Court of Appeal for Ontario

Date: 20200417 Docket: C65497

Roberts, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Tola Dirk Paul Appellant

Counsel: Maurice Mattis and Lucas Jack-Sadiwnyk, for the appellant Kevin Rawluk, for the respondent

Heard: January 10, 2020

On appeal from the conviction entered by Justice Tamarin M. Dunnet of the Superior Court of Justice, sitting with a jury, on March 12, 2018, with reasons reported at 2018 ONSC 1643.

Harvison Young J.A.:

A. Overview

[1] The appellant, Tola Paul (“Paul”), was convicted of aggravated assault, and possession of a weapon for a dangerous purpose. He was also found guilty of assault with a weapon, but that charge was stayed to avoid double jeopardy. These charges were laid after Paul hit Paul Campbell (“Tall P”) in the hand with a machete. There is surveillance video footage of the events immediately prior to and following the strike, which occurred outside a strip mall bar. Paul appeals from his convictions on the basis that the trial judge erred in refusing to put the defences of self-defence and defence of others to the jury. The trial judge held that there was no air of reality to these defences, specifically because she found that the jury could not reasonably conclude that the act was reasonable in the circumstances.

[2] I would allow the appeal. While the trial judge correctly identified the applicable legal principles, she erred in the application of these principles. There was evidence before her upon which a properly instructed jury acting reasonably could have concluded that the defences of self-defence and the defence of others were made out. The defences had an air of reality and should have been put to the jury.

B. Background

[3] At trial, the jury heard evidence from the security guard at Africa House that evening, Tequan Campbell, and from the appellant. They also saw surveillance video footage of much of what transpired from three different angles. Here, I review only the evidence relevant to the convictions on appeal.

(1) Tequan Campbell’s Evidence

[4] On April 17, 2016, Campbell was working as a security guard at the bar known as Africa House. The appellant entered with three other men: Kristian Gatto; a man referred to as the “South Park guy”; and a man referred to as Richard. Campbell testified that he asked the appellant not to leave the bar with a beer. Tall P also told the appellant to leave his beer in the bar, then Tall P went upstairs. According to Campbell, the appellant became upset, and also went upstairs and outside with his beer. At this point, Tall P and the appellant were having a “face-to-face”, during which Tall P’s shoulder touched the appellant’s shoulder.

[5] Campbell then heard people yelling outside. He went upstairs and looked out the door. Tall P was on his cell phone and was arguing with Gatto and the South Park guy. Campbell then saw the appellant approach Africa House quickly from the south with a machete in his hand. When he was about ten feet from Tall P, the appellant was restrained by another man referred to as the “dreadlocks guy”, before turning and walking away. At this point, other people began coming outside from the bar and walking south, including Campbell.

[6] Campbell testified to seeing Tall P and Gatto arguing on the sidewalk. Gatto lifted his shirt to reveal a machete in his waistband. Campbell also saw Tall P and the appellant fighting in the parking lot between an SUV and another car. At this point, Tall P had a machete in one hand and a knife in the other. The appellant had a hammer.

[7] Campbell then saw the appellant running north with a machete. Campbell, and others who were outside, also ran north. The appellant caught up to Tall P at the door to Africa House, where he hit him with the machete.

(2) The Appellant’s Evidence

[8] The appellant testified to going to Africa House on the night in question with three friends. At some point, he went to go outside and Campbell asked him to leave his drink downstairs. As he went up the stairs, Tall P was walking behind him and said, “All you fucking guys don’t listen. You all just want to do what you feel like.” Tall P was swearing at the appellant and the appellant was swearing back at him. While they were on the stairs, Tall P threatened him and pulled out a knife. The appellant walked outside and Tall P followed. Gatto and South Park guy were already outside. The appellant testified that Tall P threatened to stab the appellant and was on his cell phone asking someone to “come and link him.”

[9] The appellant then walked south and retrieved a machete from the back of the SUV. He began walking towards Tall P to scare him but was restrained by the dreadlocks guy, and then returned the machete to the SUV.

[10] The appellant says he then walked back to Tall P, this time with only a cigarette in his hands. At this point, Tall P was talking to Gatto, and the appellant testified that Tall P was still threatening him with the knife and he felt scared. He says he then returned to his SUV to listen to music and to smoke.

[11] While he was in the SUV, he heard someone say, “These guys stabbed me” and recognized Gatto’s voice. He then saw Tall P running towards him with a machete. Tall P swung the machete which hit the SUV’s door and fell to the ground. The appellant then reached for a sledgehammer in the SUV. Tall P struck the appellant on the back with the knife and the appellant swung the hammer, which touched Tall P and then dropped to the ground.

[12] The appellant then picked up the machete, and Tall P turned around and ran. Tall P was carrying a knife. When Tall P reached the entrance to Africa House, he turned around. The appellant says that he did not know if Tall P was going to attack him or his friends, and was still afraid. He swung the machete at Tall P and cut his hand.

[13] Tall P then went inside Africa House. The appellant testified to following him inside to see if Tall P was coming back with anybody.

(3) The Agreed Statement of Facts

[14] It was agreed that Tall P sustained an injury to his hand requiring surgery and that Gatto received a wound in his upper abdomen approximately three inches deep.

(4) The Parties’ Submissions

[15] The appellant brought an application to have the defences of self-defence and defence of others put to the jury on the charges of aggravated assault and assault with a weapon.

[16] Before the trial judge, the appellant argued that there was a sufficient evidentiary foundation to ground the defences of self-defence and defence of others. He pointed to the evidence that Tall P, who is considerably taller than the appellant, threatened him with a knife and had a knife in his hand the whole time. The appellant then heard, while he was sitting in the SUV, that Tall P had stabbed and attacked his friend with a machete. Tall P came to the SUV and attacked the appellant with a machete and a knife. When the machete fell, the appellant chased Tall P and slashed him with the machete seconds later. The appellant’s evidence was that as he was chasing Tall P, Tall P was holding a knife, and he believed that Tall P would attack him or his friends. He submitted that the events happened at a fast pace and in a stressful environment with little time for reflection.

[17] The respondent’s position below was that, even accepting the appellant’s evidence at its highest, the acts he committed were not objectively reasonable in the circumstances. The respondent submitted that before he started chasing Tall P, the appellant had already successfully defended himself with the hammer. It was not necessary, in the objective sense, for the appellant to then pick up the machete, chase after Tall P, and slash him.

(5) The Trial Judge’s Ruling on Self-Defence and Defence of Others

[18] After conducting a thorough review of the evidence adduced at trial, including the video surveillance footage, the trial judge set out the relevant evidence. Notably, she made a number of factual conclusions including that: (1) at the point where Tall P was on the cell phone, there were no indications of aggressive movements towards the appellant or towards anyone; (2) the fight between Tall P and the appellant at the SUV was “almost consensual”; and (3) following this fight, when the appellant chased Tall P north towards Africa House, “the threat was over.”

[19] The trial judge concluded that the appellant’s conduct was not objectively reasonable in the circumstances. In her view, the appellant had “no reason” to hit Tall P with the machete. The appellant was chasing Tall P, who was trying to escape, and who did not engage the appellant.

[20] Though cognizant that the threshold at this stage of the analysis is low, given these conclusions, the trial judge ruled that there was no air of reality to the defences of self-defence or to the defence of others and dismissed the application.

C. Issue and Applicable Law

[21] The sole issue for this panel to decide is whether the trial judge erred in finding that there was no air of reality to the defences of self-defence and defence of others.

[22] A defence should be put to the jury if, and only if, there is an air of reality to that defence: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 51. A trial judge’s failure to put a defence to the jury for which there is an air of reality is therefore an error of law.

[23] A defence has an air of reality if, and only if, a properly instructed jury, acting reasonably, could acquit the accused on the basis of the defence: Cinous, at para. 92. This inquiry requires a consideration of the totality of the evidence, assuming the evidence relied upon by the accused to be true: Cinous, at para. 53.

[24] In the case of self-defence and the defence of others, the success of each defence turns on three requirements pursuant to s. 34(1) of the Criminal Code, R.S.C. 1985, c. C-46: (a) the accused must believe on reasonable grounds that force or threat of force is being used against them or someone else; (b) the purpose for the act that constitutes the offence must be to protect oneself or others from that force or threat of force; and (c) the act committed must be reasonable in the circumstances. The first and last requirements blend objective and subjective considerations to determine what is reasonable in the circumstances, while the second requirement is subjective: R. v. Khill, 2020 ONCA 151, at paras. 54 and 57.

[25] The ruling below turned on the third criterion, the reasonableness of the act. This criterion is evaluated in reference to a non-exhaustive list of factors at s. 34(2), with the trier of fact having wide discretion to determine how such factors are to be weighed and assessed: Khill, at paras. 62-63. In making this assessment, the trier of fact must be mindful that people using defensive force in stressful and dangerous situations are not expected to weigh their responses to a nicety: R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 7; R. v. R.S., 2019 ONCA 832, at para. 36.

D. Analysis

(1) Observations on the Standard of Review

[26] I begin with a brief comment on the proper standard of review. The appellant directs us to authority for the proposition that the question of whether a defence has an air of reality is a question of law reviewable on a correctness standard: R. v. Budhoo, 2015 ONCA 912, 343 O.A.C. 269, at para. 40. The respondent directs us to authority for the proposition that the trial judge’s decision to leave a defence with a jury is entitled to “some deference” on appeal: R. v. Dupe, 2016 ONCA 653, 340 C.C.C. (3d) 508, at para. 79. I accept both propositions as binding on me.

[27] These principles are not obviously reconciled. As Paciocco J.A. recently observed in R. v. Land, 2019 ONCA 39, 145 O.R. (3d) 29, at para. 71, this has resulted in the standard of review on appeal in these cases being afflicted by “some complexity”.

[28] Reviewing a trial judge’s proper role in this exercise can assist in navigating this complexity. In some instances, there will be evidence that, if believed, would establish an element of a defence: Cinous, at para. 88. For example, an accused may testify and give direct evidence as to the existence of a subjective element of a defence. The trial judge, when faced with this direct evidence, must then find that there is an air of reality to that element. Since the trial judge must attribute an air of reality to an element supported by direct evidence in the record, we logically do not owe deference to this determination.

[29] In other cases, there will be no direct evidence going to a particular element. I note, for example, there can be no direct evidence as to the reasonableness of the act in self-defence: Cinous, at para. 89. In this case, the trial judge must engage in a “limited weighing” of the evidence to determine whether the element can be “reasonably inferred”: Cinous, at para. 91. In so doing, she must not draw determinative factual inferences, nor make credibility assessments: R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at para. 22. The limited weighing is only for the relatively narrow purpose of deciding whether there is evidence upon which the trier of fact could reasonably conclude that the element has not been disproved beyond a reasonable doubt.

[30] The deference owed when reviewing this limited weighing is necessarily less than that owed to a trial judge’s findings of fact. Some of the reasons for generally deferring to trial judges on their weighing of the evidence – namely their ability to assess credibility of live witnesses and their expertise in making findings of fact – are not relevant to a limited weighing: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 15-18. Nevertheless, I recognize that the trial judge has the privilege of extensive exposure and immersion in the entire trial record.

[31] In any event, in this case, as in Land, at para. 71, the trial judge’s errors obviate the need for any deference.

(2) The Trial Judge Erred in Her Approach to the Air of Reality Test

[32] In this case, the trial judge erred in her application of the air of reality test by making a number of findings that went to the heart of the factual controversies between the parties. Accordingly, her conclusion that there was no air of reality to the plea of self-defence and defence of others does not warrant deference from this court.

[33] After reviewing the evidence adduced at trial, instead of determining whether a reasonable trier of fact could accept either of the defences, the trial judge undertook her own assessment of the events. For example, she concluded that the altercation between Tall P and the appellant by the SUV was “almost consensual.” She also concluded that at the time Tall P began to run away from the appellant, “the threat was over”, and found further that the appellant “had no reason to use a machete to ‘chop’ Tall P.”

[34] The first of these conclusions contradicted the appellant’s version of events. It was the appellant’s evidence that he was sitting in the SUV when Tall P ran at him holding a machete and knife. According to the appellant, Tall P swung his weapons at him before he picked up a sledgehammer to defend himself. The appellant’s evidence was that when he chased Tall P, he was afraid because two people had attacked him, and he did not know if someone else was behind him. The appellant did not describe a “consensual” fight. Given that the trial judge’s finding that the fight was “almost consensual” is contradicted by the appellant’s evidence, the trial judge must necessarily have considered the appellant’s credibility, which she was not permitted to do. This finding cannot be found to have been reasonable: Pappas, at para. 53.

[35] Further, there is evidence inconsistent with the trial judge’s finding that the threat was over at this point. Events happened quickly. Tall P had pursued Paul to his car and attacked him with weapons. Gatto had just been stabbed. There was evidence that Tall P still had a knife in his hand as he ran north after dropping the machete. There was evidence that Tall P had asked others to come and link him, in other words, to back him up, and there were a number of people moving about at the time. Video surveillance evidence shows that the appellant was followed when he ran after Tall P. By finding that the “threat was over” in the face of evidence that it was not, the trial judge exceeded her gatekeeping role.

[36] The trial judge’s findings may have been findings which a trier of fact could have arrived at on this record. But this was not the trial judge’s task on the self-defence application: Cinous, at para. 54. These conclusions indicate that the trial judge did not restrict her role to that of limited weighing. This gives rise to the danger that her conclusion was based on these findings of fact, rather than an evidentiary assessment. Usurping the fact-finding function in this way is an error of law: Budhoo, at para. 49.

[37] I note that this error is further evidenced by the wording of the trial judge’s conclusion on this point. She concluded that the appellant’s conduct “was not reasonable in the circumstances.” This was a conclusion for the jury to reach. The trial judge’s task was to ask whether a jury could reasonably reach this conclusion: Cinous, at para. 92. A simple misstatement does not positively establish a reviewable error. However, when read in context with the incorrectly made findings of fact, the trial judge’s misstatement indicates that she went beyond the scope of her role and usurped the jury’s function.

[38] Given that the trial judge erred in her application of the test, no deference is owed to the decision below. I must now consider whether there is an air of reality to self-defence and defence of others on this record.

(3) There is an Air of Reality to Self-defence and Defence of Others

[39] I conclude that there is an air of reality to the defences of self-defence and defence of others in relation to the machete chop of Tall P. As the foregoing discussion reveals, there is evidence on which a jury could reasonably find that each of the three criteria of self-defence and defence of others were not disproven beyond a reasonable doubt.

[40] On the first criterion, a jury could reasonably conclude that the accused believed on reasonable grounds that force or threat of force was being used against him or someone else. The appellant’s evidence was that as he approached Tall P at the door to Africa House, Tall P turned around to face him, holding a knife. Further, while the subject act is the machete strike that occurred at the entrance to Africa House, I note that it would be open to the jury to find that this was one among a longer chain of violent events that occurred between Tall P, the appellant, and others. The jury could reasonably have considered this broader context. In particular, it was the appellant’s evidence that Tall P had threatened to stab him, and that Tall P attacked him with a machete as he was sitting in the SUV after hearing Gatto say that he had been stabbed.

[41] On the second criterion, there is no real dispute that a jury could reasonably conclude that the subjective purpose of the act was for the appellant to protect himself or others. The appellant gave direct evidence to this effect. He testified that he heard Gatto yell that he had been stabbed just before Tall P approached him with the machete. He also testified that he was scared that there was someone else behind him as he was running after Tall P. He said that when Tall P turned around at the door of Africa House he was scared that Tall P would “rush” him with a knife. There is accordingly direct evidence which, if accepted, would establish this criterion.

[42] The third criterion concerns the reasonableness of the act. As with the first criterion, I am mindful that there is evidence that the subject act occurred as part of a series of altercations between the appellant, Tall P, and others. I am also mindful that in assessing the objective reasonableness of the appellant’s conduct the jury must not weigh his response to a nicety: Cunha, at para. 7. Further, s. 34(2) of the Criminal Code makes clear that this is an inherently contextual exercise: Khill, at para. 60.

[43] It may be open to the jury to conclude, as the trial judge did, that the altercation between Tall P and the appellant at the SUV was “almost consensual”. However, it would also be open to the jury to conclude, based on the appellant’s evidence, that Tall P was the aggressor in this altercation. Similarly, the jury could conclude that, after the appellant picked up the machete and Tall P started running away, the threat was over, as the trial judge would have found. Yet, the jury could also conclude that the threat was not over, but that the appellant and his friends continued to be in danger such that his subsequent actions were reasonable in the circumstances. Without commenting on the likelihood that a jury would reach this conclusion, it is a conclusion that would be open to the jury on this record.

[44] Thus, the jury could reasonably have acquitted the appellant of all charges in reliance on the defences of self-defence and defence of others. The defences should have been put to the jury.

E. Conclusion

[45] For these reasons, I would allow the appeal, set aside the convictions, and order a new trial on the charges of aggravated assault, assault with a weapon, and possession of a weapon for a dangerous purpose.

Released: April 17, 2020

“LR” “A. Harvison Young J.A.”

“I agree L.B. Roberts J.A.”

“I agree David M. Paciocco J.A.”