COURT OF APPEAL FOR ONTARIO

DATE: 20000126

DOCKET: C31516

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.”