Court Information

Court File No.: Toronto Date: April 29, 2013 Ontario Court of Justice

Between: Her Majesty the Queen — and — Zheng Wang

Before: Justice Leslie Pringle

Heard on: March 25, 28 and April 8, 2013

Reasons for Judgment released on: April 29, 2013

Counsel:

• Mr. M. Bloch for the Crown
• Mr. D. Molson for the accused Zheng Wang

PRINGLE J.:

1. Introduction and Overview

[1] Zheng Wang appeared before me for trial on March 25, 2013, charged with an assault causing bodily harm and possession of a weapon, (a coffee mug), for a purpose dangerous to the public peace. The incident giving rise to the charges took place at the head office of the Ontario Lottery and Gaming Corporation (OLG) on November 2, 2012. At the time, both Mr. Wang and the complainant, Gang Li, were working at OLG.

[2] The main issue at trial was one of self-defence. Since the Criminal Code was recently amended by Bill C-26 to change the provisions of self-defence as of March 11, 2013, the first matter to be resolved was whether the existing law at the time of the allegations in November 2012 applied, or whether the new law in existence at the time of trial applied. At the end of the Crown's case I ruled that the law at the time of the allegations applied, and promised to provide reasons for that decision which I will address below.

[3] At the end of the defence case, the parties made submissions in relation to the evidence at trial and self-defence. On this issue I have concluded that I am left with a reasonable doubt, and Mr. Wang is entitled to be found not guilty.

[4] These reasons will deal with the issue of self-defence and my finding that Bill C-26 is not retrospective. My reasons relating to reasonable doubt have been provided separately to the parties.

2. Self-Defence on November 2, 2012

[5] The parties agreed that if the old law applied, the governing provisions were either section 34(1) or 34(2) of the Criminal Code, depending on the facts found:

s.34(1) Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Everyone 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causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and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.

[6] Section 37 also stated:

s.37(1) Everyone is justified in using force to defend himself or anyone under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

3. Self-Defence as of March 11, 2013

[7] In relation to self-defence, Bill C-26 repealed sections 34 - 37 of the Criminal Code and replaced them with a new section 34.

[8] Section 34 states:

s.34(1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

s.34(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person's role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

s.34(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

[9] In the Technical Guide for Practitioners published by the Department of Justice, at www.justice.gc.ca, last modified on March 11, 2013, it states:

The intent of the new law is to simplify the legislative text itself, in order to facilitate the application of the fundamental principles of self-defence without substantively altering those principles.

The new law accomplishes this objective by extracting the common core elements from the multiple different versions of the old defence, and codifying those elements in a manner that provides a single simple framework for assessing the defence in any and all situations in which it might be raised. The new approach focuses on what each version of the old law of self-defence had in common with the others, rather than the features that differentiated each provision from the others. The common elements are core to self-defence, regardless of the differences that may occur from one situation to the next. These are now reflected as the three core requirements for self-defence (itemized in new subsection 34(1)).

At the same time, the distinguishing components of the old law are eliminated as threshold elements. The function of these elements and the nature of how they are considered in a self-defence claim have changed, but they remain important considerations nonetheless. Under the new law, they may be considered wherever relevant, on a case by case basis, as contextual factors that help the jury to determine whether the new core defence elements have been satisfied.

4. Is Bill C-26 Retrospective or Prospective?

[10] In R. v. Dineley, 2012 SCC 58, the Supreme Court of Canada stated that cases in which legislation has retrospective effect must be exceptional. Where new legislation affects substantive rights it will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively. Only new procedural or evidentiary legislation that does not affect substantive rights will apply retrospectively. Thus the key task is to discern if the new law affects substantive rights, (see Justice Deschamps speaking for the majority at paras.10-11).

[11] Justice Cromwell elaborated and explained that in interpreting legislative intent, the courts presume that the legislature did not intend to change the legal character or consequences of actions that occurred before the legislation came into effect. The aim of this presumption is to protect the parties' reliance on the law as it was at the time of acting, (see Justice Cromwell in dissent but not on this issue at paras.45-46).

[12] In this case, it was agreed that there is nothing in the legislation to indicate that it is intended to apply retrospectively.

[13] The Crown took the position that Bill C-26 didn't substantively change the law of self-defence, but simply provided a new analytical framework for analysing the same principles that applied under the old law. The Crown submitted that therefore the new law was retrospective, and should be applied to the facts of this case.

[14] The defence argued that Mr. Wang was entitled to rely on the law as it existed at the time of the incident, and pointed out that his client was presumed to know the law in effect at the time he acted. The defence submitted that a change in the law of self-defence affected Mr. Wang's substantive rights, and urged me not to apply the changes retrospectively.

[15] In the only case decided on point to date, Justice Fisher of the Supreme Court of British Columbia held that the new law was substantive, and affected the content of the defence of self-defence: R. v. Evans, 2013 BCSC 462. She found the new law was prospective only, and therefore instructed the jury that the law to be applied was the law in effect at the time of the incident.

[16] I agree with Justice Fisher. Self-defence is not an evidentiary or procedural concept. Indeed, previously it was viewed as a defence which not only negated criminal intent or excused the criminal act, but actually justified it. In R. v. Perka, [1984] 2 S.C.R. 232, Justice Dickson explained:

A "justification" challenges the wrongfulness of an action which technically constitutes a crime. The police officer who shoots the hostage-taker, the innocent object of an assault who uses force to defend himself against his assailant, the Good Samaritan who commandeers a car and breaks the speed laws to rush an accident victim to the hospital, these are all actors whose actions we consider rightful, not wrongful. For such actions people are often praised, as motivated by some great or noble object. The concept of punishment often seems incompatible with the social approval bestowed on the doer.

[17] While the language of justification is no longer included in the new law, self-defence continues to act as a code of conduct that will completely exonerate a person charged with a criminal offence if it applies. In that sense, the self-defence provisions of the Criminal Code recognize and define substantive criminal rights.

[18] The Department of Justice's Guide indicates that the changes in the law of self-defence are designed to simplify and clarify the previous law, rather than to alter it. However, the Guide also acknowledges:

In regards to the approach toward simplification and clarity of the law of defence of person, two consequences should be borne in mind:

1. It is acknowledged that the law as it applies to some subset(s) of circumstances could be subtly altered by the elimination of circumstance-specific self-defence requirements. In developing the new defence, the greatest of care was taken to ensure that any such alterations would be as few in number and as small in scale as possible. Such anticipated changes in the application of the law are discussed in this guide under relevant sections and paragraphs.

2. It is critical to appreciate that the shift away from circumstance-specific mandatory requirements for self-defence is not intended to dispense with the considerations that were captured by such requirements in the old law. It is clear that the old laws' "requirements" remain highly relevant to understanding the scope and function of self-defence generally, as well as its application in any given case. What the new approach does is convert some of the factual elements that were "required elements" under the old law (i.e. rigid conditions that had to be satisfied for any particular version of self-defence to succeed) into "factors" or "considerations" that feed into the determination of one or more of the core elements of the new defence of person rules. (emphasis added)

[19] While it may be that the practical effect of these changes to the law of self-defence will not be great, it is clear that the law did change the content of the defence. For example, on November 2, 2012 when Mr. Wang became involved in this dispute with Mr. Li, he was deemed to know that he could only rely on self-defence under s.34(1) if he didn't provoke Mr. Li, and, if he didn't intend to cause him grievous bodily harm. Under the new law, those threshold requirements of "no provocation" and "no intent to cause grievously bodily harm" have been eliminated, although they may be considered. Accordingly, the legal significance of the facts regarding provocation and his intent would be altered for Mr. Wang, and the content of the defence would be changed for him, if the new law applied.

[20] The Crown submitted that even if the content of the defence has changed, it has done so in a way that is more generous to Mr. Wang than the old law, and that in fairness to Mr. Wang, the broader interpretation should be afforded to him. Unfortunately, I don't believe that generosity is the test to determine which law applies: sometimes the effect of a retrospective or prospective application of the law can be extremely adverse for an accused, such as in R. v. Eddy Match Co., 109 C.C.C. 1 (S.C.C.) where changes in the evidentiary requirements under the Combines Investigation Act likely meant the difference between acquittal under the old law and conviction under the new.

[21] In this case Mr. Wang believed that he acted in self-defence at the time of the incident on November 2, 2012, and he was deemed to know what the code of conduct was for self-defence under the law at the time. To change the rules now would affect the substance of his defence. Therefore, I agree with the defence that he should be able to rely on the law as it was at the time he acted.

Released: to the parties on April 12, 2013; in court on April 29, 2013

Signed: "Justice Leslie Pringle"