COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) –and– GREGORY FITZGERALD (Appellant)
BEFORE: FINLAYSON, WEILER and SHARPE JJ.A.
COUNSEL: Leonard Miller, for the appellant Erika Chozik, for the respondent
HEARD: January 14, 2000
On appeal from the conviction imposed by Humphrey J. with a jury, dated September 14, 1998 and on appeal from the sentence imposed by Humphrey J. dated November 6, 1998.
E N D O R S E M E N T
[1] A jury convicted the appellant of aggravated assault. The assault arose out of a complaint by a neighbour that the appellant’s radio was on too loud. The neighbour suffered severe injuries when the appellant beat him with an iron bar. The complainant testified that the assault was an unprovoked reaction to his reasonable request that the appellant turn down the volume on the radio. The appellant testified and gave a version of events which contrasted starkly with that of the complainant neighbour. He said that the complainant was the aggressor and had assaulted him. His plea was self defence. His girlfriend who was present during the incident purported to verify his account of what occurred.
[2] The principal complaint on appeal is that the trial judge failed to properly instruct the jury on the law as to self- defence. The trial judge did instruct the jury in the language of s.34(1) of the Code but he did not charge it under s.34(2). Under s.34(1), the emphasis of the defence is that the accused is justified in repelling force with force “if the force he uses is not intended to cause death or grievous bodily harm.” In light of the concession by the appellant that he realized his beating of the complainant with an iron bar would inflict on him serious bodily harm, as it did, this section offered the appellant no help at all. Since the appellant did say, in his version of what occurred, that the assault on him by the complainant did cause him to fear for his life, he was entitled to have the jury consider his defence under s.34(2).
[3] Accordingly, we agree with the appellant that the trial judge erred in not instructing the jury under s.34(2) of the Code that the accused, in defending himself, is entitled to inflict grievous bodily harm if, on reasonable grounds, he believed he was in danger of death or grievous bodily harm. The trial judge ought additionally to have instructed the jury that the accused could be mistaken about the degree of danger in which he found himself, provided that mistaken belief was based upon reasonable grounds.
[4] We are not satisfied that the verdict would necessarily have been the same if the jury was properly instructed. The proviso does not apply.
[5] Accordingly, the appeal is allowed, the conviction is set aside and a new trial is ordered.
Signed: “G.D. Finlayson J.A.” “K.M. Weiler J.A.” “Robert J. Sharpe J.A.”