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| John L. Hill |
Melanson and his cohorts put Comeau in a chokehold until he almost passed out and deprived Comeau’s employee of his cellphone when he tried to contact police. In subduing Comeau, they tore off his shirt. Comeau fled the shop shirtless while the intruders took $2,200 worth of pot, and $1,900 in cannabis oils and other merchandise.
The Melansons pleaded guilty to robbery and apologized to the court. A forcible confinement charge had been withdrawn. Kevin Melanson said his behaviour at the time was influenced by drugs. The trial judge accepted a joint submission of three years’ imprisonment. One of the men assisting Melanson had earlier been sentenced to three years. The remainder of the group received lesser penalties.
But Melanson subsequently appealed, arguing his guilty plea resulted from bad legal advice and was, therefore, not voluntary. The New Brunswick Court of Appeal accepted his argument, struck the conviction and guilty plea, and returned the matter to the lower courts for trial (R. v. Melanson, 2021 NBCA 14).
Melanson elected a trial by Queen’s Bench judge and jury. Once again, he was convicted of robbery and unlawful confinement and sentenced to three years, six months for the robbery and six months concurrently for unlawful confinement. He appealed both the conviction and the sentence. Melanson argued that his defence was deprived of an opportunity to claim self-defence when the trial judge ruled the defence had no air of reality. He also appealed the sentence. The appeal was decided on Feb. 20, 2025 (R. v. Melanson, 2025 NBCA 24).
The standard of review in determining if the judge made an error of law in failing to instruct the jury on
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Melanson tried to persuade the Appeal Court that he had a “colour of right” to take the property. The Crown, he maintained, failed to prove beyond a reasonable doubt by denying the jury the right to this evidence. His defence ought to have been put to the jury as an exception to s.19 of the Criminal Code, which deems ignorance of the law no excuse.
In determining if the trial judge properly decided there was no air of reality to the defence, the Appeal Court noted that during a pre-charge conference, Melanson admitted that while items in the store were initially purchased with his investment funds, Buddy’s Cannabis Clinic owned the property and merchandise, and he did not own that business. Melanson was not claiming proprietary interest in the goods taken; he sought to secure himself against losses.
The self-defence argument was based on a phone call from the store owner to Melanson’s wife, in which Comeau rejected repayment demands by saying, “Friends in low places … could make the harassment go away.” Any threat was not spelled out, and Melanson could not claim self-defence when he drove from Moncton to Fredericton to put himself in harm’s way. Melanson’s claim that he was in imminent danger had no air of reality.
Melanson also contended that the jury may have confused the degree of involvement of the men involved in the melee, and who received lesser penalties. However, the Appeal Court, though agreeing that the instructions on party liability were lean, relied on the case of R. v. Srun, 2019 ONCA 453, where Justice David Watt concluded that s. 21 of the Criminal Code abolished the common law distinction between principal and secondary parties. Anyone who participates in a crime is a party to the offence.
The Appeal Court did not disturb the sentence. It found that the trial judge had conducted a thorough and complete review of sentencing principles, and the sentence was within the acceptable range. As a result, both the conviction and sentence imposed at trial were upheld.
It was not discussed in the judgment, but it was certainly implied that Melanson avoided taking civil action and instead opted for vigilante tactics to right what he perceived as a financial wrong done to him. This decision reaffirms that a peaceful society depends on the strict enforcement of the rule of law.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing). The Rest of the [True Crime] story has been shortlisted for a prestigious Brass Knuckles Award, which is the Crime Writers’ of Canada’s prize for best nonfiction crime book of the year. Contact him at johnlornehill@hotmail.com.
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