Court File and Parties

Court File No.: 26/250 Date: 2026-03-18 Superior Court of Justice - Ontario

Re: Rex v. Julio Zari Torres

Before: Mr Justice J.A. Ramsay

Counsel: David Smith for the Crown; Brian Ross for the accused

Heard: March 11, 2026 at Welland

Endorsement

[1] The accused is being tried for murder. He challenges the constitutional validity of s.17 of the Criminal Code as far as it excludes murder from the defence. It is submitted that I should read down the section to strike the exclusion of murder.

[2] The accused is alleged to have participated in the beating death of another inmate at the Niagara Detention Centre. The only basis for a conviction on the evidence is that the accused was a co-principal. There is no avenue for conviction as an aider or abettor.

[3] The common law defence of duress does not apply to a principal who commits murder: R. v. Hibbert, [1995] 2 SCR 972; R. v. Willis, 2016 MBCA 113; R. v. Li, 2002 CanLII 18077 (ON CA), [2002] O.J. No. 438 (CA). In later jurisprudence, after R. v. Ryan, 2013 SCC 3, the Court of Appeal left open the question whether duress applies to a principal who commits murder: R. v. Sheridan, 2015 ONCA 770, [2015] O.J. No. 5916. In R. v. Aravena, 2015 ONCA 250 the Court of Appeal affirmed that the defence applies to aiders and abettors of murder through a logical analysis of the principal of moral voluntariness. It said:

[86] 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.

[4] That obiter is as good as binding on me. It is not argued that common law duress is available to an accused charged with murder as a principal. The question then, is whether the exclusion of murder from the statutory defence of duress is a reasonable limit that can be demonstrably justified in a free and democratic society.

[5] Duress has a long history in the law of various English law jurisdictions and has been the subject of controversy. The history is set out in the judgement in Aravena and in R. v. Willis, 2016 MBCA 113. In a mid-trial ruling, all I have time to note is that Parliament considered the exclusion of murder from s. 17 as recently as 1983. It made a deliberate choice to maintain the exclusion of murder, as well as to expand the list of excluded offences. While the exclusion of murder is of longstanding it is not a relic of the past that has not been considered by legislators in the Charter era. Throughout its history there have been judicial and academic proponents of the view that duress does not excuse murder.

[6] I conclude that the choice made by Parliament is justified. It gives clarity to the offence of murder by drawing a bright line between what will and will not be excused. If effect Parliament said that a threat of potential harm is insufficient to outweigh the certain taking of a life. Necessarily, any decision must weigh competing interests: the life of the person threatened and the life of the person who is victim of homicide. I cannot say that the decision to favour one over the other is unreasonable. It is logically connected to the purpose of the legislation. It is not disproportionate. The motion is dismissed.

J.A. Ramsay J.

Date: 2026-03-18

Note: The accused was acquitted by the jury.