The Availability of the Common Law Defence of Duress to Principals Charged with Murder: An Analysis of the Conflicting Appellate Decisions in R v Willis (TAW) and R v Aravena

Abstract

The topic of whether an accused charged as a party to murder can access the common law defence of duress has been a controversial subject in Canada. Unlike in Britain where the House of Lords in R v Howe categorically decided to deny the common law defence to all parties to the offence of murder, the law in Canada has been more hospitable to offenders charged with murder. Aiders and abettors and those charged under the common intention provisions of the Criminal Code of Canada are given access to the defence. The question of whether a principal to murder has access to the common law defence of duress has not yet been decided by the Supreme Court of Canada. In R v Aravena, the Court of Appeal for Ontario was inclined to the view that the defence be extended to principals to murder to give effect to the Charter principle of moral involuntariness. However, in a subsequent decision, R v Willis (TAW), the Court of Appeal for Manitoba refused to follow Aravena, finding that the denial of the common law defence of duress to principals to murder, as provided for in s. 17 of the Criminal Code, was constitutional, based on a proper understanding and application of the principle of moral involuntariness. The Supreme Court of Canada refused leave from the decisions in both Aravena and Willis, leaving the law of duress confused and unsettled as between these two appellate decisions. In this article, it will be argued that there are five reasons to prefer the holding in Aravena to the holding in Willis.