DATE: 20040419
DOCKET: C36708
COURT OF APPEAL FOR ONTARIO
ROSENBERG, MOLDAVER and SIMMONS JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Howard Leibovich for the appellant
Appellant
- and -
DONALD LaKING and ROBERT SIMPSON
Daniel J. Brodsky for the respondent Donald LaKing
James Lockyer and Benson Cowan for the respondent Robert Simpson
Respondents
Heard: February 11, 2004
On appeal from the judgment of Justice B.W. Hurley of the Superior Court of Justice dated June 22, 2001.
SIMMONS J.A.:
[1] Shortly after 6 p.m. on January 26, 1999, Alfred Martin, an inmate at the Kingston Penitentiary, was stabbed to death in a confrontation with fellow prisoners. As a result of the killing, Pierre Carrierre and the respondents Robert Simpson and Donald LaKing were jointly charged with second-degree murder and subsequently tried by Hurley J., sitting without a jury.
[2] Following a nineteen-day trial, at which none of the defendants testified, the trial judge acquitted all the accused based on the following findings:
i) Carrierre did not participate in the physical confrontation that led to Martin’s death;
ii) LaKing did not cause life-threatening injuries to Martin when he hit him on the head repeatedly with a right-angled metal wall bracket;
iii) Simpson alone stabbed Martin, causing his death;
iv) Simpson and LaKing were not acting in concert during the course of the physical confrontation; and
v) Simpson and LaKing were acting in lawful self-defence when they, respectively, stabbed and struck Martin. In the result, all three of the accused were acquitted.
[3] The Crown appeals from Simpson and LaKing's acquittals, claiming that the trial judge erred in two respects in finding that there was an air of reality to their respective claims of self-defence: first, in holding that words alone can constitute an assault, and second, in finding an evidentiary basis for the subjective elements of self-defence. In the alternative, if there was an air of reality to the self-defence claims, the Crown submits that the trial judge erred in assessing the subjective elements of the defence.
[4] During the appeal hearing, we quashed the Crown's appeal against LaKing's acquittal. We accepted LaKing's submission that, as the result of the trial judge’s finding that he and Simpson were not acting in concert, the only offences for which LaKing could have been convicted at trial were assault with a weapon, assault causing bodily harm, or aggravated assault. Because none of these offences are included offences on a charge of second-degree murder and because the Crown did not appeal the trial judge's finding that Simpson and LaKing were not acting in concert, we concluded that it was not open to the Crown to appeal from LaKing's acquittal.
[5] For the reasons that follow, I would also dismiss the Crown’s appeal against Simpson’s acquittal.
I. Background
i) the events of January 26, 1999
a) background to the stabbing
[6] Early in the morning of January 26, 1999, Martin began drinking homemade liquor ("shine") with X, a fellow inmate and friend. X made the shine so that he and Martin could trade it for heroin. However, when the two men were unable to find any heroin, they started drinking the shine themselves and also shared a morphine pill.
[7] Correctional officers first took particular note of Martin's behaviour on January 26, 1999, at around 3:15 p.m. At that time, Martin was in the dome area of Kingston Penitentiary.
[8] Kingston Penitentiary is shaped like a wheel, with a large hub (“dome”) in the centre and ranges of cells running out like spokes from the dome. Martin was housed in a range of cells referred to as Upper G Range. Upper G Range is located on the third and fourth floors of the penitentiary. The fourth floor of Upper G Range consists of about 20 cells, a catwalk about 30 inches wide in front of the cells, and a railing along the outer limit of the catwalk. There is an open space of approximately 20 feet in front of the cells on the third floor and the outer wall of the penitentiary. The ceiling of the open space is above the ceiling of the cells on the fourth floor. A staircase near the dome connects the two levels of the range.
[9] Correctional officers observe the inmates in Upper G Range from a two-storey control post (“bubble”) at the dome end of the range. Alongside the bubble, there is a door leading into the dome (“barrier”). Correctional officers control access to the dome via the barrier from the bubble.
[10] At around 3:15 p.m., Martin presented in the dome as intoxicated and belligerent. He was challenging the correctional officers to a fight, insulting them and calling them racists. Some correctional officers described Martin as frothing at the mouth. However, a senior correctional officer was able to calm him down, and ultimately returned him to the range after determining that he did not appear to be a danger.
[11] A short time later, at approximately 3:48 p.m., Martin became involved in a physical altercation with Simpson. At least one inmate said the altercation began as horseplay, i.e. the two men were slapping each other, open-handed, not hard, and both were smiling. However, within a short time, they started hitting each other harder and throwing punches. Various witnesses reported Simpson as telling Martin, “ I got no problems with you... I don't want to fight”.
[12] X testified that he was sitting with Simpson and Carrierre when the fighting started. He said that Martin threatened to kill them, and that he had been threatening all of them most of the day.
[13] The altercation between Martin and Simpson was captured in part by a stationary video camera located above a washer and dryer at the far end of the range. The video shows Martin pushing, punching and jabbing Simpson, and Simpson kicking Martin. At one point, Carrierre attempted to intervene. The altercation ended quickly with Martin and Simpson hugging for the benefit of correctional staff, and with Simpson kissing Martin. The video also indicates that, after the incident appeared to have ended, Martin sucker-punched Simpson and that for about fifty minutes after the altercation ended, Simpson and Martin continued to exchange words intermittently.
[14] Following the altercation, the Acting Unit Manager for Upper G Range asked Martin to agree to go to segregation. However, he refused unless she could guarantee that he would be released the next day. Martin claimed that he and Simpson were just playing and Simpson confirmed that. The Acting Unit Manager left, feeling that it would be too dangerous to remove Martin from the range at that time, but planning to deal with him after the evening lock-down.
[15] The next significant event happened at approximately 4:39 p.m. After a brief exchange of words, Martin pulled a 6-8 inch weapon resembling an ice pick and backed Carrierre up to the end of the range, threatening him with the weapon. The confrontation took place underneath the video camera, and therefore was not filmed. Soon after the confrontation began, LaKing yelled at Martin to stop. LaKing went into his cell, grabbed a knife and started walking towards Martin. The two men squared off, and started swiping at each other with their knives. Following an interlude, they moved towards the stairs. LaKing backed up the stairs while Martin moved towards him. Part way up the stairs, Martin either dropped his knife or threw it over the railing. LaKing kicked or pushed Martin away and then left the area. Once again, various witnesses described Martin as being the aggressor and LaKing as telling Martin to back off.
[16] The Acting Unit Manager heard about the knife-swinging incident and ordered the inmates on Upper G Range to lock themselves in their cells. Not uncommonly, they refused. She spoke to Martin a second time. He denied that there had been an altercation and refused to lock up. He said he would give the staff a reason to lock up the range, and threatened to set up a barricade, cause disturbances and start a fire.
[17] Correctional officers notified the Emergency Response Team of the situation. Various inmates and prison officials testified that, in the circumstances, the guards were not going to enter the range unless the inmates were locked down.
[18] Another inmate (whom I will refer to as the second witness to the fatal confrontation) testified that after the fight on the stairs, he spoke to Simpson and LaKing in LaKing's cell. Simpson and LaKing told him they wanted to “squash” the incident, which he understood meant resolving the problem without further violence. They also told him that they were worried that Martin still wanted to fight and that they were “paranoid” about his weapon. The inmate testified that he went to Martin's cell, retrieved his knife, and then returned to LaKing 's cell. He said he told LaKing that he had Martin's knife and that he showed the knife to Simpson and LaKing. In cross-examination, the inmate indicated that Simpson may have been present when he told LaKing that he had Martin's knife. However, he said that he could not recall if he showed the knife to Simpson and LaKing. He testified that he disposed of the knife by putting it into a shampoo bottle and then into the garbage.[^1]
[19] X also testified concerning the likelihood that Martin was armed. He said that he met with Martin in Martin's cell after the knife fight. He saw the knife Martin had been using on Martin's desk and never saw Martin give it to anyone else.
[20] At 6:05 p.m., Martin started a fire. He broke various items (including a counter bolted to the floor), gathered them near the door and ignited them. He was yelling for other inmates to help him. Apart from X, no one else joined in. At one point, Martin threw an accelerant on the fire, and it rose to about five or six feet. The sprinkler system came on and extinguished the fire within three or four minutes, but a fair amount of water accumulated on the floor.
[21] A few minutes after the fire was set, X jumped on to the washer and then the dryer and covered the video camera with a towel. He testified that Martin told him to cover the camera because he (Martin) was going to “kill those goofs”.
[22] After the video camera was covered, LaKing called out to Simpson and pointed at the covered camera. Simpson then went upstairs to the fourth floor and into LaKing’s cell.
[23] At around 6:14 p.m. a correctional officer began operating a hand held video camera from the bubble. At approximately 6:15 p.m., X covered the bubble window. By 6:19 p.m., Martin had been fatally stabbed.
b) the stabbing
1.) the first witness’ version
[24] Two inmates witnessed the confrontation in which Martin was killed. The first witness testified that LaKing called Martin over to the vicinity of LaKing’s cell and said, “[w]hat’s your problem? You’ve got to stop doing this. You’re always drinking and causing problems”. Martin responded, “[s]o what? I was drunk. Do you want to continue this?” The two men stared at each other. Martin called out to X, “X get my knife”. X went into Martin’s cell, and within a few moments, replied, “I can’t find it, Alfie.”[^2]
[25] LaKing then shoved Martin towards the railing. Within a couple of seconds, Simpson pulled out a knife and stabbed Martin several times in the chest and abdomen. Martin began to stumble backwards. As Martin was moving backwards, LaKing hit him on the head and shoulders with some sort of a metal pipe. Carrierre either grabbed Martin or pushed him, and then stepped aside. Martin staggered down the stairs and then collapsed on the floor at the bottom of the stairs.
[26] After some time had passed, correctional officers ordered the inmates away from the barrier and took Martin away. Simpson washed his knife, threw it out the window and then changed his clothes. Simpson called X upstairs, punched him in the face and told X he was lucky that he hadn't killed him.
2.) the second witness’ version
[27] The second witness testified that he spoke to Martin on the fourth floor and that, after that, Martin went to LaKing’s cell. Martin wanted to know if LaKing wanted to fight. The second witness then saw Simpson go towards LaKing’s cell. Martin asked Simpson if he wanted to fight him. Simpson began criticizing Martin for his actions that day and Martin got upset. He said something like, “[w]ell you know, if we’re going to fight, then let’s get it over with, and fight. If we’re not, then let’s just not.”
[28] Simpson repeated that he thought Martin was wrong. Martin replied:
Listen, if you want to fight, then let’s just fight it out now. I know that you were paranoid about me having a knife. You know I don’t have a knife, so if you want to fight it out, we can just fight it out. I just want to go back to my cell.
[29] Simpson then went into LaKing’s cell. Martin reiterated, “[i]f you want to fight then let’s fight. If you’re not going to fight then just say so”. Martin held out his hands and said, “I’ve got no knife”. Simpson came out of LaKing’s cell and walked over to the railing. Martin did not stop talking, he wanted to know what they were going to do. Simpson walked towards the cell and faced the doorway and Martin. He stabbed Martin twice in the chest. Within a few moments, LaKing started hitting Martin over the head with a bent bar. Martin and LaKing started running down the range, and LaKing kept swinging the bar. Martin went down the stairs, and then stumbled and collapsed as he reached the bottom.
[30] The first witness testified that after the fight he heard Simpson say that he had been acting in self-defence because Martin tried to stabbed him. He said:
... I remember Bobby Simpson yelling out to everybody that, “ you don't have to talk to the police. Everybody knows what happened. I stabbed him in self-defence.
3.) evidence of Martin's violent disposition
[31] With the consent of the Crown, counsel for Simpson filed material at trial containing details of Martin's disposition for violence. This material indicated that Martin had at least 10 convictions for violent offences between 1979 and 1990. In addition, various prison officials and inmates testified about Martin's disposition and reputation for violence.
II. The Crown’s position at trial
[32] In closing submissions at trial, the Crown took the position that the evidence did not lend an air of reality to the claim of self-defence for three reasons. First, the evidence of the first witness to the fatal stabbing was the most reliable and demonstrated that, once the camera was covered, the defendants carried out a planned attack on an unarmed man. In particular, he submitted that the first witness's evidence demonstrated that LaKing beckoned both Simpson and Martin to LaKing's cell and that all three defendants knew X had been unable to find Martin's knife.
[33] Second, the atmosphere on the range on January 26, 1999 was not that different from any other day, and certainly was not an atmosphere of extreme fear as suggested by the defence. Crown counsel submitted that the evidence showed that the range was basically calm until 3 p.m. and that the subsequent confrontations were of relatively short duration and not sufficient to create a reasonable apprehension that Martin might kill someone. In particular, the altercation between Simpson and Martin was not one-sided. Moreover, Simpson's subsequent behaviour was not that of a frightened man.
[34] Crown counsel submitted that the fire was a face-saving gesture designed to give Martin an out to go to segregation and suggested that the camera was covered so that other inmates could become involved in the smash-up. He said that the evidence of Martin's disposition indicated that he was a bully, but that there was relatively little evidence of him following through on his bluster. Finally, he submitted that there were many alternatives available to Simpson other than stabbing Martin.
[35] Third, Crown counsel pointed out that there was no evidence of the state of mind of the accused.
III. The trial judge’s findings
[36] Before turning to Simpson's claim of self-defence, the trial judge made three important preliminary findings.
[37] First, that Martin was the aggressor in the three incidents leading up to the stabbing and that, in each case, “ the other party to [the incident] sought at least a modicum of peace, and declared that he did not want to fight”. Second, that on January 26, 1999, Martin was drinking throughout the day, and became increasingly intoxicated as the day wore on. Third, on the basis of the evidence of Martin's disposition for violence, that he was a “loud, truculent bully, who would, on occasion, and unpredictably, resort to violence to get his way or even to satisfy a whim”.
[38] In finding that there was an air of reality to Simpson’s claim of self-defence under s. 34(2) of the Criminal Code, R.S.C. 1985, c. C-46, the trial judge relied on his preliminary findings, on the events of the day and the resulting atmosphere on the range (including the fact that the guards were unlikely to enter the range unless the inmates were locked down), and on Martin's demeanour and conduct immediately prior to his death. The trial judge said:
The first issue to be determined is whether self-defence was a live issue in this case.
There is some evidence bearing on that issue. The stabbing occurred in Kingston Penitentiary. The barrier door was locked. There was some tension on the range. Martin had been acting out. He and Simpson fought, and he had threatened to kill Simpson. He held a knife in a threatening way, while he chased Carrierre to the far end of the range. He and LaKing had a knife-swinging episode. His language was loud and threatening. He started the fire near the barrier. He told [X] to cover the camera lens. He may have had a knife or a shiv on his person. When he went to LaKing’s cell, the nearest COs were in the bubble, more than 75 feet away, and, given the mood on the range, none of them were likely to leave the bubble. Martin was drunk, loud and aggressive. He stood near the door of LaKing’s cell, and said something which was the same as, or similar to, “You know I don’t have a knife. If you want to fight, let’s.”
If Simpson and LaKing believed that, there was no reason for them to fear anything other than a fist-fight. If they didn’t believe him, if they thought that he had a knife on him, and said that only to bait them into a fist-fight, during which they might get stabbed, then they had genuine reason to be concerned for their lives.
In my opinion, self-defence was a live issue.
[39] In finding that Simpson was acting in lawful self-defence under s. 34(2) of the Criminal Code when he stabbed Martin, the trial judge said the following:
The first ingredient I must consider is this: was Simpson unlawfully assaulted by Martin? … The evidence bearing on that issue is the language Martin used at LaKing’s cell door, uttered in the context I have already described, while the three of them were within a few feet of one another. I conclude that Martin’s words were an assault within the meaning of s. 265(1)(b).
Next I must consider whether Simpson caused the death of Martin under reasonable apprehension of death or grievous bodily harm, and believed, on reasonable and probable grounds, that he could not otherwise protect himself from death or grievous bodily harm.
I cannot now say, on the basis of the evidence I heard, whether Simpson was in danger of being stabbed. No knife was found on Martin afterward. No witness said that he saw a knife in Martin’s hand, or on his person, while he stood in the doorway of LaKing’s cell. But given the evidence I heard about Martin, about life in general on the range that day, about the earlier events of the day, and about the circumstances at the cell door, including Martin’s statement that he didn’t have a knife, it seems to me that a reasonable man would be under a reasonable apprehension of death or critically serious bodily harm. That same reasonable man, standing where Simpson did, could think of retreating - but there was really no place to go. …
If Simpson believed Martin’s statement that he didn’t have a knife, his only concern would have been the risk of a fist-fight. If, on the other hand, he didn’t believe Martin, and decided, rightly or wrongly, that Martin did have a knife, and that the invitation to fight was a ploy to give Martin the upper hand in any subsequent fight, or to excuse Martin stabbing him, or LaKing, or both of them after a fist-fight started, then he was in a difficult and dangerous position.
I conclude that Simpson caused Martin’s death under a reasonable apprehension of death or grievous bodily harm, that Simpson believed, on reasonable and probable grounds, that he could not otherwise preserve himself from death or grievous bodily harm….
IV. Grounds of Appeal
[40] As already noted, the Crown raises two main issues on appeal:
i. did the trial judge err in determining that there was an air of reality to the defence of self-defence; and
ii. if there was an air of reality to self-defence, did the trial judge err in law in the manner in which he assessed its subjective elements?
V. Analysis
i) Did the trial judge err in determining that there was an air of reality to the defence of self-defence?
[41] The Crown submits that the trial judge erred in law in two respects in determining that there was an air of reality to Simpson's claim of self-defence.
[42] First, the trial judge erred in finding that words alone can constitute an assault. On this issue, the Crown submits that there was no evidence of an act or gesture by Martin capable of constituting an assault in the moments leading up to the stabbing. Further, although Simpson relied on the evidence adduced by the Crown of his post-killing utterance to the effect that he was acting in self-defence, and on honest but mistaken belief in an assault as creating an air of reality to the defence, the trial judge made no findings in relation to either of those issues. Rather, in finding that Simpson was acting in lawful self-defence, the trial judge explicitly determined that Martin’s words amounted to an assault within the meaning of s. 265(1)(b) of the Criminal Code. This finding amounted to an error in law.
[43] I reject the Crown’s first submission for two reasons.
[44] First, accepting the Crown’s position that the trial judge’s reasons were predicated on a finding that there was an actual assault, and that, in order to constitute an assault words must be accompanied by an act or gesture, I am not persuaded that the trial judge made any error in finding that “Martin’s words [uttered in the context he described] were an assault within the meaning of s. 265(1)(b)” of the Criminal Code.
[45] In finding that Simpson was unlawfully assaulted, the trial judge did not rely exclusively on Martin’s words; rather he relied on Martin’s words and the context in which they were spoken. The trial judge said:
The evidence bearing on that issue is the language Martin used at LaKing’s cell door, uttered in the context I have already described, while the three of them were within a few feet of one another. I conclude that Martin’s words were an assault within the meaning of s. 265(1)(b) [emphasis added].
[46] Section 265 (1) (b) of the Criminal Code provides as follows:
A person commits an assault when... he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose.
[47] The context that the trial judge had already described included Martin's reputation for violence, his aggressive conduct earlier in the day, his conduct in starting the fire and directing that the camera be covered, and his drunk, loud and aggressive demeanour in the timeframe immediately preceding his death.
[48] For the purposes of s. 34(2) of the Criminal Code, it is necessary only that the evidence of an unlawful assault on an accused person meet the standard of being capable, if accepted by a properly instructed trier of fact acting reasonably, of forming the basis for an acquittal. In R. v. Pétel (1994), 87 C.C.C. (3d) 97 (S.C.C.), the Supreme Court of Canada pointed out that, in determining whether an accused person was unlawfully assaulted within the meaning of s. 34(2) of the Criminal Code, the correct focus is not “on trying the victim”, but rather on the accused person's state of mind. Further, “it is the accused (and not the victim) who must be given the benefit of a reasonable doubt”.
[49] Considered in the context described by the trial judge, which included Martin’s actions in starting the fire, in directing that the camera be covered his threat to kill the “goofs” (i.e. Simpson and LaKing), and in going to LaKing’s cell; and Martin’s drunk, loud and aggressive demeanour, in my view, the evidence of his words, actions and gestures was sufficient to meet the minimal threshold evidentiary requirement imposed under s. 34(2).
[50] Second, when the trial judge delivered his reasons, he did not have the benefit of this court’s decision in R. v. Currie (2002), 166 C.C.C. (3d) 190. In Currie, this court makes it clear that, for the purposes of s. 34 (2) of the Criminal Code, it is not necessary to make a finding that there was an actual assault within the meaning of s. 265(1)(b):
The Supreme Court of Canada in Cinous confirmed the principle established in R. v. Pétel, [1994] 1 S.C.R. 3, 87 C.C.C. (3d) 97, that the existence of an actual assault is not a prerequisite for a defence under s. 34(2). The question that the jury must ask itself is not whether the accused was unlawfully attacked, but whether he reasonably believed in the circumstances that he was being unlawfully attacked.
[51] Further, in R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 at 173, the Supreme Court of Canada held that the same factors that are relevant to the issue of whether the accused was assaulted are also relevant to whether he or she had a reasonable apprehension of bodily harm.
[52] In my view, read fairly and as a whole, including the portions dealing with a reasonable apprehension of bodily harm, the trial judge’s reasons demonstrate a clear finding that Simpson “reasonably believed he was about to be attacked and that his belief was reasonable in the circumstances”. Viewed in that light, the trial judge’s conclusion amounted to a finding that “Martin’s words [uttered in the context the trial judge described] were an assault within the meaning of s. s. 34(2)” of the Criminal Code and reveal no error.
[53] The Crown's second submission relating to its first ground of appeal is that the trial judge erred in finding an evidentiary basis for self-defence. The Crown points out that there are three constituent elements of self-defence under s. 34(2) of the Criminal Code[^3] and that all three elements require the trier of fact to determine both how the accused perceived the relevant facts and whether his perception was reasonable in the circumstances. Given that Simpson did not testify, and that there was no other evidence concerning his subjective frame of mind, there was no basis for the trial judge to determine how Simpson perceived the situation he faced, and therefore no air of reality to his claim of self-defence.
[54] I reject the Crown's submissions. While it may be difficult if not impossible in some circumstances to assess an accused person's state of mind in the absence of direct evidence from the accused, where circumstantial evidence is available, it is open to a trier of fact to draw inferences concerning an accused person's mental state based on that evidence: see R. v. Mitchell (1965), 1 C.C.C. 155 (S.C.C.) and R. v. Cinous at para. 89. For reasons that I will explain below, in my view, there was circumstantial evidence in this case to support Simpson’s claim of self-defence.
ii) Did the trial judge err in law in the manner in which he assessed the subjective elements of self-defence?
[55] Assuming there was an air of reality to Simpson’s claim of self-defence, the Crown submits that the trial judge erred in law in assessing its subjective components. In particular, as already noted, the Crown contends that each of the three constituent elements of self-defence contains a subjective and an objective component, requiring the trier of fact to determine first how the accused perceived the relevant facts and then to determine whether the accused’s perception was reasonable in the circumstances[^4]. The Crown submits that in this case the trial judge did the opposite; he began by determining what a reasonable man would have perceived and then concluded that is what Simpson must have perceived in the circumstances. In doing so, the trial judge adopted an incorrect approach and effectively eliminated the subjective elements of the defence.
[56] The Crown relies on the following portions of the trial judge's reasons to demonstrate his error.
[57] First, in determining there was an air of reality to self-defence, the trial judge considered only the objective element of the test when he found that if the respondents believed that Martin had a knife they had a genuine reason to be concerned for their lives. The Crown submits that the trial judge failed to consider whether there was sufficient evidence to establish that Simpson actually believed that Martin had a knife:
The first issue to be determined is whether self-defence was a live issue in this case.
There is some evidence bearing on that issue .…
Martin stood near the door of LaKing’s cell, and said something which was the same as, or similar to, “You know I don’t have a knife. If you want to fight, let’s.”
If Simpson and LaKing believed that, there was no reason for them to fear anything other than a fist-fight. If they didn’t believe him if they thought that he had a knife on him, and said that only to bait them into a fist-fight, during which they might be stabbed, then they had genuine reason to be concerned for their lives.
In my opinion, self-defence was a live issue.
[58] Second, in determining that Simpson was under a reasonable apprehension of death or serious bodily harm, the trial judge looked only at what the reasonable man in his position would have thought rather than considering what Simpson actually thought:
I cannot now say, on the basis of the evidence I heard, whether Simpson was in danger of being stabbed. No knife was found on Martin afterward. No witness said that he saw a knife in Martin’s hand, or on his person, while he stood in the doorway of LaKing’s cell. But given the evidence I heard about Martin, about life in general on the range that day, about the earlier events of the day, and about the circumstances at the cell door, including Martin’s statement that he didn’t have a knife, it seems to me that a reasonable man would be under a reasonable apprehension of death or critically serious bodily harm [emphasis added]. …
[59] Finally, the trial judge concluded that Simpson believed that Martin had a knife simply on the basis that it would have been reasonable to do so:
If Simpson believed Martin’s statement that he didn’t have a knife, his only concern would have been the risk of a fist-fight. If, on the other hand, he didn’t believe Martin and decided, rightly or wrongly, that Martin did have a knife, and that the invitation to fight was a ploy to give Martin the upper hand in any subsequent fight, or to excuse Martin stabbing him, or LaKing, or both of them, after a fist-fight started, then he was in a difficult and dangerous position.
I conclude that Simpson caused Martin’s death under a reasonable apprehension of death or grievous bodily harm, that Simpson believed, on reasonable and probable grounds, that he could not otherwise preserve himself from death or grievous bodily harm… .
[60] I reject the Crown's submissions for three reasons.
[61] First, the authorities relied on by the Crown do nothing to rebut the common sense proposition that, where an accused person’s mental state is evidenced in whole or in part by circumstantial evidence, an analysis of what a reasonable person would conclude in the particular circumstances is a relevant factor in assessing an accused person's state of mind. The important point is that the various elements of self-defence under s. 34(2) have both an objective and a subjective component. It is not an error in law to take account of one's conclusions on the objective elements in determining the subjective components: see R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.).
[62] Second, in my view, the trial judge’s findings are, in large measure, a response to the live issues that were presented to him for determination. In making his findings, the trial judge effectively rejected the Crown’s submission at trial that the proper inference to be drawn from the evidence was that, on January 26, 1999, the atmosphere on the range was not unusual and that when Martin started the fire he had turned his attention to the guards. Rather, the trial judge found that, on that particular day, Simpson found himself locked on the range with an intoxicated bully, who had threatened his life and who was capable of unpredictable violence. When Martin started the fire, directed that the camera be covered and approached LaKing’s cell, there was every reason to believe that he was armed and ready for a fight and that Simpson had no realistic hope of rescue from the guards.
[63] Having rejected the Crown's position concerning the atmosphere on the range and concluded that a reasonable man would fear for his life in the same circumstances, it was open to the trial judge to draw the inference that Simpson feared for his life. Moreover, in light of the trial judge’s findings concerning the atmosphere on the range, there was sufficient evidence to support his conclusions concerning the issue of self-defence.
[64] Third, although the trial judge spoke in objective terms at various places in his reasons, he also made it clear with respect to each element of self-defence that the focus of his inquiry and his ultimate conclusion related to Simpson's actual mental state: see, for example, the last paragraph of the quotation at paragraph [39] above.
[65] I would not give effect to this ground of appeal.
VI. Disposition
[66] For the reasons given, I would dismiss this appeal.
Released: April 19, 2004 “MR”
“Janet Simmons J.A.”
“I agree M. Rosenberg J.A.”
“I agree M.J. Moldaver J.A.”
[^1]: The Police were unable to locate the knife during the course of their investigation.
[^2]: According to X, Martin called down to him and said, “ Grab my shank”. X yelled back, “ I don't have it, you've got it.”
[^3]: 1) the existence of an unlawful assault; 2) a reasonable apprehension of a risk of death or grievous bodily harm; and 3) a reasonable belief that it is not possible to preserve oneself from harm, except by killing the adversary: R. v. Pétel at p. 103.
[^4]: R. v. Cinous; R. v. Pétel; R. v. Bruyere (1987), 49 Man. R. (2d) 288 (Man. C.A.).