ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 11249
Date: 2013/09/27

B E T W E E N:

HER MAJESTY THE QUEEN

C. Yhi, for the Crown

Applicant

and -

ZACH TRUDELL

L. Alfolabi, for the Respondent

Respondent

Heard: September 27, 2013

GORMAN J.:

NATURE OF THE APPLICATION

[1] The Crown brings an application to determine whether the new self-defence provisions of the Criminal Code of Canada are to be applied retrospectively to offences charged before the new legislation came into effect.

[2] Mr. Trudell was charged on March 25, 2012 with threaten bodily harm, two counts of assault with a weapon, two counts of aggravated assault and two counts of carry a weapon for a purpose dangerous to the public peace. The incidents took place at his apartment. The complainants were his former girlfriend, Karlee Trainor, and her new boyfriend, Michael Fenech.

[3] Mr. Trudell elected to be tried by judge and jury. The main issue at trial was one of self-defence, and defence of property.

[4] If the old law applied, the relevant sections of the Criminal Code were:

Section 34:

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

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

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

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

(a) the nature of the force or threat;

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

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

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

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

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

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

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

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

Section 38(1):

s. 38(1) Everyone who is in peaceable possession of personal property, and everyone lawfully assisting him, is justified:

(a) in preventing a trespasser from taking it, or

(b) in taking it from a trespasser who has taken it,

If he does not strike or cause bodily harm to the trespasser.

s. 38(2) Where a person is in peaceable possession of personal property lays hands on it, a trespasser who persists in attempting to keep it or take it from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation.

[5] In R. v. Pandurevic, 2013 ONSC 2978, at para. 10 MacDonnell, J. stated: “The incoherence of the manner in which ss. 34 to 37 of the Criminal Code articulated the defence of self-defence has been the subject of uniformly withering criticism from law reformers, academics and all levels of the Canadian judiciary for more than 30 years.”

[6] Parliament finally took concerted efforts to remedy this problem with the passage of and subsequent coming into force of the Citizen’s Arrest and Self-defence Act, S.C. 2012, c. 9, in 2012 and 2013 respectively. This amendment came into force on March 11, 2013. It replaced the various self-defence provisions then in the Criminal Code with a single, comprehensive self-defence rule enacted as the new s. 34 of the Criminal Code.

[7] Section 34 states:

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

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

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

(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;

(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.

[8] Section 35:

(1) A person is not guilty of an offence if:

(a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;

(b) they believe on reasonable grounds that another person:

(i) is about to enter, is entering or has entered the property without being entitled by law to do so,

(ii) is about to take the property, is doing so or has just done so, or

(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;

(i) preventing the other person from entering the property, or removing that person from the property, or

(ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and

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

No defence

(2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law.

No defence

(3) Subsection (1) does not apply if the other person is 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.

IS BILL C-26 RETROSPECTIVE or PROSPECTIVE?

[9] As noted by the Supreme Court in R. v. Dineley, 2012 SCC 58, substantive changes to the law does not apply retroactively absent a clear indication from Parliament to the contrary. Accordingly, new legislation that affects the existence or content of a defence is subject to the presumption against retrospective application.

[10] There is no indication that Parliament intended retroactive abolition of the previous law of self-defence. There is no indication in the legislation as regards Parliament’s intention whatsoever.

[11] Since the passage of Bill C-26 the judicial interpretation as to whether the legislation operates retroactively or prospectively has been decidedly split:

(a) March 15, 2013: Fisher J. of the British Columbia Supreme Court in R. v. Evans, 2013 BCSC 462, relied on Dineley to hold that, since the new s. 34 has affected a substantive change to the content of the defence and there is no clear indication Parliament intended for it to apply retroactively, the new self-defence provisions only apply to events occurring after its coming into force. Fisher J. therefore instructed the jury based on the old provisions.

(b) April 15, 2013: Paciocco J. of the Ontario Court of Justice, in R. v. Parker, 2013 ONCJ 195, took issue with Evans and on the facts considered both the repealed provisions and the new current provision. Note, however, that Paciocco J. was not presiding over a case before a jury. In any event, a self-defence case was not found to have been made out. Yet specifically pertaining to retroactivity, he stated at para. 5:

Since defences are used in criminal cases to prevent deprivations of liberty, the foundational rationale for non-retroactivity is in my view undermined when it comes to new defences. To put things more simply, it would defeat the objectives of the presumption against retroactivity to apply it to new defences in criminal cases and it would result in actions, considered justifiable and legal at the time of trial, to be condemned and punished by conviction. … In my view, there is no realistic basis for presuming in such cases that Parliament must have intended to apply those rules only in the future. Instead, Parliament can and should be taken to intend that when a new defence is created, accused persons yet to be tried for previous alleged offences should have access to that defence where it operates more generously for them than the prior law.

(c) April 29, 2013: Pringle J. of the Ontario Court of Justice in R. v. Wang, 2013 ONCJ 220 concluded at para. 19 that the new self-defence provisions affect substantive rights as they change the content of the defence. The Crown had submitted that the new provisions were more generous to the accused and should be afforded to him, but this argument was rejected on the basis that generosity is not the test to determine which law applies. Pringle J. noted, at paras. 19 and 21, that when the accused became involved in the dispute that led to the charges, he was deemed to know what the code of conduct was for self-defence under the law at the time and that to change the rules now would affect the substance of his defence. Accordingly, the new provisions were not applied retroactively.

(d) May 16, 2013: Moreau J. of the Alberta Court of Queen’s Bench in R. v. Simon, 2013 ABQB 303, while presiding over a case before a jury, specifically refrained from commenting on the availability of the new provisions for use in other cases. As regards retroactive application, Moreau J. stated at para. 21:

Deschamps J. in Dineley agreed, at para. 18, with Mayrand J.A. in R. v. Gervais (1978), 1978 2539 (QC CA), 43 C.C.C. (2d) 533 (Que. C.A.) that the right of an accused to rely on a defence is a substantive right and that new legislation must be interpreted so as not to deprive the accused of a defence that would have been open to him or her at the time of the impugned act.

At para. 22, Moreau J. took the view that the jury should be instructed on the former self-defence provisions only.

The jury instructions were not to include the new s. 34 because, among other reasons:

i. The evidence and submissions were geared towards the former self-defence regime, so there was “a risk that any benefits to the accused that might be gained through reference to the new provisions lose their value if the jury were to conclude that they were not fully addressed in the evidence”;

ii. The jury was already to receive instructions on the application of alternative grounds of self-defence, under former ss. 34(2) and 37. As a result, there was a real risk of confusing the jury by explaining how to address statutory conditions on the former defences—each of which is subject to the reasonable doubt test—and then turning their attention to the number of factors under the new regime, some of which are statutory conditions that must be disproved beyond reasonable doubt whereas others that are simply factors for their consideration;

iii. The potential benefit of putting the new provisions to the jury were not clear, having regard to the evidence, as in some cases they added benefits but at the expense of removing other benefits previously available under the former regime; and

iv. Courts should not infer from silence that a legislature intended retrospective as well as prospective benefits.

(e) May 27, 2013: MacDonnell J. of this court, in Pandurevic (supra), explicitly rejected the position taken by Fisher J. in Evans, stating at para. 41:

Although he acknowledged that the presumption against retrospectivity could be rebutted, he never conducted an analysis to determine if it was rebutted in this case. Further, while he was unable to determine whether the amendments provided a broader or narrower benefit to the accused, she in any event dismissed this as a relevant consideration. Given that a substantial part of the rationale for the presumption against retroactivity is the unfairness of adversely affecting vested rights, an assessment of the actual impact of the amendments is not an irrelevant factor. In addition, at no point in his reasons did Fisher J. consider the nature of the mischief that the amendments were addressing and accordingly he never considered the consequences of not applying them retroactively.

He went on to further state at paras. 42-43:

The amendments to the provisions of the Criminal Code introduced by the Citizen's Arrest and Self-Defence Act affect the content and availability of the defence of self-defence and thus they fall within the scope of the presumption against retroactive or retrospective application of legislation affecting substantive rights. That presumption is rebuttable. Its strength will vary from case to case. Whether it has been rebutted in any particular case requires a consideration of all of the circumstances, including the nature of the mischief that the legislation was meant to address, the manner in which the legislation addressed it, the extent to which substantive rights will be adversely affected by a retrospective application, and the consequences of a purely prospective application. Only after considering all of those matters can a determination be made as to what the legislature intended, which is always the main objective of the exercise.

For the reasons I have expressed, I am of the view that to apply the amendments prospectively only would frustrate the remedial aims of the legislation by leaving in place for several more years the significant mischief that Parliament manifestly meant to eradicate. That is a factor that strongly suggests an intention for a retrospective application. Further, the strength of the presumption against retrospectivity is attenuated by the fact that the amendments will overwhelmingly be beneficial to those who claim to have acted in self-defence and that any adverse impact of a retrospective application will be isolated and minimal. A consideration of all of the circumstances, in my view, gives rise to a clear and compelling inference that Parliament meant for the amendments to have immediate application at all trials in which the defence of self-defence was asserted.

As a result, MacDonnell J. ruled that the jury would be instructed to consider the new s. 34.

(f) June 24, 2013: Schulman J. of the Manitoba Court of Queen’s Bench, in R. v. Sanderson, 2013 MBQB 139, followed Parker in concluding that, as the event in issue took place under the old self-defence provisions, the accused should have the benefit of both the old and the new provision in assessing whether self-defence was viable.

(g) On that same day: Dhillon J. of the British Columbia Provincial Court, in R. v. Urquhart, 2013 BCPC 184, considered the disagreement particularly between Evans and Pandurevic only to end up following Parker and considering both the old and the new self-defence regimes.

(h) June 26, 2013: Brooks J. of the British Columbia Provincial Court, R. v. I.A.O.S., 2013 BCPC 166, relied on Pandurevic and others to conclude that, although the offences alleged occurred before the coming into force of the new s. 34, the new section nevertheless applied.

(i) July 17, 2013: Morgan J. of the Saskatchewan Provincial Court, in R. v. Caswell, 2013 SKPC 114, at paras. 11-18, unequivocally agreed with and followed the rationale put forth in Pandurevic in order to conclude that the new provision controlled—the issue in that case concerned defence of property under s. 35 and not self-defence under s. 34, but as the two provisions stem from the same rubric in the new amendment, the same logic was accepted and applied.

(j) August 5, 2013: in R. v. Crocker, [2013] N.J. No. 259 (P.C.), Gorman J. of the Newfoundland and Labrador Provincial Court relied on several of these cases to conclude that the new self-defence provisions should be given retrospective effect. However, Gorman J. also cautioned at para. 38:

I intend to proceed on that basis solely as a result of those positions, though it appears to be incongruous to judge a person’s actions based upon legislation which was not in effect at the time. Such an interpretation suggests the varying of vested substantive rights … In any event, as will be seen, an application of the former provisions would not have affected the verdict.

[12] Jury instructions need to be as clear as possible. As noted by the Ontario Court of Appeal in R. v. Pintar (1996), 1996 712 (ON CA), 30 O.R. (3d) 483 at para.27.

The self-defence provisions of the Criminal Code are complex and confusing. They continue to plague and frustrate trial judges in their efforts to instruct juries in a meaningful and comprehensible fashion. As recently as 1995, in the case of R. v. McIntosh, 1995 124 (SCC), [1995] 1 S.C.R. 686, 95 C.C.C. (3d) 481, Lamer C.J.C. drew attention to the unsatisfactory state of the Criminal Code's self-defence regime and the need for legislative action. His remarks bear repetition (pp. 696-97 S.C.R., p. 489 C.C.C.):

As a preliminary comment, I would observe that ss. 34 and 35 of the Criminal Code are highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects. Moreover, their relationship to s. 37 (as discussed below) is unclear. It is to be expected that trial judges may encounter difficulties in explaining the provisions to a jury, and that jurors may find them confusing. The case at bar demonstrates this. During counsel's objections to his charge on ss. 34 and 35, the trial judge commented, "Well, it seems to me these sections of the Criminal Code are unbelievably confusing." I agree with this observation.

Despite the best efforts of counsel in the case at bar to reconcile ss. 34 and 35 in a coherent manner, I am of the view that any interpretation which attempts to make sense of the provisions will have some undesirable or illogical results. It is clear that legislative action is required to clarify the Criminal Code's self-defence regime.

[13] In R. v. Minor, 2013 ONCA 557, [2013] O.J. No. 4140 (O.C.A.) at para. 77, the court stated:

It has been emphasized by this court that a functional approach should be taken to jury instructions, having regard to their purpose in the circumstances of the case. "The purpose of the functional approach is to organize and clarify the issues and the applicable evidence for the jury, as it is for them to decide the guilt or innocence of the accused": R. v. Maugey (2000), 2000 8488 (ON CA), 146 C.C.C. (3d) 99 (Ont. C.A.), at para. 25; see also R. v. Garon, 2009 ONCA 4, 240 C.C.C. (3d) 516, at para. 65.

[14] In my view, the correct approach in all of the circumstances is to apply the new self-defence provisions retrospectively. The new legislation is clear and concise, and purposely meant to address the manifest complexity and confusion of the former sections. Jurors are entitled to clear, coherent instructions. Accordingly, the jury shall be instructed on the new self-defence provisions of the Code.

“Justice K.A. Gorman”

Justice K. A. Gorman

Date of Reasons for Judgment Released: Orally in Court on September 27, 2013
Date of Typed Release: September 30, 2013

COURT FILE NO.: 11249
DATE: 2013/09/27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

ZACH TRUDELL

REASONS FOR judgment

Gorman, J.

Date Released Orally in Court September 27, 2013
Date Typed Release September 30, 2013

Her Majesty the Queen v. Zach Trudell, 2013 ONSC 6092

Case Summary

ONTARIO

SUPERIOR COURT OF JUSTICE

NATURE OF THE APPLICATION

Section 34:

Section 38(1):

No defence

No defence

IS BILL C-26 RETROSPECTIVE or PROSPECTIVE?

Judge

Counsel

Parties

Areas of Law