Supreme Court of Canada

Reilly v. R., [1984] 2 S.C.R. 396

Date: 1984-11-1

Albert Douglas Reilly (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

File No.: 17165.

1983: November 2; 1984: November 1.

Present: Laskin C.J.[^1] and Ritchie, Dickson, Estey, McIntyre, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Defences—Second degree murder—Self defence and provocation—Excessive force—Party intoxicated—Whether or not qualified defence of excessive force in self-defence available to reduce charge—Whether or not trial judge’s charge as to qualified defence of provocation adequate—Whether or not intoxication relevant to self-defence—Criminal Code, R.S.C 1970, c. C-34, ss. 34, 212(a).

The Ontario Court of Appeal upheld appellant’s conviction of second degree murder for the fatal stabbing of his paramour. Appellant, believing that she intended to kill him when she charged at him with a knife, tried to stop her and killed her in the ensuing “tussle”. Both were intoxicated. The following issues arose from the Court of Appeal’s judgment: (1) whether or not the trial judge ought to direct the jury to a verdict of manslaughter in circumstances where the accused acted in self-defence but had used excessive force; (2) whether or not the trial judge’s charge with respect to the qualified defence of provocation was adequate; and (3) whether or not the trial judge ought to have instructed the jury to consider the accused’s intoxication when they decided whether he had acted in self-defence within the meaning of s. 34 of the Code.

Held: The appeal should be dismissed.

The defence of self-defence fails on a finding of excessive force; the trial judge therefore did not need to direct the jury to a verdict of manslaughter in those circumstances. The trial judge’s charge on the qualified defence of provocation was adequate for the jury could not have been misled by the portion of the charge in question when it is read in the context of the whole charge on provocation. The trial judge did not err in his charge to the jury on self‑defence. The defence accorded an accused by s. 34(1) is not available where the jury

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finds, as it did in this case, that the accused intentionally used force to cause death. The accused may be found to have acted in self-defence within the meaning of s. 34(2) even if he were mistaken in his apprehension of death or grievous bodily harm or if he mistakenly believed he could not preserve himself from death or grievous bodily harm otherwise than by the force he used. His apprehension, however, must be reasonable and his belief based on reasonable grounds. The relevance of intoxication under s. 34(2) is eliminated and the defence is available to an intoxicated person if the accused’s perception meets this objective standard.

R. v. Faid, 1983 CanLII 136 (SCC), [1983] 1 S.C.R. 265, 2 C.C.C. (3d) 513, applied; Pappajohn v. The Queen, 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120, distinguished; R. v. Trecroce (1980), 1980 CanLII 2854 (ON CA), 55 C.C.C. (2d) 202; R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 38 C.C.C. (2d) 6; R. v. Basarabas and Spek (1981), 1981 CanLII 351 (BC CA), 62 C.C.C. (2d) 13, referred to.

APPEAL from a judgment of the Ontario Court of Appeal (1982), 1982 CanLII 71 (ON CA), 66 C.C.C. (2d) 146, dismissing an appeal from a conviction for second degree murder. Appeal dismissed.

Bruce Durno, for the appellant.

John C. Pearson, for the respondent.

The judgment of the Court was delivered by

RITCHIE J.—This is an appeal, brought with leave of this Court, from the judgment of the Court of Appeal for Ontario, reasons for judgment delivered by Mr. Justice Arnup on behalf of that Court, dismissing the appeal of the accused from the verdict of a jury which had found him guilty of second degree murder in the killing of the paramour with whom he had shared an apartment in Toronto.

The facts of this case are not seriously in dispute and the sordid circumstances which directly preceded the killing have been so fully and accurately analyzed in the reasons for judgment of Mr. Justice Arnup that, in my opinion, it is unnecessary to repeat them in detail for the purposes of disposing of this appeal.

The appellant stands charged that he:

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…on or about the 13th day of May in the year 1979 at the Municipality of Metropolitan Toronto in the Judicial District of York murdered one Eileen Gertrude Fraser, and thereby committed second degree murder, contrary to the Criminal Code.

There is no doubt, nor is it denied, that the said Eileen Fraser came to her death as a result of three blows from a sharp knife in the hands of the appellant. The events immediately preceding the stabbing are best described in the appellant’s own evidence from which the following excerpt is reproduced in the reasons for judgment of the Court of Appeal ((1982), 1982 CanLII 71 (ON CA), 66 C.C.C. (2d) 146, at pp. 150-51):

She was coming out here and she has got this knife and this look you wouldn’t believe it, the look in her eyes, she was coming at me and she was charging me fast.

Q. Was she saying anything?

A. Nothing. Not a word. Just coming at me.

Q. What did you do?

A. All I could see was this, the flash of the knife, that look in her eyes, and tried to bang it away, and I just lashed out, tried to hit her.

Q. Did you realize at the time you were carrying anything or were you carrying anything?

A. I just, just wanted to stop her, that is all. That knife. I just thought she was going to kill me… Just like this, she turned again. For no reason. No reason. No rhyme or reason. I thought… I thought and thought and thought what have I said? What have I done? What could bring this on? And there I am. There she is.

Q. You said you lashed out at her. What do you mean by that?

A. Just tried to get rid—tried to get the knife away from me and hit her at the same time. I just—I just hit. I don’t know, instinct, it is not too clear. Everything was so fast. Just tussling and that was it then and there she was.

Q. Did you intend to kill her?

A. Certainly not. I loved that woman and…

On cross-examination:

Q. She came out. Was she screaming at you as she came out the door?

[Page 399]

A. No, she wasn’t screaming—just charged me—not a word, nothing.

Q. With this knife in her hand?

A. Just came at me.

Q. What was your first reaction?

A. I can’t very well say it here.

It is to be remembered that this incident was the culmination of some days of verbal abuse between the parties conducted in loud voices so that the neighbours overheard it and noted that it was largely conducted by Eileen Fraser who, a short time before, had called out to the appellant, for no apparent reason, saying: “You son of a bitch, you rotten bastard”. This example of abuse was later cited by the appellant as a provocative factor contributing to the state of mind which caused him to “lash out” at the victim in what turned out to be the fatal assault which gave rise to the present charge. I am satisfied, however, that there was a sufficient lapse of time between this abuse and the stabbing so that the two cannot be related and in any event, the crudity of the abusive insult appears to have been consistent with the daily conversational exchange between the parties and accordingly would not necessarily give rise to any violent reaction on the appellant’s part.

The main defences advanced by the appellant were provocation and self-defence and this is reflected in the following grounds of appeal, pursuant to which leave to this Court was granted, which read as follows:

1. Did the Court of Appeal for the Province of Ontario err in law in holding that the Learned Trial Judge was not required to direct the jury that if the jury found that the Appellant had acted in self-defence but had used excessive force in self-defence that he was guilty of manslaughter?

2. Did the Court of Appeal for the Province of Ontario err in law in holding that the Learned Trial Judge had adequately instructed the jury with respect to the qualified defence of provocation?

3. Did the Court of Appeal for the Province of Ontario err in law in holding that the Learned Trial Judge had related the consumption of alcohol to the subjective element of self-defence?

[Page 400]

At the outset of his judgment in the Court of Appeal Mr. Justice Arnup had occasion to consider the first of these grounds, at p. 148, saying:

The… most substantial ground is the failure of the trial Judge to instruct the jury “that if the appellant acted with excessive force in self-defence he was guilty of manslaughter”. This submission raises the question whether there exists in Canada a qualified defence arising from the use of excessive force in self-defence, leading to a verdict of manslaughter in circumstances which would otherwise result in a conviction for murder.

This question has been raised and discussed in two cases in this Court, but it has not been necessary previously to decide whether this qualified defence should be recognized in Ontario.

Mr. Justice Arnup then proceeds with a thorough review of the relevant cases in various provincial courts and concludes with an endorsement of the law stated by Martin J.A. in R. v. Trecroce (1980), 1980 CanLII 2854 (ON CA), 55 C.C.C. (2d) 202 (Ont. C.A.), at p. 211, where he said:

Where excessive force in self-defence has been recognized as a substantive doctrine, it would appear that the following conditions, at least, are necessary to give rise to that qualified defence:

(a) The accused must have been justified in using some force to defend himself against an attack, real or reasonably apprehended.

(b) The accused must have honestly believed that he was justified in using the force that he did.

(c) The force used was excessive only because it exceeded what the accused could reasonably have considered necessary.

In adopting the reasoning exemplified in the Trecroce case the Court of Appeal also followed the judgment of Martin J.A. in R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 38 C.C.C. (2d) 6 (Ont. C.A.), and found the same reasoning to be supported by the judgment of the British Columbia Court of Appeal in R. v. Basarabas and Spek (1981), 1981 CanLII 351 (BC CA), 62 C.C.C. (2d) 13. In conformity with this line of reasoning, Mr. Justice Arnup concluded on behalf of the Court of Appeal in the present case, at p. 160:

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In the light of the decisions of the Courts of Appeal of British Columbia, Alberta and Saskatchewan, and upon consideration of the careful review of the subject by Martin J.A. in Campbell, supra and Trecroce, supra, I have reached the conclusion that the doctrine of excessive force in self-defence rendering the accused guilty only of manslaughter instead of murder should be recognized in Ontario.

In my opinion the decisions to which Mr. Justice Arnup refers in this passage are undoubtedly supportive of the conclusion which he reached and consistent also with the then widely recognized view of the effect of “the doctrine of excessive force” in a murder case. Mr. Justice Arnup’s unanimous opinion was delivered on March 9, 1982; however, the same question was differently decided in this Court in the case of R. v. Faid which was subject of a unanimous judgment delivered by Mr. Justice Dickson on March 1, 1983 and now reported at 1983 CanLII 136 (SCC), [1983] 1 S.C.R. 265, where he said in the course of his reasons for judgment, at p. 271:

The position of the Alberta Court of Appeal that there is a “half-way” house outside s. 34 of the Code is, in my view, inapplicable to the Canadian codified system of criminal law, it lacks any recognizable basis in principle, would require prolix and complicated jury charges and would encourage juries to reach compromise verdicts to the prejudice of either the accused or the Crown. Where a killing has resulted from the excessive use of force in self-defence the accused loses the justification provided under s. 34. There is no partial justification open under the section. Once the jury reaches the conclusion that excessive force has been used the defence of self-defence has failed.

As this Court is bound by these observations it is clear to me that, on this basis alone, the first ground of appeal should be answered in the negative, but it is, in any event, significant that Mr. Justice Arnup found further ground for supporting the trial judge’s charge saying, at p. 162:

I conclude that the trial Judge in the present case did not err in omitting to charge the jury on excessive force in self-defence. Such a defence was not “revealed by the evidence” and was never raised by the defence.

[Page 402]

As his second ground of appeal the appellant challenges the adequacy of the trial judge’s charge to the jury upon the qualified defence of provocation. The following language in the charge was objected to in this Court as it was in the Ontario Court of Appeal:

You will also ask yourselves, was the provocation such that it would have led a person with the physical and mental condition of the accused to respond this way?

It was urged by the appellant that such language invited the jury to wrongly consider the conduct of someone other than the accused. I agree with Mr. Justice Arnup that although the above passage may perhaps be open to this criticism when viewed in isolation, the jury could not have been misled by it when it is read in the context of the whole charge upon provocation.

The final ground of appeal advanced by the appellant raises a challenge to the adequacy of the trial judge’s charge to the jury upon the defence of self-defence as codified in subs. 34(1) and (2) of the Criminal Code. Section 34 reads as follows:

34. (1) Every one 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) 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 and probable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

In the appellant’s submission, the trial judge ought to have told the jury, when instructing them under both subsections, that they must consider the evidence of intoxication in deciding whether they were left in reasonable doubt about whether the accused had acted within the legal definition of self-defence.

[Page 403]

Consideration of the appellant’s argument is complicated by the fact that a concession was made on behalf of the accused in the court below which is described by Mr. Justice Arnup, at pp. 162-63, as follows:

Next it was submitted that the trial judge erred in failing to instruct the jury that the consumption of alcohol was a factor to be taken into account in considering the subjective elements in self-defence. The same complaint was made as to the charge on provocation. It is conceded by counsel that the trial Judge specifically mentioned intoxication in relation to both self-defence and provocation.

In my view, the charge taken as a whole was adequate in relating intoxication to self‑defence and provocation. [Emphasis added]

As it is possible to construe the judgment of the Court of Appeal as depending, at least in part, upon the appellant’s concession, I have reviewed the portion of the trial judge’s charge devoted to self-defence and I can find no mention of the accused’s intoxication and any relevance it might carry. The appellant withdrew his concession before this Court and full argument was heard upon the issue from both parties.

In my view, nothing now turns upon the concession for the following reasons. First of all, s. 34(1) is no longer in issue in this case because the appellant admits that the jury found the accused possessed the requisite intention for murder according to s. 212(a) of the Criminal Code. Section 34(1) is not available to an accused where the jury finds the force he has used was intended to cause death.

In so far as s. 34(2) is concerned, it is my opinion the trial judge was not required to instruct the jury that the accused’s intoxication was relevant. The only way drunkenness could arguably be said to be relevant to s. 34(2) would be if it had induced in the accused a mistaken appreciation of the facts which, if true, would have justified the force he used as legitimate self-defence. In other words, it could be argued that his intoxication is relevant if it induced him to mistakenly apprehend death or grievous bodily harm or mistakenly

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believe that he could not otherwise preserve himself from death or grievous bodily harm.

Subsection (2) of s. 34 places in issue the accused’s state of mind at the time he caused death. The subsection can only afford protection to the accused if he apprehended death or grievous bodily harm from the assault he was repelling and if he believed he could not preserve himself from death or grievous bodily harm otherwise than by the force he used. Nonetheless, his apprehension must be a reasonable one and his belief must be based upon reasonable and probable grounds. The subsection requires that the jury consider, and be guided by, what they decide on the evidence was the accused’s appreciation of the situation and his belief as to the reaction it required, so long as there exists an objectively verifiable basis for his perception.

Since s. 34(2) places in issue the accused’s perception of the attack upon him and the response required to meet it, the accused may still be found to have acted in self-defence even if he was mistaken in his perception. Reasonable and probable grounds must still exist for this mistaken perception in the sense that the mistake must have been one which an ordinary man using ordinary care could have made in the same circumstances.

This statutory requirement of reasonableness is what distinguishes the defence provided by s. 34(2) from the general law upon mistake of fact expressed in Pappajohn v. The Queen, 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120. In the Pappajohn case it was held that an honest, but mistaken belief in facts which, if true, would render the accused’s act innocent was sufficient to prevent him from forming the mens rea essential to all criminal liability; there was no legal necessity that the mistaken belief be based upon reasonable grounds. It was accepted that intoxication could potentially induce such a mistake of fact.

The fatal difficulty with the appellant’s argument in this case is that although intoxication can be a factor in inducing an honest mistake, it

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cannot induce a mistake which must be based upon reasonable and probable grounds. The perspective of the reasonable man which the language of s. 34(2) places in issue here is the objective standard the law commonly adopts to measure a man’s conduct. A reasonable man is a man in full possession of his faculties. In contrast, a drunken man is one whose ability to reason and to perceive is diminished by the alcohol he has consumed.

I should not be taken as saying that the defence under s. 34(2) can never be available to a person who is intoxicated. An intoxicated man may hold a reasonable belief, i.e. the same belief a sober man would form viewing the matter before him upon reasonable and probable grounds. Where he does so, however, it is in spite of his intoxication.

The requirement of an objective basis for the accused’s perception of the facts, whether it be mistaken or accurate, eliminates any relevance that evidence of the accused’s intoxication might have had to self-defence under s. 34(2). Naturally, if the accused is intoxicated, he is not deprived of the defence provided by the subsection so long as the objective test is met by the existence of reasonable and probable grounds for the accused’s perception of the nature of the assault upon him and the response required to meet it.

It follows that I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Humphrey, Ecclestone & Durno, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.

[^1]: The Chief Justice took no part in the judgment.