 A.R. 295; 38 C.C.C.(2d) 151 (C.A.), leave to appeal refused, [1978] 1 S.C.R. xi; 20 N.R. 180; 8 A.R. 449; 38 C.C.C.(2d) 151 (S.C.C.), refd to. [para. 32].

R. v. Hartford and Frigon (1979), 51 C.C.C.(2d) 462 (B.C.C.A.), refd to. [para. 32].

R. v. Pelletier (1986), 29 C.C.C.(3d) 533 (B.C.C.A.), refd to. [para. 32].

R. v. Almarales (A.) (2008), 244 O.A.C. 127; 237 C.C.C.(3d) 148; 2008 ONCA 692, refd to. [para. 32].

R. v. Earhart (D.) (2010), 270 O.A.C. 250; 272 C.C.C.(3d) 475; 2010 ONCA 874, leave to appeal refused [2011] S.C.C.A. No. 397; 430 N.R. 393, refd to. [para. 32].

R. v. Langlois (S.) (1993), 54 Q.A.C. 87; 80 C.C.C.(3d) 28 (C.A.), refd to. [para. 32, footnote 5].

R. v. Burke et al., [1987] A.C. 417; 74 N.R. 1 (H.L.), refd to. [para. 32, footnote 5].

R. v. Howe - see R. v. Burke et al.

R. v. Gotts, [1992] 2 A.C. 412; 144 N.R. 367 (H.L.), refd to. [para. 39].

R. v. P.C., [2012] O.T.C. Uned. 5362; 99 C.R.(6th) 116; 2014 ONSC 5362, refd to. [para. 40].

R. v. Kirkness, [1990] 3 S.C.R. 74; 116 N.R. 81; 69 Man.R.(2d) 81, refd to. [para. 43].

R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 411; 400 N.R. 216; 477 A.R. 86; 483 W.A.C. 86; 2010 SCC 13, refd to. [para. 43].

R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1, refd to. [para. 45].

R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200; 2006 SCC 15, refd to. [para. 61].

R. v. Rodgers (D.) - see R. v. Jackpine (R.).

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201; 2001 SCC 83, refd to. [para. 61].

R. v. Latimer (R.W.), [2001] 1 S.C.R. 3; 264 N.R. 99; 203 Sask.R. 1; 240 W.A.C. 1; 2001 SCC 1, refd to. [para. 63].

R. v. Howe - see R. v. Burke et al.

Abbott v. R., [1977] A.C. 755 (P.C.), refd to. [para. 74].

R. v. Hasan, [2005] 2 A.C. 467; [2005] UKLH 22, refd to. [para. 74].

R. v. Dudley and Stephens (1884), 14 Q.B.D. 273, refd to. [para. 81].

R. v. Mena (1987), 20 O.A.C. 50; 34 C.C.C.(3d) 304 (C.A.), refd to. [para. 89].

R. v. Khawaja (M.M.), [2012] 3 S.C.R. 555; 437 N.R. 42; 301 O.A.C. 200; 2012 SCC 69, refd to. [para. 91].

R. v. Li (B.) et al. (2002), 156 O.A.C. 364; 162 C.C.C.(3d) 360 (C.A.), refd to. [para. 108].

R. v. Sharp (1987), 85 Cr. App. R. 207 (Eng. C.A.), refd to. [para. 109].

R. v. Ali, [2008] EWCA Crim. 716, refd to. [para. 109].

R. v. Baker, [1999] 2 Cr. App. R. 335 (Eng. C.A.), refd to. [para. 110].

R. v. Harbottle (J.), [1993] 3 S.C.R. 306; 157 N.R. 349; 66 O.A.C. 35, refd to. [para. 116].

R. v. Ferrari (P.) (2012), 295 O.A.C. 9; 287 C.C.C.(3d) 503; 2012 ONCA 399, refd to. [para. 118].

R. v. McLeod, [1982] O.J. No. 59 (C.A.), refd to. [para. 123].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 128].

R. v. N.Y. (2012), 298 O.A.C. 297; 294 C.C.C.(3d) 313; 2012 ONCA 745, refd to. [para. 138].

R. v. Babes (G.) et al. (2000), 161 O.A.C. 386; 146 C.C.C.(3d) 465 (C.A.), refd to. [para. 139].

R. v. G.B. - see R. v. Babes (G.) et al.

Authors and Works Noticed:

Akhavan, Payam, Should Duress Apply to All Crimes? A Comparative Appraisal of Moral Inveoluntariness and the Twenty Crimes Exception Under Section 17 of the Criminal Code (2009), 13 Can. Crim. Law Rev. 271, pp. 277, 278, 282 to 284 [para. 79, footnote 8].

Blackstone, Commentaries on the Laws of England (1769), vol. 4, p. 30 [para. 74].

Canada, Criminal Code Bill Commission, Report of the Royal Commission Appointed to Consider the Law Relating to Indictable Offences (1879), p. 68 [para. 28, footnote 3].

Card, R., Card, Cross and Jones: Criminal Law (17th Ed. 2006), pp. 789, 791 [para. 74].

Fletcher, G. Rethinking Criminal Law (1978), generally [para. 49].

LaFave, W.R., Substantive Criminal Law (2nd Ed. 2003), vol. 2, p. 81 [para. 79, footnote 8].

Omerod, David, Smith Hogan's Criminal Law (13th Ed. 2011), pp. 361, 362 [para. 39].

Paciocco, D., No-one Wants to be Eaten: The Logic and Experience of the Law of Necessity and Duress (2010), 56 C.L.Q. 240, p. 250 [para. 53, footnote 6].

Stuart, Don, Canadian Criminal Law (6th Ed. 2011), pp. 489 [para. 53, footnote 8]; 493 [para. 27].

United Kingdom, Law Commission, Murder, Manslaughter and Infanticide (2008), No. 304, pp. 11, 116 [para. 45].

Williams, Glanville, Criminal Law: The General Part (2nd Ed. 1961), pp. 759 to 761 [para. 74].

Yeo, S., Revisiting Necessity (2010), 56 C.L.Q. 13, pp. 13 [para. 53, footnote 6]; 26, 27 [para. 56].

Counsel:

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.

These appeals were heard on September 15-18, 2014, before Doherty, Watt and Pardu, JJ.A., of the Ontario Court of Appeal.

On April 16, 2015, Doherty and Pardu, JJ.A., released the following judgment for the Court of Appeal.