SUPREME COURT OF CANADA

Citation: R. v. Szczerbaniwicz, 2010 SCC 15, [2010] 1 S.C.R. 455

Date: 20100506

Docket: 33189

Between:

Lieutenant‑Colonel G. Szczerbaniwicz

Appellant

and

Her Majesty The Queen

Respondent

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ.

Reasons for Judgment:

(paras. 1 to 24)

Dissenting Reasons:

(paras. 25 to 45)

Abella J. (McLachlin C.J. and LeBel, Deschamps and Rothstein JJ. concurring)

Binnie J. (Fish J. concurring)

R. v. Szczerbaniwicz, 2010 SCC 15, [2010] 1 S.C.R. 455

Lieutenant‑Colonel G. Szczerbaniwicz Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Szczerbaniwicz

2010 SCC 15

File No.: 33189.

2010: February 8; 2010: May 6.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ.

on appeal from the court martial appeal court of canada

Criminal law — Burden of proof — Reasonable doubt — Assault conviction — Whether military judge failed to apply W. (D.) principles properly.

Criminal law — Defences — Defence of property — Wife throwing accused’s diploma on floor during heated argument — Accused using force against wife to protect personal property — Accused convicted of assault — Military judge finding that accused’s defence of property under s. 39(1) of Criminal Code not made out because of his use of excessive force — Whether military judge failed to properly apply relevant facts with respect to defence of property — Criminal Code, R.S.C. 1985, c. C‑46, s. 39(1).

The accused, a Lieutenant‑Colonel in the Canadian military, had an argument with his wife. The wife took the mounted diploma which the accused had earned for his Master’s degree off the wall and threw it on the floor. The accused then pushed her and she fell backwards onto the staircase, bruising her back, legs and elbow. The next day, she learned that her finger was broken. The accused was charged with assault causing bodily harm and tried by a Standing Court Martial. The accused and wife testified, and the military judge accepted the wife’s testimony that she fell as a result of being pushed or shoved by the accused. The accused conceded that he intentionally applied force to his wife without her consent, but argued that under s. 39(1) of the Criminal Code the assaultive behaviour was justified because he was protecting his personal property, namely, the diploma. The military judge found that the accused used more force than was necessary in defence of his personal property and, therefore, that the s. 39(1) defence could not serve to justify his actions. The accused was convicted of the lesser and included offence of assault. The majority of the Court Martial Appeal Court upheld his conviction.

Held (Binnie and Fish JJ. dissenting): The appeal should be dismissed.

Per McLachlin C.J. and LeBel, Deschamps, Abella and Rothstein JJ.: The military judge took great care to discuss what he understood reasonable doubt to mean, and there is nothing in his comments to suggest that he either misappreciated or misapplied the proper approach simply because he failed to specifically refer to the three steps of the proper legal test.

The military judge did not err in his application of s. 39(1) of the Code. In interpreting the phrase “no more force than is necessary” in s. 39(1), an inquiry should be made into whether the force used was “reasonable in all the circumstances”. The reasonableness of “all the circumstances” necessarily includes the accused’s subjective belief as to the nature of the danger or harm. It also includes an objective component, which requires that the subjective belief be based on reasonable grounds. In this case, the military judge did exactly what he was required to do: he determined whether the accused had used no more force than was necessary to defend his possession in all the circumstances based on both subjective and objective criteria. He accepted the sentimental value of the diploma from the accused’s perspective, and considered the risk of harm to which the diploma had been exposed by the wife’s throwing it on the floor. He also took into account the fact that the diploma was replaceable, the nature of the force used by the accused, the accused’s admission that he may have gone too far in the anger of the moment, and the wife’s extensive bruises. The military judge concluded that the accused lost his self‑control for a short period of time during which he “physically manhandled” his spouse causing her to fall and suffer injuries. The military judge found the use of such force in the circumstances to be disproportionate. This conclusion is eminently justified based on the legal and factual contexts.

Per Binnie and Fish JJ. (dissenting): In this case, the military judge’s reasons fell short of the standard of adequacy set out in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, because they do not explain the basis on which it could be said beyond a reasonable doubt that the accused used more force than was necessary. The military judge did cover the “what” of the case — the finding that the use of force was excessive — but he was also required to go further and describe “why” he reached the conclusion that he did. His reasons do not disclose to the accused or to the appellate court the required logical connection between the “what” and the “why”.

The altercation took place on a small (3 feet by 3 feet) landing on the stairs of the home. The accused did not intervene until the wife caused a second framed article to fall down the stairs and smash and showed no sign of stopping. He then descended the stairs “to get her off the diploma”. The military judge concluded that the wife had suffered bruising, but this does not itself show that the force was excessive in the sense of disproportionate to what was “necessary”. While the state of the wife’s injuries was relevant to that determination, if the military judge believed that the injuries were themselves sufficient evidence of excess he should have said so and the proposition could then be tested on appeal. The military judge also assigned considerable weight to the accused’s submission that he acted in the anger of the moment, but it is quite possible that the accused could meet the “no more force than was necessary” standard despite the fact that he acted in anger. Again, if the military judge thought otherwise, he should have said so. The military judge used the evocative and pejorative word “manhandle” but the word simply means to “handle (a person) roughly” or to “pull or hustle about” and the accused was entitled to use the level of force reasonably necessary to protect his property. There are circumstances where a push might be justified. If in the military judge’s view a push could never be justified, such a categorical principle ought to have been stated and would then be capable of appellate review.

On a proper application of R.E.M., the accused was entitled to an explanation of why his evidence, considered in the context of the evidence as a whole, did not raise a reasonable doubt about whether the force he applied exceeded what was reasonably necessary to accomplish the protective purpose of his intervention.

Cases Cited

By Abella J.

Referred to: R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788; R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521; R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96; R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627; R. v. George (2000), 2000 CanLII 5727 (ON CA), 145 C.C.C. (3d) 405; R. v. McKay, 2009 MBCA 53, 246 C.C.C. (3d) 24; R. v. Born with a Tooth (1992), 1992 ABCA 244, 76 C.C.C. (3d) 169; R. v. Kong, 2005 ABCA 255, 200 C.C.C. (3d) 19, rev’d 2006 SCC 40, [2006] 2 S.C.R. 347.

By Binnie J. (dissenting)

R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Weare (1983), 1983 CanLII 3520 (NS CA), 56 N.S.R. (2d) 411; R. v. Little (1998), 1998 CanLII 3678 (ON CA), 122 C.C.C. (3d) 365; R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96; R. v. Kandola (1993), 1993 CanLII 774 (BC CA), 80 C.C.C. (3d) 481; Palmer v. The Queen (1971), 55 Cr. App. R. 223; R. v. Ogal (1928), 1928 CanLII 316 (AB SCAD), 50 C.C.C. 71; R. v. Preston (1953), 1953 CanLII 419 (BC CA), 106 C.C.C. 135; R. v. Antley, 1963 CanLII 258 (ON CA), [1964] 2 C.C.C. 142; R. v. Spence (1995), 1995 CanLII 3996 (SK CA), 134 Sask. R. 157; R. v. C.J.O., [2005] O.J. No. 5006 (QL); R. v. Brown, 2005 CanLII 24762 (ON SC), [2005] O.J. No. 2951 (QL); R. v. Oakoak, 2008 NUCJ 16.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46, s. 39(1).

Authors Cited

Shorter Oxford English Dictionary on Historical Principles, 6th ed., vol. 1. Oxford: Oxford University Press, 2007, “manhandle”.

APPEAL from a judgment of the Court Martial Appeal Court of Canada (Blanchard, Richard and Lufty JJ.A.), 2009 CMAC 4, [2009] C.M.A.J. No. 4 (QL), 2009 CarswellNat 3662, upholding the accused’s conviction entered by Lamont M.J., 2008 CM 2008, 2008 CarswellNat 1282. Appeal dismissed, Binnie and Fish JJ. dissenting.

Brian A. Crane, Q.C., and Stephanie Pearce, for the appellant.

John Maguire and Doug Curliss, for the respondent.

The judgment of McLachlin C.J. and LeBel, Deschamps, Abella and Rothstein JJ. was delivered by

[1] Abella J. — This is an appeal as of right. We are therefore restricted to considering only the two questions of law raised by the reasons of Lutfy J.A., the dissenting judge in the Court Martial Appeal Court:

· Did the trial judge fail to properly apply the three-part test set out by this court in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742?

· Did the trial judge fail to properly apply the relevant facts to s. 39(1) of the Criminal Code, R.S.C. 1985, c. C-46, which protects an accused from criminal responsibility for defending personal property if he or she used no more force than is necessary?

(2009 CMAC 4, [2009] C.M.A.J. No. 4 (QL), at para. 52)

[2] As in most trials involving domestic disputes, the spouses in this case offered differing versions of the same event. After hearing and watching both of them, the trial judge reached his own conclusions about what actually happened and convicted the husband of assault. Those conclusions were based on the facts and impressions he considered to be most relevant and reliable. In the absence of any palpable and overriding error in his appreciation of them, it is not open to an appellate court to sift selectively through the record and substitute its own narrative and outcome: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 56. Seeing no error either in the trial judge’s appreciation of the facts or in his application of the relevant law, a majority in the appeal court dismissed the husband’s appeal. Based on the record and the trial judge’s reasons, I agree with this disposition.

[3] Gary Szczerbaniwicz was a Lieutenant‑Colonel in the Canadian military who was posted to NATO in Brussels. After he and his wife separated following a 30-year marriage, Ms. Szczerbaniwicz moved to Canada, but had returned for a brief trip to Belgium. LCol Szczerbaniwicz invited her to stay overnight at the house they had formerly occupied together.

[4] The factual matrix for the case, according to the findings of the trial judge, is as follows. The morning after her arrival, the couple had a conversation about moving Ms. Szczerbaniwicz’s personal effects from storage in Winnipeg to the home in British Columbia that she was then occupying with their son. The conversation became heated over the issue of who would pack up her possessions. In the course of the argument, Ms. Szczerbaniwicz took a mounted diploma off the wall at the landing of the staircase, and threw it on the floor. LCol Szczerbaniwicz then pushed her. There is no reference to a second picture anywhere in the trial judge’s reasons except when he is summarizing LCol Szczerbaniwicz’s version of events. Ms. Szczerbaniwicz fell backwards and landed on her elbow. She had bruising on her back, legs and elbow. The next day, a friend took her to a medical facility where she learned that her finger was also broken. Her arm was in a cast for a week.

[5] LCol Szczerbaniwicz was charged with assault causing bodily harm. At the two-day trial by a Military Judge, Lamont M.J., both LCol Szczerbaniwicz and his wife testified. The only other witness was Master Warrant Officer J.P.J.Y. Girard.

[6] LCol Szczerbaniwicz’s evidence was that he “swung” his wife around “to get her off the diploma”. He denied that his wife fell and had no explanation for her extensive bruises. The trial judge did not accept LCol Szczerbaniwicz’s version of the circumstances surrounding the fall, preferring the evidence of his wife. As a result, he concluded that LCol Szczerbaniwicz had pushed or shoved her; that this pushing had caused her to fall backwards onto the staircase; that as a result of this fall she had experienced bruising to her back, legs, and elbow; and that LCol Szczerbaniwicz had lost his self‑control and “physically manhandled his spouse” (2008 CM 2008, at paras. 16-18). This was based on the following assessment of her and her husband’s evidence:

I was impressed with the manner in which Mrs Szczerbaniwicz gave her evidence, but I am mindful of the limited importance that can ordinarily be attached to the demeanour of a witness. However, Mrs Szczerbaniwicz gave her evidence in a remarkably straightforward manner, without any apparent malice toward her husband, and without embellishment or exaggeration. She readily admitted to some facts that might be thought to reflect poorly on her own behaviour.

On the whole, I find that both witnesses were attempting to give the court their best recollection of the events. For the most part, I consider that the discrepancies in the versions they give are likely attributable to the heightened state of emotions on both sides that were in play on the morning of 16 August. [paras. 11-12]

[7] LCol Szczerbaniwicz conceded that he intentionally applied force to his wife without her consent, and that he knew she was not consenting to the application of force. There was, therefore, according to Lamont M.J., “no doubt that even accepting all of [the husband’s] evidence”, the elements of the offence of assault were made out (para. 13).

[8] LCol Szczerbaniwicz argued that under s. 39(1) of the Criminal Code, the assaultive behaviour was justified because he was protecting personal property, namely, the diploma (for a Master’s Degree in Leadership and Training from Royal Roads University). The trial judge found that there was an air of reality to this defence because he was satisfied that “the accused was in peaceable possession of the diploma and that his actions in assaulting his spouse were motivated by his desire to protect his personal property” (para. 15). The “real issue”, therefore, was “whether in so doing, he used no more force than was necessary to defend his possession” (para. 15).

[9] Lamont M.J. found LCol Szczerbaniwicz guilty of the lesser included offence of assault. He accepted that the diploma was “very important” to LCol Szczerbaniwicz since it “signified a major achievement for him in his professional development” (para. 17), but ultimately concluded that the defence under s. 39(1) was not made out for the following reasons:

. . . I have considered several factors, including the nature of the property in question; its value, including its sentimental value to the accused; the risk of harm to which the property was exposed by the actions of the complainant; the alternative courses of action open to the accused at the time; and the consequences for the complainant of the action the accused took. With respect to the matter of the action taken by the accused, I accept the uncontradicted evidence of the complainant that she suffered the bruising she described in her evidence to her back, her legs, and her elbow. I find, therefore, that she did indeed fall as a result of the pushing or shoving by the accused in the manner she described in her testimony. I do not accept the evidence of the accused in which he denies that the complainant fell. On his version of events, there is no explanation as to how the bruising occurred. This objective fact of the bruising is consistent with the evidence of the complainant on this point, and inconsistent with the version of events given by Lieutenant-Colonel Szczerbaniwicz.

I accept the evidence of Lieutenant-Colonel Szczerbaniwicz that the diploma was very important to him as it signified a major achievement for him in his professional development. But there is no evidence before me that the diploma was in fact damaged to any significant degree as a result of being thrown to the floor, and perhaps jumped on. Even if there were damage, the item in question is a document that might be replaced if necessary. In his statement to the investigators, the accused was specifically asked whether he had gone a bit too far, and replied in reference to the diploma, “It is hard to say. When I think of it in retrospect, it is just a piece of paper, but it meant a lot to me. It was the anger of the moment. If I had been even a little bit – I should have just said, I can replace that, if she breaks that. But I didn’t. That is in retrospect.”

I am urged by counsel to consider this statement as simply an expression of regret and not as an admission that the force used was excessive. But in my view, this evidence, taken in the context of the evidence as a whole, supports the conclusion that as a result of his angry state of mind, Lieutenant-Colonel Szczerbaniwicz lost his self-control for a short period of time, during which he physically manhandled his spouse, causing her to fall and suffer the bruising injury I have described.

On all the circumstances I am persuaded that the accused used excessive force against the complainant in the purported defence of his personal property; that is, that he used more force than was necessary, and therefore the defence under subsection 39 (1) does not serve to justify his actions. [Emphasis added; paras. 16-19.]

[10] LCol Szczerbaniwicz was therefore convicted of assault and fined $1800.

[11] LCol Szczerbaniwicz was not found guilty of assault causing bodily harm, notwithstanding the broken finger, because the trial judge concluded that:

While I think it likely that the injury to the finger was incurred at the time of the fall as a result of the pushing of the accused, I am not persuaded beyond a reasonable doubt as to this element of the offence charged. [para. 21]

[12] On appeal to the Court Martial Appeal Court, LCol Szczerbaniwicz argued that, contrary to W. (D.), the trial judge had improperly placed the burden on him to explain how his wife had been bruised, and had misconstrued the law and facts related to the defence of property under s. 39(1) of the Criminal Code.

[13] Blanchard C.J., writing for a majority in the Court Martial Appeal Court, rejected the first argument in brief reasons:

. . . I do not find that the trial judge placed a burden on the accused to explain how the Complainant had been bruised. Instead, the trial judge was simply explaining his reason for disbelieving the evidence of the accused that the Complainant had not fallen. That is, the fact of the bruising was consistent with the evidence of the Complainant that she had fallen. [para. 25]

The dissenting judge, Lutfy J.A., faulted the trial judge for not following the reasoning process Cory J. set out in W. (D.).

[14] The trial judge took great care to discuss what he understood reasonable doubt to mean, and there is nothing in his comments to suggest that he either misappreciated or misapplied the proper approach simply because he failed to articulate or specifically follow the three steps. This Court has frequently confirmed that it is the substance of that test that must be respected, not its literal tripartite incarnation. On reading the trial judge’s reasons, there is no doubt in my mind that the proper reasoning was followed by Lamont M.J.: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 7-12; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23; R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 533; W. (D.), at p. 758.

[15] On the second issue, Blanchard C.J. was satisfied that the trial judge took the appropriate facts and factors into account in considering both the nature of the force applied and the circumstances surrounding the use of force. In his dissenting reasons, Lutfy J.A. was of the view that while objective factors “can be relevant”, the “primary focus” is on whether the accused “reacted with more force that he on reasonable grounds believed was necessary” (para. 70). It is this failure to emphasize the subjective component of the defence that is the focus of LCol Szczerbaniwicz’s argument that the trial judge erred in his approach to s. 39(1).

[16] Section 39(1) provides a defence to criminal responsibility where the accused acts to defend his or her personal property. It states:

39. (1) Every one who is in peaceable possession of personal property under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending that possession, even against a person entitled by law to possession of it, if he uses no more force than is necessary.

[17] I accept the submission that a subjective belief about what force is required is relevant, but the subjective belief must be based on reasonable grounds, that is, it must be based on grounds that are objectively reasonable in the circumstances.

[18] Section 39(1) is found in the Criminal Code together with other provisions setting out how the use of force in the defence of property and persons can be justified. While s. 39(1) itself has yet to be interpreted by this Court, there is helpful analogous jurisprudence dealing with these other provisions, most of which use similar or identical language to the phrase “no more force than is necessary” found in s. 39(1). Nothing in the language of s. 39(1) suggests that the meaning of the words “no more force than is necessary” is different from these other provisions.

[19] One of the early — and cogent — examinations of the meaning of the phrase is found in R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.). In Baxter, several of the Criminal Code’s defence of property and person provisions were at issue, including s. 34(1) (dealing with self-defence against unprovoked assault) and s. 41(1) (dealing with defence of house or real property). In interpreting these provisions, Martin J.A. observed:

The sections of the Code authorizing the use of force in defence of a person or property, to prevent crime, and to apprehend offenders, in general, express in greater detail the great principle of the common law that the use of force in such circumstances is subject to the restriction that the force used is necessary; that is, that the harm sought to be prevented could not be prevented by less violent means and that the injury or harm done by, or which might reasonably be anticipated from the force used is not disproportioned to the injury or harm it is intended to prevent . . . . [p. 113]

[20] The “proportionality” approach has more recently been characterized as an inquiry into whether the force used was “reasonable in all the circumstances”, as Charron J. confirmed in R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, at para. 25, a case involving s. 41(1). (See also: R. v. George (2000), 2000 CanLII 5727 (ON CA), 145 C.C.C. (3d) 405 (Ont. C.A.), at para. 49; R. v. McKay, 2009 MBCA 53, 246 C.C.C. (3d) 24, at para. 23.)

[21] The reasonableness of “all the circumstances” necessarily includes the accused’s subjective belief as to the nature of the danger or harm, but the objective component of the defence is also required: the subjective belief must be based on reasonable grounds. (See: McKay, at paras. 23-24; George, at paras. 49-50; R. v. Born with a Tooth (1992), 1992 ABCA 244, 76 C.C.C. (3d) 169 (Alta. C.A.), at p. 180; R. v. Kong, 2005 ABCA 255, 200 C.C.C. (3d) 19, at paras. 95-100, appeal allowed on other grounds, 2006 SCC 40, [2006] 2 S.C.R. 347.)

[22] The trial judge did exactly what he was required to do, that is, he determined whether LCol Szczerbaniwicz used “no more force than was necessary to defend his possession” in all the circumstances based on both subjective and objective criteria: he accepted the sentimental and symbolic value of the diploma from LCol Szczerbaniwicz’s perspective, and considered both the risk of harm to which the diploma was exposed by Ms. Szczerbaniwicz throwing it on the floor and the fact that it could be replaced. He also considered the nature of the force used by LCol Szczerbaniwicz, his own admission that he may have gone too far in the “anger of the moment”, and the extensive bruises on Ms. Szczerbaniwicz, concluding that

this evidence, taken in the context of the evidence as a whole, supports the conclusion that as a result of his angry state of mind, Lieutenant‑Colonel Szczerbaniwicz lost his self‑control for a short period of time, during which he physically manhandled his spouse, causing her to fall and suffer the bruising injury I have described. [Emphasis added; para. 18.]

[23] This is a case about a husband who lost his temper in an argument and pushed his wife with such force that she landed on the staircase and sustained extensive bruises. He used force because his wife threw to the floor a framed and easily replaced piece of paper of sentimental value. The trial judge found the use of this force in these circumstances to be disproportionate. This conclusion is eminently justified based on the legal and factual contexts.

[24] I would dismiss the appeal.

The reasons of Binnie and Fish JJ. were delivered by

[25] Binnie J. (dissenting) — The unhappy events at issue in this appeal transpired after the appellant and his wife had been married for 30 years. In August 2006 they were in the process of separating and arranging to move Mrs. Szczerbaniwicz’s household effects from Brussels to British Columbia. A domestic row broke out on the morning of August 16. One thing led to another until Mrs. Szczerbaniwicz, standing on the small landing on the way up the main staircase of their house, angrily removed from the wall a university diploma recently earned by the appellant and threw it to the floor. The diploma was much valued by the appellant as a symbol of his accomplishment. The argument continued. Mrs. Szczerbaniwicz then intentionally flicked another framed picture off the wall and it fell down the stairs. The appellant descended the stairs from the upper landing and attempted to “sw[i]ng her around to get her off the diploma”. The narrow point at trial was whether in doing so he used no more force than was necessary to “defend” his personal property within the meaning of s. 39(1) of the Criminal Code, R.S.C. 1985, c. C-46, which reads:

39. (1) Every one who is in peaceable possession of personal property under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending that possession, even against a person entitled by law to possession of it, if he uses no more force than is necessary.

[26] The appellant’s position is that the military judge’s reasons do not explain any basis on which it could be said beyond a reasonable doubt that he used more force than was necessary. In argument his counsel put the point this way:

It is perhaps the main point that the judge failed to address the central issue as to whether the circumstances justified the force used to protect his property and whether that force was excessive. This is put very succinctly by Justice Lutfy in paragraph 68, where he says:

The military judge did not explain how the pushing or shoving was itself an excessive amount of force, either objectively or subjectively.

(Transcript, at p. 17 (emphasis added))

The sufficiency of the reasons is not a freestanding ground of appeal but is an issue interwoven with the appellant’s argument on s. 39(1). The appellant is entitled to know why the defence was rejected. The appellant cites the recent decision of our Court in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, in which it was held unanimously that reasons for judgment “must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review” (para. 15 (emphasis added)). In my view the military judge’s reasons in this case fell short of that standard. With respect, I therefore disagree with the disposition of the appeal by Justice Abella.

I. Facts

[27] The complainant, Mrs. Szczerbaniwicz, acknowledged that her complaint originated in a domestic dispute in which “there was a lot of emotion” (A.R., at p. 60).

[28] The military judge found that both the appellant and his wife “were attempting to give the court their best recollection of the events” and that “the discrepancies in the versions they g[a]ve are likely attributable to the heightened state of emotions on both sides that were in play on the morning of the 16 August” (2008 CM 2008, at para. 12). He accepted the wife’s version of her fall but made no general finding of credibility in favour of Mrs. Szczerbaniwicz in preference to that of the appellant.

[29] There is no doubt that the appellant applied a measure of physical force to Mrs. Szczerbaniwicz without her consent but the question for the court under s. 39(1) was whether the Crown had established beyond a reasonable doubt that the degree of force exceeded what was reasonably necessary in the circumstances described by Mrs. Szczerbaniwicz herself as follows:

. . . we just continued to argue . . . . He started to go up the stairs and I followed him up the stairs. . . . I was on the landing [where] you turn to the right and go up a next level . . . [a]nd we just continued to argue. And then I looked to the right and Gary had a diploma from when he graduated from his leadership in training, his master’s. And somehow – I don’t remember what I said, but I worked it into the conversation, and I took it off the wall and threw it on the ground. . . . [A.R., at pp. 60-61]

The military judge found that at that point the diploma was “perhaps jumped on” (para. 17).

[30] Mrs. Szczerbaniwicz acknowledged in cross-examination that she appreciated at the time that the diploma was of importance to the appellant:

Q. Okay. When he went up the stairs, you followed him?

A. I did.

Q. Because you wanted to pursue the argument. You were mad. You had raised your voice at him. He wanted to avoid and he went upstairs and you followed him and you kept arguing with him. Isn’t that right?

A. That would be fair to say. Yes.

Q. And then as he is upstairs, as you stated, or somewhat as you stated, you took the diploma.

A. Uh-huh.

Q. Would you say that this diploma was important to him?

A. I’m sure it had some value to him. Yes.

Q. Yeah. You took it, you looked at him, and you banged in on the floor.

A. Uh-huh. [A.R., at p. 79]

Mrs. Szczerbaniwicz said that she was standing on “a little landing” (A.R., at p. 60) measuring about 3 feet by 3 feet (A.R., at pp. 81-82). After she threw down the diploma, the appellant, she says, was upstairs and yelling and had “raised his fist” and Mrs. Szczerbaniwicz said to him, “‘Go ahead, hit me if you want to, Gary’. And he just went, ‘Humph’” (A.R., at p. 61) and she then went to a framed picture (also hanging on the landing wall)

And I flicked the corner of it, and it fell down the stairs behind and smashed. Like, the glass smashed and the frame broke, and then

i.e. after Mrs. Szczerbaniwicz had “flicked” down the second framed print

Gary came charging down the stairs at me and just – I don’t know how – I don’t know how, if he grabbed me or how he did it, but he basically turned me around and pushed me up the stairs . . . [A.R., at p. 61]

Mrs. Szczerbaniwicz acknowledged that her ongoing attack on his property “was intentional on [her] part” (A.R., at p. 81) and that when he came down the stairs, it seems, “[t]here wasn’t enough space” for both people on the landing (A.R., at p. 81).

[31] The military judge concluded from her evidence that she had suffered bruising on her back, legs and elbow but the fact that Mrs. Szczerbaniwicz had some bruises after falling on the staircase does not itself show that the force was excessive in the sense of disproportionate to what was “necessary”. We were advised by counsel that some photographs were taken of Mrs. Szczerbaniwicz’s bruises. The photographs were disclosed to the defence. Neither the prosecution nor the defence put the photographs in evidence at trial or sought to do so on appeal.

II. Analysis

[32] If “the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision” then reversible error may result (R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 28). This is precisely the difficulty here identified by the appellant’s counsel:

. . . my friend [the Crown] has said that there were alternatives and that the trial judge had these in mind, that a person could be moved with greater or lesser levels of force and he should not have pushed her that hard. The problem is that the trial judge didn’t say anything about this. This is an area that is not covered at all in the judgment and that Justice Lutfy [dissenting in the court below] focussed on; that he [the military judge] didn’t address the circumstances of the encounter on the stairs, that’s the problem, and that’s why the alternatives were not canvassed at all.

(Transcript, at p. 43 (emphasis added))

[33] Section 39(1) is intended to protect individuals who act in defence of their personal property provided they use no more force than is reasonably “necessary”. What is necessary must not be disproportionate to the injury or harm it is intended to prevent. The accused must have a subjective belief of the necessity, and the belief must be based on reasonable grounds: R. v. Weare (1983), 1983 CanLII 3520 (NS CA), 56 N.S.R. (2d) 411 (S.C., App. Div.), at paras. 16-18, and R. v. Little (1998), 1998 CanLII 3678 (ON CA), 122 C.C.C. (3d) 365 (Ont. C.A.), at para. 14.

[34] Of course, the appellant’s use of force against Mrs. Szczerbaniwicz was both morally objectionable and deeply unfortunate, as was fully recognized in retrospect by the appellant himself, but the issue here is one of criminality. The law says that the appellant was entitled to go to the defence of his property. The legal question before the military judge was whether the appellant was justified under s. 39(1) in using the measure of force that he did.

[35] The prosecution accepts that the appellant was acting in defence of property that was of considerable sentimental importance to him, as Mrs. Szczerbaniwicz fully appreciated at the time. The cases are clear that in these sort of “quick response” situations an accused is not expected to “weigh to a nicety” the exact measure of a defensive action or to stop and reflect upon the precise risk of consequences from such action: R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.), at p. 111; R. v. Kandola (1993), 1993 CanLII 774 (BC CA), 80 C.C.C. (3d) 481 (B.C.C.A.), at pp. 489-90, citing Palmer v. The Queen (1971), 55 Cr. App. R. 223 (P.C.), at p. 242. The principle is of long standing: R. v. Ogal (1928), 1928 CanLII 316 (AB SCAD), 50 C.C.C. 71 (Alta. S.C., App. Div.); R. v. Preston (1953), 1953 CanLII 419 (BC CA), 106 C.C.C. 135 (B.C.C.A.), at p. 140, and R. v. Antley, 1963 CanLII 258 (ON CA), [1964] 2 C.C.C. 142 (Ont. C.A.), at p. 147.

[36] The military judge found that Mrs. Szczerbaniwicz fell because she was pushed and that as a result of the fall on a hard-surfaced staircase she suffered injuries. Mrs. Szczerbaniwicz says she weighed about 160 pounds and her husband 170-180 pounds (A.R., at p. 84). She was occupying the existing space while “angrily” taking frames off the wall one after the other and throwing or “flicking” them to the floor. It is not clear how many remained. The Crown asked the appellant in cross-examination about “picture frames” and the appellant replied that they were “kind of following the stair line. The top one would be at the landing level and the next one would have been a little bit down” (A.R., at p. 133). In any event, Mrs. Szczerbaniwicz did not suggest in her evidence that she was about to stop voluntarily. The appellant’s intervention in defence of his property necessarily involved a physical scuffle of two people on a landing that only had room for one person. The military judge does not question the necessity of the appellant’s intervention.

[37] In his reasons, the military judge did cover what R.E.M. labels the “what” of the case, i.e. the finding that the use of force was excessive, but he was required by the jurisprudence to go further and describe the “why” he reached the conclusion that he did:

These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. . . . Doherty J.A. in Morrissey, at p. 525, puts it this way: “In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision” (emphasis added). What is required is a logical connection between the “what” — the verdict — and the “why” — the basis for the verdict. [Underlining in original; italics deleted.]

(R.E.M., at para. 17)

In my view the military judge’s reasons do not disclose to the appellant or to the appellate court the “logical connection” between the “what” and the “why”. As earlier stated in Sheppard:

At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be. [para. 24]

We do not know, and the appellant cannot know, why the military judge found the intervention disproportionate to what was reasonably required in all circumstances.

[38] The military judge was satisfied that the appellant had established the first two of the three elements of the s. 39(1) defence:

I am satisfied that the accused was in peaceable possession of the diploma and that his actions in assaulting his spouse were motivated by his desire to protect his personal property. To my mind, the real issue here is whether in so doing, he used no more force than was necessary to defend his possession. [para. 15]

[39] Lutfy J.A., dissenting in the court below, concluded that the military judge had impermissibly “reasoned backwards” from the injury to a finding of excessive force (2009 CMAC 4, [2009] C.M.A.J. No. 4 (QL), at para. 69), citing R. v. Spence (1995), 1995 CanLII 3996 (SK CA), 134 Sask. R. 157 (C.A.), at para. 5; R. v. C.J.O., [2005] O.J. No. 5006 (QL) (S.C.J.), at para. 27, per Tulloch J.: “. . . when conducting the analysis of whether the force was reasonable in the circumstances, reasoning backward from the nature of the injuries is an error . . .”; R. v. Brown, 2005 CanLII 24762 (ON SC), [2005] O.J. No. 2951 (QL) (S.C.J.), at para. 17, per Durno J.: “. . . it would have been wrong for the trial judge to look at the consequences or injuries he accepted the complainant received, and reason back that the force was excessive . . .”; R. v. Oakoak, 2008 NUCJ 16, at para. 49, per Johnson J.: “ . . . it is improper to determine the degree of force used by looking at the end result and then reasoning backwards.” Of course the state of Mrs. Szczerbaniwicz’s injuries was relevant to the determination, but if the military judge believed the injuries were themselves sufficient evidence of “excess” he should have said so and the proposition could then be tested on appeal.

[40] The military judge assigned considerable weight to the appellant’s admission to investigators that he acted in “the anger of the moment” (para. 17). His contrition did him credit but the legal question before the courts was: did the appellant use no more force than was reasonably necessary? It is quite possible that the appellant could meet that standard despite the fact that he acted in “the anger of the moment”. If the military judge thought otherwise he should have said so.

[41] The military judge concluded that:

. . . as a result of his angry state of mind, Lieutenant-Colonel Szczerbaniwicz lost his self-control for a short period of time, during which he physically manhandled his spouse, causing her to fall and suffer the bruising injury I have described. [para. 18]

[42] The word “manhandle”, of course, is an evocative and pejorative term. In its definition, most favourable to the prosecution, it means to “[h]andle (a person) roughly; pull or hustle about” (Shorter Oxford English Dictionary on Historical Principles (6th ed. 2007), vol. 1, at p. 1696). This, too, is of little assistance because the appellant was entitled to use the level of force reasonably necessary to protect his property. If the level of force required to get her to stop the harm to his property was to “pull” or “push” her, it was not a criminal offence for him to do so. If in the judge’s view a push could never be justified, such a categorical approach ought to have been stated and would then be capable of appellate review.

[43] The military judge made no specific finding about where the diploma was at the moment of the push: had it slid out of danger or was it in Mrs. Szczerbaniwicz’s hands or under her feet? The fact that after the event it was more or less undamaged does not mean the force used was excessive: not only is it possible that the lack of damage was purely fortuitous but the evidence does not disclose whether the extent of the damage was apparent by the appellant as he descended the stairs to protect it. I believe that the appellant was entitled to know the gist of the military judge’s reasoning — however skeletal — to the “why” of his conclusion. The “why” is not, in my view, apparent from the circumstances.

[44] On a proper application of R.E.M., the appellant was entitled to an explanation of why his evidence, considered in the context of the evidence as a whole, did not raise a reasonable doubt about whether the force he applied exceeded what was reasonably necessary to accomplish the protective purpose of his intervention.

[45] On this ground I would allow the appeal and order a new trial.

Appeal dismissed, Binnie and Fish JJ. dissenting.

Solicitors for the appellant: Gowling Lafleur Henderson, Ottawa.

Solicitor for the respondent: Office of the Judge Advocate General, Ottawa.