OSHAWA COURT FILE NO.: CR-16-14279 DATE: 20180904 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – PATRICK LEMIEUX Defendant/Appellant
COUNSEL: M. Gillen, for the Crown D. Butt, for the Defendant
HEARD: July 11, 2018
REASONS FOR DECISION
DE SA J.:
Overview
[1] According to the Appellant, the trial judge failed to properly consider the Appellant’s state of mind in convicting him. The Appellant argues that the trial judge essentially reversed the burden of proof by requiring the accused demonstrate his actions, purported to be in self-defence, be “reasonable”. The Appellant also takes the position that the trial judge’s reasons are inadequate. According to the Appellant, the reasons suggest that the trial judge may have misapplied the third branch of W.(D.). In the circumstances, the Appellant argues a new trial is warranted.
[2] I do not agree with the Appellant. In my view, when read in context, the trial judge’s reasons demonstrate that she considered the accused’s claim of self-defence and rejected it. Nothing would indicate that the trial judge misunderstood the burden of proof, or misapplied it.
[3] The appeal is dismissed. The reasons for my decision are outlined below.
Summary of Facts
The Complainant’s Evidence
[4] William Maule, the complainant, was called as a witness at the trial. He testified that on September 18, 2015, he went to the Royal Canadian Legion in Oshawa around six or seven o’clock in the evening to socialize with friends. He drank a number of beers but was unable to say exactly how many. In terms of his level of intoxication he described himself as feeling sociable. His memory of events was hazy.
[5] Mr. Maule observed the Appellant earlier in the evening, but had not had any meaningful interactions with him. As the evening progressed, Mr. Maule observed the Appellant together with a woman (Ms. Martin). According to Mr. Maule, the Appellant appeared to be yelling at the woman. The Appellant began pushing the woman, and Mr. Maule got up and asked him to stop. The Appellant responded by hitting Mr. Maule with a closed fist. As a result of being hit, Mr. Maule fell to the ground. Mr. Maule testified that he required ten stiches to his face.
Evidence of Francine Doucette
[6] Francine Doucette also testified at the trial for the Crown. On September 18, 2015, she arrived at the Legion around 9:00 p.m. She went out onto the patio to smoke a cigarette and saw Mr. Maule, the Appellant, and a few other people talking. She herself had consumed two beers at this point but was not intoxicated.
[7] Ms. Doucette testified that the Appellant seemed agitated when Ms. Martin (the woman) arrived at the Legion to pick him up. The Appellant and Ms. Martin got up to leave when Mr. Maule said “I’d like to speak to the lady”. After hearing this from Mr. Maule, the Appellant’s demeanour changed and he became noticeably angry. He said to Mr. Maule “what did you say?” asking him to stand up and the Appellant made a fist. Because Mr. Maule was so intoxicated, he couldn’t stand up. Ms. Doucette testified that she stood in between the two men and said to the Appellant “don’t do this here”. The Appellant moved her out of the way and hit Mr. Maule while he was still sitting down. She went inside to call the police immediately.
[8] She testified that she was about four feet away when the incident occurred. She did not observe the Appellant push Ms. Martin. In fact, she saw him open the gate for her so they could exit the patio.
Evidence of P.C. Ford
[9] P.C. Spencer Ford also testified for the Crown. He testified that when he arrived on scene, Mr. Maule was bleeding under his left eye and an ambulance was called. The Appellant was in the parking lot of the Tim Horton’s. The Appellant appeared intoxicated and somewhat argumentative.
The Appellant’s Evidence
[10] The Appellant testified that on September 18, 2015, he arrived at the Legion around 6:25 p.m. Over the course of the evening the Appellant consumed six to eight beers. He described his hearing as very poor that evening because he had taken out his hearing aid. He first noticed Mr. Maule around 9:00 p.m. He stated that they had some indirect conversation through David Lee.
[11] The Appellant’s ex-girlfriend Jackie Martin arrived around 9:15 p.m. to give him a ride home. When they got up to leave, the Appellant opened the gate for Ms. Martin and she stepped through. As they were leaving, Mr. Maule stood up and said “I want to speak to you” to Ms. Martin from approximately two feet away. Ms. Martin responded “I don’t wanna talk with you. You can talk to him” pointing at the Appellant.
[12] The Appellant turned around and Mr. Maule tried to push him out of the way to get to Ms. Martin. The Appellant got scared and started to lose his balance. He punched Mr. Maule a few times quickly in the chin. He described using very little force in punching Mr. Maule. Mr. Maule then came towards him with his hands open but fingers curled. The Appellant described Mr. Maule as looking angry. The Appellant then punched him with his right hand under his eye. After Mr. Maule was hit, his knees started to buckle and his eyes started to roll. Mr. Maule fell onto a table behind him.
[13] The Appellant testified that when Mr. Maule pushed him, he felt vulnerable because he had been drinking. He described thinking that he had to defend himself. His intention in hitting Mr. Maule was to stop him from coming at him. He felt that he could not have walked away because he was worried about being attacked from behind.
Trial Judge’s Reasons
[14] At trial, the only issue was whether or not accused was acting in self-defence. There was no dispute that Mr. Maule was punched in the face by the Appellant causing bodily harm; in particular, a wound on his left cheek that required about nine stitches to fix.
[15] In her reasons, the trial judge recognized that there were inconsistencies between the various accounts. She also recognized that she had different concerns with respect to credibility/reliability in relation to each of the witnesses. She recognized that Mr. Maule’s account may have been largely influenced by information from others given his loss of consciousness, and the apparent impact of the alcohol.
[16] The trial judge found as a fact that Ms. Doucette was a sober witness, but noted that she may have been shocked by the events. The trial judge also found that she had no motive to fabricate. However, she did have some concerns that Ms. Doucette may have missed some aspects of the events, particularly in light of the apparent inconsistencies with the Appellant’s evidence. She explained:
In terms of applying self-defence to these facts, I will analyse the matter on the basis of Lemieux’ version of the facts about what happened. I draw a distinction between that and his evidence about his state of mind at the time.
Section 34 outlines self-defence. The issues relevant to this cases have been reasonably summarized by the Crown in his submissions. In a phrase, I would say that Lemieux at least overacted. If Maule did put a hand on Lemieux’ chest and pushed him, it appears to me that circumstances were such that this should have been seen as minimal force and minimally aggressive.
Given the complete absence of difficulty between the two beforehand, I would’ve thought that this might’ve given rise in Mr. Lemieux’ mind to some confusion or perhaps annoyance but it hardly constituted an act that required self-defence. I don’t believe that it caused Lemieux to be immediately afraid. And even if it did, in my view, there are no reasonable grounds for that belief. I don’t accept that the jabs to the chin or the punch were done in self-defence. It would certainly not have been a reasonable act in the circumstances.
A reasonable response to this situation available to Lemieux would have been to do nothing physically; to address the situation verbally and/or simply continue on out the gate. Lemieux’ response was far out of proportion to what happened even on his version of events.
On that basis, self-defence fails. The assault is otherwise made out; the bodily harm conceded. Therefore Mr. Lemieux is found guilty of assault. [Emphasis added.]
Issues Raised by the Appellant
[17] The Appellant takes the position that the trial judge failed to properly apply the W.(D.) principles in assessing the evidence.
[18] Further, the Appellant submits that the trial judge erred in rejecting the Appellant’s self-defence claim by failing to properly consider the Appellant’s state of mind resulting in a reversal of the burden of proof.
[19] Finally, the Appellant submits that the trial judge failed to provide sufficient reasons.
Analysis
Self-Defence
[20] The self-defence provisions contained in s. 34(1) of the Criminal Code state that a person is not guilty of an offence if:
(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from the use or threat of force; and
(c) The act committed was reasonable in the circumstances.
[21] In determining whether the act committed is reasonable in the circumstances, the court is required to consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
[22] As explained in R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29, the defence of self-defence is not something which one “intends” in the criminal law sense. A person who is attacked intends to assault the assailant; his motivation is self-protection or self-preservation. Stated otherwise, self-defence does not negate the mens rea of assault, but rather allows the accused to escape criminal liability on the basis of an acceptable motive. As explained in Cinous, the phrase “defensive purpose” is apt, and refers to the intention to assault an aggressor using only as much force as is necessary to repel or thwart the attack. R. v. Kerr, [2004] 2 S.C.R. 371, 2004 SCC 44, at para. 28.
[23] By specifying that an accused must believe on reasonable grounds that a threat or force is being used against them or another person, and by requiring that the accused’s chosen response be “reasonable” in the circumstances, Parliament has injected an element of objectivity into the defence of self-defence. It is not enough for an accused to establish a subjective conviction that he had no choice but to do what he did to get his way out of a dangerous situation. Nor is it enough for an accused to provide an explanation setting out just why he believed what he did was necessary. The accused must also be able to point to a reasonable basis for that belief. (Cinous, at para. 121).
[24] The defence of self-defence is only in play if there is an evidential foundation (air of reality) for it. The air of reality analysis must be applied to each component of the defence. As explained in R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29 at paras. 95 and 97:
The air of reality analysis must be applied to each component of the defence, both subjective and objective. Evidence capable of supporting a particular finding of fact with respect to one component of the defence will not necessarily be capable of supporting other components of the defence. In the case of a defence of self-defence, the testimony of the accused as to his perceptions does not necessarily constitute evidence reasonably capable of supporting the conclusion that the perception was reasonable.
There is no authority for the proposition that reasonableness is exempt from the air of reality test, or that evidence satisfying the air of reality test as to the subjective component of defence will automatically confer an air of reality upon the whole defence. Moreover, we consider that the introduction of such a requirement would constitute an unwarranted and illogical break with the rationale underlying air of reality analysis. The long-standing requirement is that the whole defence must have an air of reality, not just bits and pieces of the defence. See Hebert, supra, at para.16, per Cory J., holding that a defence of self-defence lacked an air of reality precisely in that the reasonableness of an accused’s purported perception could not be supported by the evidence. See also Thibert, supra, per Cory J., at paras. 6-7. [Emphasis added.]
[25] In this case, the trial judge’s reasons reflect that she did not accept that there was an air of reality to the defence. In her reasons, it is evident that the trial judge rejected the accused’s claim that there was a threat or force being exerted against him or someone else. Even if there was such a belief held by the accused, she found it was not a reasonable one in the circumstances. She explained in her reasons:
I don’t believe that it caused Lemieux to be immediately afraid. And even if it did, in my view, there are no reasonable grounds for that belief. I don’t accept that the jabs to the chin or the punch were done in self-defence. It would certainly not have been a reasonable act in the circumstances.
[26] Moreover, the trial judge concluded that the reaction of the accused was not “reasonable” even if a threat was perceived to be in play. She explained:
[A] reasonable response to this situation available to Lemieux would have been to do nothing physically; to address the situation verbally and/or simply continue on out the gate. Lemieux’ response was far out of proportion to what happened even on his version of events.
On that basis, self-defence fails. The assault is otherwise made out; the bodily harm conceded. Therefore Mr. Lemieux is found guilty of assault.
[27] Essentially, the trial judge found that the defence was not reasonably available to the accused, and accordingly, he was convicted. To suggest something more was required by way of reasons from the trial judge is to ignore the reasons when considered in the proper legal context. When considered in their proper context, nothing more was required by way of reasons for her decision.
[28] Moreover, I also reject the Appellant’s claim that the trial judge failed to properly apply the W.(D.) principles in assessing the evidence or somehow reversed the burden of proof. There is no doubt that the onus is not on the accused to prove a defence. Once a defence is in play, the Crown must prove its case beyond a reasonable doubt having regard to all the evidence, including the evidence of the accused and any evidence of self-defence.
[29] If the trier of fact is left in doubt about whether the accused’s conduct/actions in self-defence were “reasonable” in the circumstances, an acquittal will follow. However, if the trier of fact is satisfied beyond a reasonable doubt that the conduct was not “self-defence”, and the actions clearly exceeded permissible conduct in terms of a reasonable reaction, the defence will not excuse the conduct.
[30] In this case, the trial judge’s reasons clearly reflect that she found this to be the case. The conduct of the accused was not reasonable, even on his own version of events of what occurred. There is no risk that the trial misapplied the burden of proof or somehow misunderstood the requirements of W.(D.).
[31] Accordingly, the appeal is dismissed.