Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Criminal law — Defences — Duress — Appeal — Appointment of counsel — Eight members of Toronto motorcycle gang were shot and killed — Applicant was convicted of murder and manslaughter — Whether duress an available defence to murder charge for principal — Whether duress an available defence to murder charge for secondary party — Whether “criminal association” exception operates to exclude duress defence to murder charge when applicant did not know that he would be forced by his associates to assist in commission of murder — Whether Court of Appeal improperly used “criminal association” exception to duress defence to apply s. 686(1)(b)(iii) Criminal Code curative proviso — Should order be made pursuant to s. 694.1 of Criminal Code to appoint counsel for applicant for purpose of leave application and if granted, appeal?

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 Mr. Wayne Kellestine. The applicant, Mr. Marcelo Aravena, was charged with eight counts of first degree murder, together with Messrs. Brett Gardiner (file number 36758), Frank Mather (36768), Wayne Kellestine, Dwight Mushey and Michael Sandham. They invoked the defence of duress. After a lengthy trial, the jury convicted Messrs. Kellestine, Mushey and Sandham of eight counts of first degree murder. The Crown had alleged that these three individuals had actually perpetrated the murders. In addition, the jury convicted Messrs. Aravena and Mather of manslaughter on the first homicide and seven counts of first degree murder on the other homicides. Finally, the jury convicted Mr. Gardiner of manslaughter on the first two homicides and first degree murder on the other six counts. It was the Crown’s position that Messrs. Aravena, Gardiner and Mather had aided and abetted in the murders. Mr. Aravena, as well as Messrs. Gardiner, Mather, Kellestine and Mushey, appealed their convictions but unsuccessfully.