DATE: 20050815

DOCKET: C37821

COURT OF APPEAL FOR ONTARIO

FELDMAN, SHARPE and ARMSTRONG JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Philip Campbell and Jennifer Budgell for the appellant

(Respondent)

• and -

NOLAN JOSEPH FLOOD

Brian McNeely for the respondent

(Appellant)

Heard: February 21, 2005

On appeal from the conviction entered by Justice Edward F. Then of the Superior Court of Justice, sitting with a jury, dated October 29, 1999.

FELDMAN J.A.:

[1] The appellant was nineteen years old when he killed Peter Sevelka, the abusive partner of his mother, Kathleen Flood. He was charged with second-degree murder. Although characterized by defence trial counsel as an overwhelming case of self-defence, the jury rejected self-defence and convicted the appellant of manslaughter. The appellant was sentenced to one year in jail.

[2] He appeals his conviction on three bases arising out of the alleged failure of the trial judge to charge the jury properly on self-defence. The first is that the trial judge failed to instruct the jury that the appellant was not disentitled to rely on self-defence under ss. 34(2)(a) and (b) of the Criminal Code, even if they believed that he either provoked the deceased’s attack or was otherwise responsible for being in the situation where the deceased attacked him. Second, the trial judge failed to properly answer the jury’s question regarding what use they could make of the appellant’s actions with the deceased earlier in the evening in deciding whether self-defence applied. Third, the trial judge erred by failing to charge the jury on self-defence under s. 34(1).

[3] For the reasons that follow, I would dismiss the appeal.

SUMMARY OF RELEVANT FACTS

[4] The deceased and his two young sons lived with the appellant’s mother, Kathleen Flood, his sister and the appellant from the time he was about fourteen or fifteen years old. The appellant and the deceased did not get along. They argued and called each other names. The deceased was violent with Kathleen Flood. He seriously assaulted her at least ten times in the four years before his death, including punching and kicking her. On one occasion he broke her jaw. The appellant was well aware of these assaults on his mother and had intervened on her behalf many times. He despised the deceased.

[5] On the date of the offence, September 6, 1998, Kathleen Flood, Peter Sevelka and his youngest son drove in Ms. Flood’s old station wagon to the No Frills store to shop. Sevelka had consumed one or more small bottles of Grand Marnier before leaving. They then stopped at a bar on the way where he had a beer. In the car outside the store, Sevelka first yelled at his son and then began to hit him for misbehaving in the store. A woman ran over to tell Sevelka to stop, but he ignored her. The woman took down the license number and called the police.

[6] Later that day, Sevelka spent the afternoon in the bar where he drank beer and purchased and used cocaine. He came home at 6:00 p.m., where he continued to drink beer and wine.

[7] The appellant spent most of that afternoon alone at home. During that time, the police came to the door looking for the person who drove the station wagon and spoke with the appellant. The appellant was upset to learn that his mother was driving the station wagon, because she had no insurance for it and was using improper plates.

[8] The appellant also spent the afternoon drinking. He consumed a 40-ounce bottle of malt liquor and a bottle of hard lemonade and was intoxicated. The appellant went out and visited with friends, then returned home. On the way, he stopped to have a cigarette with a neighbour, whom he told that he was angry with Sevelka and that he would like to “go kick Peter’s ass.” He also told her he was going to fight Sevelka, and that she could see a good fight if she stuck around. However, the neighbour acknowledged that the appellant often said he wanted to beat up the deceased.

[9] The appellant arrived home around 9:00 p.m. to eat dinner with his mother, the other kids and Sevelka. He and Sevelka began to argue and agreed to go to the park to fight. The appellant acknowledged that he was looking for a fight. They went out to the laneway behind the house and went down the laneway taunting each other. The appellant said he then became afraid of Sevelka so he pulled out his utility knife in order to scare Sevelka. Sevelka then picked up two bricks and began to bang them together. The appellant put his knife away in order to defuse the situation. Sevelka suddenly threw one of the bricks at the appellant, but it did not hit him. They began pushing and shoving each other. Sevelka was also threatening the appellant before storming away. The appellant met and talked to two friends of his, Shawn and Chanelle, who invited him to stay at their house, but he declined the invitation. The appellant cried for a while, then went home, but he did not go into the house. He instead went to his car and listened to music.

[10] The events in the laneway were witnessed by several people who testified at the trial. The events afterward were only witnessed by the appellant, his mother and the deceased, and of course, only related by the appellant and his mother.

[11] Sevelka returned home before the appellant. He was angry and picked up a metal vacuum cleaner hose, swung it around, then went to the appellant’s room and smashed the appellant’s possessions.

[12] Ms. Flood went outside to find her son. He was leaning into the passenger side of his car. He appeared to be putting something in the glove compartment and was mumbling about fixing everyone beginning with Sevelka. The driver’s side of the car was against a garage. Suddenly, Sevelka came running past Ms. Flood with a metal rod, which he used to strike the car twice, then smash the windshield. The appellant got into the car and crouched against the driver’s side door. Sevelka leaned into the car and hit the appellant with the rod. The appellant put his feet up to block the blows and tried to move toward the passenger door to get out. Ms. Flood was yelling at Sevelka to stop but he did not. She put her arms around his waist, but he pushed her onto the ground. The appellant locked the passenger door, but Sevelka smashed the window, opened the door and swung the metal bar toward the appellant’s face, threatening to “smash your fucking face in.” He continued to hit the appellant on the legs, but to aim for his face.

[13] The appellant then pulled out his utility knife and, as Sevelka began to swing the bar again, the appellant stabbed him in the upper left torso. The appellant testified that he was trying to hurt Sevelka so he could escape from the vehicle, and that he thought Sevelka was going to kill him or at least put him in intensive care. Sevelka swung again, then said he had been stabbed. The appellant ran away, leaving Sevelka standing by the car and thought he had only wounded him. But Sevelka then collapsed onto Ms. Flood. A neighbour came over and began to perform C.P.R. while Ms. Flood went inside to call 911.

[14] The appellant fled, but then he saw there was a commotion at his house and he realized he had hurt Sevelka more than he thought. He threw away the knife and cried, then encountered his friend, Shawn, who told the appellant that he had killed Sevelka. The appellant was shocked. He turned himself in to the police a short time later and told them he had stabbed Sevelka in self-defence.

[15] Crown counsel suggested to the appellant in cross-examination that, while being attacked in the car, he could not have reached for his knife and opened it, and that instead, he was lying in wait with the knife unfolded. The appellant denied that suggestion. He also denied Crown counsel’s suggestion that he was not afraid that the deceased would kill him or cause him grievous bodily harm because Sevelka had never assaulted him before. The appellant replied that Sevelka had never attacked him before with a lead pipe.

[16] The autopsy results showed that the knife had cut the aorta causing rapid death, but that had the knife entered at a slightly different angle, the wound might not have been fatal.

[17] The appellant’s position at trial was that this was an overwhelming case of self-defence. Sevelka was attacking the appellant with a metal bar while shouting threats that he was going to kill him. He reasonably apprehended death or grievous bodily harm to himself, and he believed that, in the circumstances, he had to stab Sevelka to disable him in order to preserve himself. The Crown’s position was that the appellant wanted to start a fight with Sevelka and that, after the incident in the laneway, he returned to his home where another confrontation with Sevelka was probable. He was prepared to use the knife if he was attacked and therefore when he did use it, he did not believe he could not otherwise preserve himself from death or grievous bodily harm. The Crown also suggested that because the deceased had never assaulted the appellant before and because of the relatively minor nature of the appellant’s actual injuries, the appellant’s fear of Sevelka in the car did not rise to the level of fear of death or grievous bodily harm, or if it did, that fear was unreasonable in the circumstances.

ISSUES ON THE APPEAL

(1) Whether the trial judge erred by failing to specifically instruct the jury in accordance with R. v. Jenkins (1996), 1996 2065 (ON CA), 107 C.C.C. (3d) 440 (Ont. C.A.), that, if they believed the appellant provoked the deceased’s assault on him in the car or put himself in a position where the attack could occur, this would not disqualify him from relying on self-defence under s. 34(2).

(2) Whether the trial judge erred in answering the jury’s question whether they were to consider the entire sequence of events and the appellant’s choices during the day or only his choices at the car in relation to the defence of self-defence.

(3) Whether the trial judge erred by failing to charge the jury on self-defence under s. 34(1).

ANALYSIS

[18] Section 34 of the Criminal Code provides:

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

(1) Did the trial judge err by failing to specifically instruct the jury in accordance with R. v. Jenkins?

[19] Section 34(1) only applies where the accused did not provoke the assault by the victim. In R. v. McIntosh, 1995 124 (SCC), [1995] 1 S.C.R. 686, the Supreme Court of Canada held that, in contrast, a person who provokes an assault by the ultimate victim can still rely on the defence of self-defence under s. 34(2).

[20] R. v. Jenkins was also a case where the principal defence was self-defence. The trial judge instructed the jury on both s. 34(1) and s. 34(2). In explaining the differences between the two sections, the trial judge in Jenkins did not specifically instruct the jury that the accused could rely on s. 34(2), even if they found that he had provoked the assault by the deceased, nor did he point out to the jury that difference between the two sections. On appeal, the appellants argued that this omission was an error of law that prejudiced them because there was contradictory evidence as to who was the aggressor.

[21] The Court of Appeal did not agree that the trial judge’s omission amounted to a reversible error of law. The court stated at p. 452:

Whether it is an error in law not to tell the jury that even an accused who does provoke an assault can rely on s. 34(2) depends on the rest of the instructions on self-defence. If the instructions as a whole reasonably could have misled the jury into believing that an accused who provokes an assault is deprived of the defence of self-defence under s. 34(2), then the non-direction on provocation is an error of law.

[22] R. v. Stubbs (1988), 28 O.A.C. 14, was a case where the court concluded that the jury could have been misled as to the availability of self-defence to an accused who provoked an assault. In several later cases, however, including R. v. Cameron (1995), 1995 1283 (ON CA), 96 C.C.C. (3d) 346 (Ont. C.A.), R. v. Nelson (1992), 1992 2782 (ON CA), 71 C.C.C. (3d) 449 (Ont. C.A.) and R. v. Elkins (1995), 1995 3510 (ON CA), 26 O.R. (3d) 161 (C.A.), the court was not persuaded that the jury may have been misled.

[23] In Jenkins, as in several of the other cases where no error was found, the Court added that it would still have been preferable for the trial judge to have explained to the jury the distinction between the two self-defence provisions with respect to provocation by the accused.

[24] In this case, there was no charge on s. 34(1) and therefore no mention of the role of provocation by the accused on the ability to rely on the defence of self-defence. The only reference to provocation as an issue was in the instruction in relation to the potential for provocation by the deceased to reduce murder to manslaughter.

[25] The appellant’s position on the appeal, however, is that because of the extensive evidence that was led regarding the earlier altercation between the appellant and the deceased in the laneway, the trial judge was obliged to specifically tell the jury that, to the extent they believed that the appellant may have provoked the deceased’s attack on him in the car by his earlier actions or put himself in a position where the attack was likely to occur, such actions by an accused do not disqualify him from relying on self-defence under s. 34(2). The appellant says that the trial judge’s failure to so instruct the jury amounted to an error of law in the circumstances of this case.

[26] In his charge, the trial judge explained to the jury that, in considering whether the appellant had a reasonable apprehension of death or grievous bodily harm at the hands of the deceased, they could consider, among other things: his knowledge of violence by the deceased in the past, including Sevelka’s attacks on Ms. Flood; the prior relationship between the appellant and the deceased; and the appellant’s state of mind as manifested by his words and actions that day, including his comment to his neighbour about what he wanted to do to Sevelka. This instruction made it clear to the jury that they were not confined to the events in the car in assessing the appellant’s reasonable apprehension of his situation while under attack in the car. These examples arguably cut both ways in terms of helping or hurting the accused in respect of his state of mind. But they also show that the jury was entitled to consider and weigh them in the context of self-defence under s. 34(2). There was no suggestion that anything the appellant had done or said earlier would preclude the availability of self-defence.

[27] In fact, there was nothing in the fair and balanced charge by the trial judge that could suggest that the appellant would be precluded from relying on self-defence because of his conduct before the events in the car. In his discussion with the trial judge regarding objections to the charge, defence counsel stated:

Secondly, Mr. Sutherland [Crown trial counsel], as the court correctly indicated to the jury effectively took the position that the accused went back to the scene of the stabbing anticipating there might be a confrontation and prepared for it, indeed even going so far as to have the knife ready and available for its employment should a confrontation arise. I take no issue with that.

[28] To the extent that, on this appeal, counsel now suggests that these actions by the appellant could have been taken by the jury as disqualifying him from relying on self-defence, that position was not taken by defence counsel at trial. I think it is fair to say that prior to the jury’s question, to be discussed next, no one at the trial thought of this as a problem. I would not give effect to this ground of appeal.

(2) Did the trial judge err in answering the question from the jury, by failing to tell them that any acts or choices made by the appellant before the stabbing in the car could not disqualify him from relying on the defence of self-defence under s. 34(2)?

[29] After a period of deliberation, the jury returned with the following question: “Will you please one, give us the direction on 34(2)(b). Two, will you please instruct us as to Nolan’s responsibility for the sequence of his decisions on September 6, 1998…brevity and simplicity would be much appreciated.”

[30] Neither trial counsel understood the second question. The trial judge immediately focused on whether the jury was wondering about whether an accused person could rely on self-defence if he had precipitated a situation where he would have to defend himself, and then used the opportunity for retaliation. Having identified that as a problem, the trial judge said that that was not the question. It was decided that the jury would be asked to clarify the question.

[31] The jury reworded the question as follows: “[I]n reference to 34(2)(a) and (b), one, when we consider Nolan’s actions during the day are we to consider the entire sequence of events and his choices or just the choices he made at the car? Two, please review 34(2)(b) ‘on reasonable grounds’ and ‘cannot otherwise preserve himself’. We don’t require the repetition of the lawyers’ summation.”

[32] During the colloquy with counsel following the reworded question, the trial judge returned to the issue he had identified earlier, and stated:

I think the law is you cannot precipitate a situation where you will be required to defend yourself as a means actually of hurting someone else. You can’t use self-defence as a cloak or a means to injure someone, and I think to a certain extent that was the burden of Mr. Sutherland’s submission to the jury, that he went off and actually precipitated a confrontation, that he was prepared to engage in it. It may have been a lot more than he bargained for but it isn’t to say that isn’t what he was seeking to do. I don’t know if that is a reasonable reading of the evidence, the jury may be thinking to itself why did he do all of these things? Why did he go home? Why didn’t he stay with Shawn and Chanelle? What is the significance of that? What can we make of it? What inference can we draw from that evidence? Is it useful in our evaluating 34(a) and (b) but they haven’t told us anything other than they’re talking about choices.

[33] After some further submissions, defence counsel raised the issue that is raised by the appellant on this appeal:

[T]he first question…deals with the question of responsibility. The question seems to be in what sense are the choices he made in terms of responsibility. The jury may be out there thinking does the fact the accused didn’t go to Shawn and Chanelle’s mean he did something, mean that he put himself in a position that would thereafter disentitle him to the benefit of self-defence section? We don’t know. So to just go back to them and say consider all the evidence might be effectively to mislead them by suggesting to them that that conduct in the day might have some critical import to the application of the section when indeed from the perspective they’re considering it may not. [Emphasis added.]

[34] The trial judge fully understood and appreciated this submission. He responded:

I think the virtue of [Crown counsel’s] approach is probably true in assessing the state of mind at the time the stabbing occurred all of what had gone on is no doubt of some relevance. I mean in assessing that obviously all of the evidence has to be considered in respect of that issue. The problem is as I think you’re pointing out is we do not know what it is that they're going to do if they receive that answer. And they may be doing, I think your fear is, things they ought not to be doing. In other words they may be saying well, we don't like the fact he didn't stay at Chanelle’s house but they ought to and therefore we don’t think he deserves to have the benefit of the defence. I don’t think it’s quite as simple as that. They have to come to further conclusions on the basis of his action to be able to come to that conclusion and it’s that part of it that somehow is missing.

[35] Defence counsel then said:

You can tell them to consider all the evidence. In general terms I’ve told you that before but in terms of what you’re trying to get at we’re not sure what you’re trying to get at and to that extent we’re a little bit concerned to simply tell you all the evidence.

[36] The trial judge considered the matter over lunch and decided to tell the jury, as suggested by Crown counsel, that the key issue was the appellant’s state of mind at the time he stabbed the deceased, but that in determining his state of mind at that time, they were entitled to consider the whole of the evidence, including the appellant’s choices during the day. He would also leave the door open by telling them that if they needed further instructions, they should ask for them.

[37] The trial judge then recalled the jury and gave instructions on the two questions they had asked. With respect to the first question, he told them:

May I deal with the first question first. Again, when we consider Nolan’s actions during the day – I’m sorry, in reference to section 34(2)(a) and (b), when we consider Nolan’s actions during the day, are we to consider the entire sequence of events and his choices or just the choices he made at the car?

May I answer your question this way, the key matter or issue under both section 34(2)(a) and 34(2)(b) is the state of mind or the mental state of the accused as defined by section 34(2)(a) and 34(2)(b) at the time of the stabbing.

However, in considering the state of mind or the mental state of the accused as defined by section 34(2)(a) and (b) at the time of the stabbing, you are entitled to consider the whole of the evidence including the acts, including the whole sequence of events and including the acts and choices of the accused during the day as well as his acts and choices at the time of the stabbing in the car.

[38] After dealing with the second question, the trial judge concluded his instructions as follows:

What I should make clear is that if you require further clarification with respect to either one of those questions please feel free to ask. That’s what we’re here for. So thank you very much.

[39] I have set out parts of the colloquy in some detail because the legal question raised by the appellant must be answered, not in a vacuum, but in the context both of what was considered by counsel and the trial judge at the time as well as the decision that was made at the time as to how to proceed. I should note that no further concern or objection was raised by defence counsel following the answers given to the jury.

[40] What appears from the discussion is that defence counsel ultimately was concerned about the possibility that the jury would think that the accused may be disentitled from relying on self-defence because of certain actions he took or choices he made in the laneway and afterward, but before the attack. However, unlike the Jenkins line of cases where s. 34(1) was also put to the jury, there was nothing in the original charge that could have caused the jury to think that acts of provocation by the accused would disentitle or disqualify him from relying on s. 34(2).

[41] As all counsel and the trial judge observed, it was unclear what the jury’s concern was in asking the question. Both sides viewed the earlier actions as possibly helping their own view of the circumstances. The Crown had properly suggested that if the jury concluded that the accused had, in effect, set up the situation for a second confrontation with the intent of using the knife, they could use that as evidence that he did not believe that he could not preserve himself other than by using the knife. That would be evidence that went to the issue under s. 34(2)(b). It would be evidence they could use, but not a disqualifying condition, per se, as provocation is under s. 34(1).

[42] After due consideration, and with full cognisance of the potential problem, the trial judge determined that the best approach was to give an accurate and simple answer to the question, without trying to address issues that may well not have been in the jury’s mind and which were not raised by the main charge or the addresses of counsel. The answer, which told the jury to focus on the accused’s state of mind at the time of the stabbing, was both correct and helpful. The answer also told them that in deciding that state of mind, they could use all of the evidence and not artificially limit themselves to the immediate events in the car. That answer would have the double effect of clarifying for the jury that any action by the accused earlier in the day could affect their analysis under s. 34(2), but that no such action would disqualify or disentitle him, as a matter of law, from relying on self-defence.

[43] In terms of a Jenkins analysis, nothing in the charge would have led the jury to believe that if they thought the accused provoked the assault by the deceased, he was thereby deprived of the defence of self-defence. It is most likely that the jury was seeking clarification about what use it could or should make of the events from earlier in the day in the context of the s. 34(2) analysis, and that question was answered accurately and helpfully. I would not give effect to this ground of appeal.

(3) Did the trial judge err by failing to instruct the jury on self-defence under s. 34(1)?

[44] Defence counsel did not ask for an instruction under s. 34(1), nor did counsel object that the trial judge did not give that instruction. In R. v. Pintar (1996), 1996 712 (ON CA), 110 C.C.C. (3d) 402 (Ont. C.A.), this court made it clear that trial judges are not obliged to charge on self-defence using all the sections of the Code, because of the confusion that can be caused. Rather, trial judges are to assess the air of reality for each description of self-defence and determine, in that context, which sections should be left for the jury’s consideration. At p. 417, the court set out the following reason for requiring trial judges to take a practical approach:

On a practical level, in those cases where s. 34(1) remains theoretically available, it is often difficult, if not impossible, to imagine a scenario wherein the jury would reject the wider justification afforded by s. 34(2) and apply s. 34(1) to acquit. The question then becomes whether the risk of confusing the jury and complicating the charge justifies the inclusion of instruction on s. 34(1), when its application is at best tenuous and its scope of justification narrower than that available under s. 34(2).

[45] In this case, the trial judge determined, in accordance with Pintar, that although s. 34(1) was theoretically available, the best approach was to leave the jury with the broader formulation of self-defence under s. 34(2). Under s. 34(1), the accused cannot have provoked the attack by the deceased. In this case, the issue of whether the appellant’s actions provoked the attack could have been troublesome for the jury and problematic for the defence. It would have required a Jenkins charge and carried the risk that the jury would focus on the appellant’s provocative rather than his defensive actions. Second, the jury would have had to wrestle with the position that the deceased’s actions of hitting the appellant with a metal rod were apprehended by the appellant as potentially causing him grievous bodily harm or death, while the appellant’s own action in response, stabbing the deceased with a knife, was not so intended. Furthermore, under s. 34(1), the jury must be satisfied that the stabbing amounted to no more force than was necessary to repel the attack.

[46] In my view, the trial judge made no error in concluding that in this case “the real basis upon which the claim to self-defence rests” (Pintar, p. 416) was not under s. 34(1) but under the broader definition of self-defence in s. 34(2), and in charging the jury on that basis.

CONCLUSION

[47] For these reasons, I would dismiss the appeal.

Signed: “K. Feldman J.A.”

“I agree Robert J. Sharpe J.A.”

“I agree Robert P. Armstrong J.A.”

RELEASED: “KNF” August 15, 2005