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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 — Can s. 686(1)(b)(iii) Criminal Code curative proviso be applied where duress defence was foreclosed as result of pre-trial ruling? — 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. Frank Mather, was charged with eight counts of first degree murder, together with Messrs. Marcelo Aravena (file number 36747), Brett Gardiner (36758), 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. Mather, Gardiner and Aravena had aided and abetted in the murders. Mr. Mather, as well as Messrs. Aravena, Gardiner, Kellestine and Mushey, appealed their convictions but unsuccessfully.