COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Mohamed, 2014 ONCA 442 DATE: 20140605 DOCKET: C55990
Rouleau, Lauwers and van Rensburg JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Abdi Mohamed Appellant
P. Andras Schreck and Candice Suter, for the appellant Michael Bernstein, for the respondent
Heard: March 4, 2014
On appeal from the conviction entered on December 5, 2008, by Justice Anne M. Molloy of the Superior Court of Justice, sitting with a jury.
Rouleau J.A.:
OVERVIEW
[1] Abdi Mohamed was charged with second degree murder after a barroom altercation during which he fatally stabbed the bartender/owner. After a trial by judge and jury, he was convicted of the lesser included charge of manslaughter. At trial, the appellant argued that he had acted in self-defence. He appeals his conviction on the ground that the trial judge erred in her charge to the jury on self-defence. Specifically, he argues that the trial judge erred in instructing the jury that the self-defence provision in the former s. 34(2) of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”), was not available to the appellant if the jury concluded that the victim’s attack on the appellant immediately preceding his death was an act of self-defence on the victim’s part. Further, he argues that the trial judge erred in not leaving the former s. 35 self-defence provision with the jury. These self-defence provisions have since been repealed and replaced with a single new section of the Code, namely the new s. 34 as it came into effect on March 11, 2013, pursuant to the Citizen’s Arrest and Self-defence Act, S.C. 2012, c. 9. The appellant advances the further argument that the new s. 34 should be interpreted as applying retroactively so as to define the limits of the defence of self-defence available to him in this case. Unless otherwise noted, my references to ss. 34 and 35 are to the sections as they appeared before the 2013 amendments.
FACTS
[2] The appellant, his half-brother Mohamed Hassan, and an acquaintance Abdi Farah, were drinking on the night of August 18, 2004. They were already “pretty drunk” by the time they entered Ross Bar, around 10:30 or 11 p.m., and met up with “Mo”, an acquaintance of Farah. They were refused service in Ross Bar and headed next door to Jupiter Bar, entering at 11:31 p.m. What happened over the next three minutes resulted in the death of the bar owner, Pathiaga Peiris, and forms the subject matter of this case. The events were captured by four video cameras, three covering different but somewhat overlapping areas within Jupiter Bar and one covering the entrance area outside the bar. The parties accept as accurate the following summary prepared by the trial judge of the events as captured on video and reproduced in a set of PowerPoint slides combining frames from all four cameras:
[The appellant, Abdi Farah, and “Mo”] proceeded to the bar area where Mr. Peiris was located. However, Mohamed Hassan turned around almost immediately after entering and headed back outside.
Meanwhile ... Abdi Mohamed and Mo are creating quite a disturbance in the bar. They are angry that Mr. Peiris refused to serve them. After this first exchange with Mr. Peiris, Abdi Mohamed initially walked away from the bar, kicking over a chair, then a table and then another chair on his way back towards the front door. Then he turned back and headed straight to the bar area, picked up a billiard ball from one of the billiard tables and hurled it at Mr. Peiris who was behind the bar. The ball rolled back out into the room, Mr. Mohamed picked it up and threw it again at Mr. Peiris. Mo also threw some object at Mr. Peiris and then picked up a chair and threw it at the bar. At this point, Abdi Mohamed turned and headed back through the room towards the front door. Mr. Peiris came out from behind the bar carrying a piece of metal pipe and ran after Mr. Mohamed.
When Abdi Mohamed was about halfway back to the front door, he turned and faced Mr. Peiris while continuing to move backwards towards the front door. Mr. Mohamed can be seen pulling up his shirt and reaching into the area around his waistband. It seems apparent that it is at this point that Mr. Mohamed pulled a knife, although the knife is never visible on the video. Mr. Peiris continued to advance with the metal pipe clenched in both hands and Mr. Mohamed continued to move backwards towards the front entrance.
When Abdi Mohamed was about two-thirds of the way to the entrance door, Mr. Peiris raised the metal bar above his head, using both hands, and swung at Mr. Mohamed.
It appears from the video that this first swing by Mr. Peiris did not connect with Mr. Mohamed. However, Mr. Peiris wound up again and again raised the pipe over his head, swinging at Mr. Mohamed. At this point, Mr. Mohamed was very close to the exit. This swing connected and gashed the top back portion of Mr. Mohamed's head.
After Mr. Mohamed was hit, he and Mr. Peiris made physical contact and Mr. Mohamed's arm can be seen coming around Mr. Peiris' back. … This is the point at which a fatal knife wound was inflicted on Mr. Peiris. Mr. Peiris buckled at the knees and at this point Mo, who had been advancing from behind him, grabbed at Mr. Peiris and struggled with him. Mr. Peiris fell to the ground at a point just outside of the cameras range, not far from the front door.
[3] At that point, the appellant immediately left Jupiter Bar, as captured by the video camera recording the entrance area outside the bar.
[4] In the course of pre-charge discussions with counsel, the trial judge was called upon to rule on the proper wording of the charge on s. 34(2) and whether to charge on s. 35. The trial judge considered the wording of s. 34(2) and, in particular, the requirement that a person seeking to rely on s. 34(2) be acting in response to an “unlawful assault”. She determined that the threshold issue to be decided by the jury was whether Mr. Peiris was acting in self-defence during the altercation with the appellant. In particular, she concluded that, if the jury were satisfied beyond a reasonable doubt that Mr. Peiris was acting in self-defence, then he was acting lawfully and s. 34(2) was not available to the appellant. This, she reasoned, is because the appellant can only be acting in self-defence if he is repelling an “unlawful assault”.
[5] The trial judge then considered the self-defence provision in s. 35. Provided that certain conditions are met, s. 35 offers a defence to an initial aggressor, that is, to a person responding with force to an assault he has himself provoked or otherwise triggered by an earlier assault of his own. Some preconditions to the application of s. 35 do not appear in s. 34(2). For instance, s. 35 requires that the initial aggressor retreat as far as feasible before he may justifiably defend himself with force against the counter-attack he has provoked or triggered.
[6] Section 35 is also different in another respect. It applies to an accused who is responding to an “assault” as opposed to responding to an “unlawful assault” as provided in s. 34(2). The trial judge considered this difference in wording and determined that the unlawfulness requirement should be read into s. 35. She reasoned that an assault, by definition, was unlawful and that, as a result, the absence of the word “unlawful” in s. 35 was of no moment. ”Assault” in s. 35 should be given the same meaning as “unlawful assault” in s. 34(2). Therefore, if the jury concluded that Mr. Peiris was acting in lawful self-defence, the appellant could not be responding to an “assault”.
[7] The trial judge then compared the defence available under s. 34(2) and the defence offered by s. 35. She concluded that, because of the additional requirement of retreat imposed by s. 35, s. 35 provided a more limited defence than s. 34(2) and could not benefit the appellant if the jury rejected the s. 34(2) defence. She therefore determined that putting s. 35 to the jury would add nothing in the circumstances of this case and s. 35 should not be left with the jury.
ISSUES
[8] The following three issues are raised on appeal.
Did the trial judge err in instructing the jury that self-defence under s. 34(2) was not available to the appellant if they were satisfied beyond a reasonable doubt that Mr. Peiris was acting in self-defence?
Did the trial judge err in not leaving s. 35 with the jury?
Do the recent amendments to the self-defence provisions of the Code apply retroactively to this case?
ANALYSIS
1) Did the trial judge err in her interpretation of [s. 34(2)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)?
[9] Section 34(2) provides as follows:
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.
[10] In R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3, at p. 12, Lamer C.J., writing for a majority of the Court, articulated the elements of s. 34(2) as follows:
It can be seen from the wording of s. 34(2) of the Code that there are three constituent elements of self-defence, when as here the victim has died: (1) the existence of an unlawful assault; (2) a reasonable apprehension of death or grievous bodily harm; and (3) a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary.
With respect to the third element, this court has clarified that it is not necessary that an accused invoking s. 34(2) have had the intention to kill or cause grievous bodily harm at the time he defended himself, but only that he have reasonably believed that he could not preserve himself from death or grievous bodily harm otherwise than by using the force he in fact used to repel the assault: R. v. Pintar (1996), 1996 CanLII 712 (ON CA), 30 O.R. (3d) 483; R. v. Fudge (1997), 1997 CanLII 640 (ON CA), 103 O.A.C. 153. As Moldaver J.A. explained in Pintar, at pp. 510-11, when the passage quoted above from Pétel is read in context, it is clear that Lamer C.J. did not mean to “suggest that the intent to kill or cause grievous bodily harm forms a constituent element of that provision.”
[11] The appeal here centers on the trial judge’s instruction on the first element, the requirement that the accused be responding to an unlawful assault. Specifically, is the jury to consider the lawfulness of the assault committed by the victim from the victim’s perspective or from the perspective of the appellant? In other words, even if the jury are satisfied beyond a reasonable doubt that the victim was acting in self-defence, i.e. lawfully, is it nonetheless open to the jury to decide that, viewed from the appellant’s perspective, it was reasonable for the appellant to believe that the assault he was repelling was unlawful?
[12] The trial judge was of the opinion that the jury should approach the question of the lawfulness of the assault committed by the victim from the perspective of the victim. As a result, she instructed the jury that if they were satisfied beyond a reasonable doubt that Mr. Peiris was acting in lawful self-defence, “then Mr. Mohamed cannot be said to be acting lawfully when he stabbed Mr. Peiris and there would be no need for you to consider the next section of these instructions dealing with the issue of self defence as it relates to Mr. Mohamed.”
[13] In my view, the trial judge erred in limiting the jury in this way. In fairness to the trial judge, the appellant’s trial counsel (not the same as counsel on appeal) did not object to this aspect of the charge. This may well have been due to her belief that the s. 35 defence should and would be left with the jury. She understood that s. 35 offered a broader defence to the appellant and was therefore more favourable than s. 34(2). As it turned out, the trial judge disagreed with the appellant’s trial counsel and the jury was not charged on s. 35. The error in the charge on s. 34(2), however, is an error of law and the fact that defence counsel did not object to this aspect of the charge is not a bar to it being raised on appeal: see e.g. Pintar, at pp. 519-20, where Moldaver J.A. concluded that “defence counsel’s failure to raise appropriate objections at trial” to the jury instructions on s. 34(2) was “not fatal [to the defence’s appeal of those instructions] having regard to the nature of the errors and their potential prejudicial effect on the appellant’s primary defence”; R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 37, where Lamer C.J., writing for a majority of the Court, stated that “defence counsel’s failure to object to a jury charge is not determinative” and stressed that ultimately “the jury charge is the responsibility of the trial judge and not defence counsel.”
[14] As noted above, the Supreme Court of Canada dealt with the interpretation of s. 34(2) in Pétel. Writing for the majority, Lamer C.J. cautioned that the jury should not be instructed to view the situation from the victim’s perspective. He explained, at p. 13, that deciding first whether the victim was acting lawfully in self-defence “would amount in a sense to trying the victim before the accused.” The correct approach to s. 34(2), according to Lamer C.J., ibid., is to approach it from the perspective of the accused:
In a case involving self-defence, it is the accused’s state of mind that must be examined, and it is the accused (and not the victim) who must be given the benefit of a reasonable doubt. The question that the jury must ask itself is therefore not “was the accused unlawfully assaulted?” but rather “did the accused reasonably believe, in the circumstances, that she was being unlawfully assaulted?”
In other words, the appellant’s actions in response to those taken by Mr. Peiris have to be assessed in terms of what the appellant reasonably believed.
[15] This interpretation was reaffirmed in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 94, where the Court stated that:
Each of the three elements under s. 34(2) has both a subjective and an objective component. The accused’s perception of the situation is the “subjective” part of the test. However, the accused’s belief must also be reasonable on the basis of the situation he perceives. This is the objective part of the test. Section 34(2) makes the reasonableness requirement explicit in relation to the second and third conditions. Pétel held that the same standard applies to the first component of the defence, namely, the existence of an assault. With respect to each of the three elements, the approach is first to inquire about the subjective perceptions of the accused, and then to ask whether those perceptions were objectively reasonable in the circumstances. [Emphasis added.]
[16] What an accused must show in order to meet the “unlawful assault” requirement in s. 34(2) was explained by Professor David M. Paciocco (as he then was) in his article “Applying the Law of Self-defence” (2007) 12 Can. Crim. L. Rev. 25, at p. 66, as follows:
i) the accused was being unlawfully assaulted (as an objective fact); or
ii) the accused:
a. subjectively apprehended that he or she was being unlawfully assaulted; and
b. evaluated objectively, it was reasonable for the accused to believe that he or she was being assaulted; and
c. the assault the accused reasonably apprehend[ed] would (as an objective fact) be an unlawful assault
[Emphasis in original.]
[17] The Crown acknowledges that Pétel is the governing authority but submits that the appeal should be dismissed on two bases.
[18] First, the Crown argues that Pétel stands for the proposition that
the law [of] self-defence permits reasonable mistakes to be used in justification, when those mistakes relate to the questions of fact (eg. whether there was assault). Mistakes, reasonable or otherwise, of law – for example, a mistaken belief by the accused that the assault he experienced or apprehended was unlawful – are not permitted.
[19] The Crown’s second response is that any error in the trial judge’s s. 34(2) instruction was harmless. In the Crown’s submission, “if the jury was satisfied beyond a reasonable doubt [that] Mr. Peiris acted in self-defence … then they had to have concluded that there existed no evidence upon which a properly instructed jury acting reasonably could have acquitted, at least in respect of the objective component of the unlawful assault in section 34(2).”
[20] I will deal with each of the Crown’s arguments in turn.
a) Is an error as to the “lawfulness” of an assault an error of fact or an error of law?
[21] The appellant acknowledges that the accused is not entitled to act on his belief as to what the law is. He does not argue that he had a reasonable but mistaken belief as to the legal elements of self-defence. Rather, he argues that when Mr. Peiris approached him swinging the metal pipe, he reasonably believed that Mr. Peiris was assaulting him and that the assault, as he perceived it, was unlawful.
[22] The appellant submits that, when the jury views the various videos of the altercation and considers them from the perspective of the appellant, they may well reasonably conclude that Mr. Peiris’ conduct and actions, as they would have been perceived by the appellant at the time and in context, constituted an unlawful assault and would not be understood to be acts of self-defence. In the circumstances of this case the evidence allowed for the seemingly inconsistent finding that, although Mr. Peiris was acting in self-defence, it was nonetheless subjectively and objectively reasonable to conclude that, viewed from the appellant’s perspective, Mr. Peiris was acting unlawfully. The appellant’s assessment of the factual matrix differed from Mr. Peiris’ assessment and, applying the same legal test, the appellant could have reached a different result.
[23] I agree with the appellant’s submission. What Pétel tells us is that a jury, after calm and deliberate reflection on the totality of the evidence, could conclude, beyond a reasonable doubt, that a person such as Mr. Peiris was acting out of fear and in self-defence but that the other party to the altercation, the appellant, could reasonably have believed that his attacker, Mr. Peiris, was acting out of anger and seeking vengeance. In such a scenario, the appellant would be reasonably mistaken about Mr. Peiris’ motive and purpose, giving rise to a possible finding that both he and Mr. Peiris were acting in self-defence. In such a case, the appellant would have committed a mistake of fact, not a mistake of law.
b) Was the trial judge’s error harmless?
[24] The Crown’s second response is to argue that, even if we were to conclude that the jury charge was contrary to Pétel, the error was harmless. As noted earlier, the Crown argues that if the jury concluded that Mr. Peiris had acted in self-defence, the jury acting reasonably could not have acquitted the appellant because the objective component of the unlawful assault requirement in s. 34(2) could not possibly be satisfied.
[25] The Crown’s submission, in effect, is that the objective component of the unlawful assault in s. 34(2) makes Pétel irrelevant. In the Crown’s submission it matters not whether the jury views the situation through the eyes of the victim or through the eyes of the appellant. An objective assessment will yield the same result.
[26] I disagree. First, the video allows the jury to assess the situation from the perspective of both persons. Each of the appellant and Mr. Peiris was called upon to decide how to act based on the information he had or could glean from his particular point of view. Their respective points of view naturally differed. For example, Mr. Peiris would have been facing not only the appellant but would also have been aware of the presence of Mo behind him. He may, therefore, have been reacting not only to the actions of the appellant but also to the presence and actions of another potential assailant. The appellant, however, was facing Mr. Peiris and may not have been factoring in the presence of Mo or Mr. Peiris’ concern about facing at least two potential assailants. This, among other factors, may give rise to the possibility that Mr. Peiris and the appellant reached different, yet both objectively reasonable, understandings of the respective motivations and risks involved in their confrontation.
[27] The trial judge gave reasons in support of her rulings that the issue of Mr. Peiris’ self-defence should be left with the jury and that, if Mr. Peiris was acting in self-defence, then self-defence was not available to the appellant. Those reasons provide a useful summary of the considerations the jury might take into account in deciding whether Mr. Peiris was acting in self-defence at the time of the assault. The relevant considerations she listed include:
a) The fact that the appellant came into the bar with others, one of whom (Mo) was also acting in a violent, assaultive manner;
b) the degree of violence already displayed by the appellant;
c) the degree to which the appellant was intoxicated and out of control;
d) the fact that the appellant had already headed for the exit once, but returned;
e) the advisability of preventing the appellant from returning to the bar area where the presence of glass and bottles was particularly dangerous and where Mr. Peiris’ wife would also be in danger;
f) the fact that the appellant was armed with a knife; and
g) the fact that the appellant was taller, heavier and considerably younger than Mr. Peiris.
[28] All of these factors could well have weighed in favour of concluding that Mr. Peiris was acting in self-defence. It becomes immediately apparent, however, that the appellant’s perspective on many of these points would, quite reasonably, have been different. For example, the appellant may not have been taking into account the presence of Mo in the bar and, in all likelihood, would not have been aware of Mr. Peiris’ concern for his wife.
[29] Invariably a jury would have access to considerably more information about the assault than either the appellant or Mr. Peiris had at the time each had to respond to the confrontation. For example, the jury had the benefit of viewing the scene from four different camera angles and could view the recordings repeatedly, stopping or slowing them as desired. In addition, the jury is allowed time for sober reflection to interpret the events. As Professor Paciocco notes at p. 36:
The law’s readiness to justify “mistaken self-defence” recognizes that those in peril, or even in situations of perceived peril, do not have time for full reflection and that errors in interpretation and judgment will be made.
In a similar vein, Martin J.A. commented in R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96, at p. 111, that
in deciding whether the force used by the accused was more than was necessary in self-defence under both s. 34(1) and (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.
Martin J.A.’s point about not “weigh[ing] to a nicety” was quoted by both the majority and the dissent in R. v. Kong, 2005 ABCA 255, 371 A.R. 90. The reasons of the dissent were adopted by the Supreme Court of Canada in R. v. Kong, 2006 SCC 40, [2006] 2 S.C.R. 347.
[30] Put another way, each of the victim and the appellant can, in the heat of the moment, viewing the scene from different perspectives and benefitting from different information, come to the reasonable and objectively supported conclusion that he is himself responding to an unlawful assault by the other and that his use of force is justified in response.
[31] In many instances, such a seemingly paradoxical result will not be available on the evidence. The circumstances of this case, however, are such that a jury could, in my view, after careful deliberation, reach this conclusion. The jury may have reached their verdict because they were convinced beyond a reasonable doubt that Mr. Peiris was acting in self-defence. Assuming they did, it is certainly conceivable that on the same facts, but viewed from a different perspective, they could at the same time have been left with a reasonable doubt as to whether Mr. Peiris’ conduct and motivation, as reasonably but perhaps mistakenly perceived by the appellant, amounted to an unlawful assault. The appellant was faced with Mr. Peiris moving towards him, he had already been swung at once and the second swing of the pipe hit him on the head causing a gash. The appellant had only seconds to react. An objectively reasonable conclusion available in the circumstances is that the appellant believed that Mr. Peiris was aggressively seeking vengeance despite the appellant being already in retreat.
[32] The trial judge’s misdirection prevented the jury from considering this potential route to an acquittal of the appellant. As a result, I would reject the Crown’s submission that the error was harmless.
2) Did the trial judge err in not leaving s. 35 with the jury?
[33] Section 35 of the Code provides as follows:
Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if
(a) he uses the force
(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and
(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;
(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and
(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.
[34] There are several important differences between s. 34(2) and s. 35. First, s. 35 is restricted to those cases where the person seeking to invoke self-defence is the initial aggressor in the sense that that person first assaulted the other or has provoked an assault on himself. Second, s. 35 does not contain the explicit restriction that the force used in self-defence be in response to an “unlawful assault”. Third, there is a requirement in s. 35 that the person invoking the section must have “declined further conflict and quitted or retreated from it as far as it was feasible to do so …”
[35] In the pre-charge conference at trial, both the Crown and the appellant were of the view that s. 35 applied even if the victim of the initial aggression acted lawfully in response to that aggression, so long as all other requirements of s. 35 were satisfied. The trial judge disagreed.
[36] The trial judge noted that s. 35 contemplates two different situations where the accused initiates the aggression. The first situation applies where the initial aggressor “has without justification assaulted another” and the second where the initial aggressor “has without justification provoked an assault on himself by another”. The trial judge went on to explain that because the victim’s response in the second contemplated situation is characterized as an “assault”, while the victim’s response in the first contemplated situation is not characterized, there exists an ambiguity in the section.
[37] The trial judge then did two things. First, she concluded that she should resolve the apparent ambiguity by reading into the first contemplated situation (“has without justification assaulted another”) the requirement that the victim’s response to the initial assault be an assault on the aggressor. In other words, the initial aggressor would only have the right to respond with force if he was being assaulted by the victim. This, the trial judge reasoned, made sense because the first contemplated situation is more serious. The initial aggression is an assault, whereas in the second contemplated situation (“has without justification provoked an assault on himself by another”) the initial aggression is simply a provocation. It could not be the case that s. 35 offered a broader defence to the initial aggressor who actually assaulted the victim than to an initial aggressor who merely provoked the victim.
[38] Second, the trial judge reasoned that “an action taken in self-defence could not in law be considered an ‘assault’”. It was, therefore, implicit in the description of both situations contemplated in s. 35 that the section does not apply if the victim of the initial aggression is acting in self-defence. In effect, she determined that there was no difference between the reference to an “unlawful assault” in s. 34(2) and the simple reference to “assault” in s. 35.
[39] In my view, the trial judge erred in her interpretation of s. 35. In effect, she read into the section the requirement that the assault to which the initial aggressor is responding must be an “unlawful” assault despite the absence of the word “unlawful”. Neither the words nor the context of s. 35 justify imposing such a requirement.
[40] As noted above, the trial judge justified reading words into s. 35 on two bases: that this was necessary to resolve an ambiguity and that an assault, by definition, is an unlawful assault.
[41] As to the first point, assuming that there exists an ambiguity as found by the trial judge, her resolution of that ambiguity does not help in determining whether “assault” means “unlawful assault”. That is, finding that the victim’s response to either an initial assault or initial provocation must be an “assault” leaves unanswered the primary question before us, namely, whether “assault” in s. 35 must be read as “unlawful assault”.
[42] Thus the trial judge’s reading of “assault” as “unlawful assault” rests solely on her opinion that an assault is by definition unlawful. If that view is accepted, it logically follows that “assault” will be read as “unlawful assault” both where “assault” explicitly appears in s. 35 and where, as found by the trial judge, it is implicit.
[43] “Assault” is defined in s. 265(1) of the Code. The sections that follow this definition create offences involving various forms of assault. Not all actions that come within the definition of assault will, however, be found to be unlawful or criminal in nature. As explained by Professor Don Stuart in his book Canadian Criminal Law: A Treatise,6th ed. (Toronto: Carswell, 2011) at p. 485:
Our focus here is on those instances in which an accused is exonerated following an apparently criminal act because there are circumstances which justify or excuse (legalize) her conduct. For example, one who repels an attacker with force may rely on the defence of self-defence even though she committed the actus reus of assault with the necessary mens rea.
In other words, the presence of both the actus reus and mens rea of assault does not, perforce, mean that the act is unlawful.
[44] Terms used in a statute draw their meaning in part from the context in which they are used. In s. 34, Parliament saw fit to specify that self-defence under that section would be available only to an accused who was responding to an unlawful assault. The absence of the qualifier in s. 35 suggests that a different interpretation was intended.
[45] As a result, I disagree with the trial judge’s conclusion and the Crown’s submission that the assault referred to in s. 35 is by definition unlawful. The case law supports my conclusion. Whether an “unlawfulness” requirement should be read into s. 35 has recently been commented on, albeit in obiter, by Sharpe J.A. in R. v. S.M., 2012 ONCA 255, at para. 31, as follows:
The Crown urges us to interpret s. 35 as applying only where the accused acts in response to an unlawful assault by the victim. In other words, according to the Crown, s. 35 should be interpreted to include the same qualification as s. 34(2) and render self-defence unavailable where the victim’s response was lawful. I note that there is conflicting authority on this proposition. Compare R. v. Mohamed, [2009] O.J. No. 398 (S.C), holding that s. 35 applies only where the victim’s response was unlawful with R. v. Merson (1983), 1983 CanLII 226 (BC CA), 4 C.C.C. (3d) 251 (B.C.C.A.), Taggart J.A., holding the contrary. I note as well that the refusal to read words into s. 34(2) in McIntosh makes this a difficult argument for the Crown. As it is my view that this appeal can be resolved without deciding that issue, I will assume, without deciding, that s. 35 requires only an assault and not an unlawful assault. [Emphasis in original.]
[46] In R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 S.C.R. 686, the Crown made similar submissions with respect to s. 34(2). In that case the Crown argued that, in order to read s. 34(2) harmoniously with s. 34(1) and s. 35, the words “not having provoked such assault” should be read into s. 34(2). Lamer C.J. rejected this submission and, at para. 29, explained:
It is a principle of statutory interpretation that where two interpretations of a provision which affects the liberty of a subject are available, one of which is more favourable to an accused, then the court should adopt this favourable interpretation. By the same reasoning, where such a provision is, on its face, favourable to an accused, then I do not think that a court should engage in the interpretive process advocated by the Crown for the sole purpose of narrowing the provision and making it less favourable to the accused.
[47] In my view the same reasoning applies to the present case. The requirement in s. 34(2) that the assault be “unlawful” simply does not appear in s. 35 and ought not to be read into it. As observed by Pierre-André Côté in his book The Interpretation of Legislation in Canada, 4th ed. (Toronto: Carswell 2011) at pp. 293-94:
Since the judge’s task is to interpret the statute, not to create it, as a general rule, interpretation should not add to the terms of the law. Legislation is deemed to be well drafted, and to express completely what the legislature wanted to say …
[48] Finally, the Crown argues that it would unreasonably broaden the scope of s. 35 to hold that it can apply in cases where the victim’s assault was “lawful”, that is, that the victim was lawfully using force against the accused. The Crown maintains that this would, for instance, authorize the use of force in response to a lawful arrest. The Crown’s concern appears to be shared by Professor Paciocco who states, at p. 52 of his article cited above, that “[a]s a matter of principle, an accused person cannot justify the use of self-defence to prevent a lawful interference with his or her person. As indicated, were this to be permitted, the accused could, for example, use force justifiably to resist those who are lawfully arresting him.”
[49] I understand the concern raised by the Crown but do not agree that it provides a basis to restrict the interpretation of s. 35 in the manner suggested. At the outset, I note that s. 35 is not limited to cases where the accused kills or even seriously injures the victim. It also governs the use of lesser defensive force by a person to repel a victim who has been unjustifiably “assaulted” or “provoked” and responds violently. The trial judge’s interpretation would preclude the use of any defensive force to prevent being killed or seriously injured by a victim who reasonably, but mistakenly, apprehended that his or her life was threatened. As explained by the appellant, this would mean that a robber armed with a knife but having no intention of using it, when confronted with a gun-wielding victim who reasonably feared that the robber would use the knife, must submit to being shot rather than knocking the gun out of the victim’s hand. Such a requirement is inconsistent with the general principle of proportionality underlying the defence provisions of the Code as well as normal human instincts.
[50] More important, s. 35 contains significant limits to its application. For the section to apply, the person invoking self-defence must have used force:
(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and
(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm
There is also the additional requirement that the accused must have “declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.”
[51] It is hard to imagine that a person could reasonably believe that it would be “necessary in order to preserve himself from death or grievous bodily harm” at the hands of an arresting officer, that he use force to resist the arrest, as opposed to simply surrendering. Moreover, the person invoking s. 35 must have “declined further conflict and quitted or retreated”. At the point when the person declines further conflict, he can surely be arrested without fear of death or grievous bodily harm. If the police cause death or grievous bodily harm to a person declining further conflict, then they are likely not effecting a lawful arrest (barring, of course, tragic accidents or exceptional circumstances).
[52] In conclusion, therefore, the trial judge ought to have left s. 35 with the jury and her failure to do so constitutes reversible error.
3) Should the recent amendments to the self-defence provisions of the [Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) be applied retroactively to this case?
[53] Given my conclusions on the previous issues, I do not consider it necessary to deal with the submissions on the potential retroactive application of the new self-defence provisions in the Code. The submissions to this court addressed the question whether the new provisions applied on appeal to a case that had already been tried while the old provisions were still in force. To the extent retroactivity is an issue on re-trial, the question will be whether the new provisions apply to a trial that takes place after the new provisions have come into force, but where the events and actions that form the basis of the charges occurred while the old provisions were still in force. The latter question was not argued before this court.
CONCLUSION
[54] As a result, I would allow the appeal, set aside the conviction and order a new trial.
“Paul Rouleau J.A.”
“I agree P. Lauwers J.A.”
“I agree K. van Rensburg J.A.”
Released: June 05, 2014