R. v. Forde, 2011 ONCA 592

CITATION: R. v. Forde, 2011 ONCA 592

DATE: September 14, 2011

DOCKET: C49128

COURT OF APPEAL FOR ONTARIO

Feldman, LaForme and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cedric Forde

Appellant

James Lockyer and Brian Snell, for the appellant

Lucy A. Cecchetto, for the respondent

Heard: May 31, 2011

On appeal from the conviction entered by Justice Christopher Speyer of the Superior Court of Justice, sitting with a jury, on September 28, 2007.

H.S. LaForme J.A.:

OVERVIEW

[1] The appellant admitted killing Clive McNabb, the former spouse of his common law partner, Carol Allamby. However, he testified that he killed McNabb in self-defence by stabbing him once with a knife after McNabb moved towards him with an open knife. The appellant further testified that McNabb had violently attacked him on two previous occasions.

[2] The appellant was charged with second-degree murder. Following a trial by jury, he was acquitted on the murder charge but convicted of manslaughter. The principal issue at trial was whether the Crown proved beyond a reasonable doubt that the appellant did not act in lawful self-defence. Implicit in the jury’s verdict is a rejection of the appellant’s position that he killed McNabb in self-defence.

[3] The principal issue on appeal is whether the trial judge erred in various alleged respects in his jury instructions concerning the elements of self-defence in s. 34(2) of the Criminal Code, R.S.C. 1985, c. C-46. I conclude that the trial judge erred in one respect: by permitting the jury to consider the appellant’s failure to retreat from his home in assessing the reasonableness of the appellant’s response to the threat he perceived from McNabb. That error was fatal in my view, and thus a new trial is required.

BACKGROUND

[4] As I would allow the appeal and order a new trial, my review of the evidence is limited to what is necessary to dispose of the central issue on appeal.

[5] The appellant and Allamby were involved in a long-term relationship. They lived in an apartment that the appellant had leased about one month before the events giving rise to the charge. The stabbing of McNabb took place in the bedroom of their apartment.

[6] The common link between the appellant and McNabb was Allamby, who, in addition to being the appellant’s common law wife, was also the mother of McNabb’s two children.

[7] At trial, the defence led evidence of two prior incidents of violent behaviour by McNabb against the appellant. One of the incidents took place approximately two-and-one-half years prior to the stabbing; the other approximately one month prior. This evidence was tendered by the defence in support of the assertion that McNabb had a propensity for violence against the appellant and was the aggressor in the fatal confrontation between them. Although the Crown disputed the nature, extent and responsibility for the prior two incidents between McNabb and the appellant, there was ample evidence of animosity between the two men before the date of the killing.

[8] McNabb had a full-time job as a computer technician and ran a small computer business. He and the appellant also both dealt in drugs. Indeed, McNabb supplied the appellant and Allamby with drugs and was allowed to use their premises as a base to sell cocaine. The appellant acknowledged his own drug-dealing activities in his evidence at trial. He testified to keeping several knives in various rooms, specifically the bedroom and bathroom of the apartment, to be used in the event that trouble arose during drug transactions.

[9] The evidence at trial established that on the day of the killing an acquaintance of the appellant and Allamby named Lori Mazzei mentioned to McNabb that a man named Joe Grasso was at the appellant’s and Allamby’s apartment. Grasso apparently owed McNabb a drug debt. McNabb went to the appellant’s apartment with the apparent intention of collecting his money from Grasso.

[10] The stabbing occurred in the bedroom of the apartment. McNabb went into the bedroom to confront Grasso about the drug debt. Allamby reproached McNabb for entering her bedroom and an argument occurred between them. The defence evidence was that McNabb either pushed or slapped Allamby.

[11] The appellant then entered the bedroom and, after he and McNabb began to argue, Allamby left the bedroom. The defence evidence was that McNabb pulled out a knife and threatened the appellant with it. The appellant then grabbed for a knife that was hidden in a closet and stabbed McNabb once, after which McNabb slumped to the floor.

[12] When the police arrived at the front door of the apartment building, they were approached by Allamby and Mazzei, who let the officers into the building and led them to the apartment. The police found McNabb on the floor of the bedroom in a seated position with his back against a chair. He was unresponsive and had no pulse. There was a stream of blood coming from his mouth and a large pool of blood located around him. A knife belonging to McNabb with his blood on the blade was found by the police on the floor near his body. The knife was in a closed position. The death of McNabb was caused by a single lethal stab wound to the chest.

[13] The foregoing is a general account of some of the evidence adduced at trial that gave rise to the appellant’s conviction. I refer to other evidence relevant to the issues on appeal as I proceed through my analysis.

ISSUES

[14] At trial, counsel agreed that the trial judge should only charge the jury on self-defence under s. 34(2)[^1] and not under the other self-defence provisions in the Criminal Code. The trial judge also charged the jury on the intent for murder and provocation. Both the Crown and the defence were provided with draft and final copies of the charge. Counsel did not raise any objections to the charge.

[15] For the first time on appeal, the appellant raises several issues concerning the trial judge’s charge on self-defence. The appellant submits that the trial judge committed three errors in the portion of his charge on the elements of the defence of self-defence under s. 34(2):

1. The trial judge erred in asking the jury to consider whether the appellant was unlawfully assaulted.

2. The trial judge erred in suggesting to the jury that self-defence was not available if the appellant was the initial aggressor.

3. The trial judge erred in permitting the jury to consider whether the appellant ought to have retreated from his own home as a factor in assessing the availability of self-defence under s. 34(2).

[16] Also in relation to self-defence, the appellant contends that the trial judge ought to have instructed the jury on the availability of other self-defence provisions in ss. 37 and 41 of the Criminal Code.

[17] The appellant advanced two further grounds of appeal in his written submissions. First, he objected to the admission at trial of evidence of his general propensity for violence for purposes of balancing evidence concerning the deceased’s specific propensity for violence. This ground of appeal was abandoned in oral argument.

[18] In addition, the appellant raised a ground of appeal concerning the conduct of the trial Crown (not the Crown on appeal), saying that her conduct resulted in a miscarriage of justice. He did not press this ground in oral argument and conceded that the impugned conduct of the trial Crown was unlikely to be sufficient to warrant a new trial. There is no reason to canvass this issue in view of the result I reach.

[19] As I explain more fully below, I would give effect to the appellant’s third argument concerning the trial judge’s instructions on s. 34(2). In particular, I conclude that the trial judge erred in his instructions on s. 34(2) of the Criminal Code by permitting the jury to consider whether the appellant ought to have retreated from his own home. In my view, the authorities establish that, in the circumstances of this case, “retreat” was not a proper factor for the jury to consider. That the jury was allowed to do so amounts to an error in law that requires a new trial.

ANALYSIS

Instructions on self-defence under s. 34(2)

[20] For ease of reference, I first set out the provisions of s. 34(2) of the Criminal Code:

34. (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.

[21] Self-defence under s. 34(2) requires proof of three elements: (i) an unlawful assault against the appellant; (ii) the appellant must have had a reasonable apprehension of a risk of death or grievous bodily harm; and (iii) the appellant must have reasonably believed that it was necessary to cause harm or death to the victim in order to avoid the same fate: see R. v Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 93.

[22] The appellant alleges that the trial judge committed two errors in his instructions on the first element of the defence of self-defence under s. 34(2). One of these alleged errors was raised for the first time in oral argument on appeal. In particular, the appellant asserts that the trial judge erred in permitting the Crown to argue that McNabb was not assaulting the appellant. According to the appellant, the jury ought to have been instructed that this first element under s. 34(2) was satisfied based on the evidence at trial.

[23] The appellant’s other argument in connection with the first element of the defence is that the trial judge erred in instructing the jury that whether or not the appellant was being unlawfully assaulted turned on which one of the two men was the “initial aggressor”. The appellant says that on these instructions, if the jury were to find that McNabb was not the initial aggressor, then the jury might decide that self-defence was not available to the appellant, which would be an error in law.

[24] With respect to the third element under s. 34(2), the appellant argues that the Crown should not have made the appellant’s ability to retreat a live issue. He says that the trial judge, having permitted the Crown to raise this issue, was required to clearly instruct the jury that the appellant had no obligation to retreat from his home. It is this issue that I conclude disposes of the appeal.

[25] Because I would fully dispose of the appeal on the issue of retreat, I believe it is unnecessary to address the other two alleged deficiencies in the trial judge’s instructions on s. 34(2). I would note again that the other two alleged deficiencies are being raised for the first time on appeal and that there was no objection to the jury charge at trial.

Ability to Retreat

[26] Whether the appellant was able to retreat from his apartment was made a live issue by the Crown at trial. In cross-examination, the trial Crown explored the issue of the size of the appellant’s apartment and questioned him about how long it would have taken him to go from the bedroom to the front door. He replied:

A. In seconds, I’d say seven seconds from my bedroom to the front door if that.

[27] The following exchange then occurred in cross:

Q. And if you’re running out, I’m going to suggest it would probably take you --

A. A lot quicker.

Q. A couple of seconds?

A. Yeah.

Q. And, again sir, um – and I know your answer is going to be: I couldn’t do that. But you had that option available to you because you’re on the outside of the bedroom. Correct?

A. Ma’am, yea, and he’s pulling it [the bedroom door] open. I got dress shoes on; he’s got running shoes on. As soon as the door – and my hallway – and you can see it from the video across there I could have fall. I’ve been stabbed before by this man; I’ve been attacked by this man. I’m not taking that chance of running out and he falling on top of me. I can’t do that. I’m sorry.

Q. That was an option available to you to retreat and run out. Scream for help. Right? You could have done that?

A. Ma’am, I already experienced what happened when I tried to run off with that person. I wasn’t going to do that again.

[28] In her closing argument before the jury, the trial Crown put the issue of retreat squarely to the jury and urged them to find that the appellant could have retreated from the apartment:

[H]e gives us an elaborate explanation that he couldn’t have run, he couldn’t have asked someone to call the police, he couldn’t have asked Carol [Allamby] to call 911 even though he said she was there. … If he’s on the outside of the door, ladies and gentlemen, someone is coming at you with a knife you’re not going to be concerned that you’re [not?] wearing running shoes. I think you’re going to bolt. The door to the hallway was right there. If he wanted to pull the door why didn’t he pull that door shut open [sic]. At least he was outside of the apartment, there are other people living in the apartment. No. He goes for the knife; went for the knife because that was his initial intention. [Emphasis added.]

[29] The trial judge’s oral instructions to the jury included this general statement of the Crown’s position:

It is the Crown’s position that Mr. Forde was not acting in lawful self-defence, and could have used other options instead of stabbing the deceased but chose not to avail himself of such options.

[30] In his specific instructions on the third element of self-defence under s. 34(2), the trial judge told the jury:

Consider, as well, again the relative size, strength and positioning of Forde and McNabb, proximity of the two individuals, the suddenness of the assault by Clive McNabb, Mr. Forde’s evidence as to his state of mind when he stabbed Mr. McNabb. And the availability of other options for Cedric Forde to extricate him from the confrontation with Clive McNabb. And the likelihood of Mr. McNabb persisting in his attack. Those are all factors and questions you’ll consider. [Emphasis added.]

[31] What the trial judge did not include in his instructions, which the appellant argues constitutes reversible error, is that retreat is not a required element of self-defence under s. 34(2), nor is it even a factor to consider when the accused is attacked in his own home.

[32] There is no question that the trial judge in his charge to the jury made it clear that the issue was not whether the only way for the appellant to save himself from death or grievous bodily injury was to actually kill or cause serious injury to the deceased; rather, it was whether the appellant reasonably believed that to do so was the only way to save himself from a similar fate.

[33] In addition, the trial judge charged the jury along the lines of R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.) to the effect that the jury must understand that a person under attack must often make a decision quickly, without time for calm and detached reflection. In other words, “a person defending himself against attack, reasonably apprehended, cannot be expected to weigh to a nicety, the exact measure of necessary defensive action”. Nevertheless, I do not believe that these proper elements of his charge are sufficient to remedy the error relating to the appellant’s ability to retreat, which I now explain.

[34] The Crown’s position is that the trial judge did not suggest that there was an obligation on the appellant to retreat. Rather, he merely and quite properly left the appellant’s ability to retreat as a factor the jury could consider in deciding whether the appellant had no other means to preserve himself. In support of its position, the Crown relies on this court’s decision in R. v. Cain, 2011 ONCA 298, at paras. 9 and 11, which state:

Unlike s. 35 of the Criminal Code, s. 34(2) does not require defendants to retreat in the face of an assault, but rather permits defendants to stand their ground during the early stages of a confrontation. However, as the appellant properly concedes, the possibility of retreat is relevant to the second and third elements of the s. 34(2) defence, namely, the issues of whether the appellant did have a reasonable apprehension of death or grievous bodily harm, and whether the appellant had a reasonable belief that it was not otherwise possible to save himself from harm except by killing Willis: [Citations omitted.]

... However, had Crown counsel told the jury that the appellant was precluded from raising the defence of self-defence because he had failed to retreat at the start of the confrontation, the respondent concedes that the trial judge would have been required to give a correcting instruction. The appellant in turn concedes that Crown counsel did not explicitly make that erroneous submission to the jury. The issue for us to decide is whether there was a sufficient risk that the jury could have understood Crown counsel to be making that erroneous submission, requiring a correcting instruction from the trial judge.

[35] The Crown concedes that there are two limitations on the issue of retreat: (i) retreat is not relevant where it is not a realistic option to the accused; and (ii) people are generally not expected to abandon their homes in order to avoid engaging in acts of self-defence. However, the Crown submits that while there is no specific duty or requirement to retreat in s. 34(2), the ability to retreat is nonetheless a factor that may be taken into account in considering whether the accused had no other means to preserve himself – including in cases where the attack occurs in the accused’s own home. According to the Crown, this factor is relevant to the reasonableness of the accused’s belief that he could not otherwise save himself in the circumstances as he perceived them to be.

[36] In other words, according to the Crown, there is no absolute bar against the consideration of retreat within the household context. Rather, the home context merely attenuates or weakens considerations of retreat. The Crown submits that the trial Crown did not run afoul of these principles in suggesting in her cross-examination that the appellant had other options available to him such as screaming out, calling for help, and running out of the apartment, or in reminding the jury of these options in her closing argument. The trial Crown at no time suggested there was an obligation on the appellant to retreat from his home in order to avail himself of the defence of self-defence. Nor did the trial judge err in permitting the jury to consider as a factor the appellant’s ability to retreat.

Discussion

[37] Retreat in the context of the law of self-defence reflects the principle that killing or seriously injuring another person should only be sanctioned as a last resort and should not be permitted if other reasonable options are available. However, it is well-established at common law that different considerations apply where a person is attacked in his or her own home. These considerations are encapsulated in the rather archaic maxim “a man’s home is his castle.” The origins of the so-called “castle doctrine” lie in Lord Coke’s statement in Semayne’s Case (1604), 77 E.R. 194 (K.B.), at p. 195:

That the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose.

[38] The maxim that a man’s home is his castle has given rise to the principle that a person has the right to defend him or herself in his or her own home without the duty to retreat from the home in the face of an attack. As Cardozo J. put it in People v. Tomlins, 213 NY 240 (1914), at pp. 243:

It is not now, and never has been the law that a man assailed in his own dwelling, is bound to retreat. If assailed there, he may stand his ground, and resist the attack. He is under no duty to take to the field and the highways, a fugitive from his own home.

[39] Many states in the United States have enacted legislation reflecting the castle doctrine, while in other states, the castle doctrine is applied by the courts.[^2]

[40] In more recent English case law, on the other hand, while there is no specific requirement that a person must retreat in anticipation of an attack, the possibility of retreat is a factor for the jury to consider in assessing the reasonableness of self-defence even where the events take place in the accused’s own home: see R. v. Bird, [1985] 1 WLR 816 (C.A.); R. v. Zelda Mary M., [2007] EWCA Crim 376, at para. 28.

[41] The rationale for not requiring a person to retreat when attacked or threatened in his or her own home is not difficult to discern. It was put this way by the Minnesota Supreme Court: “[T]he house has a peculiar immunity [in] that it is sacred for the protection of [a person’s] family.... Mandating a duty to retreat for defense of dwelling claims will force people to leave their homes by the back door while their family members are exposed to danger and their houses are burgled”: State v. Carothers, 594 NW (2d) 897 (Minn 1999), at pp. 900-901 (citations omitted).

[42] Ontario jurisprudence has recognized that in a claim of self-defence, extraordinary circumstances exist when a person is on his or her own property. In R. v. Antley, 1963 CanLII 258 (ON CA), [1964] 1 O.R. 545, the majority of this court held at para. 11 that an accused person who is assaulted while “on his own property” is not required to retreat from the home. Rather, “far from retreating he would have been entitled … to use such force as was necessary to remove the complainant therefrom.”

[43] In Baxter, Martin J.A. at p. 114 quoted with approval the comments of Lord Hewart of the English Court of Criminal Appeal in R. v. Hussey (1924), 18 Cr. App. R. 160:

… In Archibold’s Criminal Pleaders, Evidence and Practice ... it appears that: “In defence of a man's house, the owner or his family may kill a trespasser who would forcibly dispossess him of it, in the same manner as he might, by law, kill in self-defence a man who attacks him personally; with this distinction, however, that in defending his home he need not retreat, as in other cases of self-defence, for that would be giving up his house to his adversary. ... [Emphasis added.]

[44] The facts in Baxter did not raise the issue of retreat and so the decision is not otherwise relevant to the issue at hand. However, I would note that Martin J.A. in R. v. Ward (1978), 1978 CanLII 3878 (ON CA), 4 C.R. (3d) 190 (Ont. C.A.) briefly dealt with retreat in the case of a woman charged with murdering her spouse in the circumstances of repeated domestic assault. In a very brief oral decision, Martin J.A. stated at para. 5: “It is not correct to say as a matter of law that self-defence is only justified where there is no other reasonable means whereby a person can retreat.” He went on to note: “The jury may well have concluded that the trial judge was summarizing the effect of s. 34, rather than merely indicating that the failure to retreat was a relevant item of evidence.” [^3]

[45] Martin J.A. did not indicate whether the events in Ward occurred in the appellant’s home. Indeed, his reasons do not specifically indicate whether a failure to retreat is a relevant item of evidence where the accused is attacked, or reasonably apprehends an attack, in his or her own home.

[46] In R. v. Boyd (1999), 1999 CanLII 2870 (ON CA), 118 O.A.C. 85, this court reviewed a trial judge’s instruction on the third element of the defence of self-defence in s. 34(2) of the Criminal Code in the context of a fatal stabbing that occurred in the appellant’s own home. The Crown at trial had cross-examined the appellant to demonstrate that he could have avoided the fatal confrontation with the deceased, who had broken into the appellant’s house and was removing items of his property. The Crown put to him the suggestion that it would have been appropriate for him to flee out the back door while the deceased was in the house. The appellant resisted this suggestion.

[47] The trial judge instructed the jury as follows:

... A failure to retreat, if there was an opportunity to do so, is only a factor to be considered in determining whether the accused believed on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm.

[48] This court held at para. 13 that the trial judge ought to have told the jury that the appellant’s failure to retreat could not assist them in determining whether the appellant had reasonable grounds to believe he could not otherwise preserve himself from death or grievous bodily harm:

It would have been better for the trial judge to avoid the use of the word “retreat”, which suggests an abandonment of the appellant’s home, and to refer specifically to the other steps which Crown counsel suggested the appellant could have taken to avoid the confrontation. It would also have been appropriate for the trial judge to tell the jury that the appellant’s failure to flee his own residence, unlike his failure to lock the front door, could not assist the jury in determining whether the accused’s conduct met the objective component of the standard set down in s. 34(2).[^4] [Emphasis added.]

[49] The issue of the relevance of retreat in the context of an attack in one’s own home has also been considered several times by the British Columbia Court of Appeal. In R. v. Proulx (1998), 1998 CanLII 6317 (BC CA), 127 C.C.C. (3d) 511, at paras. 45-46, the court referred to its prior case law, which established that an accused need not consider fleeing his or her own home when attacked there by an assailant:

The appellant has directed us to R. v. Jack (1994), 1994 CanLII 1649 (BC CA), 91 C.C.C. (3d) 446 (B.C.C.A.), a case where the accused had taken a stand in his home against an assailant rather than escaping out the back door. This Court held it to be a reversible error for the trial judge to fail to point out that the accused was not required to consider fleeing from his house. In R. v. Irwin (1994), 1994 CanLII 486 (BC CA), 49 B.C.A.C. 143 this Court said much the same thing: that if with respect to s. 34(2) the judge had suggested to the jury that the appellant could have escaped, then that would have amounted to misdirection. But a fact common to both of these cases is that the person claiming self-defence was in his residence at the time of the assault. The law is clear that flight from one's own home is not a reasonable option for self-preservation, and that the defence of self-defence will still apply even if there is another way out of the house. The rationale is that one's home is already one's last line of defence against an assailant.

The principle from Jack and Irwin, then, is simply that within one's home one need not retreat from an assailant before claiming the defence of self-defence. But although retreat may be an irrelevant consideration when one is attacked at home, it does not follow that it is also irrelevant when one is attacked elsewhere. [Emphasis added.]

[50] The Crown submits that the Court of Appeal in Proulx merely says that retreat “may” be an irrelevant consideration when one is attacked at home, which implies that retreat may be relevant in the right circumstances. I think the Crown’s proposed interpretation is belied by the court’s earlier unqualified statement: “The law is clear that flight from one's own home is not a reasonable option for self-preservation, and that the defence of self-defence will still apply even if there is another way out of the house. The rationale is that one's home is already one's last line of defence against an assailant” (emphasis added).

[51] The British Columbia Court of Appeal returned to the retreat issue in R. v. Abdalla (2006), 2006 BCCA 216, 209 C.C.C. (3d) 172. This case did not involve an attack in the accused’s home and the court was not purporting to decide whether retreat is a factor under s. 34(2) in such circumstances. However, the court at para. 22 said the following about the need to retreat when attacked in one’s own home:

A person is entitled to save himself, but self-defence is not to be used as a cloak to cover what is really murder proceeding from animus. Self-defence must be genuine. The wording of the applicable Criminal Code sections makes this plain by reference to phraseology such as "no more force than is necessary" and "he cannot otherwise preserve himself". If there is a sensible opportunity to avoid further combat, that opportunity should be taken. There are, of course, special rules relating to a person attacked in his home - the concept that "a man's home is his castle" pretty much attenuates any need to retreat in the sanctuary of one's home. [Emphasis added.]

[52] The Crown relies heavily on the emphasized passage in support of its view that retreat may be a factor where one is attacked at home. I do not think that the court’s use of the phrase “pretty much attenuates” was intended to qualify the previous language in Proulx. Indeed, at para. 24 in Abdalla, the court went on to say in regard to Proulx:

Finch J.A. (as he then was) said that, aside from the case of persons in their own dwelling home, retreat was a factor to be considered in self-defence.

[53] Further support for the view that retreating from one’s own home is not a factor for the jury to consider under s. 34(2) is found in the Supreme Court of Canada’s majority decision in R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852. In that case, the court considered the issue of retreat in the circumstances of a case of domestic abuse. More specifically, Lavallee considered the s. 34(2) requirement that a person who pleads self-defence must believe “on reasonable grounds” that it is not possible to otherwise preserve him or herself from death or grievous bodily harm. Wilson J. for the majority referred at p. 884 to: “the obvious question ... if the violence was so intolerable, why did the appellant not leave her abuser long ago?” In answering this question at pp. 888-889, she referred to the castle doctrine:

I emphasize at this juncture that it is not for the jury to pass judgment on the fact that an accused battered woman stayed in the relationship. Still less is it entitled to conclude that she forfeited her right to self-defence for having done so. I would also point out that traditional self-defence doctrine does not require a person to retreat from her home instead of defending herself: R. v. Antley (1963), 1963 CanLII 258 (ON CA), 42 C.R. 384 (Ont. C.A.). A man's home may be his castle but it is also the woman's home even if it seems to her more like a prison in the circumstances.

[54] Finally, I note that in an extensive article on the law of self-defence in Canada titled “Applying the Law of Self-Defence”, (2007) 12 Can. Crim. L. Rev. 25, Professor David Paciocco reviews the issue of retreat. He explains that while there is no duty on an accused to retreat, the failure to do so will be a relevant factor in resolving the success of the claim of self-defence. He then observes, citing Lavallee, Abdalla, and Boyd, that retreat from one’s own home is not a relevant factor (at p. 57):

There are two important limits on when retreat should be considered a factor in making these necessity determinations. First, it should not be considered to be a factor in any case unless retreat was a realistic option. So, where it is proved that the accused is a battered woman who exhibits the kind of learned helplessness that reasonably makes retreat seem to be an unrealistic option, the failure to retreat may not be important. Second, the adage that a “man's or woman's home is their castle” has led courts to accept that no one is expected to abandon their own home in order to avoid self-defence. The failure to retreat from one's own home is not, therefore, a factor that can assist in determining whether self-defence was necessary. [Emphasis added. Citations omitted.]

[55] Having regard to these authorities, I reject the Crown’s position that while retreat from one’s own home is not a necessary element to claiming self-defence, it may nonetheless be a factor for the jury to consider. By giving an instruction along the lines the Crown suggests, the danger would always remain that the jury would all too quickly leap from the factor of retreat to the inference that there is no entitlement to self-defence. As the case law referred to above establishes, a jury is not entitled to consider whether an accused could have retreated from his or her own home in the face of an attack (or threatened attack) by an assailant in assessing the elements of self-defence under s. 34(2).

[56] In the appellant’s case, the trial judge did not make this clear to the jury. On the contrary, the jury was urged by the Crown to consider the appellant’s failure to retreat from his home as a factor going to the reasonableness of his response to the perceived attack by McNabb and the trial judge improperly permitted the jury to consider this option. The trial judge was obliged to instruct the jury that they should not consider retreat as a factor in determining whether the appellant’s conduct met the standard set out in s. 34(2).

Application of the curative proviso

[57] As an alternative position, the Crown submits that there was no substantial wrong or miscarriage of justice in how self-defence was left with the jury for two reasons. First, the appellant’s answers to the Crown’s questions showed the impracticality of the Crown’s suggestion that he retreat. Second, defence counsel in his closing address also addressed the impracticality of this option.

[58] Again, I disagree with the Crown’s position. Indeed, in my view, the Crown’s argument that the option of retreating was impractical on the evidence in this case serves only to reinforce the need for the trial judge to have clearly instructed the jury that they should not consider this option. In any event, the appellant acknowledged in his testimony that the front door to his apartment was only a few seconds away from the bedroom where the stabbing occurred, and the jury may have found that the appellant had a ready escape route by which he could have avoided the fatal confrontation.

[59] In pointing to this error in the charge, I wish to be clear that the trial judge should not be faulted for his s. 34(2) self-defence instruction. As I previously noted, when presented with a verbatim copy of the charge, neither trial counsel nor the Crown raised any objection to the charge.

[60] The Crown submits that trial counsel’s views must be given considerable weight when considering the objections raised by the appellant for the first time on this appeal: R. v. Polimac, 2010 ONCA 346, at paras. 89 and 96. According to the Crown, the defence position at trial is a reason for this court to invoke the curative proviso in s. 686(1)(b)(iii) of the Criminal Code and to conclude that, despite the trial judge's erroneous instruction, no substantial wrong or miscarriage of justice occurred.

[61] Defence counsel’s position at trial is indeed relevant in assessing the seriousness of the error, but the failure to object is not determinative when a misdirection or non-direction is raised as a ground of appeal. A legal error remains a legal error even if counsel does not object or even supports the erroneous instruction: Polimac, at para. 97. Moreover, the failure to object is not determinative of whether the curative proviso should be applied: see R. v. Hill (1995), 1995 CanLII 271 (ON CA), 102 C.C.C. (3d) 469 (Ont. C.A.), at pp. 476-77.

[62] In this case, I would not apply the proviso because a jury properly instructed on the issue of retreat in the context of an alleged assault in the appellant’s own home could, acting reasonably, have reached a different verdict absent the erroneous instruction. As I have said, the jury may well have concluded that the appellant was not entitled to the defence of self-defence because his failure to retreat (or “bolt”, in the Crown’s words) from his home rendered unreasonable his belief that he could not otherwise have saved himself from harm.

DISPOSITION

[63] I would allow the appeal, quash the appellant's conviction, and order a new trial.

RELEASED:

“SEP 14 2011” “H.S. LaForme J.A.”

“KF” “I agree K. Feldman J.A.”

“I agree Karakatsanis J.A.”

[^1]: The text of s. 34(2) appears in the next section of these reasons.

[^2]: For a general discussion of the castle doctrine in the United States, see Benjamin Levin, A Defensible Defense?: Reexamining Castle Doctrine Statutes (2010), 47 Harv. J. on Legis. 523 at 534-35. In some states, the castle doctrine has been extended so as to abolish the duty to retreat even when a person is attacked outside of the home: see e.g., Fla. Stat. § 776.013(3).

[^3]: The trial judge in his summary of the Crown’s case in his charge to the jury had said: “The Crown says that the accused had ample time to get out of the apartment had she wanted, ample time to leave, but she didn’t...”

[^4]: This court set aside the conviction on another ground.