Court of Appeal for Ontario

Date: 2019-06-18 Docket: C60022 Judges: Juriansz, Pepall and Lauwers JJ.A.

Between

Her Majesty the Queen Respondent

and

David R. Fougere Appellant

Counsel

For the Appellant: Bernadette Saad and Joanne Prince

For the Respondent: Grace Choi

Heard

March 6, 2019

Appeal

On appeal from the conviction entered by Justice Robert B. Reid of the Superior Court of Justice, sitting with a jury, on September 3, 2014.

Decision

Lauwers J.A.:

[1] Introduction

[1] The appellant was convicted of aggravated assault on John Marcheson. He was sentenced to 12 months' incarceration and 24 months' probation. He appeals his conviction. For the reasons that follow, I would allow the appeal.

[2] Background and Procedural History

[2] Between September 28, 2012 when the fight occurred on which the charge was based, and the beginning of the jury trial on August 25, 2014, the self-defence provisions of the Criminal Code, R.S.C. 1985, c. C-46, were amended. The amendments came into force on March 11, 2013. The trial judge applied the new provisions retrospectively, and used them to instruct the jury. Defence counsel did not object to the trial judge's use of the new provisions, and did not object to the jury charge. The appellant was convicted of aggravated assault.

[3] Since the appellant's trial, this court held in R. v. Bengy, 2015 ONCA 397, 335 O.A.C. 268, that the amended provisions apply prospectively, not retrospectively. There is no doubt that the trial judge erred in using the post-amendment self-defence provisions to instruct the jury. But in and of itself that is not sufficient to allow the appeal. R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141, calls for a "case-specific, functional inquiry" to determine whether the error prejudiced the accused: at paras. 74-75.

[4] However, there is no need to conduct the inquiry that Phillips calls for in light of another error relating to the trial judge's failure to adequately correct a legally erroneous assertion made by the trial Crown in the jury address. Crown counsel said four times that if the jury found that the appellant struck the complainant, Mr. Marcheson, first, then self-defence did not apply. This error, on its own, renders the verdict unsafe.

A. Factual Overview

[5] The appellant and Lisa Beamer were each renting a room in William Vullings' home. Mr. Marcheson was there with them. The appellant and Mr. Marcheson had known each other for about 40 years but had a history of tension, including some physical altercations. Ms. Beamer and Mr. Marcheson were good friends. Ms. Beamer and the appellant were not friends. Mr. Vullings was friends with all three of the others.

[6] The group began drinking beer and playing cards in the afternoon. As the drinking continued through the evening and into the morning hours, tension grew between the appellant and Mr. Marcheson. Eventually, the appellant went to bed in his own room.

[7] The appellant awoke and complained about the noise that the rest of the group was making. He directed offensive comments at Mr. Marcheson, who confronted the appellant. They fought. Both the appellant and Mr. Marcheson agreed that the appellant is "much smaller" than Mr. Marcheson in terms of height, weight, and build. The appellant suffered from a knocked-out tooth and bloody nose and lip. The appellant had a beer glass in his hand during the altercation, from which Mr. Marcheson suffered multiple lacerations to his face and neck. This led to the charge of aggravated assault.

B. The Trial Evidence

[8] The appellant and Mr. Marcheson gave different accounts of the physical altercation. Mr. Marcheson testified that the appellant struck him first with the beer glass. The appellant testified that Mr. Marcheson attacked him, and he used the glass in self-defence.

The Appellant's Testimony

[9] The appellant testified that the noise from the group woke him up. He heard Mr. Marcheson's voice, and he yelled at him from inside his room. The appellant opened his door to go rinse a beer glass from which he had been drinking milk, and found Mr. Marcheson standing at his doorway. He tried to get past Mr. Marcheson, who said "[y]ou're gettin' it" and then punched the appellant in the face, knocking him out, with the glass still in his hand.

[10] The appellant testified that he came to still holding the now broken glass. He dulled the glass on the coffee table to avoid hurting Mr. Marcheson, and held onto it as the two scuffled in the doorway. The appellant held the glass under Mr. Marcheson's chin, who then backed off.

[11] The appellant testified that as he headed back to his room, Mr. Marcheson picked him up, threw him onto the bed, sat on him, and proceeded to hit him 30 to 40 times. The appellant rubbed the glass against Mr. Marcheson's face to scratch him in order to get him to back off. He characterized Mr. Marcheson's injuries as being self-inflicted as a result of his attack on the appellant.

[12] The appellant denied striking the first blow.

The Testimony of the Other Witnesses

[13] Mr. Marcheson testified that he heard the appellant shouting insults from his room. He stood up and went to the appellant's room door, opened it, and went inside. He stated that he left the room without incident. As he headed back to join Ms. Beamer and Mr. Vullings, he heard the appellant behind him. Mr. Marcheson turned around and the appellant hit him in the face with what he thought was a beer bottle. Ms. Beamer later told him it was a beer glass. She told him he was bleeding, and after hearing this he went back to the appellant's room and hit him a few times.

[14] Ms. Beamer testified that the group heard the appellant shouting at Mr. Marcheson from his room. Mr. Marcheson went into the hallway and shouted "that's fucking enough". After ten minutes they heard the appellant come out of his room. Mr. Marcheson went into the hallway to see why the appellant was coming out. Ms. Beamer was behind Mr. Marcheson. She testified that the appellant came out of his room with a "big thick glass mug in his hand and just clocked [Mr. Marcheson] right in the face".

[15] Mr. Vullings testified that an argument took place between the two men, and Mr. Marcheson became increasingly frustrated. The two faced off in the hallway, and Mr. Marcheson said, "That's it, he's getting it!" They then moved into the appellant's bedroom. Mr. Vullings heard rustling, banging, and a smash. He got up after hearing the smash and saw Mr. Marcheson on top of the appellant punching him.

[16] The jury was obliged to sort through this divergent evidence.

C. Analysis

[17] The issues to be resolved are: (1) whether the Crown misstated the law of self-defence, and (2) whether the trial judge erred by not correcting the misstatement.

(1) Did the Crown Misstate the Law of Self-Defence in the Jury Address?

[18] In his jury address, Crown counsel stated four times that if the jury found that the appellant had struck the complainant first, then self-defence was not available to the appellant:

These are the factors: a person is – that if it's believed, on reasonable grounds, that force is being used against that person or another person, or that the threat of force is being made against them or another person. So what that is is whether Mr. Fougere believed that, on reasonable grounds, that force was being used against him, against him or another person that's – in that instance self-defence is open to him. So if on the Crown's theory – if Mr. Fougere struck first, if you find that he struck first, self-defence is over, all right, because Mr. Fougere struck first. … So if you find that as a fact, that Mr. Marcheson was struck first, self-defence is done, all right. You don't – the Crown's met that – the Crown has, has established that that does not apply, that the reason the force was used was in self-defence.

Now, the next factor is, the act that constitutes the offence is committed for the purpose of defending yourself. Okay, so going back to the first one, Mr. Fougere would have to believe that Mr. Marcheson had, had assaulted him or was threatening to assault him; that's the first thing. Was – did Mr. Fougere believe, on reasonable grounds, that Marcheson was – had assaulted him or was threatening to assault him? And if you find that Mr. Fougere struck first, that one's done, but it goes further than that. The next one is, that the act that constitutes the offence, the aggravated assault, is committed for the purpose of defending or protecting oneself or another person. Okay, what that means is, is – you have to find, first of all, that Mr. Fougere thought he was being attacked or there was a threat of attack. If he struck him first, obviously that's not the case.

[19] In his testimony at trial, the appellant denied striking the first blow. Is rejection of this denial fatal to his claim of self-defence? The appellant argues that even if the jury rejected his denial and believed that he struck the first blow, "the jury, properly instructed, could still have found that the Appellant was acting in self-defence."

[20] I agree with the appellant's argument that there is no automatic preclusion of self-defence where the trier of fact finds that the accused struck the first blow. Under the old provisions, a first blow might have been justified as self-defence under s. 37 for the purpose of "preventing" an assault against the accused. Under the new provisions, s. 34 may provide justification for a first blow against another where the accused is reacting to a "threat of force". Under both provisions, the trier of fact would also have to determine whether the force used was proportionate to the threat perceived. The defence would apply if an accused believed that he was being assaulted or facing threat of being assaulted, even if the accused was mistaken in that belief, so long as the belief was objectively reasonable.

[21] The appellant paints this picture. A jury "could have concluded that a startled and frightened Fougere, who happened to be holding a beer glass while on his way to the kitchen, reacted to a perceived threat of force (i.e. Marcheson stating that Fougere was 'going to get it') by striking Marcheson as they encountered each other at or near the bedroom door." The appellant argues that "a properly instructed jury could have found that Fougere struck the first blow and that the Crown had not proven that Fougere was not acting in self-defence" (emphasis in original). The appellant's fear, notes counsel, could have been found to be reasonable in light of several contextual facts, taken from the appellant's factum, and which do not appear to be in dispute:

• Marcheson was 100 lbs. heavier than Fougere, and much taller;
• Both Fougere and Marcheson acknowledged history of tension between them;
• Vullings testified that Marcheson would "pick on" Fougere, while Fougere characterized it as being "bullied" by Marcheson;
• Fougere recalled a previous physical altercation wherein Marcheson had him to the ground as someone else goaded that Marcheson should "kill him";
• All parties noted tension brewing on the night in question between Fougere and Marcheson;
• Fougere testified that Marcheson made him nervous that night as he kept "hovering" outside his bedroom door;
• Fougere testified that immediately preceding the physical altercation, he opened his door to find Marcheson right there;
• Fougere, Vullings and Beamer all testified that Marcheson stated that he had "had enough" and/or that Fougere was "going to get it" just prior to the physical altercation.

Consequently there was, argues the appellant, an air of reality to self-defence even if the appellant struck the first blow.

(2) Did the Trial Judge Err by Not Correcting the Crown's Misstatement?

[22] The trial judge's charge was conventional on self-defence. But he did not comment at all on the Crown's assertion that if the appellant struck the first blow then he could not claim to have been acting in self-defence. This was an error. The Crown's submission on the first blow took on added force from the lack of correction. Arguably the charge reinforced the Crown's submission. First, after outlining the three conditions required to disprove self-defence, the trial judge stated that in considering them, the jury might find assistance in considering who struck the first blow. Absent a correction that self-defence was still available even if the appellant struck the first blow, if the jury considered only the Crown's position then a consideration of who struck the first blow might lead them to the erroneous conclusion that self-defence was not available. Second, in outlining the Crown's "theory of the case", the trial judge repeated the Crown's position that the appellant did not "'believe on reasonable grounds that force or a threat of force was being used against him' because he struck Mr. Marcheson first, before Marcheson ever acted aggressively."

[23] The respondent argues that the appellant's alternative position was not put to the jury at trial (perhaps for strategic reasons), and that the trial Crown's argument was, in any event, correct on the facts of this case. The respondent submits:

It is clear that the Crown was referring to the Appellant striking first with the glass, in anger, and causing serious lacerations to Mr. Marcheson as a first blow. There would have been no air of reality to a self-defence claim that the Appellant reasonably had to cause multiple serious lacerations on the face of the unarmed Mr. Marcheson as a first blow in response to the words "you're getting it". [Emphasis in original.]

The respondent's factum then recites all the reasons why the appellant was not actually in fear of Mr. Marcheson.

[24] Regarding the Crown's argument that the alternative position was not put to the jury, I note that the trial judge's duty is to instruct the jury on all available defences, even when counsel does not raise or rely on them. See R. v. Jackson (1991), 51 O.A.C. 92 (C.A.), at para. 64, aff'd , [1993] 4 S.C.R. 573. Even though the appellant did not put its alternative position before the jury, it would have still been incumbent on the trial judge to instruct the jury on the application of self-defence, based on the evidence led.

[25] With respect, the respondent's formulation oversimplifies the factual situation and presupposes a jury finding in favour of that view. It was the jury's responsibility as the trier of fact to consider the widely divergent evidence in light of a proper understanding of the applicable law, both in relation to the appellant striking first and whether the force he used was proportionate to the threat perceived. The trial judge's failure to correct the Crown's misstatement inhibited that understanding. As a confounding factor, the trial judge's erroneous decision to apply the new law may also have affected the argument and the jury's assessment of the evidence, to the appellant's prejudice.

D. Disposition

[26] In the circumstances, I consider the verdict to be unsafe. I allow the appeal, set aside the conviction and order a new trial on the count of aggravated assault.

Released: June 18, 2019

"P. Lauwers J.A."

"I agree. R.G. Juriansz J.A."

"I agree. S.E. Pepall J.A."