R. v. Mena, (1987) 20 O.A.C. 50 (CA)

• Judge: Martin, Goodman and Finlayson, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 02, 1987
• Jurisdiction: Ontario
• Citations: (1987), 20 O.A.C. 50 (CA)

R. v. Mena (1987), 20 O.A.C. 50 (CA)

MLB headnote and full text

R. v. Luis Mena

Indexed As: R. v. Mena

Ontario Court of Appeal

Martin, Goodman and Finlayson, JJ.A.

April 22, 1987.

Summary:

The accused appealed a conviction for robbery on the ground that the trial judge erred in withdrawing the common law defence of duress from the jury.

The Ontario Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial.

Criminal Law - Topic 202

Common law defences - Duress - An accused charged with robbery pleaded duress - If the accused actually committed the offence as a co-perpetrator, s. 17 of the Criminal Code applied to exclude the defence for the offence of robbery - If the accused did not actually commit the offence (but was a party), s. 17 did not apply and the common law defence of duress was available - The trial judge found the accused to be a co-perpetrator and withdrew the defence from the jury - The Ontario Court of Appeal held that the trial judge erred in withdrawing the defence, because where there was a triable issue as to whether the accused was a co-perpetrator it was open to the jury to find that he did not actually commit the offence - If the jury so found, the defence of duress would be available to the accused - See paragraphs 22 to 45.

Criminal Law - Topic 202

Common law defences - Duress - The Ontario Court of Appeal made general statements about the common law defence of duress - The court stated that a threat of immediate death or serious bodily injury was necessary to constitute duress - The threat may be express or implied and contains an objective element in that the belief that the threat will be carried out must be reasonable - The court stated that the trial judge had a duty to withdraw the defence of duress from the jury if on the evidence no reasonable jury could find that the words or conduct constituted a threat of the kind required - The court also stated that the defence was not available to a person who had an obvious safe means of escape or who was able to resort to the protection of the law - Unless it was an undisputed fact that the person had a safe means of escape, that issue was a question of fact for the jury - See paragraphs 46 to 62.

Cases Noticed:

R. v. Paquette (1976), 11 N.R. 451; 30 C.C.C.(2d) 417 (S.C.C.), appld. [para. 27].

R. v. Curran (1977), 7 A.R. 295; 38 C.C.C.(2d) 151 (C.A.), refd to. [para. 27].

R. v. Hartford and Frigon (1979), 51 C.C.C.(2d) 462 (B.C.C.A.), refd to. [para. 27].

R. v. Pelletier (1986), 29 C.C.C.(3d) 533 (B.C.C.A.), refd to. [para. 27].

R. v. Robins (1982), 66 C.C.C.(2d) 550 (Que. C.A.), refd to. [para. 37].

R. v. Campbell (1899), 2 C.C.C. 357, refd to. [para. 39].

R. v. Dunlop and Sylvester (1979), 27 N.R. 153; 47 C.C.C.(2d) 93 (S.C.C.), refd to. [para. 40].

R. v. Jasman (1985), 60 A.R. 100 (C.A.), refd to. [para. 42].

R. v. Kozak and Moore (1975), 20 C.C.C.(2d) 175 (Ont. C.A.), refd to. [para. 43].

D.P.P. for Northern Ireland v. Lynch, [1975] A.C. 653 (H.L.), consd. [para. 47].

Abbott v. The Queen, [1977] A.C. 755, refd to. [para. 47].

R. v. Howe, [1987] 2 W.L.R. 568; 74 N.R. 1 (H.L.), consd. [para. 48].

R. v. Burke et al. - see R. v. Howe.

R. v. Graham (1981), 74 Cr. App. R. 235, refd to. [para. 53].

R. v. Bergstrom (1980), 2 Man.R.(2d) 121; 52 C.C.C.(2d) 407 (C.A.), affd. 36 N.R. 451; 9 Man.R.(2d) 1; 59 C.C.C.(2d) 481 (S.C.C.), refd to. [para. 56].

R. v. Hudson, [1971] 2 Q.B. 202 (C.A.), refd to. [para. 56].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 7(3) [para. 23]; sect. 17 [para. 22]; sect. 21 [para. 24]; sect. 302 [para. 25].

Authors and Works Noticed:

Archbold, Pleading, Evidence and Practice in Criminal Cases (42nd Ed. 1985), p. 1203 [para. 49].

Russell on Crime (12th Ed. 1964), vol. 1, p. 131 [para. 31].

Smith and Hogan, Criminal law (5th Ed. 1983), pp. 120 [para. 30]; 213 [para. 49]; 214 [para. 56].

Stuart, Canadian Criminal Law: A Treatise (1982), p. 388 [para. 52].

Williams, Glanville, Criminal Law: The General Part (2nd Ed. 1961), p. 349 [para. 32].

Williams, Glanville, Textbook of Criminal Law (2nd Ed. 1983), pp. 330 [para. 33]; 624 [para. 49]; 631 [paras. 56, 58, 61].

Counsel:

Michael Code, for the accused;

Jeff Casey, for the Crown.

This appeal was heard on January 30 and February 2, 1987, before Martin, Goodman and Finlayson, JJ.A., of the Ontario Court of Appeal. The judgment of the Court of Appeal was delivered by Martin, J.A., and released on April 22, 1987.