R. v. C.M.C., (1991) 102 N.S.R.(2d) 39 (CA)

• Judge: Jones, Matthews and Chipman, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 28, 1991
• Jurisdiction: Nova Scotia
• Citations: (1991), 102 N.S.R.(2d) 39 (CA)

R. v. C.M.C. (1991), 102 N.S.R.(2d) 39 (CA);

    279 A.P.R. 39

MLB headnote and full text

C.M.C. (appellant) v. Her Majesty The Queen (respondent)

(S.C.C. No. 02374)

Indexed As: R. v. C.M.C.

Nova Scotia Supreme Court

Appeal Division

Jones, Matthews and Chipman, JJ.A.

March 28, 1991.

Summary:

A young offender was convicted of uttering a threat to cause serious bodily harm contrary to s. 264.1 of the Criminal Code. The young offender appealed.

The Nova Scotia Supreme Court, Appeal Division, Jones, J.A., dissenting, dismissed the appeal.

Criminal Law - Topic 214.5

Common law defences - Justification - C.M.C. was detained by a store security officer who placed her hand on C.M.C.'s shoulder - C.M.C. threatened to punch the officer in the mouth - The Nova Scotia Court of Appeal, assuming that the detention was unlawful and constituted a technical assault on C.M.C., stated that the issue was whether the threat was justified at common law to procure cessation of the perceived assault - The court affirmed that the threat was unreasonable and unjustified - C.M.C. had the present ability to carry out the threat - C.M.C. conceded that he overreacted; that the threat and a punch in the mouth were unnecessary - The court dismissed C.M.C.'s conviction appeal for uttering a threat.

Criminal Law - Topic 1569

Threats - Defences - Justification - [See Criminal Law - Topic 214.5].

Cases Noticed:

R. v. LeBlanc (Ronald) (1989), 96 N.R. 240; 99 N.B.R.(2d) 449; 250 A.P.R. 449; 50 C.C.C.(3d) 192 (S.C.C.); revsing. (1988), 90 N.B.R.(2d) 63; 228 A.P.R. 63; 44 C.C.C.(3d) 18 (C.A.), refd to. [para. 18].

R. v. Horncastle (1972), 4 N.B.R.(2d) 821; 8 C.C.C.(2d) 253 (C.A.), refd to. [para. 22].

R. v. Cadden (1989), 48 C.C.C.(3d) 122 (B.C.C.A.), refd to. [para. 23].

R. v. Rolfe (1952), 36 Cr. App. R. 4 (C.C.A.), refd to. [para. 23].

Kenlin and Another v. Gardiner and Another, [1966] 3 All E.R. 931, refd to. [para. 31].

R. v. Cousins, [1982] 2 All E.R. 115, refd to. [para. 32].

R. v. Yebes (1987), 78 N.R. 351; 36 C.C.C.(3d) 417 (S.C.C.), refd to. [para. 38].

R. v. Paschal (1986), 74 N.S.R.(2d) 184; 180 A.P.R. 184 (T.D.), refd to. [para. 52].

R. v. Acker (1970), 1 N.S.R.(2d) 572 (C.A.), refd to. [para. 53].

R. v. Orban and Douglas, 20 C.R.N.S. 46, refd to. [para. 54].

Collins v. Wilcock, [1984] 3 All E.R. 374, refd to. [para. 54].

R. v. Larlham, [1971] 4 W.W.R. 304, refd to. [para. 55].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 9, sect. 10 [para. 51].

Criminal Code, R.S.C. 1985, c. C-46, sect. 8 [para. 29]; sect. 29 [para. 51]; sect. 34(1) [para. 27]; sect. 264.1(1)(a) [para. 17]; sect. 265(1)(a) [para. 20]; sect. 265(1)(b), sect. 265(2) [para. 21].

Counsel:

Chandra Gosine, for the appellant;

Kenneth W.F. Fiske, for the respondent.

This appeal was heard on February 8, 1991, before Jones, Matthews and Chipman, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On March 28, 1991, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Matthews, J.A. (Chipman, J.A., concurring) - see paragraphs 1 to 41;

Jones, J.A., dissenting - see paragraphs 42 to 59.