CITATION: R. v. Scotney, 2011 ONCA 251
DATE: 20110401
DOCKET: C46687
COURT OF APPEAL FOR ONTARIO
Feldman, Lang and LaForme JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Troy Scotney
Appellant
Brian Snell, for the appellant
Alison Wheeler, for the respondent
Heard: September 23, 2010
On appeal from conviction entered by Justice Ian S. McMillan of the Superior Court of Justice, sitting with a jury, dated September 23, 2005.
Feldman J.A.:
[1] The appellant and the deceased were strangers who taunted each other into a fight that turned out to be fatal for the deceased. The appellant was charged with second degree murder after he stabbed the deceased with a knife during the fight. His only defence was self-defence. The trial judge charged the jury only on s. 34(2) of the Criminal Code. The jury rejected self-defence but convicted the appellant of manslaughter, having concluded either that he did not have the intent for murder, or because they accepted that the accused was provoked, thereby reducing murder to manslaughter.
[2] On this appeal, the appellant says that the trial judge erred by failing to charge the jury that they could also find self-defence based on ss. 34(1) and 37 of the Code. I would dismiss the appeal. Although the appellant was entitled to have the jury consider every definition of self-defence that could be applicable, I agree with the trial judge that there was no air of reality to the application of s. 34(1), taking the facts at their highest. No one addressed s. 37 at trial. However, I agree with the respondent on appeal that there was also no air of reality to an application of s. 37. Nor did either section fill a gap left by s. 34(2) on this record.
Facts
[3] The appellant testified in this case, as did several witnesses to the events. For the purposes of considering the availability of the various configurations of self-defence, we must take the best case for the appellant, which was his own description of the event. Where other witnesses differed, I have included some of their observations.
[4] Intending to start a new life in Sault Ste. Marie, the appellant rented a room in a house and spent the next day, October 1, 2004, fishing. He returned at night carrying his gear, went to a pub then walked home. As he neared his new home, he encountered the deceased, McWatch (also known as Witzell), walking with his girlfriend. There were in fact two girls walking home with McWatch. The deceased was quite drunk (his blood alcohol ratio was later tested at 197 milligrams in 100 millilitres of blood), and was calling out to people as he walked along. When the appellant stepped off the sidewalk to let McWatch’s group pass, McWatch called him a “fuck’n nigger.” (The appellant is not a black man.) The appellant recalled that he raised his hands and said “I don’t know what it is but I don’t want anything to do with it.” And McWatch responded: “So that’s how it’s going to be, eh? Well, okay, we’ll see about that.”
[5] According to the girls who were with McWatch, the appellant put his hand on McWatch’s arm, the two men argued, the girls told McWatch to come on and he said: “okay, I am not in the mood anyway.” According to the appellant, McWatch put down the case of beer he was carrying and attacked the appellant from behind by smashing him on the back. The appellant said “I don’t want to fight you. I don’t want anything to do with you,” but McWatch struck him again on the back, then walked away toward the building where the appellant had just rented a room.
[6] The appellant described McWatch as a much bigger man than himself. In fact he was taller but lighter than the appellant. He was also a lot younger: McWatch was 22 while the appellant was 38 years old. The girls described McWatch as a muscular guy who looked strong and like he was probably into sports.
[7] The appellant then became concerned about his situation. His landlord had told him that there was a group of people who had partied the night before. He felt that McWatch could be part of a group that he should fear. He felt confused about his whole new situation and concerned for his safety in his new home and whether he would be able to stay there. He walked to a nearby parking lot where he retrieved his fishing knife from his duffle bag and put it inside the lining of his nylon jacket. He did not want to go home without a means of protection and testified that: “It looked like there was going to be some trouble.”
[8] The appellant did not know exactly where McWatch had gone, but he thought he might be in the residence next door to his. On returning to his house, the appellant started yelling up, saying: “I don’t know where you are, you son of a bitch. Where you are and how many of you there are, ok, but you better, you know, just show yourselves.” McWatch then came to a second story window and made some sarcastic comments. The appellant yelled obscenities and warned McWatch not to come near him again. He also called him a “goof” or a “fool”. That brought McWatch downstairs.
[9] The appellant walked to the enclosed porch at the front of his residence. Marlene Patterson, who also lived in the house, was standing at the door. The appellant testified that he told her he had been attacked. As the deceased approached the house, he told her to get inside. He felt that “this was going to be for real” and that things were “escalating out of proportion, fast.”
[10] McWatch came onto the porch and punched the appellant, cutting the inside of his mouth and cracking the bridge of his nose. He pulled the appellant off the porch. The appellant was bleeding profusely and half-stunned. When McWatch let go of him for a moment, the appellant pulled off his jacket as he feared that McWatch would otherwise immobilize him by pulling his jacket up over his head. The appellant fell and while he was on the ground, he removed the fishing knife from his jacket and hid it under his shirt.
[11] After the appellant stood up, McWatch attacked him again, striking the appellant in his stomach and chest. The appellant fell, then crawled over to a truck where he raised himself up against the truck then brandished the knife at McWatch who was standing three feet away. He told McWatch to “get the fuck off me and get off my property now.”
[12] In response, McWatch tried to get the knife. He threw his body weight into the appellant against the truck, held the appellant’s left arm, which held the knife, then struck the appellant twice more, once in the jaw and once in the chest. In response, the appellant stabbed McWatch in the chest by thrusting the knife in as hard as he could. He explained that by then he could barely physically support himself. He testified that:
I don’t – I wasn’t even thinking on a level anymore of, of what I’m going to do or how I’m going to do it. This is happening within seconds. I didn’t – there was no thoughts. This was a fight.
[13] McWatch then staggered back and collapsed, whereupon the appellant screamed out “no”, threw the knife away and approached the deceased to try to help him. He yelled toward the house for someone to call 911, then called 911 himself on his cell phone, telling the operator that he had been attacked and that he defended himself, and he tried to administer CPR. He said he was in shock.
[14] Upon later examination, the appellant had no broken bones, but the doctor felt he had suffered a facial smash and there were abrasions on his knee. The deceased’s blood was found on the appellant’s track pants, on the tailgate of the truck, and on the screen door of the porch, while the appellant’s blood was found on the porch.
[15] The cause of death was hemorrhage due to a single penetrating stab wound that severed the aorta five centimetres above the heart. The pathologist identified an abrasion at the lower edge of the wound apparently caused by the hilt of the knife. There were also some areas of abrasion and a laceration on the right thumb.
The Trial
[16] The appellant was charged with second degree murder. His defence was self-defence. At trial, the Crown submitted that none of the self-defence sections in the Code could apply and that self-defence was not available to the appellant. Defence counsel originally asked the trial judge to charge the jury on ss. 34(1) and 34(2) of the Code. The trial judge suggested, referring to this court’s decision in R. v. Pintar (1996), 1996 CanLII 712 (ON CA), 30 O.R. (3d) 483 (C.A.), that only s. 34(2) should be left with the jury. Defence counsel agreed with the trial judge’s analysis, but asked for time to think about the issue. He did not renew his request. He also asked that the jury be charged on provocation, which, if accepted, would reduce the appellant’s culpability to manslaughter from murder. The trial judge accepted that submission. During its deliberations, the jury asked the court to clarify the definition of self-defence and what is not self-defence, following which, the trial judge repeated his charge on the law of self-defence. Ultimately, the jury convicted the appellant of manslaughter.
Issues
[17] The appellant says that the trial judge made three errors of law that require this court to order a new trial:
(1) The trial judge erred by failing to leave the jury with two further routes to self-defence, s. 34(1) and s. 37 of the Code;
(2) The trial judge erred by failing to give a Baxter instruction as part of his charge on s. 34(2), that tells the jury that they should not weigh to a nicety the actions of the appellant in the heat of the moment;
(3) The trial judge failed to sufficiently clarify the elements of self-defence in response to the question from the jury.
Relevant Code Provisions
- (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) 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.
Analysis
Issue 1 – Failure to leave ss. 34(1) and 37
[18] In Pintar, this court set out a functional structure for trial courts to use to determine which of the self-defence provisions should be left with the jury in any particular case in order to avoid the confusion that consistently arose when all the sections were left, while at the same time giving the accused the maximum benefit of the available provisions. In articulating this approach, Moldaver J.A. carefully explained the latter point at p. 496:
Let me be clear about the underlying purpose of the functional approach in the context of self-defence. The functional approach is not designed to remove legitimate cases of self-defence from the jury's consideration; nor is it meant to impinge upon the principle that an accused is entitled, as a matter of law, to have all defences put to the jury that are realistically available on the evidence. Rather, its purpose is to relieve against some of the confusion and complexity that has plagued self-defence instruction by enabling trial judges to be somewhat more selective and proactive in the formulation of their instruction. It is designed to encourage trial judges to pinpoint the real basis upon which the claim to self-defence rests and communicate that defence to the jury in as clear and comprehensible a fashion as possible.
[19] I set out again the four part test from Pintar:
(1) Consider the evidence carefully with a view to determining the essence of the claim to self-defence and the Code provision(s) realistically available to that claim.
(2) To the extent that the evidence fails the air of reality test in respect of one or more of the constituent elements of a particular provision, that provision should not be left with the jury.
(3) To the extent that the evidence clearly establishes one or more of the constituent elements of a particular provision, Crown counsel should be encouraged to admit the underlying facts and thereby avoid unnecessary legal instruction.
(4) Where a particular provision affords the accused a wider scope of justification than a companion provision, the narrower provision should only be put to the jury if the evidence lends an air of reality to the factual underpinnings of that provision, and the provision somehow fills a gap unaccounted for in the justification afforded by the wider provision.
[20] Moldaver J.A. explained that the purpose of the fourth part of the exercise is directed in particular to the relationship between ss. 34(1), the narrower self-defence provision, and 34(2), the wider one. He observed that often in murder cases, although there may theoretically be a way that s. 34(1) could apply, when the evidence is examined practically and logically, it is difficult to imagine a scenario where the jury would reject self-defence under s. 34(2), but accept it under s. 34(1).
[21] That was how the trial judge in this case analyzed the evidence in the pre-charge discussion with counsel, and came to the conclusion that only s. 34(2), the wider provision, and not s. 34(1), should be left with the jury. On appeal defence counsel renews the submission, ultimately abandoned by defence counsel at trial, that under s. 34(2), the jury may have rejected the requirement that the appellant was under a reasonable apprehension of death or grievous bodily harm from the deceased. In those circumstances he submits, s. 34(1) could fill the gap.
[22] The problem with this approach is the one identified by the trial judge: there is no air of reality to the application of s. 34(1) to the evidence in this case. Under s. 34(1), the accused cannot have provoked the victim’s assault, he cannot have intended to cause death or grievous bodily harm, and the force cannot have been more than was necessary to enable him to defend himself.
[23] Addressing only the third requirement, since the appellant deliberately stabbed the deceased forcefully in the chest with a knife, if he did not reasonably apprehend that he was in danger of death or grievous bodily harm from the deceased, it would not be logical to say that the force he used was not more than was necessary to defend himself.
[24] There are also serious problems with the first and second requirements. Taking the case at its highest for the appellant, the deceased had returned to his room when the appellant yelled up at him, taunting him, swearing at him and eventually calling him a name. Counsel submits that there was no invitation to fight. However, it was the appellant who instigated a reaction from the deceased which the jury could well have viewed as provoking the assault by the deceased.
[25] Finally, under s. 34(1), the appellant cannot have intended to cause death or grievous bodily harm. I first want to address the case law that states that where there is an issue whether the accused intended to cause death or grievous bodily harm, the trial judge should instruct the jury on both ss. 34(1) and (2). (See R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96 (C.A.) at p. 111.)
[26] In my view, this direction was intended to apply, as it states, where there is an issue, raised by the evidence, regarding the intent of the accused. Both in Baxter, as well as other case law that has followed it on this point, such as R. v. Mulligan (2006), 2006 CanLII 15625 (ON CA), 80 O.R. (3d) 537 (C.A.), where the appellant said his rifle discharged accidentally, and R. v. Kong, 2006 SCC 40, [2006] 2 S.C.R. 347, where the appellant acknowledged that he waved a knife possibly touching the victim but did not stab him, the evidence of the force used by the accused was capable of being construed as an unintended response. For example, in Baxter, although the accused fired many shots from his shotgun, on his version of events, he was shooting over the victims’ car to scare them off and did not intend to shoot anyone.
[27] In this case, although the appellant testified that when he brandished the knife it was not his intention to stab McWatch “in the first place” but just to tell him to get off of him, after McWatch hit him twice more he stabbed McWatch as hard as he could in the chest. On that evidence, no issue could be raised regarding the intent to cause grievous bodily harm. The analysis is similar to this court’s assessment in R. v. Tallen (1995), 1995 CanLII 466 (ON CA), 24 O.R. (3d) 77 (C.A.) at p. 81 where the court explained:
At no time did the appellant testify that he did not intend to stab Copeland. Further, the appellant used his weapon, knowing that the metal part of it was approximately ten inches in length. The evidence of the pathologist Dr. Sengupta was that the weapon would have had to go into Copeland’s body eight or ten centimetres, which would mean approximately two-thirds of the blade would have gone into the body. Dr. Sengupta testified that the force used would have to have been considerable for the blade to pass through the lower front chest wall, the diaphragm, the liver, and into the aorta. While the above-noted evidence might fall short of establishing that the appellant did not intend to cause death, it is incapable of raising an evidentiary foundation that he did not mean to cause grievous bodily harm. The jury’s finding that the appellant was guilty of manslaughter supports the contention that the jury found that the appellant intended to stab Copeland. Accordingly, a proper instruction could have been limited to s. 34(2) of the Code…
[28] The fact that appellant’s trial counsel, who took the opportunity to consider the issue overnight, did not renew his request to leave s. 34(1), is a strong indicator that to do so would have caused confusion and not benefitted the appellant. Of course the trial judge had come to the same conclusion. In my view, he made no error in doing so.
[29] At trial, no one raised in pre-charge discussions the potential applicability of s. 37. On appeal, counsel submits that because s. 37 can apply even when the accused intended death or grievous bodily harm and did not reasonably apprehend death or grievous bodily harm to himself, that section could fill a gap if the jury rejected self-defence under ss. 34(1) and (2). Again, there is no air of reality to the suggestion that the appellant’s act of deliberately and forcefully stabbing the deceased could be viewed as proportional if he did not reasonably perceive himself to be in danger of death or grievous bodily harm.
[30] In reply submissions, counsel suggested that the jury could also have rejected s. 34(2) self-defence on the basis that there was no unlawful assault by McWatch, in which case s. 37 could fill the gap. Examining the Crown’s closing, it is true that the Crown tried to minimize the deceased’s role in the fight, but it was in the context of how threatened the appellant really felt for his safety. There was no serious issue that the deceased had come down from his room to fight the appellant. Although the lawfulness of the assault by the deceased was left as the first element under s. 34(2) for the jury to decide, it was not an issue open to serious doubt on the record.
[31] In my view, counsel and the trial judge made no error by not referring to s. 37.
Issue 2 – Failure to give a Baxter instruction
[32] In Baxter, Martin J.A. made the following statement:
[I]n deciding whether the force used by the accused was more than was necessary in self defence under both s. 34(1) and 34(2), the jury must bear in mind that a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety, the exact measure of necessary defensive action. [Citations omitted.]
[33] This court recently confirmed in R. v. Onigbinde (2010), 2010 ONCA 56, 251 C.C.C. (3d) 15 (C.A.) that it is an error of law not to give a Baxter instruction where either s. 34(1) or 34(2) is relied on.
[34] The trial judge in this trial, which was held in 2005, four years before this court’s decision in Onigbinde, followed Watt’s Manual of Criminal Jury Instructions and did not include a Baxter instruction as part of the charge on s. 34(2). The instruction was not requested, nor was any objection taken. Although it is an error of law not to give the instruction, the seriousness and significance of the error must be assessed in each case to determine whether the error would have had any effect on the jury’s consideration of the issues. In Onigbinde and in R. v. Hebert, 1996 CanLII 202 (SCC), [1996] 2 S.C.R. 272, there were other serious errors requiring the courts to order a new trial. Neither court stated that the Baxter error alone would have required that result. Nor was a new trial ordered in Baxter itself.
[35] In my view in this case, the absence of a specific Baxter instruction was mitigated by other aspects of the charge. One was the trial judge’s review of the evidence the jury could consider as part of their assessment of whether the appellant acted in self-defence as defined. Although the trial judge properly balanced the appellant’s version of events with the observations of other witnesses regarding who had the upper hand in the fight, the trial judge’s description of the appellant’s testimony would have made it clear to the jury that they could accept his reactions as being legitimate ones for the purposes of the defence. For example, as part of the evidence going to whether the appellant reasonably believed Mr. McWatch was going to inflict death or grievous bodily harm on him, which evidence the trial judge told the jury was also relevant to whether the appellant reasonably believed he could not otherwise save himself, the trial judge charged the jury as follows:
Troy Scotney testified that he brandished the knife to ward off Trevor Witzell, and that Troy Scotney was in fear for his life. He was in fear because of what he had suffered in other cities. Trevor Witzell was fighting him for the knife. The situation he described as a “nightmare”. It was dark, raining heavily, and to the knowledge of the accused, there were no other persons in the vicinity. The two were grappling for the knife, and in examination-in-chief, the accused testified that he was struck again by Trevor Witzell. Troy Scotney’s repeated efforts to warn off Trevor Witzell were unsuccessful.
[36] Also, the legal instructions explaining how the jury should approach the issue of whether the appellant reasonably believed he could not otherwise save himself, although they did not specifically include the Baxter wording, would have indicated to the jury that the subjective component was a state of mind of the appellant and that the reasonableness aspect superimposed only the attributes of an ordinary person, not an extraordinarily calm person who had the fullness of time to gauge an appropriately proportional reaction.
[37] I quote those instructions in full:
The third question: Did Troy Scotney reasonably believe that he could not otherwise save himself from being killed or seriously injured by Trevor Witzell?
This question also requires you to consider not only Troy Scotney’s state of mind when he used force against Trevor Witzell, but also what a reasonable person would believe in the same circumstances.
Did Troy Scotney believe that he could not save himself from being killed or seriously injured by Trevor Witzell other than by killing or seriously injuring Trevor Witzell? Would a reasonable person have the same belief in the same circumstances?
Belief is a state of mind, Troy Scotney’s state of mind. To determine whether Troy Scotney believed that he could not save himself from being killed or seriously injured by Trevor Witzell, other than by killing or seriously injuring Trevor Witzell, you should consider all the evidence. You should consider what Troy Scotney and Trevor Witzell did or did not do; how they did or did not do it; and what they said or did not say.
You should look at their words and conduct before, at the time and after Troy Scotney used force against Trevor Witzell. All these things, and the circumstances in which they happened may shed light on Troy Scotney’s state of mind at the time. They may help you decide whether Troy Scotney believed that he could save himself from death or serious injury only by killing or seriously injuring Trevor Witzell. Use your good common sense.
Troy Scotney’s belief must also be reasonable in the circumstances as Troy Scotney knew or honestly believed them to be. Would a reasonable person in those circumstances have a similar belief in the need to kill or seriously injure Trevor Witzell to preserve himself from a similar fate?
A reasonable person is sane and sober, not exceptionally excitable, aggressive, or fearful, a person who has the same powers of self-control that we expect our fellow citizens to exercise in society today.
The danger that Troy Scotney was in, or honestly and reasonably believed himself to be in does not have to be immediate. The immediacy, or otherwise of it, however, is a factor for you to consider in assessing the honesty and reasonableness of Troy Scotney’s belief.
The issue involved in this question is not whether the only actual way for Troy Scotney to save himself from death or serious injury from Trevor Witzell was to kill or cause serious injury to Trevor Witzell. The issue is whether Troy Scotney honestly and reasonably believed that to do so was the only way to save himself from a similar fate.
[38] To summarize on this ground of appeal: although it was an error not to give the Baxter instruction, in light of the circumstances that no request or objection was made by counsel at the time, and that the other contents of the charge sufficiently indicated to the jury that self-defence was available on this record, depending how they viewed the evidence, I would not give effect to this ground of appeal. In my opinion, no substantial wrong or miscarriage of justice was occasioned by the error in this case.
Issue 3 – Whether the trial judge adequately answered the jury’s question on self-defence
[39] During their deliberations, the jury asked the following question: “Please define unlawful death for us again. Could we have it in writing as mentioned in question number two?” After discussing the meaning of the question with counsel, the court called in the jury and asked for clarification. After retiring, the jury returned and the foreperson explained: “What the jury would like to clarify is the definition of self-defence and what is not self-defence according to the law.” The court asked further questions including whether the jury needed the evidence repeated. The foreperson responded, no, that they knew the evidence. With the acquiescence of counsel, the trial judge then recharged on self-defence giving the full legal instruction but without the review of relevant evidence.
[40] The appellant submits that this answer did not provide the required assistance to the jury contemplated by Cory J. in R. v. S.(W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at pp. 528 and 530. In particular, he raises again that the recharge should have included reference to ss. 34(1) and 37 and a Baxter instruction.
[41] I would not give effect to this ground of appeal. The trial judge specifically addressed the concern raised by the jury by repeating the portions of the charge that dealt with the definition of self-defence. Counsel agreed with this approach. Having decided to leave s. 34(2) as the only configuration of self-defence that had an air of reality, there was no basis for the court to charge on another section in answer to the question from the jury. What I have already discussed regarding the Baxter issue also applies in the context of answering the jury’s question.
Conclusion
[42] I would dismiss the appeal.
RELEASED:
“APR -1 2011” “K. Feldman J.A.”
“KF” “I agree S. E. Lang J.A.”
“I agree H.S. LaForme J.A.”