Criminal Law
Cases
Regina v. Mena
Ontario Court of Appeal
April 22, 1987
BACKGROUND
At his trial on a charge of robbery, Mena was convicted by a jury. He appealed against his
conviction to the Ontario Court of Appeal.
MAIN ISSUE
Did the trial judge make an error by withdrawing the common-law defence of duress from the
jury?
JUDGMENTS
The judgment of the Court of Appeal was delivered by Justice Martin. The other members of
the Court were Justices Goodman and Finlayson.
The judgment of the court was delivered by
MARTIN J.A. : -- The
appellant, Luis Mena, was convicted by a general sessions jury of robbery and sentenced to
18 months' imprisonment. He now appeals against his conviction and sentence. The appellant
was jointly indicted with Ronald Reid and Leonel Rodriguez on a charge that they:
... on or about the 15th
day of August, 1984, at the Municipality of Metropolitan Toronto ... did rob Israel Barak,
contrary to the Criminal Code.
The co-accused, Rodriguez,
absconded before his trial. The appellant and his co-accused, Reid, were tried together
and both were found guilty by the jury.
The principal issue in this appeal is
whether the trial judge erred in withdrawing the common law defence of duress from the
jury.
THE FACTS
The robbery
On August 15, 1984, around 5:00 p.m.,
Israel Barak was alone in his jewellery store on Wilson Avenue near Bathurst Street in
Toronto when a man entered the store. The man asked him about repairing a watch and then,
when he was a couple of feet away, produced a gun. A second man had also entered the store
when the first man produced the gun.
A video security camera in the store
records on videotape everyone who enters the store. The videotape shows that the second
man entered the store about 19 seconds after the first man. The first man was Sherlock Yee
who subsequently pleaded guilty to the robbery. The man who entered the store after Yee
was the appellant, Luis Mena.
Mr. Barak testified that
the second man, Mena, was standing about 20 or 30 feet from him when the first man
produced the gun and that the second man appeared to be trying to stay back. Mr. Barak
also testified that this man never did anything to frighten him. The gunman (Yee) seized
Mr. Barak by the neck, put the gun either to his head or his neck and took him to the back
room, where he was made to lie down on the floor on his stomach. His hands were tied and
tape was placed over his eyes. The second man (the appellant) wore brown construction
boots, which Mr. Barak could see in front of him. The man came over several times to check
on him and told him not to move. One man told him: "Don't move or I shoot you,"
or something to that effect. Mr. Barak said that he heard the men whisper to each other,
although he could not hear what they were saying. He said that he could see the brown
shoes and a shopping bag when the men checked on him, He heard the locks on the showcases
being broken. He moved the tape over his eyes slightly and saw the appellant, behind the
showcase but could not see what he was doing. Mr. Barak heard the door open and saw the
appellant, who was carrying a shopping bag, walk by the front window of the store. He said
that the shopping bag, which the apellant was carrying, was similar to the one he had seen
in the store. He pushed the alarm button, ran out of the store and saw the appellant going
around the corner into the alley. Mr Barak then returned to the store, finished untying
his hands and waited for the police. He noticed that some black tape had been placed over
the video camera lens.
One of the men took a
parcel of diamonds and Mr. Barak's wallet from his pocket while he was tied up. Jewellery,
diamonds, and a gold bar of a total value of $114,858.16 were taken during the robbery.
Although some of the jewellery was recovered, neither the gold bar nor the diamonds were
recovered.
The appellant's evidence
The appellant, Mena, was 26
years of age at the time of the trial and he had never been convicted of any offence. He
was born in El Salvador and came to Canada in 1983 as a "government-sponsored"
refugee. The appellant and his wife were both working in August, 1984, and he had worked
steadily at various jobs since he came to Canada. He spoke no English when he came to
Canada but by August, 1984, he had progressed to a point where he had a moderate
understanding of English, although he still spoke English poorly. He testified that he had
known Reid since December, 1983, through working for him. Reid had introduced him to
Rodriguez some three weeks before the events in question and they had worked together on
some cleaning jobs. Reid had introduced him to Yee about a week before the robbery.
On August 15, 1984,
Rodriguez telephoned him. He said that he had a carpet-cleaning job and requested the
appellant to come to his apartment. Mena went to Rodriguez' apartment where he had lunch
with Reid and Rodriguez. They left the apartment around 4:00 p.m. because the carpet
cleaning could only be done after business hours. Mena put a vacuum cleaner in the trunk
of Rodriguez' car. Rodriguez stopped the car and picked up Yee at a bus stop on Dufferin
St. Rodriguez continued on and stopped the car on Wilson Ave. near Bathurst St. Mena was
sitting directly behind Yee. Yee pulled out a gun and, pointing it at Mena, said,
"Okay you are coming with me". Mena thought Yee was going to shoot him. He asked
Yee, "Where?" and Yee replied, "to the store", and pointed. Yee,
according to Mena, gave him a tire iron and told him to hide it inside his pants and
Rodriguez told him to break the camera with it. When Mena said that he could not go with
him, Yee replied, "You have to. You know what we are going to do or else." Reid
got out of the car and left. Yee showed Mena a bag containing rope and tape and told Mena
that he was to tie up the man inside and tape his eyes. Mena testified that he was
frightened and confused. Yee got out of the car and told Mena to follow him. He followed
Yee to the door of the store. Yee went in but, initially, Mena did not follow him as
instructed. He paused at the door and thought of running away. However, he was afraid that
Yee would come looking for him and "maybe he could shoot [him]," and he did not
know if Rodriguez, who was outside, also had a gun. Mena entered the store and saw that
Yee had thrown Barak to the floor and had taken him to the back of the store. Mena put
tape over the video camera. He testified that he never used the tire iron because he did
not want to cause damage. Yee called him to the back of the store and told him to tie both
Barak's hands and feet and to tape his mouth and eyes. However, Mena put only one piece of
tape over Barak's eyes and he said that he did not place any tape over Mr. Barak's mouth
because he did not want to hurt Barak. Mena also tied only Barak's hands, although there
was ample rope to have also tied his feet. He said he merely looped the rope over Barales
hands several times and did not tie any knots.
Mena testified that he had
been a sailor in El Salvador and knew how to tie proper knots. He said that he could
easily have tied up Barak in such a fashion that Barak could not have freed himself and
followed them. Mena knew that Barak could get loose but he was afraid of Yee and not
Barak.
Yee was in the front of the
store collecting the jewelleiy and he called out to Mena twice. On the second occasion,
Mena went behind the showcase where Yee was. Yee said, "Watch the guy, don't
move", and he showed the gun again. Mena then went to the back of the store. He told
Barak on several occasions not to move because he was afraid that, if Mr. Barak got up,
Yee would shoot him (Mena). The appellant testified that he had never threatened Mr.
Barak. Finally, Yee called Mena again and he went to the front of the store. Yee gave.him
a bag and said, "Let's go". While following Yee out to the car, Mena saw that he
was being followed by Mr. Barak.
The appellant testified
that he had not taken any jewellery from the showcases but that he merely carried one bag
out of the store as he was told by Yee to do. He said that Yee carried another bag and the
gun. The appellant testified that he had a particular fear of guns because he had been
shot twice by the police in El Salvador in 1979. Mena showed the jury the scars in his
chest and back from those shootings.
After the robbery,
Rodriguez drove back to his apartment where Mena went to the washroom. On his return,
Rodriguez gave him five rings, which he accepted because he was afraid. He said that he
thought that if he accepted the rings, the others would think that he did not intend to go
to the police. Mena testified that he left the apartment as soon as Yee left with the gun.
Mena said that he kept the rings and made no attempt to sell them. He wanted to arrange to
give them back to Barak. By August 31, 1984, he knew that the others had been arrested and
that the police had been to his apartment and had spoken to his wife. He went to see a
friend, Mrs. Nancy Pocock, and gave the rings to her. He told her about the robbery and
thought that she could give the rings back to Barak. He said that he had been afraid to go
to the police because of his fear of Yee and Rodriguez and also because of his experience
with the police in his own country. He saw a lawyer on September 1, 1984, and gave himself
up to the police on September 4, 1984. The police treated him well.
Whether the Common Law
defence of duress was available to the appellant
Whether the appellant
"committed" the offence of robbery
Whether the common law
defence of duress was available to the appellant depends on whether it was open to the
jury to conclude that he was a party to the offence of robbery as an aider under s.
21(1)(b), as distinct from having actually committed the offence as a co-perpetrator.
There is no suggestion that the appellant encouraged the commission of the offence and, if
he did not actually commit the offence as a co-perpetrator, his liability as a
secondary party falls to be determined under s. 21(1)(b) of the Code.
In R. v. Paquette (1976),
30 C. C. C. (2d) 417, 70 D. L. R. (3d) 129, [1977] 2 S.C.R. 189, the Supreme Court of
Canada held that the application of s. 17, excluding certain offences from the defence of
compulsion by threats, is limited to cases in which the person seeking to rely upon it has
himself committed the offence. The court held that s. 17 does not apply where criminal
liability as a party falls to be determined under s. 21(2) of the Code. I
consider it to be clear from the judgment that s. 17 is also inapplicable where the
accused's criminal liability falls to be determined under s. 21(1)(b) or (c) of the Code.
The Supreme Court of Canada in R. v.
Paquette; supra, held that where s. 17 is inapplicable, an accused is
entitled to rely upon the common law defence of duress.
The trial judge in the
present case held that the appellant had actually committed the offence of robbery and,
hence, s. 17 of the Code, which excludes compulsion by threats as a defence where
the accused has himself committed the offence of robbery, was exclusively applicable. The
trial judge instructed the jury as follows:
I want to tell you that I
have made a ruling of law to which you are bound, that Mr. Mena was present at the
commission of the robbery and, with Yee, committed the offence and, therefore, he cannot
use the excuse of compulsion, coercion or duress. That was determined by me at the end of
all the evidence. That is an important aspect that you have to take into account in your
deliberation.
Mr. Casey, counsel for the
Crown on the appeal, took the position before us that the common law defence of duress was
not available to the appellant because:
a) the appellant was a
co-perpetrator of the robbery and s. 17, which excludes robbery from the defence of
compulsion, is exhaustive of the defence of duress with respect to those persons who
actually commit the offence, and
b) the defence of duress is
not available as a defence under either s. 17 of the Code or under the common law
preserved by s. 7(3) of the Code, where it is established that an obvious means
of escape was open to the accused that was not taken.
Unquestionably, more than one person may
actually commit an offence. Perhaps the simplest example of joint perpetrators is where
two accused attack the victim intending to kill him or her and the combined effect of the
blows struck by the two accused is to kill the victim. In those circumstances, both the
accused have murdered the deceased:
At common law, a principal in the first
degree is one who has committed the act with his own hands, or through an innocent agent:
It was well established that, if several persons combined to commit a crime and each
person committed a different part of the crime, every such person was a principal in the
first degree. In Russell on Crime, the author states at p. 131:
All the facts of the case
must be taken into account, so that where it appears that there is a joint enterprise
afoot between two (or more) persons in which each has an active part to perform in
order to effect the criminal purpose then each participant is equally a principal in the
first degree. Thus, in burglary if A hoists B through a half-open window and B then goes
to the closed door of the house and opens it from the inside thus admitting A, both are
principals in the first degree to burglary. So also there may be joint action in cases of
stealing and other crimes. In certain circumstances each of the participants may do his
part in the absence of the others and even may not know by whom the other parts were
executed. [Footnotes omitted.][Emphasis added.]
In the present case, the
issue is whether it was open to the jury to find that the appellant was not a
co-perpetrator, not whether they would have been entitled to find that he was a
co-perpetrator. In the present case, it is clear on all the evidence that the appellant
did not participate in the initial threat to Mr. Barak made by Yee with the gun. If the
jury, as they were entitled to do, accepted the appellant's evidence, then the appellant
virtually had merely pretended to be securing the victim and had, on his evidence,
almost assumed a protective role with respect to Mr. Barak. On the appellant's version,
although he had carried a part of the stolen goods from the store on Yee's command, he had
not taken the goods from the showcase. It may be that, apart from the doctrine of duress,
carrying the goods from the store would have made him a party to the robbery. It is,
however, unnecessary to decide that question. Nevertheless, in order to have himself
committed the robbery under the co-perpetrator doctrine and, hence, be disentitled to the
defence of duress by s. 17, it would, in my view, be necessary for the Crown to satisfy
the jury beyond a reasonable doubt that the appellant intended to act in concert with Yee.
It is impossible to know what the jury would have thought of the appellant's evidence with
respect to duress because it was never left with them to assess in relation to that
defence.
In Dunlop and Sylvester
v. The Queen (1979), 47 C.C.C. (2d) 93 at p. 106, 99 D.L.R. (3d) 301, [1979] 2 S.C.R.
881, Mr. Justice Dickson, as he then was, said in reference to a consideration of
culpability as a party under s. 21(1)(b) and (c):
Mere presence at the scene
of a crime is not sufficient to ground culpability. Something more is needed:
encouragement of the principal offender; an act which facilitates the commission of the
offence, such as keeping watch or enticing the victim away, or an act which tends to
prevent or hinder interference with accomplishment of the criminal act, such as
preventing the intended victim from escaping or being ready to assist the prime
culprit.
(Emphasis added.)
It was, in my view, open to
the jury to conclude that the appellant, as a result of threats, merely aided the prime
culprit, Yee.
This view comports with
fundamental notions of justice. It would, in my view, be strange if the main culprit
recruited two people at gunpoint to assist him in perpetrating a robbery, assigned to one
the task of destroying the alarm system and to the other the task of carrying out the
money, and the first person had available to him or her the defence of duress, whereas the
second person did not. In the present case, the appellant had not inflicted any physical
injury on the victim and claimed, as previously mentioned, that he had, in effect, made a
pretence of securing him and had merely carried out part of the proceeds of the robbery at
Yee's command. Assuming, as we are bound to do, that the jury took the most favourable
view of the appellant's evidence, it was open to them to find that he had merely aided Yee
and had not himself actually committed the offence of robbery and that, consequently, the
common law defence of duress, if its requirements were met, was available to him as a
secondary party to the robbery. In my view, it was an issue for the jury whether the
appellant intended to act in concert with Yee or whether the acts performed by the
appellant were the result of duress. If the jury, on a proper direction, found on the
facts that the accused was a co-perpetrator of the offence of robbery, then s. 17 would
render the defence of duress unavailable to the accused. The withdrawal of this issue from
the jury constitutes a fundamental error.
The common law defence of duress
The common law, with
respect to the defence of duress, is in a somewhat unsatisfactory state. It is necessary,
however, to determine whether there was evidence upon which the jury was entitled either
to find that the requirements of the common law defence of duress existed or to entertain
a reasonable doubt with respect thereto, thus requiring the submission of that defence to
the jury.
The kind of threats necessary
The great weight of
authority is that a threat of death or serious physical injury is necessary to constitute
duress at common law.
Section 17 of the Criminal
Code, codifying the defence of duress with respect to the person who actually commits
an offence is derived from s. 12 of the 1892 Code, which, in turn, was derived from
s. 23 of the English Draft Code. Section 17, prior to its amendment by 1980-81-82-83, c.
125, s. 4, required threats of immediate death or grievous bodily harm to afford a
defence of compulsion (duress). The word "grievous" was dropped by the
amendment, so that s. 17 as it now reads requires threats of immediate death or bodily
harm. This represents a substantial change in the law. It may appear anomalous that an
aider who invokes the common law defence of duress must meet a higher standard with
respect to the nature of the bodily harm threatened than the actual perpetrator under s.
17.
In the present case,
however, if the jury either accepted or did not reject the appellant's evidence, they
would be entitled to find that he was subject to threats of immediate death or serious
bodily harm. The threat required to invoke duress may be express or it may be implied. The
appellant did not testify that Yee has expressly stated he would shoot him unless he
accompanied Yee but it would be open the jury to find that Yee, by producing the gun,
pointing it at the appellant and telling him that he was to go with him, had conveyed a
threat to the appellant that if he did not go with Yee he would be shot. The appellant
testified that he believed Yee was going to shoot him. Even if, as Yee testified, the gun
he used in the robbery was a pellet gun, the jury would be warranted in concluding from
the evidence, including Barak's evidence, that the gun looked like a firearm. If there was
a threat to shoot the appellant if he did not comply, there was evidence of a threat of
immediate death or serious physical injury.
Mere fear does not
constitute duress in the absence of a threat, either express or implied. Where an implied
threat is relied upon to constitute duress either under s. 17 or under the common law, the
threshold question is whether the acts, conduct or words of the person alleged to have
made the threat could reasonably be construed as a threat of the required kind. On this
threshold question, an objective standard must necessarily be met. If the judge at the
conclusion of the evidence is of the opinion that no reasonable jury could find that the
words or conduct constituted a threat of the kind required, the judge will withdraw the
defence of duress from the jury.
Whether the defence of duress was
precluded as a matter of' law if the appellant had a safe means of escape
I accept, as a general
proposition, that the defence of duress is unavailable to a person who had an obvious safe
avenue of escape. This proposition follows logically from s. 17, which requires threats of
immediate death or bodily harm. In general, the common law also required a person
who was able to resort to the protection of the law to do so.
Thus, speaking generally,
where the defence of duress is invoked, whether the accused failed to avail himself or
herself of some opportunity to escape or to render the threat ineffective, is a question
for the jury. However, I am disposed to think that, where on the facts not in dispute the
accused had an obvious safe means of escape and no reasonable jury could come to any other
conclusion, the judge is entitled to hold, as a matter of law, that the defence of duress
is not available.
In the present case,
however, there was, in my view, a triable issue whether the appellant had failed to avail
himself of an obvious safe means of escape. He testified that he thought of trying to
escape, but he was afraid that, if Yee saw him running away, Yee would come looking for
him and "maybe he could shoot [him]." Furthermore, he did not know whether
Rodriguez, who was outside, also had a gun.
Conclusion
In my opinion, the common law defence of
duress was available to the appellant and should have been left with the jury. It is not
for me to speculate what view the jury would have taken with respect to that defence.
Because of the view I have taken, it is unnecessary to consider other issues raised by the
appellant, namely, the constitutional validity of s. 17 of the Code and the
relevance of duress to the appellant's purpose under s. 21(1)(b) of the Code.
I would allow the appeal, quash the
conviction and order a new trial.
Appeal allowed; new trial ordered.
Source: Adapted from R.
v. Mena (1987), 34 C.C.C. (3d), pp.306-324. Copyright © 1987 Canada Law Book. Used
with permission.
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