Ontario Court of Justice
Citation: R. v. Fournier, 2021 ONCJ 598 Date: 2021-11-23 Court File No.: Windsor 20-11526
Between: Her Majesty the Queen — and — Cheyenne Fournier
Before: Justice S.G. Pratt Heard on: 20 July, 1 October 2021 Reasons for Judgment released on: 23 November 2021
Counsel: Jayme Lesperance, Counsel for the Crown Angelo Minardi, Counsel for the Defendant
Reasons for Judgment
[1] Cheyenne Fournier is charged with two offences. It is alleged that in the early morning hours of 16 June 2020 she struck Tyler Dashner repeatedly with a knife in the head, face, and arm. That act has led to her being charged with Assault Causing Bodily Harm and Assault With A Weapon. That Ms. Fournier, hereinafter the Defendant, did the act complained of is not in issue. The question for me to determine is whether, when she caused the injuries she did to Mr. Dashner, she was acting in self-defence. More specifically, has the Crown proved beyond a reasonable doubt that she was not acting in self-defence? For the reasons that follow, the answer to that question is no. The Defendant will be found not guilty of both charges.
Admissions
[2] There were several admissions made at the outset of trial: date, time, jurisdiction, identity of the Defendant, and photographs. It was also admitted that the injuries suffered by Mr. Dashner met the definition of bodily harm.
Issues
[3] The only issue for me to determine is the applicability of s. 34 of the Criminal Code. That is the section that sets out the law regarding self-defence. It reads as follows:
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.
Marginal note: Factors
(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.
Marginal note: No defence
(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.
[4] The self-defence provisions of the Criminal Code were simplified in 2013. Where before several sections were devoted to the various situations in which defendants could find themselves, there are now three questions that must be asked:
(1) Did the defendant reasonably believe force was being used or threatened against them or another person?
(2) Was the force used by the defendant in defence against that use or threat of force?
(3) Was the force used reasonable?
[5] The section goes on to provide a non-exhaustive list of factors to be considered by a trier of fact when answering the third question. Finally, subsection 3 generally excludes situations where the initial force or threat of force was for lawful purposes. That subsection does not apply in the current case.
[6] Crown counsel acknowledged that the answer to the second question is yes. He did not dispute that if the Defendant reasonably believed she was under threat of force, what was done by her was in defence to the perceived threat. The Crown’s argument is that the Defendant did not reasonably believe Mr. Dashner (hereinafter the Complainant) posed a threat of force and that her response was not reasonable in the circumstances.
[7] There are three issues to be determined in this case. They are:
(1) Is there an air of reality to the claim of self-defence?
(2) Has the Crown proved beyond a reasonable doubt that the Defendant did not reasonably believe that force was being used against her, or that she was under threat of force when she acted as she did?
(3) Has the Crown proved beyond a reasonable doubt that the Defendant did not act reasonably in responding to the perceived threat?
Issue 1: Is there an air of reality to the claim of self-defence?
[8] The concept of self-defence provides a justification for what would otherwise be a criminal act. A person is permitted to defend themselves to a reasonable extent from applications or threats of physical force.
[9] The procedure for determining if self-defence is applicable to a given case goes like this: the Crown alleges an act. The Defence argues that there is an air of reality to a claim of self-defence. If that argument is accepted by the court, the burden is on the Crown to disprove self-defence beyond a reasonable doubt. That is, the Crown must prove the accused was not acting in self-defence, and must prove that fact beyond a reasonable doubt. At no point does an accused have to prove they were acting in self-defence. They need only show an air of reality to the claim. Once that is done, it falls to the Crown to prove the action wasn’t taken in reasonable defence of oneself or another person.
[10] What is an air of reality? The threshold for a court to consider self-defence was set out by Chief Justice McLachlin and Justice Bastarache in R. v. Cinous 2002 SCC 29, [2002] 2 S.C.R. 3 at paragraphs 49 and 53:
In our view, the controversy can be resolved on the basis of existing authority, which we consider to be decisive. The correct approach to the air of reality test is well established. The test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit. See Wu v. The King, 1934 28 (SCC), [1934] S.C.R. 609; R. v. Squire, 1976 26 (SCC), [1977] 2 S.C.R. 13; Pappajohn v. The Queen, 1980 13 (SCC), [1980] 2 S.C.R. 120; Osolin, supra; Park, supra; R. v. Finta, 1994 129 (SCC), [1994] 1 S.C.R. 701. This long-standing formulation of the threshold question for putting defences to the jury accords with the nature and purpose of the air of reality test. We consider that there is nothing to be gained by altering the current state of the law, in which a single clearly-stated test applies to all defences.
In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true. See Osolin, supra; Park, supra. The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses. It can also rest upon the factual circumstances of the case or from any other evidential source on the record. There is no requirement that the evidence be adduced by the accused.
[11] Justice Fish, speaking for the Supreme Court of Canada in R. v. Fontaine 2004 SCC 27, [2004] 1 S.C.R. 702 confirmed at paragraph 56 the burden on the Crown once the air of reality test is met:
As regards these "ordinary", as opposed to "reverse onus" defences, the accused has no persuasive burden at all. Once the issue has been "put in play" (R. v. Schwartz, 1988 11 (SCC), [1988] 2 S.C.R. 443), the defence will succeed unless it is disproved by the Crown beyond a reasonable doubt. Like all other disputed issues, however, defences of this sort will only be left to the jury where a sufficient evidential basis is found to exist. That foundation cannot be said to exist where its only constituent elements are of a tenuous, trifling, insignificant or manifestly unsubstantive nature: there must be evidence in the record upon which a properly instructed jury, acting [page716] judicially, could entertain a reasonable doubt as to the defence that has been raised.
[12] In determining this preliminary issue, I must take the evidence supporting the claim of self-defence at its highest. Specifically, I must accept the Defendant’s evidence that the Complainant was intoxicated and was being aggressive and threatening in the time leading up to the alleged assault. I must accept that he was yelling, punching the dashboard and the rearview mirror, and that he lunged towards her.
[13] Assuming that evidence to be true, I find that the claim of self-defence advanced by the Defendant meets the air of reality test. The burden is on the Crown to disprove the defence beyond a reasonable doubt.
Issue 2: Has the Crown proved beyond a reasonable doubt that the Defendant did not reasonably believe that force was being used against her, or that she was under threat of force when she acted as she did?
[14] Subsection 34(1) sets out the first element of self-defence. The Defendant must believe on reasonable grounds that force was being used or that a threat of force was being made against her. She need only raise a reasonable doubt on this issue for this element to be satisfied.
[15] It is not necessary to review every aspect of the Defendant’s evidence in detail in order to answer this question. A summary of her evidence, for much of the day’s events, at least, is sufficient.
[16] The Defendant testified that she went to Walpole Island to go fishing. She was with her friend Josh Powers. They arrived around 1pm and were packing up to leave around 4pm when they were approached by the Complainant. He asked her for a cigarette. To her, it seemed the Complainant and his friends (who were in their vehicle) were intoxicated. She herself had consumed two beers by that point.
[17] After a discussion, Josh invited the Complainant and his friends to hang out with them. Josh departed the area with the Complainant’s friends and was gone for a short time. When he returned, the group continued socializing. Josh invited their new acquaintances to his home. Josh had been bragging about the electronics he had at his house and wanted them to come see what he had. Despite the Defendant’s misgivings about taking these strangers to his home, Josh said he was fine with the idea. Everyone got into the Defendant’s vehicle. She drove to Josh’s house in Lakeshore, a 1 – 1 ½ hour trip. She said her passengers kept drinking on the drive to Josh’s house. They left around 9pm and arrived between 10:30-11pm, stopping for gas along the way.
[18] At the house, the males played video games. The Defendant said that everyone was getting along well, though she was still uneasy, until about 1am. At that point, Josh accused the Complainant and his friends of planning a robbery by opening the basement windows. This led to tension in the group. Eventually, Josh kicked everyone out of his home. This was between 4-5am.
[19] The Defendant told the Complainant that she couldn’t drive all the way back to Walpole Island. He was fine with being driven to Windsor, where he told her he had family. The Defendant, the Complainant, and the Complainant’s two friends all got into her vehicle and left Josh’s house. The Complainant was in the front passenger seat and his friends were in the rear seats.
[20] When the Defendant turned west on Highway 42 towards Windsor, she testified that the Complainant became very angry. In her words, he “started flipping out”. She said he punched the dashboard and screamed at her that she was going the wrong way. He told her to pull over and that he was going to take her car. He took her phone and threatened to throw it out the window if she didn’t turn around. She said that as she had no way to call for help, couldn’t reach Josh or the police, and was on a dirt road with three men, she turned around.
[21] She stopped at a rundown gas station and told them to get out. It was at that point, as he was yelling and punching the interior of the vehicle, that he lunged towards her. She grabbed the knife that was in the driver’s door compartment and swung it at him repeatedly. She caused the injuries that were seen in the photos filed as an exhibit on the trial. After she used the knife, the other two men got the Complainant out of the vehicle. She left the area and returned to Josh’s house. He would not help her so she drove to Windsor. She no longer had her cell phone.
[22] When she called her cell phone, it was answered by police. They advised her to turn herself in. In his evidence, PC Rene Tamminga testified that he had been given the phone by the Complainant in hospital.
[23] In his own testimony, the Complainant acknowledged drinking that evening. He also said that at Josh’s house he took at least two, and possibly three, pills. He didn’t know what they were but said they were “definitely a party pill”. When asked about his level of sobriety, he testified that he “was on auto-pilot” and “in the deep end”. While those terms were never defined by the Complainant, I take them to mean that he was significantly intoxicated.
[24] In cross-examination, the Complainant admitted that he sometimes became aggressive when intoxicated. He was asked if he’d had an altercation with Josh but couldn’t remember. Several suggestions were put to him: that he had reached for the Defendant’s keys, that he was so upset that he threatened to hurt the Defendant, that he’d been “tripping out” and screaming. He agreed that each of these suggestions could be true. To be clear, the Complainant acknowledged that he may have threatened the Defendant, may have been screaming, and may have gone for the Defendant’s keys. As to punching anything inside the vehicle, he testified that he couldn’t recall.
[25] In re-examination he was asked if he remembered threatening the Defendant. He said he didn’t remember too much from the car. He did remember telling her that she was driving the wrong way. He was asked how he said it. He testified he could have said it “irrationally”.
[26] Did the Defendant reasonably believe she was under a threat of force when she used the knife on the Complainant? The only reasonable conclusion I can come to on that point is that she did. She was in a vehicle, with the Complainant sitting next to her. She had seen the Complainant consume intoxicants and get in an argument with her friend. In her vehicle, he yelled at her, threatened her, and tried to take her keys. The Complainant himself acknowledges he may well have done all those things. She also said he punched the dashboard and the mirror. Given the rest of his behaviour, and the fact that he couldn’t recall that point either way, I have no difficulty finding as a fact that he did punch the interior of the vehicle. She also testified to him lunging towards her after she pulled over. In all the circumstances, the Crown has not proved beyond a reasonable doubt that the Defendant did not believe on reasonable grounds that she was under a threat of force from the Complainant.
[27] The answer to the second issue is no.
Issue 3: Has the Crown proved beyond a reasonable doubt that the Defendant did not act reasonably in responding to the perceived threat?
[28] It is on this issue that the Crown focused much of its argument. Her response, the Crown says, was disproportionate and simply not reasonable given the nature of the threat she perceived. Defence counsel urges me to look at the entire situation and find that I have a reasonable doubt on the point.
[29] The Defendant does not have to prove that what she did was reasonable. It is for the Crown to prove otherwise beyond a reasonable doubt. If, after considering all the evidence I accept, I find I am left with a reasonable doubt about the reasonableness of her actions, I must acquit as the Crown will have failed to disprove this defence.
[30] The question of whether the act complained of is reasonable “in the circumstances” shows that the inquiry must be more than purely objective. Taking into account the circumstances of the situation necessarily means taking into account subjective factors that may be unique to the case at bar. Support for the idea that this is more than an objective test is found in subsection 2, which sets out several factors a court can consider when determining the reasonableness of an act in the circumstances. To repeat, those factors are:
(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.
[31] This list sets out factors that can be included in the analysis. The list is not comprehensive. Other factors the court feels are relevant can and should be included. Similarly, not every listed factor will apply to a given case.
[32] In R. v. Khill 2020 ONCA 151, Justice Doherty recognized that s. 34(2) allows, if not requires, the consideration of subjective features of a defendant when determining reasonableness (see paragraph 60).
[33] Justice Doherty also noted a long line of cases that approve of a more customized definition of the reasonable person. As Justice Doherty stated at paragraph 48:
Canadian courts consistently interpreted the reasonableness requirements in the previous self-defence provisions as blending subjective and objective considerations. Reasonableness could not be judged “from the perspective of the hypothetically neutral reasonable man, divorced from the appellant’s personal circumstances: R. v. Charlebois, 2000 SCC 53, [2000] 2 S.C.R. 674, at para. 18. Instead, the court contextualized the reasonableness assessment by reference to the accused’s personal characteristics and experiences to the extent that those characteristics and experiences were relevant to the accused’s belief or actions.
[34] This does not mean that a defendant’s personal history can make any response, however drastic, reasonable. It does mean that all persons bring with them to every situation they encounter their own experiences and history. The question is whether a reasonable person, with the Defendant’s history and experience, would have responded as the Defendant did.
[35] It is also trite law that a person under attack or threat of attack need not measure their response “to a nicety” (see: R. v. Hebert 1996 202 (SCC), [1996] 2 S.C.R. 272; R. v. Ligocki [1990] 1 O.R. (3d) 191 (C.A.)).
[36] The nature of the threat is an important consideration. Here, the sudden onset of the threatening behaviour may well have increased its perceived seriousness. Indeed, the Defendant herself testified that the Complainant quickly turning and becoming aggressive frightened her. She admitted she’d had no issues with him prior to getting back into the car. As she said, “they were nice at first, then they switched on me.” This made his anger all the more disconcerting.
[37] I have difficulty accepting the Complainant’s evidence as to how he came to be in possession of the Defendant’s cell phone. He testified that after being stabbed, and on his way out of the vehicle, he saw the phone. In chief, he said taking it was the best thing to do. In cross-examination, he admitted telling police he had probably stolen the phone. I reject the idea that after being stabbed several times he stopped on his way out of the vehicle to take the phone with him. It is far more likely that it was already in his possession at the time of the stabbing, as the Defendant said. That he would take her phone, described appropriately by defence counsel as her lifeline, adds gravity to the nature of the threat the Defendant was facing.
[38] I find that I cannot reject the narrative of events testified to by the Defendant. Rather, I make the following findings of fact:
(1) The Defendant was a stranger to the Complainant and his friends when they met that day;
(2) All parties were getting along reasonably well for most of their time together;
(3) There was an argument, possibly over Josh’s fear the Complainant and his friends were going to rob him. This argument led to Josh telling them to leave his house;
(4) The Defendant agreed to drive the Complainant and his friends to Windsor, where the Complainant told her he had family;
(5) When the Defendant turned right on Highway 42 towards Windsor, the Complainant’s mood changed drastically;
(6) He began yelling at the Defendant that she was going the wrong way;
(7) His anger led the Defendant to make a u-turn and begin driving towards Walpole Island;
(8) In addition to yelling, the Complainant was threatening the Defendant and punching the dashboard and the rearview mirror;
(9) The other males in the vehicle were encouraging the Complainant’s behaviour;
(10) The Complainant took the Defendant’s phone and threatened to throw it out of the car;
(11) The Defendant eventually pulled into a gas station and told the three males to exit her vehicle;
(12) The Complainant continued yelling and lunged towards her;
(13) The Defendant responded by swinging the fishing knife she had in her car door. She struck the Complainant several times, causing the injuries seen in the photographs; and
(14) The males exited the vehicle, and the Defendant drove away.
[39] In cross-examination it was suggested to the Defendant that the Complainant was approximately 6’5” tall and 200-250lbs. The Defendant agreed with that estimate. It was also suggested to her that the other two males were both well over 6’ tall. The Defendant agreed with that estimate as well.
[40] The Defendant gave compelling testimony about how the interaction with the Complainant in her vehicle made her feel. She used the word “scared” over a dozen times. When asked in cross-examination if she was afraid for her safety in the vehicle, she responded, “I was terrified”. Her fear increased when the Complainant took her cell phone.
[41] In summary, then, the Defendant was alone in her vehicle with three men, all much larger than she was and all intoxicated. The one next to her, the Complainant, was yelling at her and punching the interior of the vehicle. He had taken the only means she had to contact anyone. And she was on a county road, in the dark. When she stopped her vehicle to tell them all to leave, the Complainant lunged at her.
[42] The Khill decision was appealed to the Supreme Court of Canada. Following counsels’ submissions, the Supreme Court released its decision (see: R. v. Khill 2021 SCC 37, [2021] S.C.J. No. 37). I invited further written submissions. Both counsel accepted that invitation. I am grateful for their further input.
[43] The main point of the Supreme Court’s decision in Khill deals with a defendant’s role in the incident that led to the charge, and the impact that role can have on a reasonableness assessment. As stated by Justice Martin for the majority of the Court at paragraph 4:
[The trier of fact] needs to consider whether the accused's conduct throughout the incident sheds light on the nature and extent of the accused's responsibility for the final confrontation that culminated in the act giving rise to the charge.
[44] Khill argued that it was only unlawful or morally blameworthy conduct that should be considered when assessing a defendant’s role in the incident. The majority of the Supreme Court found otherwise. It is all of a defendant’s conduct that should be examined, not just that which is in some way objectionable. Certainly, this approach makes logical sense; parsing out individual moments leading up to the incident giving rise to the charge, focusing on some and ignoring others, is an artificial exercise that unnecessarily blinds a trier of fact to conduct that might be crucial (even if not unlawful or blameworthy) in its determination of reasonableness.
[45] Justice Martin also considered the list of factors found in s. 34(2)(c) at paragraph 69:
The "act committed" is the act that constitutes the criminal charge -- in this case, the shooting. Given s. 34(1)(c), the question is not the reasonableness of each factor individually, but the relevance of each factor to the ultimate question of the reasonableness of the act. There is thus no requirement for the Crown to show that a "person's role in the incident" was itself unreasonable before it may be considered as a factor under s. 34(1)(c). As long as "the person's role in the incident" is probative as to whether the act underlying the charge was reasonable or unreasonable it may be placed before the trier of fact. Once a factor meets the appropriate legal and factual standards, it is for the trier of fact to assess and weigh the factors and determine whether or not the act was reasonable. This is a global, holistic exercise. No single factor is necessarily determinative of the outcome.
[46] Justice Martin’s opinion supports the notions that the list of factors in s. 34(2)(c) is not exhaustive and that not all such factors will apply in every case.
[47] I agree that the Defendant’s role in this incident is a relevant factor for me to consider. I am not limited to considering only any unlawful or blameworthy conduct. As Justice Martin summarized at paragraph 74:
In my view, based on accepted principles of statutory interpretation, Parliament deliberately chose broad and neutral words to capture a wide range of conduct, both temporally and behaviourally. Parliament's intent is clear that "the person's role in the incident" refers to the person's conduct -- such as actions, omissions and exercises of judgment -- during the course of the incident, from beginning to end, that is relevant to whether the ultimate act was reasonable in the circumstances. It calls for a review of the accused's role, if any, in bringing about the conflict. The analytical purpose of considering this conduct is to assess whether the accused's behaviour throughout the incident sheds light on the nature and extent of the accused's responsibility for the final confrontation that culminated in the act giving rise to the charge.
[48] What was the Defendant’s role in this incident? She and her friend Josh met the Complainant and his friends for the first time that day. She agreed to drive everyone to Josh’s house, despite how far away it was. She was quiet at Josh’s house while the others played video games. When an argument erupted, she volunteered to take the Complainant and his friends out of the situation. On her evidence, she told them she was not going to drive back to Walpole Island. She testified that the Complainant was satisfied with being driven to Windsor instead. He told her his aunt lived there. It was only after she turned west on the highway instead of east that the Complainant became angry and demanded to be taken back to Walpole. It was her turn onto the highway that precipitated the Complainant’s anger.
[49] The Complainant testified to a limited memory of the entire evening. He said in cross-examination that he thought she was taking them either to Walpole or Chatham. This obviously conflicts with the evidence of the Defendant, who said the Complainant knew of and agreed to the plan to drive to Windsor. Given the Complainant’s repeated testimony about his level of intoxication, I accept the Defendant’s evidence on this point.
[50] In his additional submissions, Crown counsel argued that the Defendant “created the situation of verbal argument when she would not drive the group where they wanted to go.” That argument is not supported by the facts as I have found them. At no point did the Defendant refuse to drive the group where they wanted to go. Before they left Josh’s residence, it was agreed they would go to Windsor. Turning west on Highway 42 was the event that triggered, not an argument, but the Complainant’s anger. That anger continued even after the Defendant turned the vehicle around and started driving in his preferred direction. Regarding the Defendant’s role in the incident to that point, I find she was little more than compliant chauffeur. She was doing what it was agreed she would do. Her actions played no part in the Complainant becoming irritated. On the contrary, by turning the vehicle around the Defendant was trying to placate the Complainant, not aggravate the situation.
[51] When faced with the Complainant’s continued anger and threatening behaviour, she pulled over and told them to leave. Again, I fail to see how her actions could impact my reasonableness assessment.
[52] Taken at face value and applying a strictly objective standard, the clear facts of this situation may well render her reaction to his lunge a reasonable response. When I further consider the Defendant’s own characteristics and experiences, however, the reasonableness of her reaction become even clearer.
[53] The Defendant is a young woman of indigenous heritage. In her testimony, she described a very difficult upbringing with her mother in the United States. She spoke of abuse and neglect. She spoke of her experience seeing people turn from peaceful to violent in a very short time when drinking. Taking her history into account, when the Defendant says she was terrified, I believe her.
[54] A fact sheet published by the Native Women’s Association of Canada in 2015, citing Statistics Canada’s General Social Survey of 2004, reported that indigenous women were 3.5 times more likely to be victims of violence than non-indigenous women. The fact sheet also cited a paper from Amnesty International from the same year that found indigenous women between the ages of 25 and 44 were five times more likely to die from violence than other women were.
[55] The matter became sufficiently pressing in Canada that the federal government initiated the National Inquiry into Missing and Murdered Indigenous Women and Girls in 2015. That inquiry heard from over 2,000 participants whose lives had been touched by this issue.
[56] I do not suggest that the Defendant knew any of these statistics or had read the Inquiry’s final report when she got in her car with the Complainant and his friends. I make these points, however, to show that a person in the Defendant’s situation would be entirely justified in her fear. Her lived experience, acknowledged statistically and in a four-year government inquiry, cannot be ignored when determining if her actions that night were reasonable.
[57] It can be difficult, in the calm of the courtroom, to understand the impact that rapidly evolving events can have on a person whose life has been marked by abuse and violence. It is a struggle for any of us who have not been brought up in that world to truly see through the Defendant’s eyes. But it is a struggle we must undertake if we are to give effect to Parliament’s and the justice system’s stated desire to recognize the plight of indigenous women in this country.
[58] That being said, the test of reasonableness is not purely subjective. The conduct of the Defendant must be compared to what a reasonable person with the Defendant’s unique characteristics and history would have done. It is not adequate for her to say, “I acted this way because this is how I saw the situation”. Instead, the question is, “would a reasonable person with the Defendant’s history have done what she did?”
[59] I agree with the Crown that to the extent any of the Defendant’s beliefs were rooted in stereotypical views of indigenous men, I should disregard them. The Court of Appeal in Khill, supra, addressed that very issue at paragraph 49. A “reasonable person”, even with the subjective characteristics of an accused incorporated into their point of view, cannot espouse unreasonable beliefs. I attach no weight to any testimony wherein the Defendant referred in general to the violent propensities of indigenous men. I do, however, attach significant weight to her own personal experience seeing the effect intoxication can have on a person’s demeanour. That is a relevant consideration that affected her perception of what was happening, especially regarding the sudden change in behaviour exhibited by the Complainant.
[60] The Crown contends that the Defendant did not exhaust the other options that were available to her. Respectfully, I’m not sure what those other options were. When the Defendant turned towards Windsor, the Complainant became very angry. She turned around and started in the direction he wanted. He kept yelling and punching the interior of the vehicle. He took her phone and threatened to throw it out of the car. At that point, the Defendant had done what the Complainant wanted but it had no effect on his anger. Rather than keep driving, she stopped the car and told the three men to get out. It was then that the Complainant lunged at her and she responded by using the knife. Other than exiting the vehicle herself I fail to see what else was obviously available to her. The Complainant had already taken her means of communication; should she have also surrendered her vehicle? Doing so would only have made her even more vulnerable.
[61] I also note that there is no duty on a person to retreat before she can claim self-defence. While this principle is typically applied to persons in their home, it is not exclusively so. See R. v. Deegan 1979 ABCA 198, [1979] A.J. No. 839 (C.A.), where at paragraph 107 Justice Harradence quotes Australian Chief Justice Dixon from the case of R. v. Howe:
Even if the appellant were not in his home, I do not accept that retreat is imperative if a defence of self-defence is to be relied on; rather, I adopt the statement of Dixon, C.J., in R. v. Howe (1958), 100 C.L.R. 448, at p. 462:
"The view of the Supreme Court appears also to be correct as to the position which the modern law governing a plea of self-defence gives to the propriety of a person retreating in face of an assault or apprehended assault before resorting to violence to defend himself. The view which the Supreme Court has accepted is that to retreat before employing force is no longer to be treated as an independent and imperative condition if a plea of self-defence is to be made out."
[62] In the circumstances of this case, given the isolated environment in which the Defendant found herself, I find she had no duty to retreat from the vehicle. If I am wrong in that assessment, I nonetheless find that her failure to do so does not detract from the reasonableness of her actions particularly given how quickly the altercation unfolded after she stopped the vehicle.
[63] This was not an intentional attack on the Complainant. It was in response to his actions and the fear he instilled in her. Immediately after he exited the vehicle, she drove away. In her testimony, she apologized for what she did. It is abundantly clear the Defendant didn’t want any of this to happen. In my view, she did what was necessary in the moment, without weighing her conduct to a nicety, to protect herself.
[64] Based on all the evidence I have heard I find that the Crown has not proved beyond a reasonable doubt the Defendant’s actions in cutting the Complainant with her knife were unreasonable in the circumstances. I find I am left with a doubt on that point. The Defendant is entitled to the benefit of that doubt. The answer to the third issue is no.
Result
[65] The claim of self-defence has been sufficiently made out. The Crown has not disproved it beyond a reasonable doubt. I find the Defendant not guilty of both charges.
Released: 23 November 2021
Signed: Justice S. G. Pratt