CITATION: R. v. Belance, 2007 ONCA 123
DATE: 20070226
DOCKET: C42269
COURT OF APPEAL FOR ONTARIO
LASKIN and SHARPE JJ.A. and PARDU J. (ad hoc)
B E T W E E N :
HER MAJESTY THE QUEEN
M. David Lepofsky for the respondent
Respondent
- and -
CARL MICHEL BELANCE
Susan Mulligan for the appellant
Applicant/Appellant
Heard: January 29, 2007
On appeal from the conviction entered by Justice Albert J. Roy of the Superior Court of Justice, sitting with a jury, dated September 23, 2003.
SHARPE J.A.:
[1] The appellant appeals his conviction for second degree murder.
[2] The appellant admitted that he stabbed the deceased four times in the abdomen during an altercation in a downtown Ottawa dance club. The appellant raised the defences of self-defence (s. 34 of the Criminal Code), preventing the commission of an offence (s. 27), preventing an assault (s. 37) and provocation (s. 232), and argued that the Crown had failed to prove the requisite intention for second degree murder.
[3] The trial judge ruled that there was no air of reality to self-defence or to the ss. 27 and 37 defences and refused to leave those defences with the jury. The appellant appeals that ruling and raises two other grounds of appeal: (1) that the trial judge erred in his instructions and recharge on post-offence conduct; and (2) that the trial judge erred in his instructions regarding provocation. All other grounds of appeal were abandoned by counsel in her oral submissions.
[4] The respondent submits that any error in relation to provocation is academic as there was insufficient evidence to give that defence an air of reality and that the trial judge should not have left it with the jury. In the event we give effect to any of the alleged errors, the respondent submits that we should apply the s. 686(1)(b)(iii) curative proviso.
[5] For the following reasons, I would allow the appeal, set aside the conviction and order a new trial.
FACTS
[6] A number of witnesses present at the scene testified at the trial and gave varying versions of the events leading to the death of the victim. For the purposes of this appeal, the following brief factual summary will provide the necessary background.
[7] The appellant took a concealed knife with him into a crowded teen dance club. The appellant’s cousin, Zacherie Belance, was at the club that evening. The appellant lived in the same house as his cousin and they had a brother-like relationship. Zacherie had told the appellant about the event, although the two did not go to the club together.
[8] Zacherie was seventeen years old at the time. He is small in stature: at the time of the incident he stood 5’ 6” tall and weighed 121 pounds. Zacherie accidentally bumped into a friend of the victim on the dance floor. A scuffle ensued in which Zacherie appears to have been the aggressor. The victim, Oladapo Agoro, who was there with three friends, all of who were larger than Zacherie, intervened. There was some evidence that Agoro and Zacherie pushed each other and that Agoro punched Zacherie.
[9] The appellant approached Agoro and shouted “[w]hat the fuck are you doing? That’s my cousin!”, at which point Agoro turned from Zacherie to the appellant. Some pushing between the victim and the appellant ensued. The appellant testified that Agoro prevented the appellant from going to his cousin. The appellant took out his knife and stabbed the victim four times in the lower abdomen, inflicting wounds from which the victim soon died.
[10] The appellant testified that the three men with Agoro “looked like enforcers” and that they looked “mad and angry”. There was evidence relating to the significant size differential between Zacherie and Agoro: the latter was over 6’ tall and weighed approximately 163 pounds. Agoro’s three friends were all larger than Zacherie; two of them were approximately the same size as Agoro.
[11] According to the accused’s evidence, he entered the fight between Zacherie and Oladapo Agoro, the victim, to protect Zacherie.
Q. Why did you step into the fight between Mr. Oladapo Agoro and Zacherie Belance?
A. Well, to me, it looked they were going to, like – I don’t know, just stomp on him ‘cause they’re like – they’re, like, three guys on one, so it looked like they could have – I don’t know.
Q. And what did you think was going to happen to Zach?
A. I thought he was going to get stomped on or, I don’t know, killed or something.
[12] Zacherie testified that Agoro had hit him.
[13] The trial judge refused to leave the jury with self-defence, the defence of use of force to prevent the commission of an offence (s. 27) and the defence of preventing an assault (s. 37), ruling there was no air of reality to those defences.
ISSUES
(1) Did the trial judge err in refusing to leave self-defence and the ss. 27 and 37 defences with the jury?
(2) Was there an air of reality to the provocation defence?
(3) Did the trial judge err in his instruction with respect to provocation?
(4) Did the trial judge err in his instruction with respect to post-offence conduct?
(5) If there are errors, is this a case where we should apply the s. 686(1)(b)(iii) curative proviso?
ANALYSIS
(1) Self-Defence, provocation and defence of a third party: air of reality
[14] Because self defence, provocation and defence of a third party require an initial assessment by the trial judge as to whether they possess an air of reality so as to permit the jury's consideration of them, I will address that issue first. I will then proceed to consider each defence in turn.
(a) Air of Reality: the legal standard
[15] A defence will possess an air of reality if a properly instructed jury, acting reasonably, could base an acquittal on it: R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 at para. 83 (S.C.C.). The test was defined by Cory J. in R. v. Osolin (1993), 1993 CanLII 54 (SCC), 86 C.C.C. (3d) 481 at 531(S.C.C.): “The term ‘air of reality’ simply means that the trial judge must determine if the evidence put forward is such that, if believed, a reasonable jury properly charged could have acquitted.” In R. v. Kong (2006), 2006 SCC 40, 211 C.C.C. (3d) 1 (S.C.C.) the Supreme Court of Canada adopted the dissenting judgment of Wittman J.A. in the Alberta Court of Appeal (2005), 2005 ABCA 255, 200 C.C.C. (3d) 19, holding that a trial judge erred in removing a defence from the jury on the ground that the evidence failed to establish an air of reality. At para. 175, Wittman J.A. stated:
Applying the air of reality test requires a trial judge to consider the totality of the evidence, and assumes the evidence relied upon by the accused to be true. The evidential foundation can be found or inferred from the testimony of the accused or any witnesses, the factual circumstances of the case, or any other evidence on the record. The trial judge is not to make findings of fact, weigh evidence, determine credibility, draw determinate inferences, or even assess the likelihood of success. [Emphasis added.]
[16] In a like vein, in Cinous, supra, McLachlin C.J.C. and Bastarache J. stated at para. 87:
The trial judge must review the evidence and determine whether, if believed, it could permit a properly instructed jury acting reasonably to acquit. It follows that the trial judge cannot consider issues of credibility. Further, the trial judge must not weigh evidence, make findings of fact, or draw determinate factual inferences. [Emphasis added.]
[17] The rationale behind the limited screening function performed by the “air of reality” rule is that allowing defences to go to the jury without an evidential foundation invites verdicts not supported by the evidence and serves only to confuse the jury: see Cinous, supra, at para. 50.
(b) Self-defence
[18] I agree with the respondent that on the appellant’s own evidence, there was no air of reality to the defence of self-defence. The appellant did not claim that he stabbed the victim to protect himself, but rather to protect his cousin and at trial, his counsel conceded that there was an inadequate evidential basis for trial judge to put the defence of self-defence to the jury.
(c) Defence of a third party (ss. 27 and 37)
[19] During pre-charge submissions, the appellant asked the trial judge to instruct the jury as to the defence of prevention of assaults on a third party under ss. 27 and 37 of the Criminal Code. The trial judge considered this request under s. 37 as it was common ground that if the appellant failed under that provision, he could not succeed under s. 27. For convenience, I set out both provisions:
Use of force to prevent commission of offence
- Every one is justified in using as much force as is reasonably necessary
(a) to prevent the commission of an offence
(i) for which, if it were committed, the person who committed it might be arrested without warrant, and
(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or
(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).
Preventing assault
37.(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.
[20] The trial judge ruled that there was no air of reality to the s. 37 defence and accordingly, he refused to put the defence to the jury.
[21] The trial judge identified three elements of the s. 37 defence: (i) the force must be used to defend the accused or someone under his protection; (ii) the force must be used to prevent the assault or the repetition of it; and (iii) the use of force must not be excessive having regard to the nature of the assault the force was used to prevent. The trial judge ruled that there was evidence of both the first and second elements, but found that there was no air of reality to the third element as the force used by the appellant was excessive.
[22] Although there is much to be said for the argument that the issue of proportionality of force should have been left with the jury, I need not pronounce on the issue, because as I set out below, a new trial is required on the basis of the trial judge’s jury charge and recharge on the issues of post-offence conduct and provocation.
(d) Provocation
[23] The three essential elements of the defence of provocation are: (i) a wrongful act or insult that would deprive an ordinary person of self-control; (ii) the accused was actually deprived of self-control; and (iii) the accused reacted to the wrongful act or insult quickly and before there was time for his passions to cool: see R. v. Hill (1986) 1986 CanLII 58 (SCC), 25 C.C.C. (3d) 322 (S.C.C.); R. v. Thibert (1996), 1996 CanLII 249 (SCC), 104 C.C.C. (3d) 1 (S.C.C.). In my view, there was evidence in front of the trial judge sufficient for him to find an air of reality on each of the three elements.
(i) A wrongful act or insult that would deprive an ordinary person of self-control
[24] In my view, the appellant’s evidence to the effect that he confronted Agoro out of concern for the safety of his cousin, whom he believed to have been assaulted and to be in danger, provided evidence sufficient to meet this air of reality threshold. This is supported by the trial judge’s finding in his s. 37 analysis that the appellant came to the defence of his cousin, who could be considered to be someone “under his protection”.
(ii) The accused was actually deprived of self-control
[25] The appellant’s evidence was also capable of supporting an inference that he was deprived of self-control: he claimed not to remember how many times he stabbed the victim, and used words and phrases like “automatic”, “not thinking about it”, and “it just happened” when describing the stabbing, as indicated by the following exchange:
Q. Do you know how many times you stabbed him?
A. No. All I know, it’s more than once. That’s it.
[26] The accused expanded upon his dissociation from the stabbing in cross- examination.
Q. Based on what you saw, you feel that you acted appropriately?
A. Well, no.
Q. Pardon me?
A. No. At the time, I don’t know, it just happened. It’s, like, automatic. I don’t know, but after, you know, when you think about I, no, it’s – it’s not appropriate.
[27] He also stated, “Well, I was not thinking about none of those things, so I don’t know how he appeared to me. All I say is him try to hurt my cousin. That’s what I saw him as. Somebody that’s trying to hurt my family. That’s it.”
[28] Although the appellant admitted to the Crown that once he and the victim were engaged in a struggle, there was no further danger to Zacherie, and that he did not see any wounds on Zacherie before fighting with the victim, a juror could reasonably focus on the appellant’s dissociation from the immediate effect of his actions and conclude that the appellant stabbed the victim in an immediate reaction to the harm he thought Zacherie was facing.
(iii) The accused reacted to the wrongful act or insult quickly, and before there was time for his passions to cool
[29] Although no witness at trial gave an estimate of the time between when the appellant saw the victim hit Zacherie and the appellant’s stabbing of the victim, the appellant’s evidence seems to indicate that he stabbed the victim relatively quickly after they began fighting:
A. That’s when I – I came and I – I yelled, “What the fuck are you doing? That’s my cousin. That’s my fucking cousin”. Then, that’s when he came to me.
A. Then, I – I started – I tried to push him out of my way …
A. …but he wouldn’t let me. He pushed me back. Then, we started pushing each other.
Q. And what happens then?
A. Then, after, that’s when I had the knife in my pocket. I pulled it out and I stabbed him.
[30] The testimony of Shevan Gourdet, an eyewitness, indicates that all the striking happened “[a]t the same time”.
[31] As with the objective and subjective elements of the self-control analysis, the evidence supporting provocation on this ground is admittedly not strong, but it did present the jury with some evidence on the third element for the provocation defence.
[32] In my view, there was some evidence on each of the required elements of provocation to provide an air of reality to this defence. In reaching this conclusion, I am fortified by the fact at no time did the trial Crown suggest that the defence of provocation should not be put to the jury. As neither the trial Crown nor the trial judge thought it appropriate to take provocation away from the jury on the basis of an insufficient evidentiary foundation, I would be reluctant to do so in a close case such as this when the point is raised not as a substantive ground of appeal, but as a response to an otherwise meritorious appeal relating to the trial judge’s responses to questions from the jury charge relating to that very defence.
[33] Accordingly, I reject the respondent’s submission that there was no air of reality to the provocation defence and that any defects in the jury instructions relating to provocation need not be considered.
(2) Instruction relating to provocation
[34] The appellant raises a number of points in relation to the trial judge’s instruction on the defence of provocation. It is only necessary for me to consider one point, namely, his answer to the jury’s question relating to unanimity. After some period of deliberation, the jury posed four questions requiring clarification in relation to provocation:
Please review the definition of provocation;
Please define self-control;
Please define ordinary person;
Do we have to be unanimous in deciding when the ordinary person loses self-control?
[35] The trial judge answered the fourth question in relation to unanimity as follows:
Let me put it another way to you. You must, at some point, on the question of provocation, be unanimous. The bottom line is that you have to be unanimous, but you do not have to be unanimous on every question. Some of you may feel that, for instance, that the Crown has convinced you beyond a reasonable doubt on question one, wrongful act or insult. A number of you may not feel that you have been convinced beyond a reasonable doubt. Then, a group may feel that the ordinary person test, but the Crown has convinced you beyond a reasonable doubt or the other way around. In fact, that – you know, it applies both ways. You have got to be unanimous on – that the Crown has convinced you that there – beyond a reasonable doubt that there is no provocation or you have got to be unanimous that it has not, but you do not have to be unanimous on every question, but at some point, as you’re answering these different questions, you must achieve unanimity and so, you don’t necessarily have to be unanimous in deciding when an ordinary person loses self-control. In fact, that sort of putting it – establishing for you a much, too difficult standard because it’s not for you to decide when an ordinary person loses self-control. What you must do is look at the facts of this case and say, “On the facts of this case, am I satisfied or has the Crown satisfied me beyond a reasonable doubt that an ordinary person would not lose his self-control?”
And so, as you go down in answering the four questions, the bottom line is, at some point, you have to be unanimous, but you do not have to be unanimous in answering each and every question.
You know, as an example, if you were unanimous on the –well, I do not want to start going through the process, but on the first question, if you find or have a reasonable doubt whether there was a wrongful act or insult, then, you have got to go on to the next question. On the other hand, if you find you’re satisfied beyond a reasonable doubt that there was no wrongful act or insult, that ends the matter at that point.
[36] While the trial judge was undoubtedly trying to assist the jury in answering these questions, I can only conclude that his instruction was unclear and confusing and that it did not provide the jury with the assistance it required. At best, the jury was left in the dark as to how to proceed if it disagreed with respect to one of the discrete elements of provocation. At worst, there is a substantial risk that the jury could have taken the trial judge to be saying that it would have to convict the appellant unless it was unanimous in his favour on all three elements of provocation. The jury might well have understood the trial judge’s instruction and statement that “the bottom line is, at some point, you have to be unanimous” as taking away its right to disagree.
(3) Post-offence conduct
[37] There was evidence led at trial about the appellant’s post-offence conduct. This included evidence that the appellant gave the knife to his friend and told him to get rid of it, and that the appellant had cooperated with the police.
[38] The trial judge initially instructed the jury that the appellant’s post-offence conduct might have some probative value in determining his state of mind:
If you find that what was said or done afterwards is consistent with his – that he had the necessary state of mind, in other words, that he meant to kill the victim, you may consider that evidence, together with all of the other evidence in reaching your verdict. It’s up to you to consider that evidence, along with all of the other evidence in determining whether you’re satisfied beyond a reasonable doubt, if the accused had the state of mind and was not – if you’re satisfied beyond a reasonable doubt that he was not provoked in stabbing and killing the victim.
[39] This instruction was given shortly before a break during which Crown counsel indicated to the trial judge that his instruction relating to post-offence conduct should not have been given as, on the facts of the case, it could not assist the jury in distinguishing between the guilty state of mind for manslaughter in the guilty state of mind required for second degree murder.
[40] When the jury returned the trial judge gave the following instruction:
Because the only possible verdicts in this case are either guilty as charged, guilty of second degree murder, or not guilty of second degree murder, but guilty of manslaughter, what I said to you may have been confusing and I think I should correct that. That, basically, that evidence would not be probative for state of mind at that level because of the nature of the only possible verdicts. Where post-offence conduct, either what was said or what was done, may have some probative value or be helpful to you would be in determining possibly the credibility of the accused, Mr. Belance, and you’ll recall that both counsel have referred to that about, you know, what took place afterwards and I intend to review part of that with you later on when I look at the position taken by both parties.
[41] In my respectful view, the trial judge erred in his initial instruction relating to post-offence conduct and his attempted correction of this error fell well short of what was required to correct his earlier instruction. The appellant admitted that he had stabbed the victim and it is well established that in such circumstances, post-offence conduct has no probative value in determining the intent of the accused: see R. v. Archangioli (1994), 1994 CanLII 107 (SCC), 87 C.C.C. (3d) 289 at 301 (S.C.C.). While the trial judge recognized his error, his reinstruction failed to reverse the effect of his original comments to the jury in clear and understandable language. His instruction relating to the bearing of post-offence conduct on credibility is confusing. I agree with the submission that he should have clearly instructed the jury that the appellant’s post-offence conduct had no probative value as to the appellant’s state of mind and that he erred in failing to do so.
(4) The proviso
[42] The respondent submits that should we find the trial judge erred, we should apply the s. 686(1)(b)(iii) curative proviso on the basis that the Crown’s case was overwhelming and the defence was “transparently meritless”. While I agree that the Crown’s case was strong and the defence far from compelling, I am not persuaded that this is a case for the curative proviso. The Crown has not satisfied me that the verdict would necessarily have been the same if the error had not been made: R. v. Hebert (1996), 1996 CanLII 202 (SCC), 107 C.C.C. (3d) 42 at para. 7 (S.C.C.)
CONCLUSION
[43] Accordingly, I would allow the appeal, set aside the conviction and order a new trial.
“Robert J. Sharpe J.A.”
“I agree J. Laskin J.A.”
“I agree G. Pardu (ad hoc)