Journal BarbaraHudson's Journal: More complex than "I vas just followink orders" 1
Sometimes there is no "winning move" but you don't have much of a choice about "playing the game."
Ontario Court of Appeal allows duress as murder defence
SEAN FINE - JUSTICE WRITER
The Globe and Mail
Published Thursday, Apr. 16 2015, 10:11 PM EDT
People who find themselves in a âoekill or be killedâ situation can claim duress as a defence to murder, even though the Criminal Code explicitly rules it out, the Ontario Court of Appeal said Thursday.
Until now, claiming the right to kill an innocent person to save oneâ(TM)s own life has been seen as the greater of two evils. But the court had a different way of looking at duress, offering the hypothetical example of someone faced with killing an innocent person or having their own child be killed. âoeThe putative victims are equally innocent,â the court said.
The court cited a principle that criminal law is not designed for âoea community of saints or heroes,â but for ordinary people making voluntary moral choices. And sometimes those choices are no more free than the choice of a condemned man walking to the gallows, the court said.
âoeSociety may regret or even deplore the accusedâ(TM)s failure to ârise to the occasion,â(TM) but it cannot, in a criminal justice system predicated on individual autonomy, justly criminalize and punish conduct absent a realistic choice,â Justice David Doherty wrote in a 3-0 ruling. The court was not asked to rule on the constitutionality of the law barring duress as a defence to murder, but said that law is probably unconstitutional.
France and Germany do not bar duress as a defence to murder, and 11 U.S. states have laws declaring duress can be a defence to murder.
Toronto lawyer Daniel Santoro, who represented Mr. Aravena, said the ruling is the first by an appeal court in Canada to affirm that duress can be used as a defence to murder. âoeIt recognizes that sometimes people are put into horrible situations where they have no realistic choice, and trying to punish someone in that situation as a murderer is not fair,â
Given the choice between you and someone else being killed, or just someone else, sometimes the only realistic choice is to try to minimize the body count.
If you look at the Law of Armed Conflict (Score:2)
If you're taking fire, whoever is firing has agreed in advance that it's OK for your unit to return fire.
That's not quite the same thing at the individual level, especially looking worldwide.
However, anyone interested in legislating all that away should, in my opinion, check their pr