COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Budhoo, 2015 ONCA 912

DATE: 20151223

DOCKET: C56507

Feldman, Benotto and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Budhoo

Appellant

Michael W. Lacy and Brad Greenshields, for the appellant

Michael Bernstein, for the respondent

Heard: October 19, 2015

On appeal from the conviction entered by Justice Faye E. McWatt of the Superior Court of Justice, sitting with a jury, on November 29, 2012.

Benotto J.A.:

Overview

[1] The appellant was sitting in a pizza restaurant when another patron allegedly insulted his companion. The appellant got up and punched the offending patron.

[2] A brawl broke out between two groups of men – the appellant and his companion on one side, and the man the appellant punched and his friends on the other. The fight lasted less than 60 seconds and was captured on video surveillance.

[3] During the course of the brawl, the appellant brandished a knife. Shortly thereafter, the man who was initially punched by the appellant was stabbed with the knife.

[4] The appellant was charged with aggravated assault by wounding, possession of a weapon for a purpose dangerous to the public peace (“weapons dangerous”) and assault.

[5] The appellant testified that he brandished the knife to protect his friend and then continued to hold it to protect himself. He said that he never intended to stab the man; rather, he claimed it was an accident. The jury was not charged on self-defence. The appellant was convicted of all three counts.

[6] For the reasons that follow, I would allow the appeal and order a new trial.

FACTS

The fight begins

[7] In the early morning hours of January 21, 2007, the appellant was sitting in a Pizza Pizza restaurant with his friend, Franklin Bishop. The appellant was not drunk. Bishop most likely was – he had been drinking excessively, was unsteady on his feet and was slurring his words.

[8] Jeffery Burns was also in the restaurant with a group of his friends. There was evidence that Burns’ friends were being disrespectful to a black woman who appeared to have mental health issues. The appellant testified that Bishop told Burns’ friends to leave her alone.

[9] Shortly thereafter, as Burns was leaving the restaurant, he allegedly uttered a racial slur directed at Bishop. In response, the appellant stood up and punched Burns twice in the head. Burns then punched the appellant in the head, knocking him to the ground.

[10] Bishop stood up to assist the appellant, but was dragged away by Burns. The appellant testified that Burns and his friends began punching Bishop.

The Appellant brandishes a knife

[11] The appellant testified that as he was getting up from the ground, he reached into his coat pocket hoping to find his keys to put in his fist. Instead, he found a folding knife that he had used at his office to take apart cardboard boxes. He took the knife out, held it up, and told the men assaulting Bishop to stop.

[12] The appellant said that he was concerned for Bishop’s safety because Bishop was drunk and Burns was saying he was going to kill Bishop. The appellant said this in his testimony:

[S]o, I take the knife out and hold it in … my hand and I said, “Leave him alone.” I shouted, “Leave him alone”, at which point … the guy with the toque … he lets go of Mr. Bishop.

I’m looking over at what’s going on. I can clearly see that Bishop’s still getting … pounded.

Burns … he’s still shouting, “I’m gonna kill you, I’m gonna kill you,” and taking shots at … Bishop. The other guy in the pea coat, to me, seemed like he was holding onto Bishop as … Burns is taking shots at him.

[13] The “guy with the toque” was Brett Rowlands, one of Burns’ friends. After he let go of Bishop, he approached the appellant and tried to hold him back from Burns and Bishop. Burns was still hitting Bishop. The appellant was still holding the knife.

[14] Rowlands confirmed in his testimony that the appellant was holding the knife up and telling Burns to stop hitting Bishop.

Burns is stabbed

[15] The appellant moved around Rowlands and managed to get between Bishop and Burns. Bishop was then removed from the brawl and was no longer being punched by Burns. This left the appellant and Burns face-to-face.

[16] The appellant testified he held the knife in front of him to keep Burns away. He then testified that Burns came toward him and was stabbed by the knife:

[A]t that point, Mr. Burns, he came in. He was trying -- it looked like he was trying to come -- I don’t know what his intent was, but he came forward and that’s when I believe that the knife … went into his … body.

[17] The appellant said that he held the knife first to defend Bishop and then, when Bishop was removed from the brawl, to defend himself.

[18] The appellant said he did not mean to stab Burns – it was an accident. He said that he held the knife out only to keep Burns away. He said that Burns either walked or lunged into the knife as he approached the appellant to assault him.

THE JURY CHARGE

[19] The trial judge charged the jury on the three counts: (1) assault arising from the first two punches; (2) weapons dangerous in relation to the knife; and (3) aggravated assault by wounding. I will discuss them in reverse order.

Charge on Aggravated Assault

[20] I will address two aspects of the charge on aggravated assault: the rejection of self-defence and the two pathways to conviction.

(i) Rejection of Self-Defence

[21] At the conclusion of evidence, the trial judge asked for submissions on self-defence. Both counsel agreed that the only self-defence provision that should be put to the jury, if any, was s. 35 of the Criminal Code, R.S.C. 1985, c. C-46, which has since been repealed. This was the provision for self-defence in the case of aggression.

[22] For ease of reference, I will set out s. 35:

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.

[23] The Crown submitted that s. 35 should not be left with the jury because there was no evidence that the appellant reasonably believed he was at risk. Further, even if he did, there was no evidence he declined further conflict and quitted or retreated.

[24] Defence counsel submitted that it was not feasible for the appellant to retreat in the circumstances, given the timing, the physical location and the positioning of those involved in the brawl.

[25] In coming to her conclusion that there was no air of reality to self-defence under s. 35, the trial judge relied extensively on the video surveillance. She was also of the view that the theories of self-defence and accident were incompatible in this case. For this, she relied on R. v. Teskey, 2008 BCCA 288, [2008] B.C.J. No. 1266, where the court commented, at para. 19, that:

Since the appellant did not intend to stab [the victim], it cannot be said that his motive or purpose in doing so was to preserve himself from harm. It follows that a finding of self-defence was not open and it was not a live issue at the trial.

(ii) Two Pathways to Conviction

[26] The Crown urged the trial judge to include the definition of assault under s. 265(1)(b) of the Criminal Code as a means by which the actus reus of aggravated assault could be established. Here, it is helpful to review the provisions.

[27] Aggravated assault is found under s. 268 of the Criminal Code:

268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

[28] Aggravated assault is, at is core, an assault. Therefore, it incorporates the definition of assault under s. 265 of the Criminal Code: see R. v. Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371, at para. 10. The relevant portions of s. 265 are:

265. (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose;

[29] The Crown asked the trial judge to put both definitions of assault to the jury – ss. 265(1)(a) and 265(1)(b). The Crown relied on the evidence of a threat prior to the allegedly accidental stabbing and submitted that the facts of this case were analogous to other cases in which both pathways were given to the jury: R. v. Nurse (1993), 1993 CanLII 14691 (ON CA), 83 C.C.C. (3d) 546 (Ont. C.A.), at 556; R. v. MacKay, 2004 NBCA 66, 274 N.B.R. (2d) 302, at para. 30, aff’d 2005 SCC 79, [2005] 3 S.C.R. 725, at paras. 1-4.

[30] The trial judge agreed with the Crown’s submissions. As such, the jury charge provided that the actus reus element of the offence of aggravated assault could be proven one of two ways.

[31] First, it could be proven if the appellant intentionally applied force. This referred to the stabbing. Second, it could be proven if the appellant intentionally threatened, by act or gesture, to apply force and had the ability to carry out that threat. This referred to the brandishing of the knife.

[32] With respect to these two pathways to conviction, the trial judge explained to the jury members that they did not all have to agree on the same pathway – it would be sufficient that all jury members agree that one of the two pathways had been proven beyond a reasonable doubt.

[33] If the jury members agreed that the appellant either intentionally applied force, or intentionally threatened to apply force, the decision tree led them to decide whether the applied force wounded Burns. If yes, the decision tree led to a guilty verdict on aggravated assault.

Charge on Weapons Dangerous

[34] The trial judge instructed the jury on the three essential elements of weapons dangerous.

[35] She then directed the jury to find that the first two essential elements were proven beyond a reasonable doubt: that (1) the appellant possessed a weapon; and (2) that the appellant knew what he possessed was a weapon.

[36] The only issue left for the jury to decide was whether the appellant had the weapon for a purpose dangerous to the public peace.

Charge on Assault

[37] On consent of both counsel, the trial judge directed a verdict of guilty on the assault charge. This related to the first two punches thrown by the appellant before the brawl began.

THE JURY VERDICT

[38] The jury convicted the appellant of all three counts – aggravated assault, weapons dangerous and assault.

ISSES ON APPEAL

[39] The issues on appeal are:

1. On the aggravated assault charge, did the trial judge err in holding there was no air of reality to self-defence?

2. On the weapons dangerous charge, did the trial judge err in her charge to the jury?

3. On the assault charge, did the trial judge err in directing a verdict of guilty?

ANALYSIS

Issue #1: On the aggravated assault charge, did the trial judge err in holding there was no air of reality to self-defence?

[40] A determination as to whether there is an air of reality to a defence is a question of law, subject to appellate review on a correctness standard: see R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 55.

[41] I have concluded that the trial judge erred in three ways: (1) by usurping the function of the jury in making factual findings; (2) by finding that self-defence and accident were incompatible defences; and (3) by not considering other sections of the Criminal Code relating to self-defence.

(i) Judicial Findings of Fact

[42] In Cinous, the Supreme Court of Canada set out the role of a trial judge in determining whether an air of reality exists (at para. 54):

The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury. The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences … The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue. [citations omitted.]

[43] In determining whether the evidence discloses a real issue to be decided, the Supreme Court explained that (at para. 53):

In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true. The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses. It can also rest upon the factual circumstances of the case or from any other evidential source on the record. [citations omitted.]

[44] Here, the trial judge was entitled to view the surveillance video as part of her consideration of the totality of the evidence. However, by using the video to make factual findings, while at the same time ignoring reasonable inferences that could arise from the appellant’s testimony, the trial judge usurped the function of the jury as the trier of fact.

[45] Section 35 of the Criminal Code required that the appellant decline further conflict and quit or retreat as far as was feasible. This was an issue for the jury.

[46] The trial judge concluded, based on her view of the video, that the appellant made no attempt to retreat. She said this in her ruling:

There is no evidence in this case that [the appellant] 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. He testified he went into the fray out of concern for his friend yet he offered no evidence and there is no other evidence that he tried to assist Mr. Bishop from being assaulted. Once his friend had been extricated from the danger of Mr. Burns’ assault by others, [the appellant] began to fight with Mr. Burns with a knife in his right hand. He made no attempt to retreat. This is clear from the videotape evidence; this is evident from his own testimony. The defence cannot be given to the jury in the charge. It lacks an air of reality.

[47] These were findings of fact that were within the purview of the jury, particularly in light of the appellant’s testimony that:

• the events happened very quickly in a short time frame;
• he was fearful;
• he was worried about Bishop, who was drunk;
• he heard Burns repeating that he was going to kill Bishop; and
• he held up the knife to get Burns and his friends to stop hitting Bishop and then to protect himself.

[48] The trial judge did not consider competing factual inferences that could reasonably be drawn from the record, including whether retreat was feasible. She rejected or ignored the appellant’s testimony and other evidence favourable to the defence, which she was required to accept for the purposes of applying the air of reality test.

[49] In doing so, the trial judge usurped the jury’s function and erred in law. The impugned findings directly impacted the low threshold for the air of reality test.

(ii) Compatibility of Self-Defence and Accident

[50] By determining that self-defence and accident could not co-exist, the trial judge misapprehended the defence position. The appellant testified that he held out the knife at first to protect Bishop and then kept it out to protect himself. The subsequent stabbing was an accident. This sequence of events allowed the two defences to co-exist.

[51] In R. v. Mulligan (2006), 2006 CanLII 15625 (ON CA), 80 O.R. (3d) 537 (C.A.), this court held that self-defence and accident could co-exist in a similar fact scenario. Although this court held that the trial judge’s error in this regard did not cause prejudice, the comments of Rosenberg J.A. are instructive. At para. 15 he stated:

It is the appellant’s submission, with which I agree, that the two defences were closely related. The appellant’s defence was that he shot the deceased by accident (i.e., without an intent to kill) while brandishing the rifle in self-defence.

[52] Likewise in this case, the defences were closely related and compatible. The appellant had a two-pronged defence – he acted in self-defence by brandishing the knife and by continuing to hold it out. He then accidentally stabbed Burns.

[53] The trial judge’s reliance on Teskey does not withstand scrutiny. On the surface, the facts of this case appear similar to those in Teskey. An argument began on a bus about a skateboard. It continued off of the bus. The accused produced a knife, the complainant was stabbed and the accused was convicted of aggravated assault. The accused testified that he took out the knife to scare the complainant and did not intend to stab him. The stabbing, he said, was an accident.

[54] The trial judge, sitting without a jury, did not believe the accused. Specifically, he did not believe that the accused took out the knife for defensive purposes. He also found that the accused intentionally stabbed the victim. Those factual findings distinguish that case.

[55] Here, the consequences of the judge’s conclusion as to the incompatibility of self-defence and accident were magnified when the trial judge agreed to provide the jury with a second pathway to conviction.

[56] As a result of there being two pathways to conviction on the aggravated assault charge, the appellant could have been found guilty for intentionally applying force or for intentionally threatening to apply force.

[57] In conjunction with the instruction to the jury on the second pathway to conviction – the threat by brandishing the knife – the defence of self-defence had to be put to the jury. Without self-defence on the threat, the jury members were required to convict the appellant under the second pathway, even if they believed or had a reasonable doubt about his testimony.

[58] In short, the trial judge did not make it clear to the jury that the defence was that the appellant raised and held up the knife in self-defence and then stabbed Burns by accident.

[59] In light of these conclusions, I do not need to address the defence position at trial that it was not appropriate to add section 265(1)(b) to the actus reus of the aggravated assault.

(iii) Additional Self-Defence Provisions

[60] The appellant submits that the trial judge, having rejected s. 35, should have gone on to consider s. 37 or perhaps even s. 27 of the Criminal Code.

[61] I agree.

[62] A trial judge must put to the jury all defences that arise on the facts, whether or not specifically raised by an accused: see Cinous, at para. 51. Here, notwithstanding the submissions of both counsel, the trial judge should have considered and ruled on the applicability of the other self-defence provisions.

[63] Section 37, now repealed, justified the use of the minimum force necessary to defend oneself or anyone under one’s protection from assault:

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.

[64] The appellant repeatedly testified that he initially brandished the knife, and threatened Burns, to protect Bishop, who was in a vulnerable state as a result of being drunk. This was also corroborated by other witnesses.

[65] Further, s. 37 would have provided a wider defence than s. 35, in that there was no requirement to retreat. It also would have addressed the brandishing of the knife in the first place and the initial threat against Burns, which is not addressed under s. 35.

[66] There may also have been an air of reality to self-defence under s. 27 and it too should have been potentially considered. This section allows a party to use no more force than is reasonably necessary to prevent the commission of an offence.

[67] The trial judge should have considered whether these additional sections met the air of reality test, particularly after rejecting the s. 35 defence. In not doing so, when there was evidence capable of supporting the defences, the trial judge erred in law.

(iii) The New Self-Defence Provisions

[68] The appellant conceded in oral argument that, in light of this court’s decision in R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, the new self-defence provisions could not be applied.

[69] For the reasons just articulated, I would allow the appeal on the conviction for aggravated assault.

Issue #2: On the weapons dangerous charge, did the trial judge err in her charge to the jury?

[70] I have concluded that there should also be a new trial on the weapons dangerous charge.

[71] The trial judge erred in two respects: (1) she failed to adequately instruct the jury on the appellant’s purpose for possessing the knife; and (2) she usurped the function of the jury by directing the jury to find that the first two essential elements of the count were proven beyond a reasonable doubt.

(i) The Purpose of Possession

[72] The appellant was convicted of weapons dangerous in relation to the knife used in the stabbing. The use of a dangerous weapon for a dangerous purpose is not enough for a finding of guilt. The jury must find that the appellant possessed the knife for a purpose dangerous to the public peace.

[73] That purpose must be determined at the instant of time which preceded the use of the weapon. The use of a knife in a manner dangerous to the public peace does not constitute the offence, although the formation of the unlawful purpose may be inferred from the circumstances in which the knife was used: see R. v. Proverbs (1983), 1983 CanLII 3547 (ON CA), 9 C.C.C. (3d) 249 (Ont. C.A.), at 251.

[74] In this case, the appellant testified that he reached into his coat to grab his keys and did not realize that the knife was in his pocket. He then claimed he took out the knife in self-defence.

[75] The trial judge did not explain the significance of this evidence to the jury. The trial judge erred by not telling the jury members that, for the appellant to be found guilty of weapons dangerous, they had to reject his evidence that his purpose for brandishing the knife was self-defence.

[76] Instead, the trial judge instructed the jury on the opposite:

No single circumstance, even a claim that the purpose of having a weapon was so that [the appellant] could defend himself or others under his protection or his property against others is conclusive.

[77] This instruction misdirects the jury on this count. The jury members should have been instructed that if they believed that the appellant possessed the knife for the purpose of self-defence, then they could not be satisfied beyond a reasonable doubt that the appellant possessed the knife for a purpose dangerous to the public.

(ii) Directing a Finding on the Essential Elements

[78] Additionally, the trial judge erred by directing the jury to find that the first two elements of weapons dangerous were proven beyond a reasonable doubt.

[79] In R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, the Supreme Court of Canada held that a trial judge should not assess the evidence or provide a direction to a jury that to an essential element of an offence had been proven beyond a reasonable doubt (at para. 31):

Hence, it is never the function of the judge in a jury trial to assess the evidence and make a determination that the Crown has proven one or more of the essential elements of the offence and to direct the jury accordingly. It does not matter how obvious the judge may believe the answer to be. Nor does it matter that the judge may be of the view that any other conclusion would be perverse. The trial judge may give an opinion on the matter when it is warranted, but never a direction.

[80] Even if the essential elements seem obvious, it remains a determination for the jury.

Issue #3: On the assault charge, did the trial judge err in directing a verdict of guilty?

[81] The parties consented to a directed verdict on the assault charge. The appellant now submits that defence counsel made a strategic decision on the expectation that self-defence would be before the jury. In essence, it was believed that if the appellant admitted his guilt on the first assault, it would enhance his credibility before the jury on his self-defence claim for the remaining counts.

[82] The appellant argues that if this court allows the appeal on the first two counts, then the assault charge should also be sent back to trial as it is inextricably linked. In particular, because defence counsel made a strategic decision on the basis of a defence that should have been before the jury, it would be a miscarriage of justice to not order a new trial on the assault charge as well.

[83] I accept that the strategic decisions on all charges were inextricably linked. In order to avoid a miscarriage of justice, the assault charge should be also be retried.

CONCLUSION

[84] The appellant’s defence was never put to the jury. It was this: he held up the knife to defend Bishop, then to defend himself. He never intended to stab Burns – it was an accident. Self-defence and accident can co-exist.

[85] By incorporating s. 265(1)(b) into the first essential element of the offence of aggravated assault, without charging on self-defence, the trial judge effectively took away both self-defence and accident from the jury. The essence of the appellant’s defence was eliminated and there was no path to acquittal – even if the jury believed the appellant’s testimony.

[86] On the weapons dangerous count, the jury members should have been told that to find the appellant guilty, they had to reject his evidence that he had the knife for the purpose of self-defence. There should not have been an assessment of the evidence or a direction that the Crown had proved the first two essential elements beyond a reasonable doubt.

[87] Finally, to prevent a miscarriage of justice, the assault charge should also receive a new trial.

DISPOSITION

[88] I would allow the appeal, set aside the jury verdict and order a new trial on all three counts.

Released: December 23, 2015

“M.L. Benotto J.A.”

“I agree K. Feldman J.A.”

“I agree L.B. Roberts J.A.”