COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Batson, 2015 ONCA 593

DATE: 20150902

DOCKET: C54935

Laskin, Feldman and Simmons JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyler Lee Batson

Appellant

Howard L. Krongold, for the appellant

Grace Choi, for the respondent

Heard: February 5, 2015

On appeal from the conviction entered on February 18, 2011, by Justice Albert J. Roy of the Superior Court of Justice, sitting with a jury.

Feldman J.A.:

[1] The appellant went to an apartment to make a small purchase of marihuana. Because he had once been attacked when purchasing drugs, he carried a concealed loaded handgun when he went to make a drug purchase. In this case, he pulled out his gun and soon after shot and killed a man at the apartment. He claimed the death was unintentional and that he shot the man in self-defence. He was charged with first degree murder. The trial judge charged the jury on self-defence only under s. 34(2) of the Criminal Code, R.S.C. 1985, c. C-46. The jury convicted the appellant of second-degree murder.

[2] The appellant raises two grounds of appeal: 1) whether the trial judge erred in his charge on s. 34(2); and 2) whether the trial judge erred by failing to also charge on self-defence under s. 35 of the Code.

[3] For the reasons that follow, I would not give effect to either ground of appeal.

Facts

[4] The story of the events leading to the shooting came from four witnesses: the appellant; his girlfriend, Tashi Simpson; Ms. Simpson’s friend, Agatha Krakowski; and Ms. Krakowski’s friend, Christelle Dory.

[5] Ms. Simpson and the appellant testified that on the day of the shooting, December 17, 2008, Ms. Simpson had arranged for the appellant to visit Ms. Krakowski’s apartment to buy $20 worth of marihuana. Ms. Krakowski had told Ms. Simpson that her friend Paul Marcelus was at her apartment, but Ms. Simpson testified she did not mention this detail to the appellant. The appellant also said he did not know ahead of time that Mr. Marcelus would be there.

[6] The appellant did not know Mr. Marcelus personally, but a few months earlier he had seen his cousin talking to him. When he asked his cousin whom he was talking to, his cousin told him that it was “Polo”, a guy who had once ripped him off. The appellant assumed the rip-off had occurred during a drug deal.

[7] Before the appellant left for Ms. Krakowski’s apartment on the day of the shooting, he took his loaded handgun out of the trunk of his car and put it into the front pocket of his jeans. The gun had no trigger safety and could be fired rapidly. He testified that although he had obtained the gun several years earlier, he had never unloaded it or even brandished it at anyone before. However, because he had been attacked during a drug purchase when he was 17 (he was 24 at the time of the shooting), he usually brought the gun when he was buying drugs from someone he did not know. The appellant testified that he brought the gun along on this occasion as a precaution because Ms. Simpson told him that someone would be dropping the drugs off to Ms. Krakowski’s apartment.

[8] The appellant testified that when he entered the small apartment, he saw a man sitting on the couch and assumed it was the person who was going to sell him marihuana. When he realized that the man was Mr. Marcelus, he was surprised and became concerned that Mr. Marcelus was going to rip him off. The appellant asked Mr. Marcelus if he was Polo. Mr. Marcelus said he was, and the appellant then said: “I heard that you ripped off my cousin.”

[9] According to the appellant, Mr. Marcelus reacted by dropping the cell phone he was holding, quickly rising from the couch, and making a “screwface” (tilting his head to the side and sucking his teeth), which is a sign of disrespect in the Caribbean community. Mr. Marcelus also reached behind his back as if for something in his back pocket. The appellant thought Mr. Marcelus was angry and was reaching for a weapon. A small knife was later discovered in Mr. Marcelus’s back pocket.

[10] The appellant, who was approximately the same size as Mr. Marcelus, then drew his gun, pointed it down toward Mr. Marcelus’s waist, and took a step back. He testified that he pulled out the gun to deter Mr. Marcelus and that he was trying to leave by backing out of the apartment. At that point, Ms. Krakowski and Ms. Dory ran out of the apartment. The appellant heard the door hit the wall and turned around, at which point Mr. Marcelus grabbed the gun and pulled on it. When the appellant squeezed the gun to keep hold of it, it accidentally discharged. When Mr. Marcelus kept trying to yank the gun away, the appellant fired a second time.

[11] The appellant testified that his hands were sweaty and the gun was slipping. He thought he was going to die. At that point, he screamed for Mr. Marcelus to let go of the gun, but Mr. Marcelus held strong. The appellant decided that he was not prepared to let go of the gun and run out of the apartment because of the risk that Mr. Marcelus would seize the gun and shoot him. He decided he had to shoot again and hope that Mr. Marcelus would let go. He fired two more shots, and Mr. Marcelus fell back onto the couch. After Mr. Marcelus let go of the gun and fell backwards, the appellant ran out of the apartment, drove home, changed his clothes and eventually went to his night shift job. He was arrested during his coffee break. Under interrogation at the police station, he denied any involvement in the shooting.

[12] In cross-examination, the appellant claimed he did not want to shoot the gun or hurt Mr. Marcelus. He said that before the first shot, which went off accidentally, he had no intention of firing the gun. However, when Mr. Marcelus refused to let go, the appellant thought that Mr. Marcelus would kill him if he got the gun.

[13] There was some other evidence about the sequence of events. Ms. Dory was uncertain whether the appellant pulled out the gun while Mr. Marcelus was sitting on the couch or as he was attempting to rise from the couch. However, she said that as soon as Mr. Marcelus agreed he was Polo, the appellant pulled out the gun and said: “I heard you robbed my … cousin”. She also said that she and Ms. Krakowski ran out before the gun was fired and that she heard the shots when she was outside the apartment.

[14] Ms. Krakowski testified that she saw the appellant fire the first shot after he asked Mr. Marcelus if he had robbed his cousin. However, she did not say this in her preliminary inquiry testimony.

[15] There was expert forensic evidence at trial regarding the gunshots. Mr. Marcelus had two gunshot wounds on his hands and two on his torso, as well as a graze injury on the front of his left leg. There was also some powder on one hand suggesting close proximity to the gun barrel when it discharged. At the scene, the bullets had gone through the couch to the floor and one had gone out the window behind the couch. The forensic analysis could not account for the order of the firing of the shots.

[16] Closed circuit videotape from the lobby of Ms. Krakowski’s apartment showed the appellant waiting to go up the elevator at 6:41 p.m. Three minutes later, at 6:44 p.m., he was seen leaving the building.

[17] The appellant was charged with first degree murder. The Crown’s theory was that the appellant knew from Ms. Simpson that Mr. Marcelus would be at Ms. Krakowski’s apartment, and that he went there to kill Mr. Marcelus because Mr. Marcelus had ripped off the appellant’s cousin. The defence position was that the appellant went to Ms. Krakowski’s apartment to make a small drug purchase and did not expect to see Mr. Marcelus there. The confrontation between the appellant and Mr. Marcelus was not premeditated, but escalated into a life-and-death struggle for the gun that eventually resulted in the appellant shooting and killing Mr. Marcelus in self-defence.

Issues

[18] The appellant raises two issues on the appeal. The first concerns the trial judge’s charge on s. 34(2). The issue is whether the trial judge erroneously left the jury with the impression that the s. 34(2) defence was not available to the appellant if Mr. Marcelus was acting in lawful self-defence when he assaulted the appellant. The appellant submits that the jury ought to have been told that the unlawful assault requirement in s. 34(2) would be satisfied if the appellant reasonably believed he was being unlawfully assaulted, even if Mr. Marcelus was acting in lawful self-defence.

[19] The second issue on the appeal is whether the trial judge erred by failing to also leave self-defence under s. 35 of the Code with the jury.

Analysis

(1) Did the trial judge err in his charge to the jury on s. 34(2) in his description of the requirement of an unlawful assault?

Self-defence under s. 34(2)

[20] The self-defence provisions of the Code in force at the time of the offence and trial have been repealed and replaced and are no longer in effect: Citizen’s Arrest and Self-defence Act, S.C. 2012, c. 9, s. 2. Section 34(2) of the Code, in force at the time of the offence and the trial, read as follows:

34(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. [Emphasis added.]

[21] Case law from this court and the Supreme Court of Canada has explained that the requirement of an “unlawful assault” by the victim is satisfied if there was an actual unlawful assault, or the accused reasonably believed that he was being unlawfully assaulted: R. v. Pétel, 1994 133 (SCC), [1994] 1 S.C.R. 3, at p. 13; R. v. Pilon, 2009 ONCA 248, 243 C.C.C. (3d) 109, at para. 62; R. v. S.M., 2012 ONCA 225, 291 C.C.C. (3d) 64, at paras. 19, 21, 23; R. v. Stewart, 2014 ONCA 70, 306 C.C.C. (3d) 269, at para. 22. The concept of reasonable belief includes both a subjective as well as an objective component: R. v. Cinous, 2002 SCC 29,[2002] 2 S.C.R. 3, at paras. 93-5.

[22] Consistent with that explanation, s. 34(2) can apply even if the victim’s assault on the accused was lawful because the victim was also acting in self-defence. For this to be the case, the jury must accept, or have a reasonable doubt, that the accused reasonably believed the victim’s assault was unlawful (i.e. that the victim was not acting in self-defence). Stated another way, s. 34(2) can apply where the victim is objectively acting in lawful self-defence by assaulting the accused, but the accused reasonably believes that the victim is unlawfully assaulting him: R. v. Mohamed, 2014 ONCA 442, 310 C.C.C. (3d) 123, at paras. 12-13, 16, 23.

The parties’ positions at trial

[23] The defence position at trial was that the appellant reasonably believed Mr. Marcelus unlawfully assaulted him when Mr. Marcelus dropped his cellphone, rose from the couch, made the disrespectful “screwface”, and reached behind his back as if for a weapon in response to the appellant’s comment about ripping off his cousin. The defence said that it was only then that the appellant drew his gun, which Mr. Marcelus grabbed, resulting in the ensuing struggle over the gun and the appellant’s belief that he had to shoot or be shot.

[24] The Crown’s position was that the appellant was the initial aggressor and that all of Mr. Marcelus’s actions, including grabbing the gun barrel, were lawful, self-defensive reactions to the position he found himself in (being accused of a rip-off then facing a gun at very close range).

The appellant’s submissions on appeal

[25] On appeal, the appellant submits that the trial judge misdirected the jury by suggesting to them that if they were satisfied that Mr. Marcelus was acting in lawful self-defence, then the appellant could not claim self-defence under s. 34(2). He points to the following passage in the charge:

As I said, there is other evidence for you to consider. Counsel has gone over it. The purpose of this exercise is not to cover the minutia, all of the evidence. You will remember some of the evidence. This is just a brief summary of what took place there.

It is for you to decide whether the actions of Mr. Marcelus was an assault or was he just defending himself as he is lawfully entitled to do from the assault of the accused.

Both counsel, for the Crown and the defence, ask you to make different inferences or come to a different conclusion from that evidence.

Defence asks you to conclude that when you consider all of the evidence, and I do not intend to repeat it all, it is a reasonable inference, defence is making the case, that the accused believed that he was being assaulted by Mr. Marcelus. That is the defence position; that there was an assault, that Mr. Batson reasonably believed that he was going to be assaulted by Mr. Marcelus.

Counsel for the Crown says, wait a minute, here we have Mr. Marcelus facing a pretty violent confrontation on the part of the accused. He makes the accusation about ‘‘ripped off my cousin’’ and then he is looking at a loaded 357 Magnum. What Mr. Marcelus was doing was what he was entitled to do, and he was attempting to defend himself.

So you can see the different inferences. You are going to have to make a decision; what inference you are going to make from those facts.

[26] The appellant argues further that to the extent that the trial judge also told the jury that they had to decide whether the appellant reasonably believed he was being assaulted, that did not cure the error in the charge. Rather the effect of that part of the charge was to suggest to the jury that it had to choose between finding that the appellant reasonably believed he was being unlawfully assaulted or that Mr. Marcelus was acting in lawful self-defence, and that the two were mutually exclusive.

Discussion

[27] The problem with the appellant’s argument is that the concern raised is not borne out when the isolated passage quoted above is read together the following paragraph that preceded the impugned passage:

It is not necessary that Paul Marcelus actually assaulted Tyler Batson. The issue is whether Tyler Batson reasonably believed, in the circumstances as he knew them to be, that he was being unlawfully assaulted, not whether Tyler Batson was actually assaulted by Paul Marcelus.

as well as with what immediately follows in the charge:

If you are satisfied beyond a reasonable doubt that Mr. Batson was not unlawfully assaulted or, did not reasonably believe that he was being unlawfully assaulted, Tyler Batson was not acting in lawful self-defence on this basis. Your consideration of self-defence would be at an end, because one of the essential elements of self-defence is not met, if that is your conclusion.

If you find or have a reasonable doubt about whether Tyler Batson reasonably believed that he was unlawfully assaulted, you would move on to the next question. [Emphasis added.]

[28] These further portions of the charge make it clear that either an actual unlawful assault by Mr. Marcelus, or the appellant’s reasonable belief that Mr. Marcelus was unlawfully assaulting him, would satisfy the unlawful assault component of s. 34(2).

[29] Furthermore, the earlier part of the quoted portion of the charge would have been heard and understood by the jury together with, and in the context of, the last two quoted paragraphs which immediately followed it. The trial judge put the issue to the jury using the defence and Crown arguments. The defence argued the accused believed he was being or going to be assaulted by Mr. Marcelus, while the Crown said Mr. Marcelus was attempting to defend himself in the face of an accusation and a gun drawn.

[30] The jury would have understood that when the trial judge referred to the Crown’s argument, they would not only have to consider what Mr. Marcelus was actually doing, but also the appellant’s reasonable perception of what Mr. Marcelus was doing, including whether his actions constituted an “unlawful” assault. Otherwise the latter two paragraphs quoted above would have been meaningless.

[31] The appellant also submits that counsel and the trial judge misunderstood the law because the trial took place before this court’s decision in Mohamed, where the court held that s. 34(2) could apply when both the accused and the victim were acting in lawful self-defence. As such, the charge must be viewed in that context.

[32] I agree that it appears from the record that trial Crown counsel took the position in pre-charge discussions that self-defence could not apply on these facts, relying in part on the trial judge’s decision in Mohamed, that s. 34(2) could not apply if the victim’s initial assault was in lawful self-defence. However, the trial judge disagreed with the Crown on this point, concluding instead that self-defence under s. 34(2) could apply depending on the jury’s view of the evidence and the inferences to be drawn from it.

[33] To summarize, when the charge is read as a whole, it is clear that the trial judge charged the jury that either an actual unlawful assault by Mr. Marcelus, or an action by Mr. Marcelus that the appellant reasonably perceived as an unlawful assault, would satisfy the “unlawful assault” component of s. 34(2). The trial judge therefore made no error in his explanation of that component of the test.

[34] I would not give effect to the first ground of appeal.

(2) Did the trial judge err by failing to leave self-defence with the jury under s. 35 of the Code?

Self-defence under s. 35

[35] Like s. 34(2), s. 35 of the Code has also now been repealed and replaced by the one new self-defence provision in s. 34. However, at the time of the offence and of the trial, s. 35 read as follows:

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.

The appellant’s changed position on the applicability of s. 35

[36] During the pre-charge discussion at trial, defence counsel, Mr. Weinstein, initially raised the suggestion that self-defence under both ss. 34(2) and 35 should be left with the jury. Ultimately, he agreed with the trial judge that s. 34(2) fit most closely with the appellant’s version of events, i.e. that the appellant drew his gun only in response to Mr. Marcelus’s unlawful assaultive actions, and that in accordance with this court’s direction in R. v. Pintar (1996), 1996 712 (ON CA), 30 O.R. (3d) 483, the trial judge should charge only on the most appropriate section.

[37] I note that most recently in R. v. Rodgerson, 2015 SCC 38, where Moldaver J. reiterated the principle he first set out in Pintar, he also stated at para. 49 that defence counsel “has an obligation to assist the trial judge in crafting a jury charge that provides clear comprehensible instructions on the defences that are actually implicated by the defence theory of the case”. That is what Mr. Weinstein did at this trial.

[38] On appeal, the appellant now submits that the trial judge was obliged to leave s. 35 with the jury, as well. He argues that the jury could have rejected the appellant’s version of events and accepted the Crown’s position that the appellant was the initial aggressor when he pulled out his gun. If the jury were to have accepted that the appellant could not reasonably have perceived Mr. Marcelus’s reaction to his accusation about ripping off his cousin as an unlawful assault, then there would be no unlawful assault by Mr. Marcelus to satisfy that requirement of s. 34(2). In those circumstances, he submits, there was an air of reality to the applicability of s. 35 and it filled a gap in the availability of the defence of self- defence.

Discussion

[39] Section 35 has been described in the jurisprudence over time as both a broader and a narrower defence than s. 34(2). Before the Supreme Court’s decision in R. v. McIntosh, 1995 124 (SCC), [1995] 1 S.C.R. 686, s. 35 was understood to be the only self-defence section that applied where the accused was the initial aggressor. However, in McIntosh, the majority found that because s. 34(2) does not contain the limiting words found in s. 34(1) (“without having provoked the assault”), those words could not be read in. Therefore, along with s. 35, s. 34(2) could also apply to an accused who was the initial aggressor where death or grievous bodily harm to the victim ensued.

[40] However, as McLachlin J. discussed in her dissenting reasons in McIntosh, s. 35 had been traditionally viewed as the narrower defence, because while it allowed an initial aggressor to be able to rely on self-defence, it was only available where that aggressor tried to disengage and retreat before it became necessary to preserve himself from death or grievous bodily harm by assaulting or killing the victim.

[41] In “Applying the Law of Self-Defence” (2008), 12 Can. Crim. L. Rev. 25, at p. 73, Professor Paciocco (as he then was) explained that the evident purpose of s. 35 was to provide for self-defence “where the accused is responsible for what he intends to be a relatively minor confrontation”, but then the retaliation by the ultimate victim requires the accused to use violence to preserve himself from death or grievous bodily harm. He also observed that the provision provides a narrower defence than s. 34(2) because of the extra retreat requirement.

[42] In Cinous, at para. 124, McLachlin C.J. and Bastarache J. explained that s. 34(2) provides a justification for killing where the elements of the defence are made out, but observed that the defence “is intended to cover situations of last resort.” In R. v. S.M., 2012 ONCA 255, 291 C.C.C. (3d) 64, at paras. 34-5, this court noted that description from Cinous and added that the same could be said for s. 35, “which, if anything, is more a matter of ‘last resort’ as it covers situations where the accused provoked the altercation that led to the killing.” In other words, the section is one of last resort because of its narrow application and availability.

[43] To test the potential applicability of s. 35, the trial judge had to ask whether there was some evidence to give an air of reality to each of the requisite elements of the s. 35 defence: Cinous, at paras. 93 and 97. That is, the trial judge had to be satisfied that there was evidence on the record upon which the jury acting reasonably could acquit: Cinous, at para. 49.

[44] Applied to the facts of this case, the six requisite elements under s. 35 are:

1. the appellant assaulted Mr. Marcelus without justification;

2. when the appellant commenced the assault – in this case when he drew his loaded handgun and pointed it at Mr. Marcelus – he did not intend to cause death or grievous bodily harm;

3. the appellant shot and killed Mr. Marcelus under the reasonable apprehension that Mr. Marcelus was going to kill him or cause him grievous bodily harm if Mr. Marcelus had been able to wrest the gun away from him;

4. the appellant believed on reasonable grounds that shooting Mr. Marcelus was necessary to preserve himself from death or grievous bodily harm;

5. the appellant did not endeavor to cause death or grievous bodily harm before the necessity of preserving himself arose; and

6. the appellant declined further conflict and retreated from it as far as was feasible before the necessity of preserving himself arose.

[45] I will address the required elements in order. The first element would have required the jury to reject the appellant’s evidence that he pulled out his loaded handgun in response to Mr. Marcelus’s unlawful assault, and to accept the Crown’s position that the appellant was the initial aggressor. I agree that there was an air of reality to this element because there was some evidence to support the Crown’s position, including the evidence of Ms. Krakowski and Ms. Dory about the sequence of events leading up to the shooting.

[46] The second requirement of the defence is that when the appellant drew his loaded gun and pointed it at Mr. Marcelus, he did not intend to cause death or grievous bodily harm. In my view, the defence must fail at this stage: there could be no air of reality to the second requirement once it was accepted that the appellant was the initial aggressor.

[47] I agree with Professor Paciocco (now Justice Paciocco), that s. 35 was intended to provide the defence of self-defence in situations where, through a minor initial assault, an accused person provokes an encounter that escalates to the point where the accused believes he cannot retreat and has to use force in order to protect himself from death or grievous bodily harm.

[48] By contrast, where the accused is the initial aggressor who draws and points a loaded handgun at the victim, there can be no air of reality to the proposition that, in the opening words of s. 35, he “did not commence the assault with intent to cause death or grievous bodily harm”. Even if he testifies that his subjective intent was not to shoot as his first option, it is difficult to imagine a situation where he did not intend to do so in order to protect himself from the victim’s reaction – which is exactly what occurred here – and what would have occurred in any case where the defence is relied on.

[49] This case illustrates the point. If the jury were to accept that the appellant drew his loaded gun, unprovoked by the victim, there is no evidence to suggest any other purpose or motive for doing so except that he intended to shoot it. And the only evidence is to the contrary. The appellant asked Mr. Marcelus whether he was “Polo”, learned that he was, accused him of ripping off his cousin, and pulled out his gun. One could at best speculate that his intent might have been to “rip off” Mr. Marcelus in retaliation for what he did to the appellant’s cousin, and he pulled out the gun only to threaten him, but that would be complete speculation with no evidence to support it. The appellant did not testify to that effect.

[50] In my view, this conclusion also fits with the purpose and structure of the s. 35 defence. To find an air of reality to the assertion that an accused initial aggressor who draws and points a loaded handgun does not intend to cause death or grievous bodily harm would allow the defence to apply, for example, where an accused breaks into a home and points a loaded gun at the occupant. If the occupant reacts in self-defence by also drawing and pointing a gun, then the intruder could shoot the occupant and claim self-defence, saying he did not draw his gun with the intent to kill or cause the victim grievous bodily harm. Such a result would be contrary to community standards of justice.

[51] The appellant points to the decision of the British Columbia Court of Appeal in the case of R v. Merson (1983), 1983 226 (BC CA), 4 C.C.C. (3d) 251 (B.C. C.A.) for an example of a situation where a jury applied s. 35 notwithstanding that the accused commenced his assault on the victim by brandishing a loaded gun, where he testified that he did not intend to kill or harm the victim. Although it may be open to a jury to accept such an accused’s testimony, a properly instructed jury, applying its common sense to the totality of the circumstances, would in most cases conclude that such an accused must have intended to shoot the victim if he came to believe that it was necessary to do so to in order to preserve himself.

[52] I agree with the opinion of Chief Justice Nemetz in dissent, that there was no evidence that could convey a sense of reality to an aggressor invoking s. 35 in the factual circumstances of that case.

[53] Turning back to the other requisite components of the defence under s. 35, there was arguably an air of reality to elements three, four and five, in the circumstances of this case.

[54] The last issue is whether there was an air of reality to the sixth element for the s. 35 defence to apply: that the appellant declined further conflict and retreated as much as feasible before the necessity of shooting to preserve himself arose.

[55] Although there may well have been an air of reality in that once there was a struggle over the gun, the appellant could not safely let go and try to retreat, this demonstrates in another way why initial aggression with a loaded firearm does not fit into the s. 35 framework. Here, the important salutary effect of the essential retreat requirement of s. 35 is effectively neutered because the initial assault by the accused that led to the escalation was with a loaded gun.

[56] To summarize, on its wording, s. 35 applies where an accused is the initial aggressor, but only where his initial aggression was not commenced with the intent to cause death or grievous bodily harm. If the initial aggression was not done with that lethal intent, and the victim then reacts with violence such that the accused then finds himself in grave peril and cannot retreat but must use force to preserve himself, the accused can claim self-defence under s. 35 for that responsive use of force. However, s. 35 should not have an air of reality where the accused’s initial aggression by its very nature carries with it the intent - although not necessarily the initial desire – to cause death or grievous bodily harm if it is ultimately perceived necessary by the accused.

Conclusion on s. 35

[57] There must be an air of reality to each component of the defence. In this case, once the first component is accepted – i.e. that the appellant was the initial aggressor – there was no air of reality to the second requirement, that the appellant did not commence the assault with the intent to cause death or grievous bodily harm by drawing his loaded gun on Mr. Marcelus.

[58] In my view, leaving this defence with the jury would undoubtedly have disadvantaged the appellant. It would have required the jury to reject the appellant’s evidence that he was reacting to Mr. Marcelus’s actions that he perceived as an unlawful assault as untruthful, and instead find that he acted as the initial aggressor by pointing a loaded gun at the victim. If they accepted that scenario, it could have been perceived by the jury as more consistent with the charge of a planned and deliberate first degree murder. This was completely contrary to the defence position that the appellant did not know that Mr. Marcelus would be at Ms. Krakowski’s apartment and that he only drew his gun in reaction to what he believed to be an impending armed assault by Mr. Marcelus. Both defence counsel and the trial judge correctly saw that leaving this section with the jury would have been contrary to the appellant’s interest.

[59] For the foregoing reasons, I would dismiss the appeal.

Released: “JL” SEP 2, 2015

“K. Feldman J.A.”

“I agree. John Laskin J.A.”

“I agree. J. Simmons J.A.”