1. DATE: 20020705 DOCKET: C35327

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) and ROBERT BRUCE GRANT (Appellant)

BEFORE:

LABROSSE, SIMMONS, AND ARMSTRONG JJ.A.

COUNSEL:

Marie Henein

J. Gleitman

For the appellants

Tina Yuen

For the respondent

HEARD:

June 27, 2002

On appeal from a conviction entered by Mr. Justice Blenus Wright sitting with a jury on February 11, 2000

E N D O R S E M E N T

1. [1] The central issue on this appeal is whether the Crown can rely on the curative proviso contained in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 to uphold the appellant’s conviction for aggravated assault.

2. [2] The appellant was charged with aggravated assault, unlawful confinement, and assault with a weapon as a result of events that occurred on March 30, 1999. Following a trial by judge and jury the appellant was convicted of aggravated assault, but acquitted of unlawful confinement and assault with a weapon.

3. [3] At trial, the complainant described a single incident in which the appellant struck her on the head several times with a heavy metal bar as she lay on the bed. She also claimed that the appellant prevented her from fleeing the apartment during the course of the incident.

4. [4] In contrast to the complainant’s evidence, the appellant described two altercations and said that the complainant attempted to strike him with the bar on both occasions. The appellant grabbed the complainant’s hand and the bar to prevent her from hitting him. In the first incident, the complainant struck herself in the head with the bar when the appellant purposely let go. During the second incident, the appellant “whacked” the complainant on the head twice with the bar while holding on to it and the complainant’s hand. The appellant claimed that he was defending himself in both instances.

5. [5] In addition to other errors, the appellant contends that the trial judge made the following errors in his charge to the jury on self-defence:

▪ he failed to leave ss. 34(2) and 37 of the Criminal Code with the jury in addition to s. 34(1);

▪ he provided the jury with copies of s. 34(1) of the Criminal Code in response to their question framed as “[w]e would like to hear the definition of self defence”;

▪ he failed to explain to the jury adequately that the Crown bears the burden of proof to disprove self defence; and

▪ he erred in his explanation of s. 34(1) of the Criminal Code.

3. [6] The Crown concedes that the jury’s question about self-defence and their verdict make it clear that the jury did not accept the complainant’s version of events but claims that, even taking the appellant’s evidence at its highest, no reasonable jury properly instructed could conclude that he was genuinely engaged in defensive actions. The Crown accordingly submits that it was unnecessary to leave self-defence as a defence and that, even if the jury instructions were not error-free, no substantial wrong or miscarriage of justice was occasioned as a result.

4. [7] Particularly in light of the size and strength differential between the appellant and the complainant, the appellant’s evidence that he was able to hit the complainant using her arm and the bar, the appellant’s comments when hitting the complainant, “[n]ow, you think this is going to feel pleasant”, and the evidence of the extent of the complainant’s injuries, we agree that the appellant’s claim of self-defence was not free of difficulties.

5. [8] Nevertheless, we are not persuaded that there was no air of reality to a defence under s. 34(1) of the Criminal Code. The appellant maintained that he thought the complainant was going to split his head open, that she attempted to hit him with the bar, that the bar was heavy and a very dangerous thing to be striking anyone with, and that all he was trying to do was make sure that he did not get hurt. The blows he caused and delivered occurred during the course of a struggle. The appellant denied that he had complete control over the complainant. In our view, it is not clear that there was no basis for self-defence to go to the jury under s. 34(1) of the Criminal Code.

6. [9] Accepting that it was necessary to instruct the jury on the elements of s. 34(1), the appellant was entitled to a correct charge in accordance with that section. We agree that the error made by the trial judge in confusing the elements of s. 34(2) with s. 34(1) inured to the benefit of the appellant. The trial judge referred to a person defending himself being entitled to use “whatever force he, at the time, believes is reasonably necessary”, whereas s. 34(1) only provides justification for force that is objectively “proportionate”. However, the trial judge also failed to explain to the jury that provocation, as it appears in s. 34(1) of the Criminal Code, requires evidence of intention to provoke an assault. The trial judge decided that it was unnecessary to instruct the jury concerning s. 34(2) because he determined that there was no evidence of provocation. However, absent an instruction on the legal definition of provocation, we cannot rule out the possibility that the jury rejected the availability of a defence under s. 34(1) because of provocation[1] [1] , particularly given the fact that, rather than giving the jury a full oral response to their question “[w]e would like to hear the definition of self defence”, the trial judge simply provided the jury with copies of s. 34(1) of the Criminal Code.

7. [10] It would have been preferable, as well, had the trial judge explained to the jury that the Crown’s onus of disproving self-defence applies to each constituent element of the defence and that the onus was not discharged if they had a reasonable doubt concerning the presence of the necessary elements. In the circumstances, we are unable to conclude that the verdict would inevitably have been the same had the jury been properly instructed on the issue of self-defence.

8. [11] Further, even though the jury specifically requested clarification of the definitions of aggravated assault and assault causing bodily harm, the trial judge essentially restricted his explanation to reading the definitions from the Criminal Code; in our view, he failed to provide the jury with any meaningful assistance on a point that was troubling them. The trial judge also failed to instruct the jury that one of the elements of the offence of aggravated assault is objective foresight of bodily harm. Finally, the trial judge failed to give the jury more than a cursory instruction concerning the use and significance of prior inconsistent statements, or to review any of the prior inconsistent statements of the complainant, even though the defence relied on many inconsistencies between the complainant’s evidence at trial and prior statements she made at the hospital, to the police and at the preliminary inquiry.

9. [12] Although some of these errors may ultimately be harmless in light of the jury’s verdict, in our view, the accumulation of errors and omissions undermines the correctness of the verdict. We would accordingly allow the appeal, set aside the appellant’s conviction for aggravated assault, and order a new trial.

10. “Labrosse J.A.”

11. “Janet Simmons J.A.”

12. “Robert P. Armstrong J.A.”

[1][1] The appellant testified that the complainant agreed to have oral sex and intercourse with him in exchange for $20. The complainant tried to strike him with the bar after he took back $15 when attempts at intercourse were unsuccessful. The complainant subsequently asked the appellant to attempt to have sex with her again so that she could have the $15 back. When that attempt failed, the complainant tried, a second time, to hit the appellant with the bar.