Court File and Parties
Court File No.: St. Catharines - 2111-998-11-N1040-00
Date: 2012-09-11
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Natividad Jesus Mejia
Before: Justice J.S. Nadel
Heard on: February 7, 2012; April 17, 2012; June 26, 2012
Reasons for Judgment delivered on: September 11, 2012
Counsel:
Mr. D. Anger for the Crown
Mr. J. Etienne for the accused, Natividad Jesus Mejia
Reasons for Judgment
NADEL J.:
Introduction
[1] Mr. Mejia is the pastor of a Spanish Pentecostal Church in London, Ontario. On March 11, 2011 at about 11:00 p.m., Mr. Mejia drove into Canada across the Rainbow Bridge leading to Niagara Falls, Ontario. He appeared to be alone. Mejia told Shelly Kurgan, a Canada Border Services Officer, that he was returning to Canada after dropping off his wife at the Buffalo airport. He declared that he had purchased some pillows and coffee whitener. An inspection blitz was being conducted that night and an immediate secondary inspection took place at her border control booth. The secondary inspector, Darrell Blu, opened Mejia's rear driver's side door and discovered Adan Samuel Rubio hiding in the footwell behind Mejia's seat. Rubio was wedged into the space with his hands on his head, covered by a jacket and two pillows.
[2] The discovery of Rubio resulted in Mejia being charged with two offences: [i] withholding the material fact that Rubio was concealed in his vehicle while Mejia attempted to enter Canada, contrary to s. 127(a) of the Immigration and Refugee Protection Act, (punishable under s. 128); and, [ii] attempting to aid and abet Rubio to contravene s. 124(1)(a), which requires an appearance for examination upon entry into Canada, (punishable under s. 131).
[3] Mr. Mejia does not deny that he lied; but, he submits that he acted under duress being exercised against him by Rubio so that he should be found not guilty. Further, Mr. Mejia submits that any offence committed by him under duress was completed at the booth at the border and anything else he may have said or neglected to say cannot ground any finding of guilt on these charges. The Crown submits that there is no air of reality to the defence of duress but that it is not made out on the facts, in any event.
The Investigative Evidence
[4] At 11:02 p.m., Shelly Kurgan, a primary booth inspector, watched Mejia pull up to her booth in a small four-door Toyota that did not have tinted windows. She saw "a bunch" of pillows piled up in the back seat but no one other than the driver was visible. Kurgan asked Mejia for his identification and he presented her with his "Nexus" card. Then, in answer to her questions he told Kurgan that:
(i) he lived in London, Ontario;
(ii) he had been away from Canada for a few hours;
(iii) he had dropped his wife off at the airport;
(iv) he presented a receipt for $31.00 worth of merchandise from Sam's Club;
(v) he was not carrying more than $10,000.00 in currency or monetary instruments;
(vi) he had no commercial goods in the vehicle;
(vii) he had not received any gifts;
(viii) he had no firearms or weapons in the vehicle; and,
(ix) he had no alcohol or tobacco products and had not stopped at the duty free store.
Kurgan determined that she was going to refer Mejia for a secondary examination.
[5] A secondary examination officer, Darrell Blu, was standing outside Kurgan's booth on the driver's side of Mejia's car as he waited for Kurgan to complete her primary examination questions. He noted a male driver in the vehicle and some pillows and some jars of "Coffee Mate" on the rear seat. At Kurgan's signal Blu commenced a secondary examination by opening up the driver's side rear door.
[6] Blu saw two pillows abutting the back of the driver's seat and seemingly suspended on something. He moved them away and saw a jacket beneath them. He moved the jacket and saw a pair of hands on top of a head of hair. He immediately closed the door, advised Kurgan there was a person in the back and told the driver to turn off his vehicle and hand over the keys. Mejia complied.
[7] Blu then re-opened the rear door and instructed the person to get out of the car. The person, (Rubio,) was wedged in and unable to push off against any part of the car. Since Blu wanted to be able to keep Rubio's hands in view he assisted Rubio in getting out of the vehicle.
[8] Blu estimated Rubio to be about 5'8" to 5'10" tall. He described the vehicle as being a "smallish" car, something between a compact and a midsize vehicle. Counsel agree that the dimensions of each of the two pillows were approximately 30" x 18" x 4".
[9] Once Rubio was discovered the two men were detained, lodged in adjacent cells and questioned. Brian Eden, a criminal investigator with Canada Border Services, interrogated Mejia as follows:
Q. Are you aware you are still under caution?
A. Yes.
Q. Who was the person in your car?
A. A young boy I met at church.
Q. Church, where?
A. Texas.
Q. Why is he with you?
A. He told me his story and asked how to come to Canada. I told him he could come as a refugee but he said he wasn't allowed.
Q. Why is he not allowed, is it because of the safe third country agreement?
A. No.
Q. It is because he doesn't have an anchor relative?
A. Yeah he has no relatives so he can't be a refugee.
Q. Did he pay you to smuggle him over the border?
A. No I wouldn't have taken any money for that.
Adan Samuel Rubio's Evidence
[10] Adan Rubio is a citizen of Honduras. He had lived in Texas for five years without having any permanent legal status. When he was ordered to appear at an immigration hearing he feared that he would be deported to Honduras so he failed to appear at the hearing and decided to try to get to Canada. He believed that if he was deported he would be forced to join a violent drug gang called Mara Salvatrucha that operates in many countries including Honduras. He believed that, if he refused to join, the gang would kill him as he had been beaten by gang members on several occasions before escaping to the United States.
[11] In June of 2010 Rubio attended a church in Houston, Texas where he heard Mejia preach a sermon as a guest pastor. Rubio obtained Mejia's contact information from the pastor of the Texas church and he spoke with Mejia by telephone two or three times prior to March 11, 2011. Rubio said that he called Mejia in December of 2011 and explained how he knew of him and how he had been able to contact him. He told Mejia that he had been touched by Mejia's sermon and sought spiritual guidance from him. Mejia urged him to reach out to a local pastor in Texas. Rubio called Mejia again in January of 2011 and told him, among other things, that he wanted to join his church in London, Ontario. Once again Mejia urged Rubio to find a congregation in Houston.
[12] Rubio persisted in seeking to join Mejia's congregation and in seeking his guidance. He told Mejia that he would be flying into the Buffalo airport and that he would contact Mejia on his arrival there on March 11, 2011. He told Mejia that he would be flying into Buffalo because it was less expensive than flying directly to Canada. He arranged for Mejia to pick him up at the airport but he called Mejia prior to their rendezvous and directed Mejia to meet him near the airport at a gas and coffee bar.
[13] Rubio said that he had a friend drive him to New York State from Texas in March of 2011. Once in the State of New York, he telephoned Mejia and asked him to drive to Buffalo and pick him up at a gas station. He also told Mejia that he wanted his help with his spiritual life and to avoid drugs.
[14] Rubio said that he never discussed his desire to make a refugee claim in Canada with Mejia. He also said that he never told Mejia that he did not have appropriate documentation to enter Canada. According to Rubio, when he entered Mejia's car, he understood that he would be entering Canada and as a result he felt desperate and frightened since he had no documents to allow his entry. Rubio said that he had led Mejia to believe he "had [his] papers" and would therefore be eligible to be admitted to Canada.
[15] As they approached the border control booths Mejia asked Rubio for his documentation and Rubio said that he did not have any. Mejia told Rubio that he could not do anything for him. At that point Rubio moved into the back seat and became agitated, loud and threatening. He threatened Mejia telling him that "if they caught [him] and deported [him] then [Mejia's] family down there in El Salvador were going to pay for him." He expanded on that saying "if [Rubio] was going to tell the people in the booths that [he] was there and if [he] was deported, then [Rubio's] family was going to pay in the United States and El Salvador, no in El Salvador."
[16] In a cross-examination that amounted to a series of slow-pitch lobbed suggestions Rubio said that he also threatened Mejia but no specific threat was adduced. Rubio testified that while he was in the back seat he took off his jacket and hid under the jacket and the pillows without Mejia's consent or help. While he was hiding under the pillows Mejia told him "to get off (sic) and just sit."
[17] Rubio admitted that he knew nothing about Mejia's family or even if he had a family but then said he knew Mejia had family in Canada and in El Salvador. The evidence does not disclose when Rubio obtained that knowledge but subsequent to his apprehension, and despite the threats he said he made to Mejia, Rubio became a member of Mejia's congregation. He testified that his evidence was truthful and that he was repentful (sic) of what he had put the pastor through.
Natividad Jesus Mejia's Evidence
[18] Mr. Mejia was born in El Salvador. He came to Canada in June of 1997 and is a Canadian citizen. His main occupation is pastoring to the Spanish Pentecostal Church in London, Ontario. Mejia has been a pastor for 22 years. In addition to ministering to his congregation he also works five hours a day at a foundry.
[19] Mejia annually attends a three-day seminary in Texas that is usually held in Houston. In June of 2010 he was invited to preach at a Houston church where Rubio apparently heard his sermon, which he delivered in Spanish, the language usually used in his church in London, Ontario.
[20] In December of 2010 Mejia received a telephone call from Rubio placed to Mejia's church office in London. Rubio told him that his June sermon had moved him and he was interested in knowing more about Mejia's ministry. Mejia told him that he should attend the churches around Houston.
[21] Rubio told Mejia that he needed help and that he was desperate. Mejia felt Rubio was confused and he sensed that Rubio was in trouble and was searching for something. Mejia did not know the cause of Rubio's troubles but he knew Rubio was alone and needed help.
[22] Rubio communicated with Mejia again in late January of 2011. Rubio told Mejia that he had been thinking about their prior talk and that he wanted to be engaged in and enjoy the fellowship of young people from Mejia's church. Mejia continued to urge Rubio to attend a congregation in Texas but Rubio resisted that advice. He told Mejia that he wanted to come to Canada. Despite Rubio's insistence Mejia said that he did not really think much about Rubio.
[23] Rubio did not contact Mejia again until a few days prior to March 11, 2011, when he called and told Mejia that he wanted to come to London via Buffalo and he needed to leave as soon as possible. Mejia's evidence was that Rubio did not tell him how he would be travelling to Buffalo but Rubio asked Mejia to pick him up on March 11, 2011.
[24] Mejia said that he was motivated to help Rubio because he habitually sought to help young people. He apparently felt some sympathy for Rubio because Rubio had told him he had once been beaten by a group of men in Texas and he was in danger of falling into a life of drugs.
[25] Mejia testified that he had arranged to pick up Rubio at the Buffalo airport at 9:00 p.m. on March 11, 2011.[1] Mejia crossed into New York via the Queenston Bridge at about 6:30 or 7:00 p.m. and drove toward the Buffalo airport but stopped first to do some shopping at a discounter where he bought two pillows and some coffee whitener for $31.00. He also got gas and had something to eat. As he continued on to the airport Rubio called him to say he was at a gas and coffee bar near the airport, which is where Mejia picked him up. This was the first time Mejia had knowingly laid eyes on Rubio. Rubio had a bag which Mejia put in the trunk. Then Rubio got into the front passenger seat and asked to see Niagara Falls. So, Mejia drove to the falls and stopped for a short time before proceeding to the bridge to Canada.
[26] As they entered the bridge he asked Rubio to get his "papers" ready. That is when Rubio told him that he did not have any. Mejia asked how he was going to cross. At that Rubio got into the back seat saying "you're going to get me there" and he became a different person.[2]
[27] Mejia said that Rubio threatened his family. In addition Mejia's flight from war-torn El Salvador came to mind. With Rubio behind him telling him not to turn around and telling him that nothing was going to happen and to keep driving, Mejia became quite distressed. He did not know what Rubio was doing and they were approaching the inspection booths, so that by the time he pulled up to await his turn at the inspection booth he was terrified.
[28] Mejia testified that he was frightened for his own safety because he did not know whether Rubio was armed and did not know what he was capable of doing but he was aware that atrocities had been committed by very young men in El Salvador.
[29] Mejia was interrogated by Kurgan, as she said, and Rubio was discovered by Blu, as he said. When asked by his counsel why, once Rubio was discovered, he did not tell the Border Services Officers everything he had said in his direct examination, Mejia said he remained frightened because his aged parents and other relatives were still in El Salvador.
The Defence Submissions
[30] Mr. Etienne submits that:
Mr. Mejia was credible and ought to be believed;
he was not part of any plan to smuggle Rubio into Canada;
Rubio led him to believe that he had the status and the documentation necessary to enter Canada;
Mejia's first knowledge that Rubio was undocumented and inadmissible occurred on the bridge into Canada;
that is when Rubio threatened his family and him;
at that point there was no place to stop or turn around so Mejia was obliged to continue onward;
any culpability for deception or omission terminated when Rubio was discovered;
Mejia acted under duress so that his actions are excused and do not attract criminal censure;
Mejia's subjective fear was objectively reasonable;
given Rubio's presence behind him and given Rubio's orders to not turn around and keep going, Mejia had no choice but to comply;
put otherwise, he had no safe avenue of escape despite the presence of Kurgan and Blu;
the detention of Rubio in a cell next to Mejia's promoted a continuing and reasonably apprehended fear of him by Mejia;
Mejia's evidence is corroborated by Rubio's evidence;
Rubio's personal circumstances are consistent with his independent actions;
the circumstances of two small pillows and a small car lend support to the event being unplanned;
Mejia's purchases were an innocent coincidence and not part of a plan;
declaring purchases could have prompted a referral to secondary, which is inconsistent with a plan to smuggle;
the defendant relies on paragraph [86] of R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, and paragraph [28] of R. v. Li, 18077 (ON CA) that threats of future harm could be sufficient to invoke the defence of duress;
Mejia is not part of a criminal conspiracy or gang where the prospect of being coerced by gang or conspiracy members is reasonably foreseeable;
when the objective-subjective test for a safe avenue of escape is considered, it must be remembered that Mejia is a pastor and not a police officer.
The Crown Submissions
[31] Mr. Anger submitted that:
there is no air of reality to the claim of duress;
the defence being proffered is a fabrication created after the events to account for the failed smuggling attempt;
this is made apparent by looking at all of the events narrated by the witnesses as well as what Mejia did and said;
the court should find that Mejia knew of Rubio's status before they drove onto the bridge, which completely undermines the defence;
Rubio was wedged in so tightly that he needed to be assisted to get out;
Rubio was covered first by a jacket and then by two pillows that had to be placed against the back of the driver's seat – Rubio could not have gotten into that position without Mejia's assistance;
Mejia's use of a "Nexus" card for identification should be seen as a piece of circumstantial evidence supporting his involvement in this attempted smuggling;
Mejia's statement to Eden only makes sense as an acknowledgment that he knew of Rubio's illegal status before Rubio got into his car, which explains why Rubio was hiding behind Mejia's seat;
Mejia's statement to Eden contradicts the evidence he gave at trial and seriously discredits his story;
Alternatively, if the court finds a threat was made, that threat was so contingent as not to ground the defence of duress, especially given that Rubio had no knowledge of Mejia's family.
Duress
[32] Duress is a particular application of the doctrine of necessity,[3] where the necessitous circumstance is caused by wrongful threats.[4] The defence operates to excuse criminal conduct despite both the actus reus and the mens rea having been proved.[5][6] An accused charged as a principal is entitled to claim the statutorily defined defence of duress as authorized by s. 17 of the Criminal Code. An accused liable as a party to a crime may claim the common law defence of duress that is preserved by s. 8(3) of the Code.[7]
[33] Mr. Mejia is charged as a principal on the first count and as a party on the second count. As a result, the application of both s. 17 and the common law principles of duress need to be described and applied.
[34] In R. v. Hibbert, [1995] 2 S.C.R. 973 the Supreme Court of Canada dealt with the common law defence of duress. The issue in the judgment was whether the mens rea requirement for party liability contained in s. 21(1)(b) and s. 21(2) was of the sort that could be "negated" by coercion.
[35] Dealing first with the mens rea stipulated for s. 21(1)(b) [doing or omitting to do anything for the purpose of aiding any person to commit an offence] the Court held that, as used in this section, purpose denotes "intention" as opposed to "desire". [8] By defining for the purpose as intention, the decision holds that "it does not make any difference to the existence of intent whether the accused wants those consequences to follow or merely knows that they will follow, without necessarily desiring them to do so." (Hibbert at [29])
[36] Hibbert therefore holds that the expression 'for the purpose of aiding' in s. 21(1)(b), does not require that an accused actively view the commission of an offence that he is aiding as desirable in and of itself. Accordingly, the mens rea for aiding under s. 21(1)(b) is not susceptible of being "negated" by duress." (Hibbert at [39])
[37] Applying similar reasoning, Hibbert holds that the words "an intention in common" in s. 21(2) of the Code[9] do not denote or equate with the concept of "desire" so that being subjected to duress does not negate mens rea, although if the defence applies the crime committed will be excused.
[38] The extensive analysis and discussion of these issues is summarized at paragraph [45] in Hibbert in the following fashion:
The fact that a person who commits a criminal act does so as a result of threats of death or bodily harm can in some instances be relevant to the question of whether he or she possessed the mens rea necessary to commit an offence. Whether or not this is so will depend, among other things, on the structure of the particular offence in question -- that is, on whether or not the mental state specified by Parliament in its definition of the offence is such that the presence of coercion can, as a matter of logic, have a bearing on the existence of mens rea. If the offence is one where the presence of duress is of potential relevance to the existence of mens rea, the accused is entitled to point to the presence of threats when arguing that the Crown has not proven beyond a reasonable doubt that he or she possessed the mental state required for liability.
A person who commits a criminal act under threats of death or bodily harm may also be able to invoke an excuse-based defence (either the statutory defence set out in s. 17 or the common law defence of duress, depending on whether the accused is charged as a principal or as a party). This is so regardless of whether or not the offence at issue is one where the presence of coercion also has a bearing on the existence of mens rea.
The mental states specified in ss. 21(1)(b) and 21(2) of the Criminal Code are not susceptible to being "negated" by duress. Consequently, it is not open to persons charged under these sections to argue that because their acts were coerced by threats they lacked the requisite mens rea. Such persons may, however, seek to have their conduct excused through the operation of the common law defence of duress.
...the holding in the present case is based on an interpretation of the particular terms of ... ss. 21(1)(b) and 21(2) of the Criminal Code. The question of whether other offences can be found, either in the Code or in some other statute, that are defined in such a way that the presence of coercion is relevant to the existence of mens rea remains open.
[39] The other major holdings of Hibbert deal first with what effect the availability of a safe avenue of escape has on the claim of duress and second whether the test for the existence of a safe avenue of escape is an objective test, i.e. what the circumstances actually are, or whether the test is subjective, i.e. what the accused perceived and believed about the situation.
[40] While the discussion of these issues in Hibbert was learned it is the Court's conclusions that need to be applied here. Those conclusions were summarized at paragraph [62] in these terms:
An accused person cannot rely on the common law defence of duress if he or she had an opportunity to safely extricate himself or herself from the situation of duress. The rationale for this rule is simply that in such circumstances the condition of "normative involuntariness" that provides the theoretical basis for both the defences of duress and necessity is absent -- if the accused had the chance to take action that would have allowed him or her to avoid committing an offence, it cannot be said that he or she had no real choice when deciding whether or not to break the law. Furthermore, I believe that the internal logic of the excuse-based defence, which has theoretical underpinnings directly analogous to those that support the defence of necessity (as set out in Perka, supra), suggests that the question of whether or not a safe avenue of escape existed is to be determined according to an objective standard. When considering the perceptions of a "reasonable person", however, the personal circumstances of the accused are relevant and important, and should be taken into account.
[41] The other major judgment on the law of duress is R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687. It holds, inter alia, that s. 17 of the Code, which controls the defence of duress for principals, infringes s. 7 of the Charter. It does so because it limits the defence to situations where there is a threat of immediate death or bodily harm from a person who is present when the offence is committed. These strictures permit morally involuntary conduct to be culpable. The Court therefore ruled that those limitations on the availability of the statutory defence are of no force and do not apply to that defence.
[42] In addition, the Court confirmed that s. 17 does not preclude access to the defence of duress when the threat in question is directed to a third party.
[43] Further, after an extensive review of jurisprudence from common law jurisdictions, the court confirmed that a constituent element of the defence of duress, in either of its guises, requires an appropriate interpretation of the "immediacy" component of the defence. "[T]he immediacy test is interpreted as a requirement of a close connection in time, between the threat and its execution in such a manner that the accused loses the ability to act freely. A threat that would not meet those conditions, because, for example, it is too far removed in time, would cast doubt on the seriousness of the threat and, more particularly, on claims of an absence of a safe avenue of escape." (Ruzic at [65])[10]
[44] Ruzic confirms the continuing application of the traditional burden of proof when duress is in play. "The accused must certainly raise the defence and introduce some evidence about it. Once this is done, the burden of proof shifts to the Crown under the general rule of criminal evidence. It must be shown, beyond a reasonable doubt, that the accused did not act under duress." (Ruzic at [100])
[45] Finally, Ruzic acknowledges that the defence of duress is likely to be susceptible to "practical risks and problems relating to evidence" given that "proof of the defence may rest on little more than [an] accused's own evidence. Verification of a spurious claim of duress may prove difficult." As a result, the Supreme Court of Canada urges court to "be alive to the need to apply reasonable, but strict standards for the application of the defence" which is essentially dependant on the fact finder's evaluation of the evidence and the application of the appropriate legal principles. (Ruzic at [59])
Reasons for Judgment
[46] The Crown's submission that there is no air of reality to the defence of duress must be rejected. "In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true. ... The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue." (R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.) at [52/53/54]) The test is "whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true" (Cinous, at [65]).
[47] Notwithstanding that I reject that submission of the Crown, I find Mr. Mejia guilty. The defence of duress fails because the alleged threat of harm to Mr. Mejia's parents is a threat of harm so remote as not to amount to a threat of immediate harm. Whether as a principal or as a party, a threat that is alleged to make an accused's actions morally involuntary must be sufficiently proximate, in a temporal sense, so as to preclude an accused from having any safe avenue of escape.
[48] On the facts as alleged by Mejia and Rubio, Rubio's threat to harm Mejia's parents is contingent on future events and contingent on knowledge of Mejia's parents that Rubio concedes he did not have. In my view, the alleged threat of harm to Mejia's parents lacks the close temporal connection required to meet even the most expansive connotation of "immediacy".[11]
[49] I appreciate that the defence also alleges an immediate threat of physical harm to Mejia from Rubio but I reject that evidence for a number of reasons. The alleged physical threat to Mejia was amorphous and undefined. Rubio did not testify to making any physical threat to Mejia in his direct examination. Similarly, Mr. Mejia never testified that Rubio threatened him with any physical harm. While the defendant did testify that he was frightened, his fears were not the product of any express threat of physical harm made to him by Rubio. Rather, Mr. Mejia testified that Rubio was behind him and told him not to turn around and that nothing was going to happen and to keep driving. The defendant's professed fears did not result from any threat made against his physical safety. Rather, they were the product of Mejia's lack of knowledge of Rubio. Mejia said that he was worried about whether Rubio was armed and further, that he did not know what Rubio was capable of doing. That is to say his fears for his immediate safety and physical security were not the product of any threat made to him by Rubio.
[50] While those are the reasons for my findings of guilt I also note that the story that Mr. Mejia and Mr. Rubio told is improbable and incredible for the following reasons.
[51] Mr. Mejia concedes that he knew Rubio was a troubled young man who had once been beaten by a group of men in Texas and who was in danger of falling into a life of drugs. He was prepared to allow Rubio to join his congregation and enjoy the fellowship of the younger members of his church. He knew that Rubio had rejected his advice to seek pastoral services from the many local churches available to him in Houston, Texas. Given this background, I find it incredible that Mr. Mejia would not have asked Rubio more about himself, his personal circumstances and his plans before agreeing to assist him to come to Canada; questions such as How long are you planning to spend in Canada? Where will you live and with whom? How will you support yourself? Are you eligible to come to Canada? Will you be able to work in Canada? What is your citizenship? What is your legal status in the U.S.A.? How long have you been in the U.S.A.? When and how did you get there? I find it hard to believe that Mr. Mejia knew as little about Mr. Rubio as he testified to.
[52] My incredulity increases exponentially when I consider the evidence that each man gave respecting their rendezvous in Buffalo. Rubio testified that he told Mejia that he would be flying into the Buffalo airport and he arranged for Mejia to pick him up at the airport. However, he says that he called Mejia prior to their rendezvous and directed Mejia to meet him near the airport at a gas and coffee bar. In my view, that evidence is unbelievable. If that evidence had any substance to it, Rubio would have had an airline carrier, a flight number and an arrival time. These are matters that the defendant would have asked about and likely checked to ensure the flight was not delayed and still scheduled to arrive as planned. Had there really been a planned pickup at the airport and had such a change in plans been communicated by Rubio to Mejia surely the first thing Mejia would have asked is why Rubio left the airport? Had Rubio really changed the rendezvous from an airport pickup to some spot outside the airport Mejia would have had overwhelming cause to be wary of Rubio and to have made inquiries about this ostensible change in plans. Mejia's own evidence about the planned pickup, quoted at footnote 1 above, is equally fraught with weakness. I simply do not believe their evidence about a planned airport pickup.
[53] According to Rubio, when he entered Mejia's car, he understood that he would be entering Canada and as a result he felt desperate and frightened since he had no documents to allow his entry. Yet he requested that Mejia take him to see Niagara Falls for a sight-seeing foray. That request seems quite incongruous given Rubio's professed feelings of desperation and fear.
[54] Another segment of the evidence that causes me to disbelieve the story told by the defendant and Rubio is their testimony that Rubio secreted himself in the rear of the car without Mejia's knowledge, consent or assistance. I find that highly improbable given Officer Blu's description of what he observed. Blu said that he saw the two pillows apparently being supported on something; that he removed the pillows and found a jacket beneath them; that he moved the jacket and saw a pair of hands on top of a head of hair. Ultimately, Blu instructed the person to get out of the car but that person (Rubio) was wedged in so tightly that he was unable to extricate himself without Blu's assistance.
[55] I appreciate that no photos or measurements of Rubio in situ were taken. Still, it strikes me as highly improbable that Rubio could have been able to wedge himself into the small space and still be able to manipulate first his jacket over his head and then place the pillows on top of the jacket without Mejia's assistance.
[56] In the result, for the reasons stated above at paragraphs [47] to [49], inclusive, I find the defendant guilty of both charges.
Dated at St. Catharines, Ontario this 11th day of September 2012
J.S. Nadel (O.C.J.)
Footnotes
[1] Q. Okay is that what the plan had been, that you would pick him up at the airport? A. I believe, he, yeah, he said Buffalo and suddenly that was my, yeah." (p. 87, lines 1 to 4)
Q. What time were you to meet Mr. Rubio in New York State? A. Around 9:00.
Q. At the airport? A. I assumed it was at the airport. (p. 112, lines 6 to 10)
[2] It was somebody else, you could see that he was nervous or I don't know. And I told him what are you doing, he said you're going to get me to Canada. And I said but how, you don't have any papers. You cannot do that, why don't you, I told him, why don't you apply. Why didn't you apply for a refugee status if you don't have any papers. And then he told me that he needed a person who had Canadian Citizenship to help him, to support him and he didn't have any. And I told him I cannot do anything, but again, I slowed down but I couldn't back up. ... And so this occasion, I thought I cannot do anything here, so I proceeded slowly and thinking so many, you know, things in my mind. Why am I in this? Asking God, you know, why. And then while I went forward and then he said I'm, just keep going ... He told me, you just go ahead. You have to cross, if you don't and they grab me, they going to send me back to Honduras. Either I have to join the Mara Salvatrucha, otherwise they will kill me. If they send me back, and I get into Mara Salvatrucha, because of your fault, your family is going to pay. ...
[3] The principles controlling the defence of necessity are found in R. v. Perka, [1984] S.C.J. No. 40.
[4] R. v. Hibbert, [1995] 2 S.C.R. 973 at [51] "In the circumstances where either "necessity" or duress is relevant, there are both actus reus and mens rea. In both sets of circumstances there is power of choice between two alternatives; but one of those alternatives is so disagreeable that even serious infraction of the criminal law seems preferable. In both the consequence of the act is intended, within any permissible definition of intention. The only difference is that in duress the force constraining the choice is a human threat, whereas in "necessity" it can be any circumstance constituting a threat to life (or, perhaps, limb). Duress is, thus considered, merely a particular application of the doctrine of "necessity" ..."
[5] "As a matter of logic, the issue of whether an accused can invoke an excuse or justification arises only after the Crown has proven the existence of all the elements of the offence, including mens rea." (Hibbert at [38])
[6] The Court in Hibbert at [25] held that while, in principle, nothing precludes Parliament from defining a crime in such a way that duress could act to "negative" the requisite criminal intent they went on to hold that R. v. Paquette, [1977] 2 S.C.R. 189 was wrongly decided in determining that such a result obtained on the charge in that case.
[7] R. v Hibbert, [1995] 2 S.C.R. 973 at [19], applying Paquette v. The Queen, [1977] 2 S.C.R. 189 where the court "determined that s. 17 of the Code does not constitute an exhaustive codification of the law of duress. Rather ... s.17 applies only to persons who commit offences as principals. Accordingly, it remains open to persons who are liable as parties to invoke the common law defence of duress, which remains in existence by virtue of s. 8(3) of the Code".
[8] Hibbert makes the distinction patent at [26] through [32] and goes on to explain the policy reasons for defining "for the purpose" as equating with intent as opposed to desire.
[9] S. 21(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
[10] Ruzic at [53] provides that "a threat will seldom meet the immediacy criterion if the threatener is not physically present at or near the scene of the offence. The immediacy and presence requirements, taken together, clearly preclude threats of future harm." (emphasis added) How far into future is not identified. There must be a "close temporal connection" without a requirement that the threat could be carried out immediately. (see Ruzic at [85])
[11] At page 107 of Mejia's cross-examination he testified: "...I had to bring him into Canada or, or then my family was going to pay the consequences." And at page 108 "... it's just a moment, many thing, confusion came to me. First my family in El Salvador. And then I have, if he gets, he goes to jail or he's sent back to Honduras, of course I was afraid of what could have been happening in the future. So I didn't say anything."