COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cunha, 2016 ONCA 491

DATE: 20160621

DOCKET: C59489

MacPherson, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Valter Cunha

Appellant

Michael Dineen, for the appellant

Davin M. Garg, for the respondent

Heard: May 19, 2016

On appeal from the conviction entered on May 12, 2014, and the sentence imposed on October 27, 2014 by Justice John MacDonald of the Superior Court of Justice.

Lauwers J.A.:

[1] The trial judge convicted Valter Cunha of one count of intentional discharge of a firearm with intent to wound, contrary to s. 244 of the Criminal Code, and one count of aggravated assault, contrary to s. 268. Mr. Cunha admitted shooting Fernando Barros twice. Mr. Cunha testified and asserted he was acting in self-defence. The trial judge rejected that defence.

[2] The trial judge sentenced Mr. Cunha to five years’ imprisonment, which is the mandatory minimum required by s. 244(2)(a)(i) of the Criminal Code for a first offence, and to four and a half years for the aggravated assault, concurrent to the first conviction. He gave credit of one year for pre-trial custody and 10 months for onerous bail terms.

[3] For the reasons set out below, I would allow the appeal, set aside the conviction, and order a new trial. I would not address the appellant’s sentencing submission that the mandatory minimum in this case is unconstitutional.

[4] I begin with a brief description of the law relating to self-defence. I next consider the narrative context, then the trial judge’s approach, and conclude with the legal analysis.

(1) The Legal Elements of Self-Defence

[5] On March 11, 2013, the Citizen’s Arrest and Self-Defence Act, S.C. 2012, c. 9, 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. At trial, the parties did not have the benefit of this court’s decision in R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, in which this court held that the new Criminal Code provisions regarding self-defence do not apply retrospectively. However, the parties submit, and I agree, there is no relevant difference, for the purposes of this case, between the old provisions and the new.

[6] At para. 28 of Bengy, Hourigan J.A. set out the elements of self-defence:

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

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

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

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

[7] As for the objective element of the defence, it is accepted that in considering the reasonableness of the defendant’s use of defensive force, the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection, as this court noted in R. v. Mohamed, 2014 ONCA 442, 310 C.C.C. (3d) 123, at para. 29:

As Professor Paciocco notes at p. 36:

The law's readiness to justify "mistaken self-defence" recognizes that those in peril, or even in situations of perceived peril, do not have time for full reflection and that errors in interpretation and judgment will be made.

In a similar vein, Martin J.A. commented in R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96, at p. 111, that

in deciding whether the force used by the accused was more than was necessary in self-defence under both s. 34(1) and (2), the jury must bear in mind that a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety the exact measure of necessary defensive action.

[8] It is well established that self-defence can be invoked on the basis of reasonable mistakes of fact, including whether the putative assailant was armed. As this court noted in R. v. Currie 2002 CanLII 44973 (ON CA), [2002] O.J. No. 2101, 166 C.C.C. (3d) 190 (C.A.), at para. 43:

The Supreme Court of Canada in Cinous [2002 SCC 29] confirmed the principle established in R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3 that the existence of an actual assault is not a prerequisite for a defence under s. 34(2). The question that the jury must ask itself is not whether the accused was unlawfully attacked, but whether he reasonably believed in the circumstances that he was being unlawfully attacked. The question for the trial judge on the threshold evidential test is whether there is evidence upon which a jury acting reasonably could conclude that the accused reasonably believed he was about to be attacked and that this belief was reasonable in the circumstances.

[9] It is also the law that a person who is defending himself, and other occupants of his house, is not obliged to retreat in the face of danger. In R. v. Forde, 2011 ONCA 592, 277 C.C.C. (3d) 1, this court considered the issue of retreat at some length, and concluded at para. 55: “a jury is not entitled to consider whether an accused could have retreated from his or her own home in the face of an attack (or threatened attack) by an assailant in assessing the elements of self-defence.”

(2) The Narrative Context

[10] It is trite law that in assessing self-defence, the trier of fact must pay close attention to the entire factual context. As I will explain, in this case, the trial judge failed to do so. He made several palpable and overriding errors that led him to misapprehend what was really going on in the encounter between the appellant and Mr. Barros.

[11] It became clear in oral argument that the parties do not substantially disagree about the facts and the sequence of events that led to the shooting.

[12] The appellant lived in a house that was separated into two apartments. He occupied the ground floor unit which was accessed by two doors on the main floor, the main door at one end of the foyer and a French door at the other end. The door to the upstairs unit, occupied by the appellant’s friend Peter Silva, was right beside the main door to the appellant’s unit.

[13] On December 13, 2011, Mr. Barros and his two associates, Momokai Massaquoi and Cody Rocha, went to Mr. Silva’s residence to purchase marijuana. Mr. Rocha waited in the car while Mr. Barros and Mr. Massaquoi went into the house. Mr. Barros and Mr. Silva exchanged money for drugs, $4,500 for one and a half pounds of marijuana. Mr. Barros discovered that he had only received a pound; Mr. Silva explained that he had withheld the half pound because during their last drug deal Mr. Barros had underpaid by $1,500. Mr. Barros objected and when he tried to get his money back a physical struggle broke out in the foyer of the house.

[14] At the time, the appellant was having dinner with his friend George Fotopoulos. Mr. Silva called for help, and the appellant and Mr. Fotopoulos came out to the front foyer through the appellant’s main door. They discovered the scuffle, got Mr. Silva inside the appellant’s unit and locked the door. The appellant and Mr. Fotopoulos then went downstairs where the appellant retrieved his registered handgun and loaded it. While downstairs, Mr. Fotopoulos heard a voice saying “shoot him, shoot him”. Although it is not clear where Mr. Cunha was when this statement was made, the trial judge accepted that he heard it too. Mr. Cunha went back upstairs and, instead of accessing the foyer through the main door, decided to enter it from the French doors at the other end. As he was about to go into the foyer, he saw Mr. Massaquoi moving past carrying a shotgun.

[15] Mr. Cunha then stepped into the foyer, but Mr. Massaquoi was gone, apparently through the main door to the appellant’s unit that had been locked, but was now open. He found Mr. Barros facing the main door to his unit and told him to “freeze”. Mr. Barros, whose back was turned to the appellant, did not freeze, but began to turn and Mr. Cunha shot him twice, once in the leg and once in the lower back.

[16] In the meantime, Mr. Fotopoulos exited the basement through the rear entrance, and Mr. Silva exited the main floor through the back door of Mr. Cunha’s unit. Neither had come to harm. Mr. Barros limped out the front door. Eventually, the police arrived.

(3) The Trial Judge’s Approach

[17] The trial judge found the Crown had proven beyond a reasonable doubt that none of the elements of self-defence applied to Mr. Cunha in the circumstances.

[18] With respect to Mr. Cunha’s belief that force or threat of force was being used against him or someone else, and whether his belief was reasonable, the trial judge held:

I am satisfied beyond a reasonable doubt on the evidence as I have assessed it that Mr. Cunha did not have reasonable grounds for believing and did not believe that Mr. Barros was using or threatening force against him.

[19] With respect to whether Mr. Cunha subjectively had a defensive purpose, the trial judge found: “because Mr. Cunha did not believe that Mr. Barros was threatening to use force on him, I am satisfied beyond a reasonable doubt that in shooting Mr. Barros, Mr. Cunha did not do so for the purpose of defending or protecting himself from that alleged threat.” He added:

In addition, I find it proven beyond a reasonable doubt that Mr. Cunha shooting at Mr. Barros was not for the purpose of either defending or protecting the other person threatened with the use of force, because the person, Mr. Silva, whom he might have been defending, was somewhere else.

[20] The trial judge concluded his analysis of Mr. Cunha’s defensive purpose with the following statement:

He shot an unarmed man in the back of his body twice without knowing whether the person was a threat of any sort, and without believing that he was a threat, likely, I find, because he was afraid that Mr. Barros might be armed, and because of that fear, Mr. Cunha wasn’t going to wait to find out if he was armed.

[21] As to whether Mr. Cunha’s response was objectively reasonable, the trial judge found that:

[T]he act of firing at and wounding Mr. Barros was not reasonable in the circumstances. It is not reasonable to shoot an unarmed man in the back of his body, when it is not known whether he is armed, because he has begun to turn towards the shooter. As Mr. Cunha stated, he fired a split second after saying “freeze” and that’s a split second after Mr. Barros, on Mr. Cunha’s own version of events, began to turn.

[22] The trial judge went on to say:

Mr. Cunha could have waited a very short period of time in order to see whether Mr. Barros had a gun or other weapon in his hands before resorting to the use of devastating force.

He found Mr. Cunha’s use of force was “disproportionate”.

[23] The trial judge found Mr. Cunha did not shoot Mr. Barros “for the purpose of preventing Mr. Barros from entering Mr. Cunha’s unit, or for the purpose of removing Mr. Barros from the property, or for the purpose of preventing Mr. Barros from doing anything to Mr. Cunha’s property.” He found, in relation to s. 35(1)(d) of the Criminal Code, that Mr. Cunha’s actions in defending his property were not reasonable, and convicted him.

(4) The Analysis

[24] I accept the appellant’s argument that “the trial judge parsed the appellant’s reactions down to the split-second and held him to a standard of perfection, informed by his hindsight knowledge that Mr. Barros was actually unarmed and that Mr. Massaquoi had already left the house through the back door.” This was an error in principle, since the trial judge lost sight of the whole factual context and the tableau of the evidence.

[25] This was plainly a case for the court to keep in mind that in considering the reasonableness of the defendant’s use of defensive force, the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection. However, the trial judge held the appellant to a standard of perfection.

[26] The trial judge found that the appellant subjectively feared for his life, for his friend, and for his property. He stated: “I accept also that Mr. Cunha was probably feeling fear at that time, including fear for his life and also fear for his friend Mr. Silva.”

[27] As noted above, self-defence can be invoked on the basis of reasonable mistakes of fact. This includes mistaking whether the putative assailant was armed as was the case here. The trial judge’s finding that Mr. Barros was unarmed is not fatal to the appellant’s self-defence claim.

[28] As I see it, the trial judge effectively imposed on the appellant an obligation to wait and see whether Mr. Barros had a gun or other weapon before acting. Although the appellant had the advantage over Mr. Barros at the moment when he ordered him to freeze, he would have lost that advantage had he waited, and would have exposed himself to risk of serious harm if Mr. Barros had been carrying a gun. As this court noted in R. v. Quinn, 2014 ONCA 650 at para. 10: “This was a fast-paced event that should have not be viewed on a frame-by-frame basis.”

[29] The problem with the trial judge’s analysis is that it paid little regard to the overall evidence, but focused excessively on whether Mr. Cunha was a credible witness. The trial judge found that he was not credible because of several inconsistencies in his evidence, which led him to make the following comment: “This causes me to conclude that Mr. Cunha’s testimony is likely incredible and unreliable unless it is confirmed by other credible or reliable evidence.”

[30] The blanket rejection of the appellant’s evidence in the absence of corroboration lies at the root of the trial judge’s errors. With respect, such an approach is flawed. It boils down to saying that the appellant must be lying except where other witnesses can confirm what he says. But this goes too far - if the appellant is telling the truth in certain situations that another witness can corroborate, then it does not necessarily follow that he must be lying in all other situations.

[31] Proceeding from this flawed blanket credibility finding, the trial judge then relentlessly rejected Mr. Cunha’s version of events. This led him to make a number of troubling factual findings that do not hold up to scrutiny against the flow of the narrative or the tableau of the evidence that he did accept. I refer below to five instances in the trial judge’s treatment of the evidence.

[32] First, the trial judge said that: “I find that Mr. Cunha did not pull Mr. Silva into his unit.” The problem with this statement is that it does not account for how Mr. Silva escaped from the scuffle in the foyer, and ended up behind the locked door in the appellant’s unit before exiting safely from the rear door.

[33] The second instance relates to the damage to the front door of Mr. Cunha’s unit. Mr. Cunha did not see anyone breaking through the door into his unit since he was elsewhere when it happened. Mr. Cunha’s evidence was that the door had been replaced a few weeks before during renovations. There is clear damage to the door in the police photographs and Mr. Cunha said that this damage occurred during the events in question. The trial judge considered “whether to infer from that whether there was a forced entry into Mr. Cunha’s premises on the night in issue.” He refused to draw the inference:

I find that Mr. Cunha’s evidence about the condition of the door before the events in issue is incredible and unreliable for all of the aforesaid reasons. Given that, the proven condition of the door after the events in issue does not, on the whole of the evidence, lead to a reasonable inference that the door was broken open in the events in issue.

[34] However, the narrative demonstrates that the trial judge’s conclusion on the state of the door is unreasonable and inconsistent with the whole of the evidence.

[35] When Mr. Cunha burst into the foyer intending to pursue Mr. Massaquoi, who was carrying a shotgun, he found Mr. Barros there, with his back turned to him facing the now open main door to his unit, which had previously been closed and locked. In the circumstances, it is highly unlikely that anyone inside Mr. Cunha’s unit opened the door, but much more likely that someone in the foyer forced their way into it. Since Mr. Massaquoi and the shotgun were nowhere to be seen when Mr. Cunha entered the foyer, it is likely that Mr. Massaquoi was the one who broke open and damaged the door.

[36] Third, the way in which the trial judge assessed the shooting scenario is problematic. He stated:

[…] as I’ve also held, [Mr. Massaquoi] was armed with a shotgun and was present in the home to Mr. Cunha’s knowledge, and was at or about the location when Mr. Cunha shot Mr. Barros, at or about the time he shot him. In addition, Mr. Fotopoulos testified that he heard someone who was neither Mr. Silva nor Mr. Cunha say “shoot him, shoot him”, and that that was said in the area above him, which was the main floor level of Mr. Cunha’s premises towards the westerly side of the building. Mr. Cunha states that he heard that. With Mr. Fotopoulos’ confirmation that that was said, I accept that Mr. Cunha heard that said shortly before he shot Mr. Barros. I accept also that Mr. Cunha was probably feeling fear at that time, including fear for his life and also fear for his friend Mr. Silva.

[37] The trial judge also noted that Mr. Barros said that Mr. Massaquoi ran out to the car while he wrestled with Mr. Silva. Mr. Fotopoulos, whose evidence was accepted by the trial judge, gave evidence that as he looked out the basement door, he saw Mr. Silva run from the house to the garage presumably being pursued by Mr. Massaquoi who, Mr. Fotopoulos stated, was armed with a shotgun. Mr. Fotopoulos saw Mr. Silva lock himself in the garage, and Mr. Massaquoi kicking at the garage door.

[38] Against that backdrop, Mr. Cunha testified that when he came upon Mr. Barros in the foyer, Mr. Barros “had his hands clasped in front of his chest” much in the way a person holding a gun would be positioned. The trial judge found this to be “entirely incredible, unreliable and false evidence.” He based this on his assessment that Mr. Cunha could not have seen what he claims to have seen since Mr. Barros’ body blocked Mr. Cunha from seeing his hands. He added that Mr. Cunha could not have seen the position of Mr. Barros hands as he was starting to turn around because he shot Mr. Barros within a split second. The trial judge concluded that Mr. Cunha did not “wait to see what was in his hands before shooting.”

[39] There was a conflict in the evidence between what Mr. Cunha said Mr. Barros was doing, and what Mr. Barros said he was doing. Mr. Barros said he was picking up the money that Mr. Silva dropped on the floor. The trial judge stated: “if this evidence is credible and reliable, it would mean that Mr. Barros’ hands probably were visible to Mr. Cunha, and Mr. Cunha probably could see that Mr. Barros was unarmed.” With respect, this does not make sense in light of his earlier finding that Mr. Barros’ back was blocking Mr. Cunha’s view of his hands.

[40] The trial judge went on to say: “As well, if Mr. Barros’ hands, which were not clasped in front of him, were at his sides, they were probably visible to Mr. Cunha and Mr. Cunha probably could see that Mr. Barros was unarmed.” This again is sheer speculation. Perhaps sensing this, the trial judge stated that “these are not findings”. He described them as “issues which I have considered”.

[41] The trial judge then made the following comments:

Having entirely rejected as incredible and unreliable Mr. Cunha’s testimony that Mr. Barros’ hands were clasped in front of him, and having some doubt about whether Mr. Barros’ was benignly picking money up off the floor as he claims, I can make no finding of fact about where Mr. Barros’ hands actually were for what they were actually doing in the moments before Mr. Cunha shot Mr. Barros, except for the finding that Mr. Barros’ hands were not clasped in front of him as Mr. Cunha said they were. (Emphasis added.)

[42] There is, with respect, no reasonable basis for the trial judge to make a positive finding about the position of Mr. Barros’ hands after saying that he did not know where Mr. Barros’ hands actually were.

[43] Fourth, the trial judge made inconsistent findings with respect to Mr. Cunha’s state of mind. Mr. Cunha admitted he did not know if Mr. Barros had a gun in his hands but he feared he might have one. The trial judge noted “I am left with a reasonable doubt about whether Mr. Cunha felt afraid that Mr. Barros might be armed.” Having said this, however, he then went on to state the following:

Nonetheless, I am satisfied beyond a reasonable doubt on the evidence as I have assessed it that Mr. Cunha did not have reasonable grounds for believing and did not believe that Mr. Barros was using or threatening force against him. As he testified, he was not going to wait to see what he had in his hands.

[44] Two paragraphs later in his reasons, the trial judge said:

He shot an unarmed man in the back of his body twice without knowing whether that person was a threat of any sort, and without believing that he was a threat, likely, I find, because he was afraid that Mr. Barros might be armed, and because of that fear, Mr. Cunha wasn’t going to wait to find out if he was armed.

[45] In my view, the two preceding statements are not consistent with each other. If Mr. Cunha “did not believe that Mr. Barros was using or threatening force against him,” then there was no reason for Mr. Cunha to fear that Mr. Barros might be armed. Neither statement can be read together with the trial judge’s statement: “I accept also that Mr. Cunha was probably feeling fear at that time, including fear for his life and also fear for his friend Mr. Silva.”

[46] Fifth, the trial judge completely discounted any personal threat to Mr. Cunha. He noted that “the words ‘Shoot him, shoot him’ were simply overheard by [Mr. Cunha] and were not said about him, and the man with the shotgun was seen not present when he, Mr. Cunha, fired at someone else, being Mr. Barros.” The trial judge noted:

Mr. Barros was a person who was not known to Mr. Cunha. There was no history between them which would have fed Mr. Cunha’s apparent fear and which, if it existed, could have made precipitous action necessary for defensive or protective purposes.

[47] Overall, the trial judge failed to take account of the entire situation from Mr. Cunha’s perspective – a frightened home owner suddenly confronted with armed men in his home. The trial judge artificially separated out the sequence of events relating to Mr. Massaquoi, who was carrying a shotgun, from the encounter a very short time later between the appellant and Mr. Barros, and treated them as though they were virtually unrelated events. This is clearly inconsistent with what happened, and failed to pay sufficient attention to the factual context and to the entire tableau of the evidence. This was an error in principle in assessing self-defence.

(5) Disposition

[48] For the reasons set out above, I would allow Mr. Cunha’s appeal, set aside the conviction, and order a new trial. It is not open to this court to acquit Mr. Cunha, since the viability of self-defence is an issue for the trier of fact. However, on these facts, this may well be a case where the Crown decides it is appropriate to elect not to proceed with a new trial. In light of this disposition, I would not grant leave to appeal sentence.

Released: June 21, 2016 “J.M.”

“P. Lauwers J.A.”

“I agree J.C. MacPherson J.A.”

“I agree C.W. Hourigan J.A.”