R. v. Hebert, [1996] 2 S.C.R. 272

Dale Maurice Hebert Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Hebert

File No.: 24840.

1996: April 25; 1996: May 30.

Present: Sopinka, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Charge to jury ‑‑ Self‑defence ‑‑ Accused charged with aggravated assault of his father ‑‑ Trial judge's charge to jury with respect to self‑defence containing serious errors of law ‑‑ Whether accused's conviction should stand ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(b)(iii).

The accused was charged with aggravated assault of his father. At the time of the incident, the accused was a fit 30‑year‑old weighing 136 pounds, while his father was a frail, asthmatic, 75‑year‑old who had consumed a good deal of alcohol. The accused stated that he did not assault his father but rather attempted to protect himself from punches and his father’s attempt to hit him with a fish club. He said that in the course of protecting himself he pushed his father on two occasions in such a manner that he fell down. His father testified that he did nothing to provoke the assault and that his son punched him several times. Although the only section of the Criminal Code really pertinent to the case was s. 34(1), the trial judge instructed the jury with regard to ss. 26, 27, 34(1), 34(2) and 37(1). The jury then asked the trial judge: "If [the accused] is seen guilty of using excessive force in self‑defence, would he be found guilty of aggravated assault?" The trial judge replied that "excessive force does take away self‑defence and so I will leave it at that". The accused was convicted. The Court of Appeal was unanimous in concluding that ss. 26, 27, 34(2) and 37(1) should not have been put to the jury, but the majority applied s. 686(1)(b)(iii) of the Criminal Code and upheld the conviction.

Held: The appeal should be allowed.

The trial judge made several serious errors in his charge. The charge was so unnecessarily confusing that it constituted an error of law. Sections 25 to 31 of the Code are preceded by the heading “Protection of Persons Administering and Enforcing the Law”, and are aimed at law enforcement officers and the extent to which they may use force in the course of their duties. Section 26 imposes criminal responsibility on those authorized by law to use force, and was thus clearly inapplicable to the facts of this case. While s. 27, which justifies the use of force which is reasonably necessary to prevent the commission of an offence, is of general application, it is clearly designed to permit an innocent bystander to use force to prevent an offence from occurring and is also inapplicable. In dealing with s. 37 of the Code, the trial judge failed to instruct the jury that this provision, like s. 34, was equally applicable to the accused’s defence. Instead, the trial judge seems to have applied s. 37 exclusively to an assessment of the complainant's conduct. The response to the jury's question was incorrect and misleading. Since there was no air of reality to the defence put forward by the accused pursuant to s. 34(2), this provision should never have been left with the jury. Once it was left for the jury’s consideration, however, the trial judge was obliged to charge them correctly that under s. 34(2), the use of excessive force by the accused will not take away self‑defence. It would also have been appropriate for the trial judge to review for the jury what is encompassed in the term “excessive force” when viewed in the context of self‑defence. Specifically, he should have referred the jury to the principle that an accused facing an upraised weapon cannot be expected to weigh with nicety the exact measure of responsive force. These errors must be viewed seriously as they were made during the trial judge’s recharge, which was required to clarify what was already a source of confusion for the jurors. Section 686(1)(b)(iii) is not applicable here and a new trial should be ordered.

Cases Cited

Referred to: Colpitts v. The Queen, 1965 CanLII 2 (SCC), [1965] S.C.R. 739; R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697; R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909; R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3; R. v. Ward (1978), 1978 CanLII 3878 (ON CA), 4 C.R. (3d) 190; R. v. Mulder (1978), 1978 CanLII 2496 (ON CA), 40 C.C.C. (2d) 1; R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96; R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742; R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122; R. v. Kandola (1993), 1993 CanLII 774 (BC CA), 80 C.C.C. (3d) 481.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, ss. 25, 26, 27, 34(1), 34(2), 37, 686(1)(b)(iii).

APPEAL from a judgment of the British Columbia Court of Appeal (1995), 1995 CanLII 1162 (BC CA), 60 B.C.A.C. 299, 99 W.A.C. 299, dismissing the accused's appeal from his conviction on a charge of aggravated assault. Appeal allowed.

Joseph J. Blazina, for the appellant.

Robert A. Mulligan, for the respondent.

The judgment of the Court delivered by

[1] Cory J. -- In this case, it was necessary for the trial judge to instruct the jury with regard to an aspect of self‑defence. The unsatisfactory manner in which that was done gave rise to this appeal.

Factual Background

[2] At the time of the incident, the appellant was a fit young man 30 years of age weighing 136 pounds. His antagonist was his father, a frail, asthmatic, 75‑year‑old who had consumed a good deal of alcohol. The father received bruises and abrasions to the left side of his face, the right side of his face, the bridge of his nose and severe bruising of his sternum. Both forearms were injured as well. The appellant stated that he did not assault his father but rather attempted to protect himself from punches and his father’s attempt to hit him with a fish club. He said that in the course of protecting himself he pushed his father on two occasions in such a manner that he fell down. His father testified that he did nothing to provoke the assault and that his son punched him several times. Although the only section really pertinent to the case was s. 34(1), the trial judge instructed the jury with regard to ss. 26, 27, 34(1), 34(2) and 37(1) of the Criminal Code, R.S.C., 1985, c. C‑46. A reading of the instructions on the sections leads to the inevitable conclusion that the jury must have been hopelessly confused. Those sections provide as follows:

26. Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.

27. Every one is justified in using as much force as is reasonably necessary

(a) to prevent the commission of an offence

(i) for which, if it were committed, the person who committed it might be arrested without warrant, and

(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or

(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

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 grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

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

[3] The confusion of the jury was apparent from the question which they presented to the trial judge.

If Dale is seen guilty of using excessive force in self‑defence, would he be found guilty of aggravated assault?

The trial judge replied that “excessive force does take away self‑defence and so I will leave it at that”. The accused was convicted and an appeal was brought.

[4] The British Columbia Court of Appeal ((1995), 1995 CanLII 1162 (BC CA), 60 B.C.A.C. 299) was unanimous in concluding that it was unnecessary to put to the jury ss. 26 and 27, which appear under the heading “Protection of Persons Administering and Enforcing the Law”, and s. 37. The Court of Appeal was also in agreement that no air of reality could be attached to s. 34(2). The appellant could not have been under a reasonable apprehension of death or grievous bodily harm from the assault he alleges his father made upon him. Nor could he have believed on reasonable grounds that he could not preserve himself from death or grievous bodily harm without causing grievous bodily harm to his father.

[5] The majority however applied s. 686(1)(b)(iii) and confirmed the conviction. Finch J.A., for the minority, found that s. 686(1)(b)(iii) could not be applied and would have ordered a new trial.

Reasons for Disposition

[6] I am in substantial agreement with the conclusions of Finch J.A., although as will be seen I differ from some of his comments.

[7] Like Finch J.A., I am of the view that s. 686(1)(b)(iii) is not applicable in the situation presented by this case. In Colpitts v. The Queen, 1965 CanLII 2 (SCC), [1965] S.C.R. 739, it was held that once it has been determined that an error in law has occurred at trial, then the onus is upon the Crown to satisfy the Court that the verdict would necessarily have been the same if the error had not been made. See also R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, and R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909.

[8] In this case, there were several serious errors in law. First the charge was so unnecessarily confusing that it constituted an error of law.

[9] Sections 25 to 31 of the Criminal Code are preceded by the heading “Protection of Persons Administering and Enforcing the Law”. These sections are aimed primarily at law enforcement officers and the extent to which they may use force in the course of their duties. Section 26 imposes criminal responsibility on those authorized by law to use force if the force used is excessive. It should be read with s. 25. That section applies to “[e]very one who is required or authorized by law to do anything in the administration or enforcement of the law (a) as a private person [as in the situation of a citizen’s arrest], (b) as a peace officer or public officer, (c) in aid of a peace officer or public officer, or (d) by virtue of his office . . .”. Section 26 then follows with an explanation as to the extent to which those coming within s. 25 may use force. The appellant in the instant case was not required, nor authorized by law, to use force in any manner. Therefore, s. 26 was clearly inapplicable to the facts of this case.

[10] Similarly, s. 27 justifies the use of force which is reasonably necessary to prevent the commission of an offence. This section is of general application and the person asserting the justification need not be a peace or public officer or a member of a restricted class of persons. However, the section is clearly designed to permit an innocent bystander, who witnesses an offence being or about to be committed, to use force to prevent the offence from occurring. It would make no sense to classify a personal assault as the commission of an offence which triggers the use of s. 27. If this were the case, ss. 34 and 37 would be redundant. It obviously makes more sense to fit that sort of conduct under the part of the Code headed “Defence of Person”, which includes ss. 34 to 37.

[11] The trial judge gave the jury copies of what he believed to be the relevant Code provisions, including ss. 26 and 27. He also explained these sections to the jury at some length. The jury were instructed that, if they had a reasonable doubt that the complainant tried to hit the appellant with the fish club, then s. 26 was “brought into play”. The trial judge told the jury to consider whether the son’s response was excessive in all the circumstances. “Excess” is used in s. 26 only and does not appear in ss. 34 and 37(1). The fact that the jury asked a question pertaining to the notion of “excessive force” shows that they were obviously concerned with the instructions given in relation to s. 26. They had perhaps erroneously gathered that this section set the standard for all the self‑defence provisions.

[12] In dealing with s. 27 of the Code, the trial judge interpreted “the commission of an offence” as applying to an unlawful assault. While it is correct that an unlawful assault is an offence, the trial judge failed to put s. 27 in its proper context, as applying to force used in general law enforcement. This then led the trial judge into an involved discussion as to whether the complainant was, in fact, committing an offence, such that the appellant was justified in using force to prevent it. The trial judge instructed the jury that if the father was committing an assault on his son and was not justified by self‑defence then they should conclude that the father could have been arrested without a warrant for what he was doing. This convoluted explanation was the only way that the trial judge could fit the facts of the case within the logic of the language of s. 27, a section which should never have been considered.

[13] Finch J.A. agreed with the majority that the references to these sections were unnecessary, inappropriate and confusing and went further to find that, “[i]n troubling the jury with the irrelevant complexities of these sections, the charge may very well have diverted the jury from a proper consideration of the real self‑defence available, namely the provision of s. 34(1)” (pp. 308‑9). I agree with this assessment.

[14] In dealing with s. 37 of the Code, the trial judge failed to instruct the jury that this provision, like s. 34, was equally applicable to the appellant’s defence. The jury should have been told that if they believed, or had a reasonable doubt, that the appellant was preventing an assault by his father, s. 37(1) could provide an alternative basis for the appellant’s defence. Instead, the trial judge seems to have applied s. 37(1) exclusively to an assessment of the complainant’s conduct. After reading the provision to the jury, the trial judge stated:

If the father did use his fists or the fish club but you find beyond a reasonable doubt that whatever he did was simply to defend himself from assault by his son, and that what he did was no more than was necessary to try to prevent assault by his son or a repetition of it, then the father was not committing an offence. The father was in the self- defence position in those circumstances . . . You’ve got to decide whether the father was committing an offence and, in arriving at a decision on that, you have to decide whether the father was acting in self-defence under section 37, or as described by section 37, in which case he was not committing an offence because he was justified . . . in doing what he did. [Emphasis added.]

[15] Unfortunately, the trial judge erroneously interpreted s. 34(2) as a provision which could justify the accused’s actions, while s. 37 was explained as a provision for the benefit of the complainant. The father was not on trial. In fact, at no time in his evidence did the father suggest he tried to defend himself by using force to repel his son’s attacks. He simply testified that the appellant attacked him. Therefore, the trial judge was wrong to confuse the jury by diverting their attention away from the appellant’s conduct and the factors relevant to the defence available pursuant to s. 34(1), to a consideration of the complainant’s actions. As Lamer C.J. stated in R. v. Pétel, 1994 CanLII 133 (SCC), [1994] 1 S.C.R. 3, at pp. 15‑16:

Emphasizing the victims’ acts rather than the accused’s state of mind has the effect of depriving the latter of the benefit of any error, however reasonable. The jury’s attention should not be diverted from its proper concern, the guilt of the accused, by an inquiry into the guilt of the victim.

[16] The jury asked: “If Dale is seen guilty of using excessive force in self‑defence, would he be found guilty of aggravated assault?” The response to the jury’s question was incorrect and misleading. The trial judge responded: “. . . the answer to that question is excessive force does take away self‑defence and so I will leave it at that”. I agree with the Court of Appeal that there was no air of reality to the defence put forward by the appellant pursuant to s. 34(2). He could not possibly have been under a reasonable apprehension of death or grievous bodily harm from his frail old father. Nor could he reasonably believe that he could not preserve himself from death or grievous bodily harm other than by occasioning his father serious bodily harm. This subsection should never have been left with the jury. However, once s. 34(2) was left for the jury’s consideration, the trial judge was obliged to charge them correctly with respect to its provisions. Under s. 34(2), the use of excessive force by the accused will not take away self‑defence. In R. v. Ward (1978), 1978 CanLII 3878 (ON CA), 4 C.R. (3d) 190 (Ont. C.A.), it was properly found that it is not a requirement of s. 34(2) that the force used must be proportionate to the assault against which the accused is defending him-or herself. As well in R. v. Mulder (1978), 1978 CanLII 2496 (ON CA), 40 C.C.C. (2d) 1 (Ont. C.A.), it was correctly held that there is no requirement that the force be no more than is necessary to prevent death or grievous bodily harm.

[17] The trial judge should also have been alerted to the fact that the jury’s use of the term “excessive force” suggested that they were not properly considering the requirements of the section. Section 34(1) simply requires that the force be “no more than is necessary to enable [the accused] to defend himself”. There is no reference in that section to “excessive force”. In fact, the only section using that language is s. 26 which, as earlier noted, was an inapplicable and confusing section that should not have been mentioned.

[18] It would also have been appropriate for the trial judge to review for the jury what is encompassed in the term “excessive force” when viewed in the context of self‑defence. Specifically, he should have referred the jury to the principle that an accused facing an upraised knife, or in this case an upraised fish club, cannot be expected to weigh with nicety the exact measure of responsive force. See R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.).

[19] These errors must be viewed seriously as they were made during the trial judge’s recharge, which was required to clarify what was already a source of confusion for the jurors. The issue of the amount of force used was essential to the success of the appellant’s self‑defence argument.

[20] The significance of questions from the jury and the need to respond correctly and completely to those questions has been stressed by this Court. See R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742; R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122, at p. 139. Further, it was observed in Pétel, supra, that in order to fully answer the jury’s question in a correct and comprehensive manner, the trial judge will often have to repeat aspects of the main charge in order to provide the context for the response and to remind the jury of the initial instructions that had been given earlier.

[21] I agree with Finch J.A. that these were serious errors of law which rendered it inappropriate to apply the curative provisions of s. 686(1)(b)(iii) and necessitate a new trial.

[22] I must now refer to the aspect of the reasons of Finch J.A. which I do not accept. He took exception to the following paragraph in the trial judge’s instructions:

Summarizing, section 34(1), there must be at least a reasonable doubt on each of the elements of section 34(1) before the defence under that provision applies. If there is at least a reasonable doubt on all of the elements, then you must find the accused not guilty. If you are satisfied beyond a reasonable doubt that any one or more of the elements do not exist, for example, you find beyond a reasonable doubt that the accused provoked what the father did, then section 34(1) has no application. [Emphasis added.]

Finch J.A. then stated (at p. 309):

The first two sentences are capable of being understood to mean that the s. 34(1) defence is only available where the evidence raises a reasonable doubt as to every element of the defence.

[23] With respect I disagree with his conclusion that the instructions of the trial judge on this issue were incorrect. Section 34(1) provides a particular defence to an assault occasioning serious bodily harm. However the defence can only be utilized if all the conditions set out in the section have been met. See for example R. v. Kandola (1993), 1993 CanLII 774 (BC CA), 80 C.C.C. (3d) 481 (B.C.C.A.). The jury must indeed be satisfied that every element of the defence has been met. That is to say for the defence to be successful the jury must be left with a reasonable doubt as to the existence of all the elements of the defence. Namely, (i) the accused was unlawfully assaulted; (ii) the accused did not provoke the assault; (iii) the force used by the accused was not intended to cause death or grievous bodily harm; and (iv) the force used by the accused was no more than necessary to enable him to defend himself. The trial judge was correct in stating that the defence would only succeed if a reasonable doubt was raised with respect to all of these elements.

[24] Finch J.A. then continued (at p. 309):

A correct charge would be that the Crown must prove beyond a reasonable doubt that the appellant is not within the ambit of s. 34(1), and, that failure of such proof on every element that would take the appellant’s conduct outside the section, would entitle the appellant to an acquittal.

[25] Once again, in my view, this was incorrect. The Crown is not required to prove beyond a reasonable doubt that the appellant’s conduct fails on every element of the defence. It suffices if the Crown can prove beyond a reasonable doubt that any one of the four elements set out above was not established.

[26] In the result, the appeal is allowed, the order of the Court of Appeal will be set aside and a new trial directed. In light of the apparent strength of the Crown’s evidence this is the appropriate disposition. However since the appellant has served his sentence and the principal witness is frail and elderly, the Crown may see fit to stay the proceedings.

Appeal allowed.

Solicitors for the appellant: McCullough Blazina Parsons & Prkacin, Victoria.

Solicitor for the respondent: Robert A. Mulligan, Victoria.