COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bengy, 2015 ONCA 397

DATE: 20150608

DOCKET: C57571

Strathy C.J.O., Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kimron Bengy

Appellant

Richard Litkowski, for the appellant

Michael Bernstein and Robert Gattrell, for the respondent

Heard: December 1, 2 and 3, 2014

On appeal from the conviction entered by Justice Maureen D. Forestell of the Superior Court of Justice, dated April 28, 2012, sitting with a jury.

Hourigan J.A.:

INTRODUCTION

[1] Kimron Bengy was convicted of second degree murder for his role in the stabbing death of Brandon Ramdeen during a fight in a parking lot. Mr. Bengy appeals his conviction on four grounds:

(i) He should be entitled to the retrospective benefit of the new self-defence provisions in the Criminal Code;

(ii) The trial judge erred in refusing to leave the defence of provocation with the jury;

(iii) The trial judge erred in failing to instruct the jury to apply the principles from R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, when considering self-defence; and

(iv) The trial judge erred in failing to instruct the jury to apply the principles of W.(D.) when considering prior exculpatory statements made by the appellant.

[2] Mr. Bengy’s appeal is one of four that were heard together, in which the appellants advanced a similar argument regarding the retrospectivity of the new self-defence provisions.

[3] For the reasons that follow, I would dismiss the appeal. In my view, the trial judge properly charged the jury with respect to Mr. Bengy. I am also of the view that the new self-defence provisions do not apply retrospectively to offences that pre-dated their coming into force.

BACKGROUND FACTS

[4] The events at issue occurred following a cruise that departed from Toronto Harbour on the evening of June 20, 2009. As the cruise boat returned to the harbour in the early hours of June 21, 2009, a confrontation occurred between two passengers, Leon Alexander and Andy James. Mr. Alexander was removed from the boat and confronted Mr. James again in the parking lot. A physical altercation involving a number of individuals ensued. While it is not clear what role each participant played in the fight, Edwin Modeste, Anski Julien, Edmund Benjamin and the appellant were are all in the vicinity of the fight, during which Mr. James was stabbed. He later died from his injuries.

[5] Soon after the fight, a group of Mr. James’s friends, including Dexter Regis, Collins George and Brandon Ramdeen, angrily confronted Mr. Modeste. Mr. Regis was carrying a baseball bat and asked Mr. Modeste why he stabbed Mr. James. Mr. Modeste replied that he did not stab Mr. James.

[6] Mr. Ramdeen then approached Mr. Modeste, who had been joined by some friends, including Mr. Julien, Mr. Benjamin and the appellant. Another physical fight ensued, during which the appellant fatally stabbed Mr. Ramdeen.

[7] Mr. Julien testified that soon after the second fight, the appellant told him that he stabbed the man coming at Mr. Modeste in an effort to protect Mr. Modeste. Later the same day, the appellant attended a police station and discussed his involvement in the incident with Detective Sergeant Carmine Palermo. According to Sergeant Palermo, the appellant told him that he saw a man with a baseball bat push Mr. Modeste and step back to swing at him, while a second man punched Mr. Modeste in the back of the head. When the appellant asked the two men what was going on, they rushed at him and the knife he was holding in his hand “stuck the second guy and he fell to the ground”.

[8] The appellant was charged with two counts of second degree murder for the deaths of Mr. James and Mr. Ramdeen. Mr. Modeste was charged with manslaughter for the death of Mr. Ramdeen. After a joint trial in 2012, at which neither accused testified, the jury acquitted the appellant of murder in the death of Mr. James, but convicted him of second degree murder in the death of Mr. Ramdeen. Mr. Modeste was convicted of manslaughter.

POSITIONS OF THE PARTIES

[9] In 2013, after the trial in this action, the provisions in the Criminal Code, R.S.C. 1985, c.C-46, regarding self-defence were amended. The appellant submits the new self-defence provisions, which he believes are more beneficial to his case, should be applied retrospectively.

[10] The appellant also submits there was an air of reality to the provocation defence and thus the trial judge erred in refusing to leave it with the jury. In the appellant’s view, the totality of the evidence left open a reasonable inference that the appellant lost self-control. Further, the appellant submits the trial judge wrongly decided the defence theory of provocation was incompatible with its primary theory of self-defence.

[11] In addition, the appellant submits the trial judge erred in failing to instruct the jury to apply the principles from W.(D.) when considering self-defence. He submits the trial judge’s attempts to navigate the former self-defence provisions, with W.(D.) instructions interwoven, resulted in a confusing and inadequate instruction. The trial judge failed to follow the approach to explaining credibility assessments in the context of self-defence set out by Moldaver J.A. in R. v. Reid (2003), 2003 CanLII 14779 (ON CA), 65 O.R. (3d) 723 (C.A.), which the appellant submits was required in this case.

[12] Finally, the appellant submits the trial judge erred in failing to instruct the jury to apply the principles of W.(D.) when considering prior exculpatory statements made by the appellant. The trial judge instructed the jury to consider these statements and, in particular, whether they believed the appellant made them. However, according to the appellant, the trial judge failed to explain to the jury that the statements could raise a reasonable doubt even if they were not believed.

[13] The Crown argues the new self-defence provisions have prospective application only. It also asserts that regardless of whether the new self-defence provisions apply retrospectively, the appellant was not prejudiced by the application of the old provisions at his trial.

[14] With respect to provocation, the Crown submits the trial judge correctly declined to leave this defence with the jury. In the Crown’s view, there was no direct evidence the appellant lost self-control, as the appellant did not testify and his out-of-court statements did not support this element of the defence, nor was there any circumstantial evidence capable of supporting the necessary inferences. Therefore, the Crown submits the trial judge properly excluded provocation because it failed to meet the air of reality test, not because it is incompatible with self-defence, as suggested by the appellant.

[15] The Crown also submits there was no error in the manner in which the trial judge instructed the jury to apply the principles from W.(D.) when considering self-defence. The trial judge was not required to provide the exact instruction proposed by Moldaver J.A. in Reid. Rather, her instruction must be considered in the context of the charge as a whole. The trial judge fully and adequately explained reasonable doubt with regard to self-defence, mentioning it numerous times throughout the charge.

[16] Finally, the Crown submits the trial judge did not err in her instruction regarding the appellant’s exculpatory statements. In the Crown’s view, the trial judge’s charge made clear to the jury that exculpatory evidence that is neither accepted nor rejected may still be considered in the context of the rest of the evidence when assessing reasonable doubt. The Crown adds that the charge was the product of a detailed consultation process involving all counsel and the jury was provided with a decision-tree and a written copy of the charge, which reminded them of the burden of proof beyond a reasonable doubt that was always on the Crown.

RETROSPECTIVITY OF SELF-DEFENCE PROVISIONS

[17] This appeal was argued together with R. v. Modeste (C55821), R. v. O’Connell (C57277) and R. v. Rogers (C51859). All of these cases raise the issue of the retrospectivity of the Citizen’s Arrest and Self-defence Act, S.C. 2012, c. 9. In Modeste, Rogers and the present case, the appellants argue for retrospective application of the new self-defence provisions to offences and trials that occurred before the provisions came into force. In O’Connell, by contrast, the appellant argued for retrospective application of the provisions to an offence that pre-dated the new provisions, but a trial that occurred after they came into force.

[18] As will be discussed below, the temporal situation in O’Connell has been the subject of significant debate in lower courts, while the situation in Modeste, Rogers and the present case has received less consideration. The positions of the appellants in all four cases raise a common question of statutory interpretation with respect to the retrospectivity of the new self-defence provisions. Accordingly, the same analysis applies in both situations.

[19] In my analysis of this issue, I will first consider the former self-defence provisions and their judicial criticism. Next, I will review the new provisions and the debate in the case law in the lower courts regarding the issue of retrospectivity. I will then outline and follow what, in my view, is the correct analytical framework for a determination of the issue. This framework raises the following questions:

(i) What is the nature of the presumption against retrospectivity and what is its policy rationale?

(ii) Is the Citizen’s Arrest and Self-defence Act a substantive change to the law or merely a procedural change?

(iii) Is there an exception to the presumption against retrospectivity in circumstances where the amended statute is beneficial to the accused?

(iv) If the presumption against retrospectivity applies, how can it be rebutted?

[20] For the reasons that follow, I conclude that the Citizen’s Arrest and Self-defence Act should only be applied prospectively.

The Former Self-Defence Provisions

[21] Prior to March 11, 2013, self-defence was set out in ss. 34 to 37 of the Criminal Code as follows:

34. (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.

35. 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.

36. Provocation includes, for the purposes of sections 34 and 35, provocation by blows, words or gestures.

37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

[22] These provisions shared common underlying themes and principles, but differed in their technical prerequisites. As a result, depending on the circumstances of a case, one, some or all of ss. 34(1), 34(2), 35, and 37 could apply. This has resulted in recurring debates over the scope of the defence under each provision, often in the context of deciding the provisions on which to charge a jury.

[23] The overlap of the provisions placed trial judges in an unenviable dilemma. Instructing the jury on multiple provisions would complicate and protract the charge and risk producing confusion and distraction over the technical prerequisites of the different provisions. Alternatively, instructing the jury on only a single provision risked an appeal on the basis that the defence was too narrowly restricted.

[24] The provisions were subject to ongoing judicial criticism. Indeed, as MacDonnell J. observed in R. v. Pandurevic, 2013 ONSC 2978, 298 C.C.C. (3d) 504, at para. 10:

The incoherence of the manner in which ss. 34 to 37 of the Criminal Code articulated the defence of self-defence has been the subject of uniformly withering criticism from law reformers, academics and all levels of the Canadian judiciary for more than 30 years.

[25] In R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 S.C.R. 686, at para. 16, Lamer C.J. commented:

I would observe that ss. 34 and 35 of the Criminal Code are highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects. Moreover, their relationship to s. 37 (as discussed below) is unclear. It is to be expected that trial judges may encounter difficulties in explaining the provisions to a jury, and that jurors may find them confusing. The case at bar demonstrates this. During counsel's objections to his charge on ss. 34 and 35, the trial judge commented, "Well, it seems to me these sections of the Criminal Code are unbelievably confusing." I agree with this observation.

[26] Similarly, in R. v. Pintar (1996), 1996 CanLII 712 (ON CA), 30 O.R. (3d) 483 (C.A.), at p. 492, Moldaver J.A. stated:

It is no secret that many trial judges consider their instructions on the law of self-defence to be little more than a source of bewilderment and confusion to the jury. Regardless of their efforts to be clear, trial judges often report glazed eyes and blank stares on the faces of the jury in the course of their instructions on self-defence. Disheartening as this may be, most judges tend to believe that juries are extremely adept at assessing legitimate cases of self-defence and are therefore likely to come to the right result in spite of the confusion created by the charge. While this may be true, it provides little comfort to an accused who has been convicted in the face of legal instruction so complex and confusing that it may well have diverted the jury's attention away from the real basis upon which the claim to self-defence rests.

The New Self-Defence Provisions

[27] Bill C-26 was drafted to overhaul the self-defence statutory regime by enacting a single unified section. It received Royal Assent on June 28, 2012. On March 11, 2013, the Citizen’s Arrest and Self-defence Act came into force, repealing the former ss. 34 to 37 of the Criminal Code and replacing them with a new s. 34 self-defence provision:

34. (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

[28] The test for self-defence was, therefore, simplified into three basic requirements, applicable to all cases:

(i) Reasonable belief (34(1)(a)): the accused must reasonably believe that force or threat of force is being used against him or someone else;

(ii) Defensive purpose (34(1)(b)): the subjective purpose for responding to the threat must be to protect oneself or others; and

(iii) Reasonable response (34(c)): the act committed must be objectively reasonable in the circumstances.

[29] When the first two prerequisites are met, the success of the defence will hinge on the question of the reasonableness of the responsive act. To inform this inquiry, s. 34(2) provides a non-exhaustive list of relevant considerations. None are requirements. The relevance of any factor, enumerated or not, will be a matter for the trier of fact to determine.

[30] When the new provisions came into force, the Department of Justice released a “Technical Guide for Practitioners” commenting on the changes brought about by the amendments, which notes the following:

• Parliament’s primary intent was to simplify the legislative text that sets out the defences;

• The amendment is not meant to substantively alter the fundamental principles of self-defence;

• The provision converts rigid mandatory conditions of the former provisions into factors that remain relevant and may be considered on a case-by-case basis; and

• To assist with the analysis of the reasonableness of actions taken in self-defence, the provision codifies relevant factors in a non-exhaustive list to guide judges and juries.

[31] There are no transition provisions in the legislation and nothing in it or the Technical Guide indicates any intention on the part of Parliament that the provisions apply retrospectively.

Conflict in the Lower Courts

[32] There has been significant disagreement in lower courts about the temporal application of the new self-defence provisions. Some courts have held that the amendments apply retrospectively to any trial that post-dates their coming into force date, even if the offence occurred before that date (e.g. R. v. Saunders, 2014 ONSC 4670; Pandurevic; R. v. Parker, 2013 ONCJ 195). Other courts have held that the amendments are prospective and only available if the offence post-dates their coming into force (e.g. R. v. Williams, 2013 BCSC 1774; R. v. Wang, 2013 ONCJ 220; R. v. Carriere, 2013 ABQB 645).

[33] A leading example of a retrospective application finding is the decision of Paciocco J. in Parker, at para 5:

There is, in my view, no public interest in convicting someone of an act that is considered and declared by Parliament by the time of trial to have social approval and not to be wrong, even if that declaration occurred after the event in question. It is important to remember that the principles against retroactivity that have long applied in criminal cases are related to the Rule of Law. They were intended to protect individuals from abusive state powers... Since defences are used in criminal cases to prevent deprivations of liberty, the foundational rationale for non-retroactivity is in my view undermined when it comes to new defences. To put things more simply, it would defeat the objectives of the presumption against retroactivity to apply it to new defences in criminal cases and it would result in actions, considered justifiable and legal at the time of trial, to be condemned and punished by conviction. The Charter, of course, is silent on this issue, but it does provide in section 11(i) that accused persons receive the benefit of subsequently enacted, more generous sentencing regimes. Although this provision does not address changes in defences, the values it reflects are indistinguishable from the principle I am describing; accused persons should receive the benefit of the law in place at the time of their alleged offence, as well as the benefit of new substantive provisions in effect at the time of their trials that protect their liberty interests. In my view, there is no realistic basis for presuming in such cases that Parliament must have intended to apply those rules only in the future. Instead, Parliament can and should be taken to intend that when a new defence is created, accused persons yet to be tried for previous alleged offences should have access to that defence where it operates more generously for them than the prior law.

[34] MacDonnell J. adopted a similar view in Pandurevic, at paras. 23-25:

[T]he purpose of the legislation … points firmly toward an intention that upon the coming into force of the amendments, judges and juries would immediately begin to assess claims of self-defence under the amended provisions regardless of whether the allegedly defensive acts occurred before or after March 11, 2013. That is, it points toward a retrospective application of the amendments.

To hold otherwise would put the remedial goals of the legislation on hold, and would leave the evils that the legislation was intended to cure to linger, perhaps for years, continuing to damage the repute of the administration of justice. It would leave the criminal trial courts with two versions of self-defence, one of which has been almost universally labelled as unsatisfactory. Further, it would leave those whose claim to self-defence involved conduct preceding March 11, 2013 but whose trials occurred after that date in the anomalous position of being unable to claim the benefit of amendments designed not to alter the essential nature of their defence but to clarify and to foster more reliable assessments of it.

[35] An example of the view favouring prospective application is captured in Wang. In that case, it was the accused who argued the new self-defence provisions should not apply retrospectively, as the old provisions were more beneficial to his defence. Pringle J. agreed, reasoning at para. 21:

Mr. Wang believed that he acted in self-defence at the time of the incident … and he was deemed to know what the code of conduct was for self-defence under the law at the time. To change the rules now would affect the substance of his defence. Therefore, I agree with the defence that he should be able to rely on the law as it was at the time he acted.

[36] The slightly different retrospective application proposed by the appellant in this appeal, namely, the application of the new self-defence provisions to cases in which both the offence and the trial pre-date the legislation’s coming into force, has not been the subject of such extensive judicial debate. Rather, it has been considered only once in R. v. Heydari, 2014 ONSC 2350. In this case, Campbell J. considered the intention of Parliament and the need for finality in concluding that the new self-defence provisions do not apply retrospectively to cases where both the alleged offence and the trial of the accused took place prior to the coming into force of the new legislation.

[37] To date only one other appellate court has fully considered the retrospectivity of the Citizen's Arrest and Self-defence Act. In R. v. Evans, 2015 BCCA 46, the British Columbia Court of Appeal held that the new self-defence provisions do not apply retrospectively. The Court of Appeal rejected the approach in Pandurevic, and instead concluded that the presumption against retrospectivity had not been rebutted.

[38] Overall, the case law is inconsistent and there appears to be some confusion with respect to the retrospectivity of the new self-defence provisions. Like the B.C. Court of Appeal in Evans, the following analysis resolves this issue in favour of a purely prospective application of the new self-defence provisions, such that they cannot be said to apply retrospectively to offences that pre-date their coming into force, regardless of the date of trial.

Analytical Framework

[39] The method for determining the retrospectivity of a statute is well-established in the case law. It starts from an understanding of the nature of the presumption against retrospectivity and its policy rationale. From there, the question becomes whether the legislation is caught by the presumption or if there is some exception that renders the presumption inapplicable. If the presumption applies, the final issue is whether it has been rebutted.

What is the nature of the presumption against retrospectivity and what is its policy rationale?

[40] The leading and most recent authority on the presumption against retrospectivity is the Supreme Court decision in R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272. In Dineley, the court was divided four to three over whether Parliament’s repeal of the “Carter defence” in the drinking and driving context was applicable to – and therefore removed the defence from – defendants who were tried post-amendment, but allegedly committed offences pre-amendment. The court was unanimous on the governing principle, expressed by the majority at para. 10 (and adopted by the dissent at paras. 45-47):

New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively…. However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases.

[41] Applying this principle, the court was divided over whether the amendment was properly characterized as affecting substantive or procedural rights. The majority concluded the amendment affected substantive rights and therefore applied strictly prospectively. Accordingly, the former Carter defence was available to those persons alleged to have committed offences prior to the amendment, even if their trials took place after the amendment. Conversely, the minority concluded the amendment was procedural and therefore retrospectively removed the defence from all persons tried after it came into force.

[42] Deschamps J., writing for the majority, at para. 10., explained the principle that animates the presumption against retrospectivity: “Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional.”

[43] In Carriere, Wakeling J. referred to the policy rationale behind the presumption, at para. 57, as described in Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008):

Perhaps the most fundamental tenet of the rule of law is that those who are governed by the law must have knowledge of its rules before acting; otherwise, any compliance with the law on their part is purely accidental. Citizens must have knowledge of the law before acting so that they can adjust their conduct to avoid undesirable consequences and secure desirable ones. To ensure adequate notice, the rules enacted by the legislature must be published and adequately publicized – ideally before commencement but at the latest upon commencement.… Citizens cannot comply with, rely on or take advantage of law unless they know what it is before deciding how they will behave.

[44] With these principles in mind, I turn now to a consideration of whether the presumption applies in the present case and, if so, whether it has been rebutted in the case of the Citizen’s Arrest and Self-defence Act.

Is the Citizen’s Arrest and Self-defence Act a substantive change to the law of self-defence or merely procedural?

[45] As noted above, the presumption against retrospectivity does not apply to statutes that are procedural in nature. The distinction between substantive change and procedural change is sometimes difficult to ascertain. Indeed, in Dineley, the court was closely split on this issue. The majority held, at para. 16, “The fact that new legislation has an effect on the content or existence of a defence, as opposed to affecting only the manner in which it is presented, is an indication that substantive rights are affected.”

[46] The new unified three-element framework in the Citizen’s Arrest and Self-defence Act may not have changed the scope of what is relevant to the defence. However, it changed the nature of what is relevant. Mandatory requirements were converted into discretionary factors (e.g. proportionality, provocation, the quantum of force used and the quantum of force apprehended). The substantive significance of this change manifests in the air of reality test during jury trials. The former threshold requirements that once governed whether the defence was left with the jury are now, instead, relevant considerations for the jury in determining the defence’s ultimate success.

[47] In some cases, the new self-defence provisions are more generous and in other cases they are more restrictive. The more generous elements of the new provisions include:

• The conversion of mandatory prerequisites into discretionary considerations, which means more claims will be put before juries;

• The allowance of defence of other persons not necessarily “under [the accused’s] protection”, as required under the former s. 37;

• The elimination of a strict limitation on when fatal defensive force can be used, which previously required an apprehension of death or grievous bodily harm; and

• The expansion of acts of self-defence from “use of force” to any “act” (e.g. stealing a car or breaking into a house).

[48] There are also less generous elements of the new provisions. Most significantly, they require that certain “pro-conviction” factors be considered in every claim of self-defence, such as whether other means of response were available to the accused, the nature and proportionality of the accused’s response, and the accused’s role in the incident (i.e. provocation). Such considerations were not always relevant under the old regime. For instance, the former s. 34(2) had no proportionality requirement and arguably justified excessive force if the accused was under a reasonable apprehension of death. The former provisions also did not require consideration of alternative means of response, which made it possible for self-defence to be based on “stand your ground” righteousness.

[49] The varying impacts of the defence are recognized in the case law, including cases that have found the amendments to be retrospective (e.g. Pandurevic,at para. 37) and to be prospective only (e.g.Carriere, at para. 92).

[50] In my view, these differences demonstrate the amendments are substantive rather than a mere procedural change to the law of self-defence. They impact the content and existence of the defence, as opposed to affecting only the manner in which it is presented. As the B.C. Court of Appeal recognized in Evans, at para. 30, depending on the circumstances of the case, the changes may expand or restrict the availability of the defence. Indeed, if the changes were not substantive, one would wonder why the appellants seek their benefit.

Is there an exception to the presumption against retrospectivity in circumstances where the statute is beneficial to the accused?

[51] The appellants argue that the presumption against retrospectivity does not apply when an amendment confers a benefit to accused persons. They cite the Supreme Court’s decision in Brosseau v. Alberta Securities Commission, 1989 CanLII 121 (SCC), [1989] 1 S.C.R. 301, in which L'Heureux-Dubé J. stated, at p. 318, “The so-called presumption against retrospectivity applies only to prejudicial statutes. It does not apply to those which confer a benefit.”

[52] In my view, the appellant’s reliance on this statement is misplaced. First, the statement was obiter, as the statute in question in that case was categorized neither as beneficial nor as prejudicial, but as falling within a third category of statutes that impose a penalty in order to protect the public, rather than to impose further punishment. It was this third category of statutory provisions that was held to be exempt from the presumption against retrospectivity in Brosseau. The self-defence provisions cannot be said to fall into this category.

[53] Further, L’Heureux-Dubé J. explicitly distinguished between the aspect of retrospectivity the court was addressing in Brosseau and the aspect at issue in this case, at p. 317:

The basic rule of statutory interpretation, that laws should not be construed so as to have retrospective effect, was reiterated in the recent decision of this Court in Angus v. Sun Alliance Insurance Co., 1988 CanLII 5 (SCC), [1988] 2 S.C.R. 256. That case, however, dealt with the question of the retrospective effect of procedural versus substantive provisions. The present case presents a different facet of the problem of retrospectivity.

[54] Based on this distinction, the present case is like Angus and, therefore, cannot be decided simply on the basis of Brosseau.

[55] Second, no other Supreme Court decision has distinguished between beneficial and prejudicial statutes based on the comments in Brosseau or otherwise. Not only is there no reference in Dineley that the presumption against retrospectivity is restricted to prejudicial statutes, as will be discussed below, the focus on the effect of a statute to determine its retrospectivity is contrary to the analysis mandated by the Supreme Court in Dineley.

[56] In any event, the Citizen’s Arrest and Self-defence Act changes the law of self-defence in a manner that is prejudicial to some accused and beneficial to others, depending on their particular circumstances. Therefore, a distinction between prejudicial and beneficial statutes is of no assistance in conducting an analysis of the retrospectivity of this statute.

If the presumption applies, how can it be rebutted?

[57] Like all presumptions, the presumption against retrospectivity is rebuttable. It may be rebutted where it is possible to discern a clear legislative intent that the statute in issue is to apply retrospectively. However, there is nothing in the Citizen’s Arrest and Self-defence Act that indicates any such intent.

[58] The appellants instead rely on the broad analysis undertaken by the court in Pandurevic. In that case, MacDonnell J. stated, at para. 42, that the determination of Parliament’s intent requires a consideration of all of the circumstances, including: the nature of the mischief the legislation was meant to address; the manner in which the legislation addresses it; the extent to which substantive rights would be adversely affected by retrospective application; and the consequences of a purely prospective application. MacDonnell J. then concluded, at paras. 23 and 25, that Parliament’s aim was to update the self-defence provisions, which had become an “embarrassment to the rule of law” and, that in these circumstances, a retrospective application is necessary because “[t]o hold otherwise would put the remedial goals of the legislation on hold.”

[59] I do not agree with this analysis. The presumption against retrospectivity must be rebutted by evidence of a “clear legislative intent that [the statute] is to apply retrospectively”: Dineley, at para 10. There is nothing in the record that explicitly demonstrates such intent. At its highest, there is evidence that Parliament recognized the need to clarify the law of self-defence. From this, we are asked to draw an inference that Parliament must have intended that the change take effect retrospectively.

[60] This, of course, begs the question: If the need for immediate reform of the law were so pressing, why would Parliament not explicitly make the law retrospective? Moreover, virtually any piece of legislation could be categorized as addressing a pressing issue or an important legislative change in some respect, but that does not equate with a legislative intent to make its application retrospective. As the B.C. Court of Appeal noted in Evans, at para. 33, “[T]he fact that legislation is remedial does not, by necessary implication, mean that is intended to apply retrospectively.”

[61] In addition, there is nothing offensive about applying criminal law in accordance with law in place at the time of the alleged criminal acts; certainty and predictability in criminal law builds public support for the administration of justice: Carriere, at para. 66; Evans, at para. 34.

[62] The analysis propounded by the appellants is also premised on seeking the answer to the wrong question. As Wakeling J. said in Carriere, at para. 62, “The important question is whether Parliament intended the new self-defence rule to apply retroactively, not whether a person relying on self-defence fares better under the old or new rules.”

[63] Focusing on the impact of the legislation is not the analysis mandated by the Supreme Court in Dineley. Such an approach leads to the very uncertainty that the presumption against retrospectivity is designed to eliminate. By focusing on the impact of the legislation, we are drawn into a quagmire of attempting to ascertain the effect of the legislation on individual cases. However, this is not always a straightforward exercise, as the Citizen’s Arrest and Self-Defence Act demonstrates. In some cases, the new law is beneficial to the accused, but in other instances it is not. For example, in Wang, it was the accused who argued that the legislation should not have retrospective effect because he had a better defence under the old provisions.

[64] Further, focusing on the effects of the legislation instead of the intention of Parliament raises other problems. For example, can an accused in the situation of Mr. Wang lose the benefit of the defence he had under the existing self-defence provisions? If so, is the loss of the defence impermissible under s. 11(g) of the Canadian Charter of Rights and Freedoms as an ex post facto law? MacDonnell J. recognized, at para. 26, that this category of defendants may exist, but appeared willing to ignore their substantive rights because, in the case before him, the new legislation benefitted the accused.

[65] Presumably, the only way that the new law could be retrospective without violating s. 11(g) of the Charter would be to apply it retrospectively for some defendants but not others, depending on which application would be more beneficial based on the nature of the specific case. In cases with multiple defendants, this could lead to the very real possibility that both the old and new self-defence provisions would be applicable. Indeed, as is illustrated in R. v. Simmons, 2013 ABQB 303, 558 A.R. 384, it is also possible that a single defendant will take the position that part of his defence would benefit from the new law, while another part would be adversely affected. Would the trial judge then charge on both the old and new provisions? At that juncture, the notions of predictability and certainty that underlie the presumption against retrospectivity would be eliminated. Moreover, such a practice would run contrary to the legislative objective of simplifying and clarifying the law of self-defence.

[66] The court’s task, as mandated by the Supreme Court in Dineley, is limited to ascertaining whether there is clear evidence of a Parliamentary intent that the legislation be given retrospective effect. Absent clear legislative intent, courts have no residual discretion to rewrite the law to accord with a subjective view of optimal fairness.

[67] The presumption against retrospectivity is a long-standing doctrine. Parliament can be assumed to understand the impact of not explicitly dealing with the issue of retrospectivity in the legislation it passes. As there is nothing in the Citizen’s Arrest and Self-defence Act suggesting a contrary intention, the presumption has not been rebutted and therefore applies.

[68] Finally, I reject the argument advanced by the appellant that because he had an appeal outstanding at the time the new legislation came into force, he was still “in the system” and ought to benefit from any potential retrospectivity of the new self-defence provisions.

[69] The appellant relies on R. v. Wigman, 1985 CanLII 1 (SCC), [1987] 1 S.C.R. 246, in which the Supreme Court held that accused persons who had outstanding appeals were still “in the system” and thereby entitled to benefit from a change in the jurisprudence that required a heightened mens rea for attempted murder. The appellant asserts the same should hold true for beneficial legislative changes.

[70] As stated above, in my view, the Citizen’s Arrest and Self-defence Act is to be interpreted prospectively only. Further, the “in the system” doctrine has no application to legislative changes to the law, as distinguished from judicial changes to the law: R. v. Rollocks (1994), 1994 CanLII 8728 (ON CA), 19 O.R. (3d) 448 (C.A.), at pp. 454-55; R. v. Luke (1994), 1994 CanLII 823 (ON CA), 17 O.R. (3d) 51, at pp. 129-130; Heydari, at paras. 22, 25. A judicial change or re-interpretation signifies that the former interpretation was incorrect. Therefore, if someone was convicted under the former incorrect approach and is still in the system, he or she should be entitled to benefit from the correction. By contrast, legislative amendment does not cast doubt on the correctness of a prior law, so there is no risk of someone being convicted through an incorrect interpretation of the law. Rather, convictions occur through a proper application of the law as it existed at the time of the relevant offence: Evans, at para. 26.

[71] Therefore, I conclude that the Citizen’s Arrest and Self-defence Act does not apply retrospectively to offences that occurred prior to its coming into force.

PROVOCATION

[72] The appellant submits the trial judge erred in finding there was no air of reality to the defence of provocation and in failing to leave that defence with the jury.

[73] The Supreme Court recently enumerated the elements of provocation in R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at paras. 33-34, quoting from R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350:

First, there is a two-fold objective element: “… (1) there must be a wrongful act or insult; and (2) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control”: Tran, at para. 25.

Second, there is a two-fold subjective element: “… (1) the accused must have acted in response to the provocation; and (2) on the sudden before there was time for his or her passion to cool”: Tran, at para. 36.

[74] With regard to the air of reality test, a trial judge has a dual duty: She must put defences that pass the test to the jury and, equally importantly, she must keep from the jury defences for which there is no real factual basis or evidentiary foundation and that would invite unreasonable verdicts. The trial judge “must ask not just whether there is evidence in some general sense, but whether there is evidence that is reasonably capable of supporting an acquittal. This requires an assessment of whether the evidence relied on is reasonably capable of supporting the inferences required for the defence to succeed” (emphasis added): R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 83.

[75] In the present case, the trial judge was tasked with determining the reasonableness of the defence of provocation in the context of the potential findings of fact and inferences available to the jury. After making reference to Cinous, the trial judge concluded that there was no air of reality to the defence:

Provocation requires some evidence of a wrongful act or insult capable of causing a reasonable person to lose self-control. The evidence from Mr. Bengy’s statements that he was rushed by the men is some evidence of a wrongful act. However, provocation also requires evidence of a subjective loss of control. There is no evidence of a subjective loss of control. On the contrary, the only evidence of Mr. Bengy’s reaction to the attack comes from his statements that he purposefully entered the fight to defend Edwin Modeste, was rushed, and defended himself with the knife that he had out for that purpose.

There is, in my review, no evidence that would support a finding of a subjective loss of control. There is as a result no air of reality to provocation in this case, and it will not be left with the jury.

[76] The appellant argues that the evidence gave rise to a reasonable inference that he lost self-control. In particular, he refers to: his statements to Mr. Julien and Sergeant Palermo; the suddenness of the attack by Mr. Regis and Mr. Ramdeen; the brevity of the encounter; the inherent anger required to use a knife in the manner that the appellant did; the description by other witnesses of the attack by Mr. Regis and Mr. Ramdeen, particularly the taunting described by Mr. Julien; the absence of motive; and his relative youth.

[77] The appellant further submits that by relying on his prior statements to find there was no evidence of a subjective loss of control, the trial judge wrongly decided the defence theory of provocation was incompatible with its primary theory of self-defence.

[78] The defence of provocation can have an air of reality even if the accused has denied losing self-control. The trial judge is required to look to other objective evidence that may be indicative of the accused losing control in order to determine if there is any air of reality to the defence: R. v. Gill, 2009 ONCA 124, 241 C.C.C. (3d) 1, at para. 22; R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 33.

[79] In considering this evidence, the trial judge must focus on whether it is reasonably capable of supporting the inferences required for the defence to succeed. This is a low threshold. The issue is whether the trial judge in this case erred in her assessment. I conclude that she did not.

[80] During the course of the pre-charge conference, the trial judge asked the appellant’s trial counsel repeatedly about the evidence that might give an air of reality to a subjective loss of control. Counsel was not able to articulate an evidentiary basis that gave an air of reality to the defence and the appellant has not done so on appeal.

[81] I agree with the submission of the Crown that the factors relied on by the appellant do not separately or cumulatively leave open a reasonable possibility that the appellant lost control. First, the appellant’s statements to Mr. Julien and Sergeant Palermo support only self-defence, not provocation.

[82] Second, the suddenness or brevity of a confrontation is relevant to a consideration of whether the appellant acted "on the sudden", but is not indicative, in the circumstances of the present case, of a loss of self-control.

[83] Third, Mr. Julien testified the taunting he described occurred after the fight during which Mr. Ramdeen was stabbed. Thus, the taunting cannot constitute evidence of the appellant losing self-control before he stabbed Mr. Ramdeen.

[84] Finally, it is unclear to me how the facts that the accused used a knife, was younger than the other people involved in the confrontation, and had no motive for the stabbing equates to a loss of control or meaningfully informs the analysis in this regard.

[85] To charge a jury on the basis of these facts would be entirely speculative and inconsistent with the trial judge’s duty to keep from the jury defences for which there is no real evidentiary foundation.

[86] I also reject the appellant’s submission that the trial judge wrongly decided the defence theory of provocation was incompatible with its primary theory of self-defence. This case is distinguishable from R. v. Gauthier, 2013 SCC 32, [2013] 2 S.C.R. 403, in which the trial judge ruled that even though two defences had an air of reality, only one would be sent to the jury because the two defences were incompatible. In the present case, the trial judge did not find that the defences were incompatible. Rather, she simply noted that the appellant’s statements were supportive of his claim of self-defence and not supportive of his provocation defence.

[87] Therefore, I conclude that the trial judge did not err in declining to leave the defence of provocation with the jury.

W.(D.) INSTRUCTION AND SELF-DEFENCE

[88] The appellant submits the trial judge's instruction regarding self-defence and the principles from W.(D.) was confusing and inadequate. It is the appellant’s position that an instruction similar to the one proposed by Moldaver J.A. in Reid was required.

[89] In Reid, the trial judge instructed the jury that if they believed the evidence of the accused, they “may acquit the accused.” Similarly, the trial judge instructed the jury that even if they did not believe the accused’s testimony but it raised a reasonable doubt, they “may also acquit the accused.”

[90] Moldaver J.A.’s concern was the use of the permissive word “may”. In the present case, the trial judge did not make that error. Rather, she properly instructed the jury that in considering the first two branches in W.(D.), if a reasonable doubt is raised, they must acquit.

[91] It should also be noted that in Reid, the court did not find reversible error. Rather, it found that the charge, read as a whole, made clear to the jury that if they believed or had a reasonable doubt about whether the accused acted in self-defence, they must acquit. It was in this context that Moldaver J.A. proposed a revised W.(D.) instruction in cases involving self-defence. The proposed instruction was not meant to be mandatory and our courts have not interpreted it to be so in the more than 10 years since Reid.

[92] The focus of appellate review of jury charges is whether the trial judge adequately explained the law to the jury. No doubt some explanations are better crafted than others, but perfection is not the test. Appellate courts recognize the delicate balancing that must go into a charge. Too much detail may confuse the jury, while too little explanation may result in an inadequate instruction. For this reason, the proper approach of the appellate court is to undertake a “functional and contextual” review of the charge, read as whole: R. v. Araya, 2015 SCC 11, [2015] S.C.J. No. 11, at para. 40. There is no required W.(D.) formula that must be slavishly followed: R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 103.

[93] The issue is whether the trial judge clearly explained to the jury the role self-defence played in their reasonable doubt analysis and not whether she used a particular formula to convey the message. In my view, the charge properly instructed the jury on the interplay between the W.(D.) principles and self-defence.

[94] The trial judge made reference to the exculpatory statements that the appellant acted in self-defence and in defence of Mr. Modeste, and then told the jury that if they accepted that evidence, they must acquit. The trial judge went on to instruct the jury that:

Even if you do not accept it, if the exculpatory portion of the witnesses’ evidence, alone or taken in combination with the rest of the evidence, leaves you with a reasonable doubt, you must acquit.

[95] The trial judge also instructed the jury that there was no burden on the appellant to establish self-defence and that the Crown must prove beyond a reasonable doubt the defence did not apply.

[96] These instructions were clear and I am of the view that reasonable doubt, both generally and with respect to self-defence, was fully and adequately explained. To quote Moldaver J.A. in Reid, at para. 73, “I am satisfied that the jury would not have been misled into thinking that they could convict even though they otherwise believed or had a reasonable doubt that the appellant was acting in lawful self-defence at the time of the killing.”

[97] Accordingly, I would not give effect to this ground of appeal.

W.(D.) INSTRUCTION AND EXCULPATORY STATEMENTS

[98] The appellant submits the trial judge erred in failing to explain the proper approach to exculpatory statements to the jury. In particular, the appellant argues the instructions were inadequate because the trial judge focused on whether the statements were made, rather than whether they could raise a reasonable doubt even if they were not believed.

[99] In support of this submission, the appellant relies on the decision of this court in R. v. Bucik, 2011 ONCA 546, 274 C.C.C. (3d) 421. In that case, a new trial was ordered because the trial judge did not explain to the jury how they could use exculpatory statements. Doherty J.A., writing for the court, stated, at para. 32, that the “jury should have been told that the exculpatory portion of the statement had potential value to the defence even if it was not believed as long as it was not rejected by them as untrue.”

[100] In the present case, the trial judge instructed the jury, “[Y]ou must consider all parts of the statements that might help Mr. Bengy unless you are satisfied that he did not make them.” I agree with the submission of the Crown that this instruction is arguably more favourable to the appellant than the instruction in Bucik because, unless the jury rejected the very existence of the statements, they had to consider them in applying the reasonable doubt standard. By contrast, in Bucik, the prescribed instruction was that unless the jury found the statement to be “untrue”, it “could” be used to support the appellant’s defence.

[101] In my view, any concern about whether the jury understood the proper use of exculpatory statements is eliminated by the trial judge’s W.(D.) instruction, found three pages later in the transcript, after the section dealing with out-of-court statements. In that section, the trial judge made specific reference to the exculpatory evidence and wove that evidence into her W.(D.) analysis. In describing the second step of the analysis, she stated “[E]ven if you do not accept it, if the exculpatory portion of the witnesses’ evidence, alone or taken in combination with the rest of the evidence, leaves you with a reasonable doubt, you must acquit.”

[102] I am satisfied that the jury was properly instructed on the interplay between the exculpatory statements and the reasonable doubt analysis. I would therefore dismiss this ground of appeal.

DISPOSITION

[103] For the reasons above, I would dismiss the appeal.

Released: June 8, 2015 “GS” “C.W. Hourigan J.A.”

“I agree G.R. Strathy C.J.O.”

“I agree M. Tulloch J.A.”