WARNING

THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:

Section 110(1): Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

Section 110(2): Subsection (1) does not apply:

• (a) in a case where the information relates to a young person who has received an adult sentence;
• (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and
• (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

Section 110(3): A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

Section 111(1): Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

Section 138(1): Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985:

• (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
• (b) is guilty of an offence punishable on summary conviction.

Court Information

Court of Appeal for Ontario

Date: October 22, 2019

Docket: C60414

Judges: Huscroft, Paciocco and Nordheimer JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

R.S. Appellant

Counsel

Gary Grill and Leo Salloum, for the appellant

Christopher Webb, for the respondent

Hearing

Heard: September 23, 2019

On appeal from: The convictions entered by Justice Maureen D. Forestell of the Superior Court of Justice on March 24, 2014 with reasons reported at 2014 ONSC 1996.

Decision

Nordheimer J.A.:

A. Overview

[1] R.S., a young person as defined by the Youth Criminal Justice Act, S.C. 2002, c. 1, was convicted on March 24, 2014, after a judge-alone trial, of manslaughter, aggravated assault, careless use of a firearm and possession of a firearm without a licence or registration. He appeals from the convictions of manslaughter, aggravated assault and careless use of a firearm. He does not appeal from the conviction for the firearm possession offence.

[2] For the reasons that follow, I conclude that the trial judge erred in her analysis of self-defence in a manner that rendered her verdicts unreasonable ones. Accordingly, I would allow the appeal and enter acquittals on those charges.

B. The Background Facts

[3] The appellant was attacked by five men in the lobby of an apartment building in which he lived. The apartment building is located in the Jane and Woolner neighbourhood of Toronto. A gang, known as the Gators, operates in this neighbourhood. At least two of the five attackers were members of this gang although the appellant was unaware of this at the time.

[4] On April 12, 2012, around 9:49 p.m., the appellant left his apartment to meet a friend. He had a gun in his pocket. The appellant had a gun because he had been shot at on two prior occasions. Indeed, on the second occasion, someone called his name before shooting at him from a car. As a consequence of these events, the appellant feared for his life. Following the second shooting, which occurred about two months prior to the attack here, the appellant purchased a gun and thereafter carried it with him for protection.

[5] The appellant took the elevator down from his apartment and eventually exited his building. He was out of the building for about 14 minutes. During this time, the attackers were captured on surveillance video, initially in the lobby of the appellant's building and then congregating in the lobby of the apartment building directly opposite.

[6] A short time after the appellant re-entered the lobby of his apartment building, the attackers left the adjacent apartment building and entered the lobby of the appellant's apartment building. One of the attackers had a baseball bat. The appellant opened the door to the lobby of his apartment building for the lead attacker, oblivious as to what was about to happen.

[7] After the appellant opened the lobby door, he turned and walked towards the elevators. His back was to the other men. The attacker with the baseball bat (the deceased) hit the appellant in the back of the head. The appellant fell to his knees and the gun fell out of his pocket.

[8] The appellant picked up the gun. He fired four shots. As the shots were fired, the attackers were running out of the building. One attacker ran north down a hallway. Three of the attackers ran out the lobby door. The fifth attacker was already outside the lobby. The deceased was hit in the back by a bullet and fatally injured, although he nonetheless managed to escape the building and run across the street. Another attacker was grazed and injured. As found by the trial judge, the shots were fired within, at most, five seconds.

C. The Issue

[9] An accused person who believes on reasonable grounds that force is being used against him may do something that otherwise would be an offence but be acting lawfully, and thus not be guilty of any crime, provided that what he does is for the purpose of defending or protecting himself from that use of force and the actions he takes are reasonable in the circumstances as the accused person knew or honestly believed them to be. That is the definition of self-defence. The central issue at trial in this case was whether the appellant acted in self-defence.

[10] The appellant contended that he had fired his gun in order to protect himself against what he perceived would be the continuation of the initial attack. Three of the attackers gave evidence for the prosecution. The evidence of one other attacker was read in from the preliminary hearing. The appellant gave evidence in his own defence.

[11] On March 24, 2014, the trial judge convicted the appellant of the offences I mentioned above. In that regard, I should mention that the appellant had been charged with second-degree murder. The trial judge convicted the appellant of manslaughter because she was not satisfied, beyond a reasonable doubt, that the appellant had the requisite intent to cause bodily harm that he knew was likely to cause death. It was for this same reason that the trial judge convicted the appellant of aggravated assault and not of attempted murder.

[12] In convicting the appellant of these offences, the trial judge rejected the appellant's claim of self-defence. She concluded that the appellant's act of firing the gun was not objectively reasonable, principally because she found that the appellant fired the gun at a time when he knew that the attackers were retreating.

D. Analysis

[13] In my view, the trial judge erred in her conclusion regarding self-defence in two respects. First, she made a finding of fact that was not supported by the evidence with the consequence that her verdict is an unreasonable one. Second, she erred in her application of the objective requirement for self-defence by failing to take into account all of the circumstances surrounding the shooting. The second error may have been driven, in large part, by the first. Nevertheless, I will deal with the errors separately. I begin, though, with a brief reference to the applicable law.

(1) The Applicable Law

[14] The trial judge erroneously applied the new self-defence provisions in deciding this case. In doing so, she did not have the benefit of this court's decision in R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, which ruled that the new self-defence provisions were not retrospective. However, the parties are agreed that this error does not have any impact on the result because the analysis is effectively the same in this case under either the new or the old self-defence provisions. In these reasons, I will refer to the old provision that was, in fact, applicable to this case, namely, Criminal Code, R.S.C. 1985, c. C-46, s. 34(2), as amended by S.C. 1992, c. 1, s. 60 (F), which reads:

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.

[15] There are three constituent elements of self-defence under this section. They are set out in R. v. Pétel, [1994] 1 S.C.R. 3, at p. 12:

1. the existence of an unlawful assault;
2. a reasonable apprehension of a risk of death or grievous bodily harm; and
3. a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary.

[16] There is both a subjective and an objective component to each of these elements: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3 at para. 94.

[17] There is no issue in this case that the subjective component was made out for each of the three elements. There also does not appear to be any dispute that the objective component was made out for the first and second elements. It is the objective component for the third requirement that is in issue.

(2) Unreasonable Verdict

[18] The trial judge rejected self-defence on the basis that the appellant's action in firing his gun was unreasonable because he fired his gun "at the retreating figures" (para. 147). She also concluded that the appellant fired the gun "at the people he saw running away. He did not fire blindly or randomly" (para. 106).

[19] The trial judge based her conclusions on what she recounted as the appellant's evidence. Specifically, the trial judge said, at para. 146:

I have found that at the point that [the appellant] turned and fired, no one was closing in on him. All of the individuals who had commenced the attack were running away. [The appellant] knew that they were running away. He testified to that effect. He no longer faced an imminent threat of force. [Emphasis added.]

[20] Having reviewed the appellant's evidence, I am satisfied that the trial judge misunderstood what the appellant said. As I demonstrate below, the appellant did not say that, when he fired the shots, he knew that the attackers were running away, nor can this conclusion be reconciled with the other evidence.

[21] The trial judge's conclusions are therefore unreliable, especially on the issue of the reasonableness of the appellant's actions in the context of a defence of self-defence. In this case, her critical factual error makes the verdict an unreasonable one.

[22] The basis for finding a verdict to be unreasonable is set out in R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, where Deschamps J. said, at para. 9:

The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge. [Citations omitted.]

[23] The finding that the appellant knew his attackers were running away when he began to shoot is essential to the verdict, but plainly contradicted by the appellant's evidence, which the trial judge relied upon to support this finding.

[24] There is no dispute that the appellant said that he saw the attackers running at some point, but where that point fell in the timeline surrounding the events is unclear. For example, in cross-examination, the appellant said:

Q. And I'm going to suggest to you, sir, that they started to run away as soon as you got that gun in your hand.

A. I don't know. I can't tell you.

and further:

Q. You would agree with me, though, that you were shooting in the direction of the men as they ran away?

A. Yeah.

Q. And I'm going to suggest to you that that can only happen if you were aiming at them?

A. No, as I was saying, I was on the floor, I turned around and start firing the direction they all ran off.

Q. And I'm going to suggest to you, sir, that you fired more than once in the direction that [the deceased] was running.

A. I just told you, I picked the gun up and start firing right away.

[25] The appellant was never asked directly whether he saw the attackers running before he fired the gun, or while he was firing, or after. Any fair reading of his evidence does not allow for any finding that he was aware that the attackers were retreating before he fired his gun. Indeed, the trial judge's own finding that "when he turned and fired, he saw 'guys running'" (para. 147) does not address this central issue of timing.

[26] There is no doubt that, at a point in his evidence, the appellant did say that he saw that his attackers were running away. Indeed, he said that, when he saw that his attackers were running away, he stopped firing his gun. However, I repeat that he was never asked whether, when he did see the men running away, he was already firing the gun or whether he only then started to fire the gun.

[27] Further, there is no finding by the trial judge regarding the sequence of the shots. Indeed, the trial judge expressly stated that she could not make that factual determination (para. 111). This was another critical factual gap in the evidence in this case. The appellant was struck from behind. He fell to his knees. He was facing the elevators which were on the east side of the lobby and his attackers were behind him. There was evidence of bullet strikes to the west, i.e., in the location of the attackers. There was also evidence of at least one, potentially two, bullet strikes to the north along the hallway where the one attacker had run.

[28] Remarkably, in the context of this case, the appellant was never asked which direction he turned when he grabbed his gun, swung around, and started to fire. If he swung to his right, i.e. to the south, then to the west, and then to the north, he would have had a much more limited time to discern the actions of the majority of the attackers, all but one of whom (including the deceased) were then behind him. If the appellant turned to his left, fired the first shot to the north, where one of the attackers ran to escape, and then fired the subsequent shots to the west, there was a greater opportunity for the appellant to discern the actions of the bulk of the attackers since they would have been further into their escape.

[29] In my view, the sequence of the shots was critical to any determination of the appellant's ability to discern the actions of his attackers, and thus the risk of harm that he was facing, which was, in turn, essential to any finding as to the objective reasonableness of his actions.

[30] There is a further problem with there being no factual finding on this point. Assuming that there was a reasonable opportunity for the appellant to discern the actions of the attackers as he fired the shots, some of the shots may have been fired at a time when the appellant reasonably feared that he could not preserve his life, while later shots may not have been so justified. If this was so, and it was one of the earlier shots that struck the deceased, the appellant would be entitled to the defence of self-defence.

[31] This possibility clearly arises on the evidence since it appears to be undisputed that the appellant was still on his knees swinging the gun around as he fired. Not only does the physical evidence establish that, both the appellant and one of the attackers say that is what happened. Indeed, the one attacker described the appellant's actions in the following terms:

Q. Okay. And you would agree with me that, from your recollection, he's spinning and firing at the same time?

A. Yes.

The trial judge also accepts that the appellant was still on his knees when he fired the shots (para. 103).

[32] The only way that the trial judge avoids the problems that these absent factual findings present, is by finding that the appellant knew that the attackers were running away before he fired the first shot. The difficulty with that conclusion, as I have explained, is that it has no foundation in the evidence. There is simply no basis on the evidence for any conclusion that, prior to firing the first shot, the appellant was aware that his attackers were running away. He does not say that nor is there any other evidence that would support such a finding. The trial judge's opposite conclusion constitutes a palpable and overriding error.

(3) The Objective Component

[33] I also believe that, in reaching her conclusion on self-defence, the trial judge failed to give proper consideration to the actual circumstances in which the events transpired. The appellant had his back to his attackers. Without any warning, he was hit in the back of the head with a baseball bat with sufficient force that he fell to his knees, during which time his gun fell out onto the floor. As the appellant responded to the blow to his head, he grabbed the gun, swung around and fired in the direction of his attackers. As found by the trial judge, and as seen on the video surveillance, the time between the attack and the shots being fired was less than five seconds.

[34] The trial judge concluded, at para. 147:

The option chosen by [the appellant] of firing at the retreating men was grossly disproportionate to the threat that he faced at the point that he fired the gun.

[35] With respect, given how the events unfolded in this case, I believe that the trial judge tested the actions of the appellant against a standard that is much too high for the proper application of self-defence. The trial judge required the appellant, in less than five seconds, to process what had happened, evaluate the potential threat, and essentially react in a reflective and measured fashion. The reasonableness of that standard must be contrasted with the reality of the situation which was:

• The appellant had already been struck with force on the back of his head with a baseball bat. Indeed, he believed he had been shot.
• He had reason to believe these men would continue to attack him, and possibly kill him.
• He had been shot at twice before, so he reasonably believed his life was in danger. The trial judge accepted that was the case.
• The appellant was alone against five men who had engaged in a group attack on him, at least one of whom was armed with a baseball bat.
• The appellant was inside the lobby of the building and the building's closest exit was behind him where his attackers were located.

[36] In considering the context in which these events occurred, the trial judge referred to a basic principle regarding self-defence: we do not expect persons, who are attacked, to weigh their response to the attack to a nicety. Yet, as I shall explain, I believe that is what the trial judge required the appellant to do in this case.

[37] I have already set out the evidence of the appellant as to what happened. I have also set out the confirmatory evidence, on the same point, of one of the attackers. The trial judge, while having some issues with this witness's evidence, did not reject his evidence on this point. Nevertheless, the trial judge did not consider this evidence in her objective analysis.

[38] Further, all of this must be considered against the reality that four shots were fired within, at most, five seconds. To hold that the appellant was required, in those seconds, to turn his mind to these unfolding events and make a rational and detached decision whether he reasonably needed to fire his gun – and, if so, how many times – in order to prevent any further attack, and thus preserve his life, is, with respect, to place an unreasonable burden on the appellant. It effectively requires him to weigh to a nicety the degree of his response. The unreasonableness of that burden is compounded by the trial judge's implicit criticism of the appellant's actions that he did not fire the shots in the air or in the ground (para. 147).

[39] I reiterate that there was no finding regarding the sequence of the shots. There is also no evidence as to which, of the four shots, struck and killed the deceased. There is therefore the very real potential for the force used by the appellant to have been reasonable at the commencement of the shots, but to have become unreasonable before the shots concluded, as the appellant developed the awareness of the actual state of affairs regarding the actions of his attackers. However, no factual findings were ever made on this point either.

[40] It is difficult to see how a proper analysis of the objective reasonableness of the appellant's actions could be made in the absence of those factual findings.

[41] In the end result, given the evidentiary record, the prosecution failed in its obligation to prove, beyond a reasonable doubt, that the appellant did not act in self-defence. The trial judge erred in concluding otherwise. She reached that conclusion based on a fundamental factual error regarding the appellant's evidence and on a misapplication of the objective requirements for reasonableness in the self-defence context. Her conclusion that self-defence was disproved, beyond a reasonable doubt, is an unreasonable one.

(4) Fresh Evidence

[42] The appellant sought to adduce fresh evidence regarding his mental state at the time of the shooting. As a result of information obtained during the sentencing process, it was learned that the appellant operates at a reduced mental level for his age. In some respects, he operates at the level of a ten-year-old. The appellant sought to adduce this fresh evidence as relevant to the objective evaluation of the reasonableness of his actions. While the respondent conceded that the admissibility and due diligence requirements for the admission of fresh evidence were met, it opposed the admission of the fresh evidence on the basis that it was not sufficiently cogent.

[43] Given the conclusions that I have reached regarding the trial judge's conclusions on self-defence, it is unnecessary for me to resolve the fresh evidence application.

(5) Remedy

[44] The issue then arises as to what remedy is appropriate in this case. The Criminal Code gives this court the power, in these circumstances, to direct that a verdict of acquittal be entered or order a new trial: s. 686(2).

[45] The proper result in this case is for acquittals to be entered on the charges of second-degree murder, attempted murder, and careless use of a firearm. I reach that conclusion based on my view that the verdicts are unreasonable as they are not properly supported by the evidence adduced at trial. Further, this is not a case where there was an evidentiary error that could be corrected at a new trial. In other words, it is not a case where evidence was improperly admitted or excluded. The respondent laid out the case that it asked the appellant to meet. If there is other evidence that the respondent might have adduced but chose not to, it ought not to be able to correct that tactical decision through a new trial.

[46] The Supreme Court of Canada has noted that "[w]here a conviction is set aside on the ground that the verdict is unsupported by evidence, the court of appeal, absent legal errors in respect of the admissibility of evidence, will usually enter an acquittal": R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 14. As Doherty J.A. noted in R. v. Harvey, 57 O.R. (3d) 296 (C.A.) at para. 30, aff'd 2002 SCC 80, [2002] 4 S.C.R. 311:

Usually, if the Court of Appeal allows a conviction appeal on the ground that the verdict is unreasonable it will enter an acquittal. An acquittal is the appropriate order because it would be unfair to order a new trial and give the Crown a second opportunity to present a case on which a reasonable trier of fact could convict.

[47] I will add that I am reinforced in my view that acquittals are the appropriate result by the reality that the events in question occurred seven years ago. It is not in the interests of justice, in the circumstances to which I have just referred, to require, not only the appellant, but also all of the other persons who were involved in these matters, to once again relive these events through another trial. On this point, I also consider it a relevant consideration that the appellant was a young person at the time that these events took place.

[48] Accordingly, I would enter acquittals on the charges.

E. Conclusion

[49] The appeal is allowed and acquittals are entered on the charges of second-degree murder, attempted murder, and careless use of a firearm.

Released: October 22, 2019

I.V.B. Nordheimer J.A.

I agree. Grant Huscroft J.A.

I agree. David M. Paciocco J.A.

Footnotes

[1] See David Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015) (Final 74B – Self Defence (General Instruction))

[2] The trial judge appears to have imposed this obligation on the appellant but, as I explain in the following section, I conclude that, in doing so, the trial judge imposed an unreasonable burden on the appellant.

[3] The appellant said that he thought that he had, in fact, been shot and that he was attempting to remain conscious after the blow.

[4] The evidence showed that one of the other attackers was armed with a knife and another attacker "likely" had a weapon the nature of which is not stated.