Overview

[1] This is an appeal by Mr. John Bonyai against his conviction for careless use of a firearm contrary to s. 86 of the Criminal Code[^1] made by G. Campbell J. of the Ontario Court of Justice on December 1, 2015, in Windsor, Ontario.

[2] The events giving rise to the charges took place on July 4, 2014. At that time, Mr. Bonyai was a 45-year-old, divorced, father of two children. He resided at 1143 Hickory Road in what is locally called “Old Ford City” in Windsor, Ontario. He was employed by Chrysler Canada and worked midnight shifts.

[3] Unfortunately, Mr. Bonyai had been the victim of various thefts and break-and-enter incidents at his home on Hickory Road. In the four years Mr. Bonyai lived in Old Ford City, his home was broken into twice and his detached garage and/or shed was broken into five or six times.

[4] A variety of items were stolen during these incidents, including his children’s bicycles, lawn furniture, a barbecue, cordless drills, tools, a small amount of money, cigarettes, etc. Indeed, Mr. Bonyai testified that his children’s bicycles had been stolen so many times that he had begun to buy old bikes at garage sales as replacements because he expected them to be stolen again.

[5] Mr. Bonyai had gone to the police over some of these previous incidents. Mr. Bonyai gave evidence about one incident during the winter where he caught a perpetrator in his house attempting to steal his television. Mr. Bonyai chased the man out of his home and down the alley in his bare feet, returned to his home to put proper clothes on, and then chased the man in his vehicle, observing the alleged perpetrator to enter another house right at the end of the block. Mr. Bonyai called the police while he sat in his car out front; the police attended at the premises in question and spoke with a resident, who denied committing the alleged offence. The police made no arrest.

[6] Mr. Bonyai further testified that during another incident, also during the wintertime, he had been working in his garage and then went into his house to have dinner with his girlfriend. When he returned to his garage, he noticed some tools out of place and his welder and cordless drills had been taken. He started to follow the footprints in the snow but it was right before he had to leave for work and, thinking that the footprints would still be there the next morning when he returned home, he then left for work. The following morning, he contacted the police, who attended at the premises and followed the footprints to another house about three-quarters of a block away. Again, the police knocked on the door and spoke with a resident; but the person denied any involvement, and the police made no arrest.

[7] As a result of the various incidents, Mr. Bonyai made certain security improvements to his property. He installed a heavy steel door and frame on his garage with industrial locks on the door. He erected a six-feet-high wooden fence around the perimeter of the entire yard. He installed a security system with eight security cameras around the property (seven of which were functioning at the time of the incident in question) with a separate monitor beside his television so that he could monitor activity on his property from inside his home. Mr. Bonyai’s evidence was that he installed the security camera system so that if something were stolen, hopefully there would be at least some footage of a face to assist in the identification of the perpetrator.

[8] In addition, through conversations with family about the problems he was having, Mr. Bonyai spoke with one of his cousins, who offered to give Mr. Bonyai a handgun that he had but was not using. It was a Crossman C11 tactical air pistol or “BB gun,” which, the cousin said, looked like a real gun and could be used by Mr. Bonyai to scare anybody away if he had any further problems. Mr. Bonyai said “absolutely” he would take it, which he did. He welcomed it.

[9] The trial judge found that the BB gun that Mr. Bonyai acquired from his cousin “falls within the definition of a functioning firearm that not only looks authentic but was capable of discharging projectiles that could cause serious bodily harm.”[^2] Mr. Bonyai does not contest these findings on appeal. Indeed, Mr. Bonyai himself said the firearm looked “menacing.”[^3]

[10] Returning to the day in question, Mr. Bonyai’s evidence was that it was sometime around 4:30 or 5:00 a.m. on July 4, 2014, that he heard a repeated thumping noise coming from the general vicinity of his garage or shed, outside his home. At the time, he was reclining on his couch in his living room, watching television. He checked the security system monitor and saw what he described as “a grey shadow of a person” moving around the shed outside, within the fenced-off portion of his property. He went outside with his two dogs to confront the person. He did not take the firearm with him. He did not contact the police.

[11] Outside, Mr. Bonyai observed the legs of some person going over the fence separating his property from the back alley, which is located behind the rear of his property, running north/south and parallel to Hickory Road. Mr. Bonyai went around to the left and ran into the alley. He could hear two persons talking but he could not see anyone. He called out into the dark, “I called the cops. I’ve got a gun. You better stay away from my property.” Mr. Bonyai assumed, based on his previous encounters, that the perpetrator(s) lived within his neighbourhood.

[12] With that, Mr. Bonyai returned to his property, checked the shed, checked the garage, made sure everything was locked up, and then went back inside and resumed watching television. That is, he did not pursue the perpetrators beyond his own property. He did not contact the police.

[13] Some 45 minutes later that same morning, while it was still dark out, Mr. Bonyai heard the same thumping noise again from the back of the property. He also heard voices, from which he concluded that more than one person had returned to his property. He assumed it was the same persons that he had scared off earlier that morning. Again, Mr. Bonyai decided not to contact the police but, rather, to take action himself.

[14] His evidence was that he felt he needed to catch at least one of the perpetrators in order for the police to pursue charges. At the same time, he was somewhat apprehensive about the situation because, as he testified, “[i]t was still kind of dark then, so that’s when I didn’t want to go out there by myself ‘cause there [was] more than one of them.”[^4] Accordingly, he thought he would go out the front door of his house and then sneak around the south side of his property to the back alley and confront whoever was there. As well, he stopped to retrieve the firearm from the drawer where it was kept. Mr. Bonyai testified that he decided to bring the firearm with him because he knew there was more than one person outside “so I just figured if they decided to not run and charge me at least I had, I could pull it out and show it and then you know, any normal person would stop.”[^5] He testified that he did not consider shooting at anyone at that point.

[15] It is common ground that the firearm was, at the time, loaded with a gas cylinder and that, throughout the incident, the weapon’s safety switch was in the on position.

[16] Mr. Bonyai came around the south side of his property, with the firearm in his hand at his side, and opened the gate to access the back alley. Mr. Bonyai observed a young male near the rear of his property. The presence of Mr. Bonyai startled the young male, who then took off running down the back alley in a northerly direction.

[17] Mr. Bonyai decided to give chase. Leaving the vicinity of his property, he ran after the young man down the back alley, still carrying the firearm, trying to keep up with the perpetrator, who was much faster than he was. To the surprise of Mr. Bonyai, the young man turned off the back alley and onto the rear of a property located just four houses down from Mr. Bonyai’s home, about 160 to 200 feet down the street. The address of that property is 1117 Hickory Road.

[18] As Mr. Bonyai turned into the yard, he caught a last glimpse of the perpetrator entering the rear door of the house. Mr. Bonyai continued his hot pursuit, entering upon the lands of the rear of the property at 1117 Hickory Road. He followed the young man to the same rear door and then stopped and banged on the door. At that time, he had the firearm in his right hand, that is, his dominant hand, Mr. Bonyai being right-handed.

[19] Mr. Bonyai testified that he knocked on the door hoping that the young man or perhaps one of his parents would answer the door. He testified that his intention was to apprehend the person he was chasing. He intended to confront whoever answered the door.

[20] The house located at 1117 Hickory Road, into which Mr. Bonyai observed the young man enter, is a residential duplex, containing a main floor unit and an upper floor unit. Unbeknownst to Mr. Bonyai, the door that he was banging on, the same one that the perpetrator had entered, served as a common entrance to both units.

[21] Ms. Deborah Hooper, a 43-year-old resident at 1117 Hickory Road, was home alone at the time, her husband being away on business. They occupied the main floor of the duplex, while another family lived on the upper floor. The banging on the door roused Ms. Cooper from her sleep. She went to the door to answer it and saw Mr. Bonyai standing there with the firearm in his hand; he said “hello” to her. She expressed alarm by uttering an expletive, slammed the door shut, put her dogs in their kennels, hid in her bathroom, and called 911.

[22] The police responded to Ms. Hooper’s call and shortly after that attended at Mr. Bonyai’s property. He was still holding the firearm in hand when he observed the police cruiser driving down the back alley towards him. Tellingly, at that point Mr. Bonyai threw the firearm into a recycle bin because he didn’t “want to get shot,” fearing that if the police were to see him with a gun in his hand, they might react precipitously. It would seem that the inherent danger in his conduct was obvious to him at that time. When the police constable asked about the gun, Mr. Bonyai pointed to it in the bin. Mr. Bonyai was described by the police as “very cooperative.”

[23] Finally, although it is not relevant to the charges here, one cannot leave the narrative of that day without also taking note of the terrible circumstances that befell Mr. Bonyai later that same afternoon. At about 2:00 p.m. on July 4, 2014, another assailant, who also lived in the neighbourhood, broke into Mr. Bonyai’s home, wrestled with him, and attempted to stab Mr. Bonyai. The police were called and, thankfully, the assailant was subsequently arrested. Quite understandably, Mr. Bonyai put the house up for sale the very next day; he continues to reside elsewhere within the region.

[24] For reasons for judgment delivered orally on December 1, 2015, G. Campbell J. acquitted Mr. Bonyai of the charge of pointing a firearm but convicted him of careless use of a firearm. He was sentenced to a conditional discharge and probation.

[25] Mr. Bonyai appeals against his conviction.

Factual Background and Decision of the Trial Judge

[26] The parties are in agreement as to the essential facts of the case. The factual background, i.e., summaries of the evidence of the witnesses at trial, is set out in paras. 2-25 of the appellant’s factum and paras. 1-8 of the respondent Crown’s factum. There is no need to repeat it all here.

[27] Mr. Bonyai concedes that the “BB gun” in question is a firearm for the purposes of ss. 2 and 86 of the Criminal Code.

[28] As referenced above, the trial judge acquitted Mr. Bonyai on the charge of pointing a firearm, contrary to s. 87 of the Code. The trial judge found “problematic” certain inconsistencies in the evidence of Ms. Hooper as between her testimony at trial and her previous statements to the police.

[29] On the issue of the alleged contravention of s. 86 of the Code, the trial judge framed the question as “whether the Crown has proven the elements of the offence of carrying a firearm in a careless manner beyond a reasonable doubt. This requires me to also consider whether the accused was acting in defence of his property and to assess whether Mr. Bonyai was trying to effect a citizen’s arrest.”[^6]

[30] The trial judge concluded that the actus reus of the offence had been made out on the facts before him:

The actus reus of this offence is determined by one of marked departure or penal negligence. That is to say I ought to determine whether a reasonably prudent person would grab a loaded firearm at six in the morning and chase someone down an alley in a residential neighbourhood and approach a home and knock on its door while holding a firearm in furtherance of the defence of his property and to effect a citizen’s arrest.[^7]

[31] The trial judge expressly rejected Mr. Bonyai’s assertion that he did not realize that he was holding the firearm when he knocked on the door of Ms. Hooper’s duplex.

The evidence is clear that the accused was troubled by what had been happening in his neighbourhood and that he purposely retrieved the firearm and brought it with him to confront would-be trespassers at the rear of his property. In furtherance of that effort, he carried the firearm in his right hand as he pursued the one individual and approach the door of that home.[^8]

[32] In considering the mental element of the offence, the trial judge found that Mr. Bonyai did not turn his mind to the duty of care that was necessary in the circumstances:

In so far as mens rea is concerned, I have already said that I don’t believe the accused forgot he was carrying a firearm. Even if he did momentarily forget, as he said he did, by the time he knocked on the door can it be said that the accused failed to turn his mind to the fact that he was creating a risk in the circumstances I just described? To my mind, Mr. Bonyai didn’t turn his mind to the duty of care that was necessary in circumstances such as these, namely that there was a real risk of harm that could likely result from his conduct. This was a residential neighbourhood where the police could have been called at any moment as a consequence of the accused running down a public thoroughfare in pursuit of someone while carrying a firearm. The response could have been to meet Mr. Bonyai or others with lethal force. There can be no doubt that Mr. Bonyai himself appreciated that. He offered that as concern he held in his explanation for why he attempted to conceal the firearm from the police when they arrived and put it in the recycle bin when he saw them approaching. He didn’t want to be seen by the police holding a handgun. He didn’t want to be shot, so he hid the gun from plain view.[^9]

[33] The trial judge went on to address the defences advanced by Mr. Bonyai at trial and ultimately concluded that “the accused did not act with lawful excuse in defence of his property and was not effecting a lawful citizen’s arrest.”[^10]

[34] In rejecting both of those defences, the trial judge concluded that Mr. Bonyai’s “actions were not reasonable in the circumstances.”[^11] The trial judge gave the following reasons, inter alia, for his conclusion:

To that end, even if it could be argued Mr. Bonyai had a reasonable belief an offence had been committed and the perpetrator was escaping, it was clearly foreseeable Mr. Bonyai could simply call for the police to make inquiry. He saw where the individual went. He did not require the use of a firearm to make that observation. The decision to give chase down a public thoroughfare and enter upon private lands and knock on the door with a firearm in hand was wholly unnecessary and reckless.[^12]

Issues

[35] The appellant raises the following three issues on this appeal:

a. did the trial judge err in finding that the actions of the appellant constituted a marked departure from the norm;

b. did the trial judge err by rejecting the appellant’s position that he was engaged in a lawful citizen’s arrest under s. 494(1)(a); and

c. did the trial judge err by rejecting the appellant’s position that he was engaged in a lawful citizen’s arrest under s. 494(2)(b).

Standard of Review

[36] The limited jurisdiction of a summary conviction appeal judge was correctly described by the Ontario Court of Appeal in R. v. Smits,[^13] where the Court held that:

Under s. 686(1)(a)(i) and s. 822(1) of the Criminal Code, the jurisdiction of the summary conviction appeal judge to review the finding as to sufficiency of the evidence is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge has no basis upon which to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence: see R. v. Grosse (1996), 1996 6643 (ON CA), 29 O.R. (3d) 785 (Ont. C.A.), at pp. 791-92.

[37] It is trite law that the factual findings made by the judge at first instance should not be overturned unless the appellant demonstrates “palpable and overriding error.”[^14] As the Supreme Court of Canada said in Housen v. Nikolaisen, that is a “stringent standard,” requiring an appellate court to afford the trial judge a “high degree of deference.”

[38] Further, a question of mixed fact and law is also subject to the deferential “palpable and overriding error” standard, subject to the limited exception of whether an extricable error of pure law can be identified.[^15]

Analysis

Did the trial judge err in finding that the actions of the appellant constituted a marked departure from the norm?

[39] Both the defence and the Crown agree that this first ground of appeal involves a question of mixed fact and law and, thus, engages the deferential standard of review set out above.

[40] The offence of careless use of a firearm is set out in s. 86(1) of the Criminal Code, which provides that:

Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons.

[41] Again, the defence and the Crown are agreed on the nature of the legal test. The test is objective. The use of the firearm must constitute a marked departure from the standard of the reasonable person given all the circumstances of the case.[^16]

[42] Counsel for the appellant argues, however, that under the heading of “all the circumstances of the case,” the trial judge was obliged, but failed, to take into account in his analysis all of the circumstances of Mr. Bonyai’s previous history and experiences with the multiple break-ins and thefts and “victimization” that he experienced while residing at 1143 Hickory Road.

[43] Respectfully, I must disagree with counsel, for two reasons.

[44] First, I do not agree that the trial judge failed to take into account Mr. Bonyai’s previous experiences in his analysis. Indeed, the trial judge expressly referenced those experiences on at least three occasions in the course of his reasons, as follows:

a. at the very outset of his reasons, the trial judge identified the accused as having suffered a particular experience in his neighbourhood in Old Ford City, as follows:

This 46-year-old Chrysler worker and resident of Old Ford City has had difficulty with thefts and break and enter offences at his home. …[^17]

b. later on in his recount of the facts, the trial judge noted the following history of Mr. Bonyai:

As indicated, Mr. Bonyai has had some difficulty with trespassers and thieves attending upon his property in the past. He has given chase on two occasions and called the police, but no one has ever been arrested. He has installed seven cameras around his property which allow him to view activity from his TV monitor.[^18]

c. and in connection with his analysis of the mental state of Mr. Bonyai, the trial judge found that:

In so far as the charge of carrying a firearm in a careless manner is concerned, I would make this observation with respect to the facts before moving on to an analysis of the law. I reject the accused’s assertion that he didn’t realize he was holding the firearm at the time when he knocked on the door of the neighbouring house. The evidence is clear that the accused was troubled by what had been happening in his neighbourhood and that he purposely retrieved the firearm and brought it with him to confront would-be trespassers at the rear of his property. In furtherance of that effort, he carried the firearm in his right hand as he pursued the one individual and approached the door of that home.[^19]

[45] In my view, there is no room for the suggestion that the trial judge was not alive to the previous circumstances of the appellant and did not consider those circumstances in the course of his analysis.

[46] Second, in my view, it would have been an error for the trial judge to adopt the type of analysis that the appellant submits ought to have been followed. As I have said, the trial judge took appropriate account of Mr. Bonyai’s previous circumstances. However, to go further, to the extent that the appellant urges, would have required an impermissible departure from the objective standard of what the reasonable person would have done in all the circumstances of the case. In my view, the approach urged by the appellant seeks, under the auspices of considering “all the circumstances” in which the accused found himself, to so imbue the reasonable person with the conditions, experiences, attitudes, etc., of the accused to the point where it is no longer the reasonable person; it is the accused. That is not the required, objective standard.

[47] Indeed, the approach advocated by the appellant brings to mind the fundamental divide between the majority and minority reasons for judgment of the Supreme Court of Canada in R. v. Creighton, in which McLachlin J. (as she then was), writing for the majority, criticized the approach embraced by Lamer C.J.C., writing for the minority, in the following terms: “the approach advocated by the Chief Justice personalizes the objective test to the point where it devolves into a subjective test.”[^20] The conclusion of McLachlin J. was that “personal factors are not relevant” to the standard of the reasonable person, except on the question (which does not arise here) of whether the accused possessed the necessary capacity to appreciate the risk.[^21]

[48] It is therefore instructive to return to the majority judgment of McLachlin J. in Creighton. Both parties rely upon that decision and agree that it sets out the applicable standard. There, McLachlin J. explained the objective standard in the following terms:

This is not to say that the question of guilt is determined in a factual vacuum. While the legal duty of the accused is not particularized by his or her personal characteristics short of incapacity, it is particularized in application by the nature of the activity and the circumstances surrounding the accused’s failure to take the requisite care. As McIntyre J. pointed out in R. v. Tutton, … the answer to the question of whether the accused took reasonable care must be founded on a consideration of all the circumstances of the case. The question is what the reasonably prudent person would have done in all the circumstances. … The necessity of taking into account all of the circumstances in applying the objective test in offences of penal negligence was affirmed in R. v. Hundal …

The matter may be looked at in this way. The legal standard of care is always the same — what a reasonable person would have done in all the circumstances. The de facto or applied standard of care, however, may vary with the activity in question and the circumstances in the particular case. The law of civil negligence is helpful in understanding this distinction. In Salmond and Heuston on the Law of Torts …, the authors explain that the standard of care

... will be different in different cases, for a reasonable person will not show the same anxious care when handling an umbrella as when handling a loaded gun. ... But this is a different thing from recognising different legal standards of care; the test of negligence is the same in all cases. So a learner driver must comply with the same objective and impersonal standard as any other driver. ... So also must a driver who is old or infirm, as distinct from totally unconscious. …

The same reasoning applies in the criminal context.[^22]

[49] As McLachlin J. concluded, “[t]he standard flows from the circumstances of the activity. It does not vary with the experience or ability of the actual accused.”[^23]

[50] To permit otherwise would ultimately lead to no standard at all. As McLachlin J. explained:

To permit such a subjective assessment would be “co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual” leaving “so vague a line as to afford no rule at all, the degree of judgment belonging to each individual being infinitely various” …[^24]

[51] Thus, in my view, the approach advocated by the appellant here is directly inconsistent with the majority decision of the Supreme Court in Creighton. The trial judge would have erred had he personalized the objective standard by varying it to align with the previous personal experiences of the actual accused in being victimized within the Old Ford City neighbourhood.

[52] In short, the trial judge did not err in failing to adopt the approach advocated by the appellant, which is inconsistent with the test established by Creighton.

[53] The appellant is also critical of the trial judge’s alleged failure to follow the 1995 decision of the Quebec Court of Appeal in R. v. Horvat.[^25] I find no merit in the appellant’s submission.

[54] The trial judge below expressly referred to the Horvat decision, which authority had been put to him by defence counsel at trial. The trial judge distinguished Horvat on its facts, as follows:

The 1995 Quebec Court of Appeal case in Corbett [sic] cited to me to suggest the accused took reasonable care is distinguishable on the facts in so far as Mr. Horvath [sic] was standing in the kitchen of his home and opened the window when he fired a shot from his shotgun to scare off an intruder. There is a fundamental difference between firing a shot from within your residence outside the window in the air to frighten an intruder who was seen standing on the property owner’s balcony from this case involving the pursuit of someone outside and beyond the property and onto a public thoroughfare and on to neighbouring property.[^26]

[55] Quite apart from the fact that I agree with the trial judge’s rationale for distinguishing the Horvat decision on its fact, there is no merit in the appellant’s submission that the trial judge failed to apply the legal principles of the Horvat case appropriate to analyzing the actus reus of the offence, “that is, whether or not the actions constitute a marked departure from the norm.” On the contrary, the trial judge was clearly aware of, and expressly referenced, the objective standard established by the Supreme Court’s decision in Creighton of whether the actions of the accused constituted a marked departure from what the reasonable person would have done in all the circumstances of the case.

[56] Rather, in applying the correct legal standard to the circumstances before him, the trial judge simply did not find that this 1995 Quebec case was of particular assistance to him given its significantly different factual matrix. In so doing, the trial judge was engaged in a consideration of the application of a legal standard to particular factual circumstances – that is, a question of mixed fact and law – in respect of which his decision is entitled to deference. The trial judge committed no palpable and overriding error in distinguishing the Horvat case. The argument of the appellant must fail.[^27]

Did the trial judge err by rejecting the appellant’s position that he was engaged in a lawful citizen’s arrest under s. 494(1)(a)?

[57] The appellant also argues that the trial judge erred by failing to consider, properly or at all, the defence’s position that Mr. Bonyai was engaged in a lawful citizen’s arrest under s. 494(1)(a).

[58] Section 494(1) of the Criminal Code provides that:

(1) Any one may arrest without warrant

(a) a person whom he finds committing an indictable offence; or

(b) a person who, on reasonable grounds, he believes

(i) has committed a criminal offence, and

(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

[59] Section 25 of the Code provides that:

(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

(b) as a peace officer or public officer,

(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

[60] I do not agree that the trial judge failed to consider the position of the defence that Mr. Bonyai was engaged in a citizen’s arrest for the purposes of s. 494(1)(a).

[61] It is clear from a review of the transcript of the proceedings at trial that during closing submissions, there was an extensive exchange between the trial judge and counsel for the defence (who was not the same counsel who appeared before me on the appeal) as to the defence position that Mr. Bonyai was engaged in a citizen’s arrest. There was express reference to s. 494(1)(a).[^28] Ultimately, defence counsel expressed the view that the court should receive further written submissions by way of a factum, a proposition to which the trial judge readily acceded.[^29]

[62] Counsel for the defence at trial then filed written submissions dated September 23, 2015. Counsel for the Crown filed its responding submissions dated October 14, 2015.

[63] The written argument of defence counsel submitted that Mr. Bonyai’s actions were insulated from criminal liability by reason of both “defence of property,” in respect of which counsel relied upon s. 35(1) of the Code, and “citizen’s arrest,” in respect of which counsel relied upon ss. 494 and 25 of the Code.

[64] The trial judge dealt with all of the defences submitted to him. That is plainly evident from a review of his reasons for judgment. So, for example, in outlining the issues and positions of the parties, the trial judge said:

This requires me to also consider whether the accused was acting in defence of his property and to assess whether Mr. Bonyai was trying to effect a citizen’s arrest.[^30]

[65] Later in his reasons, after the trial judge had considered whether the Crown had established its case on both the actus reus and mens rea elements of the offence, the trial judge went on to consider the defences presented to him and said:

Notwithstanding these findings that have satisfied me beyond a reasonable doubt that the elements of the offence as alleged have been met, the circumstances are such that I must also be satisfied that Mr. Bonyai did not have a lawful excuse for his conduct by acting in defence of this property and was attempting to effect an arrest.[^31]

[66] As indicated above in para. [34], the trial judge gave reasons as to why he rejected the accused’s position on citizen’s arrest and why he found that the appellant’s actions were not reasonable.

[67] The trial judge ultimately concluded that he was not satisfied with the multi-faceted position of the defence, as follows:

I am satisfied the accused did not act with lawful excuse in defence of his property and was not effecting a lawful citizen’s arrest.[^32]

[68] In my view, there is no merit in the suggestion that the trial judge did not consider the position of the appellant that he was engaged in a lawful citizen’s arrest under s. 494(1)(a) of the Code. Clearly, he did, throughout.

[69] It may be that the trial judge did not expressly reference the specific subsections of the Code relied upon by defence counsel on appeal at every stage of his analysis. But he was not obliged to. Reasons for judgment “are not intended to be, and should not be read as a verbalization of the entire process engaged in by the trial judge in reaching a verdict.”[^33] There is no requirement “that the trial judge must detail the precise path that led from disparate pieces of evidence to his conclusions on credibility and guilt.”[^34] “There is no need to prove that the trial judge was alive to and considered all of the evidence, or answer each and every argument of counsel.”[^35]

[70] “Accountability seeks basic fairness, not perfection, and does not justify an undue shift in focus from the correctness of the result to an esoteric dissection of the words used to express the reasoning process behind it.”[^36]

[71] In any event, the trial judge concluded that the actions of Mr. Bonyai “were not reasonable in the circumstances.” Again, he reasoned that:

… even if it could be argued Mr. Bonyai had a reasonable belief an offence had been committed and the perpetrator was escaping, it was clearly foreseeable Mr. Bonyai could simply call for the police to make inquiry. He saw where the individual went. He did not require the use of a firearm to make that observation. The decision to give chase down a public thoroughfare and enter upon private lands and knock on the door with a firearm in hand was wholly unnecessary and reckless.[^37]

[72] Given the findings made by the trial judge, it cannot be said that Mr. Bonyai acted “on reasonable grounds,” as required by s. 25(1) – indeed, the trial judge expressly found that he did not – and, thus, the defence of citizen’s arrest was not available.

[73] In my view, there was ample evidence before the trial judge to support his finding that the actions of Mr. Bonyai were not reasonable. Indeed, even Mr. Bonyai himself acknowledged – very fairly, I thought – that a reasonable person would not act as he had done in the circumstances. During cross-examination, Crown counsel at trial had the following exchange with Mr. Bonyai:

Q. … but I’m going to put it to you that objectively, a reasonable person does not go up to a door with a gun in their hand at six o’clock in the morning and wake the occupants of a house. A reasonable person doesn’t do that because it’s fraught with danger. The door could open, somebody could have a heart attack seeing you with a gun, isn’t that a fair sort of suggestion?

A. Sure. I would be horrified if it happened to my mother.[^38]

[74] There is no doubt that Mr. Bonyai had suffered repeated unfortunate circumstances living in his previous neighbourhood. Both Crown counsel at trial and on appeal expressed their sympathies for Mr. Bonyai, and I share those sympathies, especially given what befell Mr. Bonyai later that same afternoon.

[75] But sympathies cannot control the outcome of this case, nor can they define the standard of what society expects of a reasonable person in those circumstances.

[76] In this regard, I agree with the submissions of the Crown, and the courts have repeatedly observed, that firearms are “inherently dangerous weapons that can, even in the hands of otherwise responsible individuals, cause death and injury.”[^39] As observed by Cory J. in R. v. Felawka:

A firearm is expressly designed to kill or wound. It operates with deadly efficiency in carrying out the object of its design. It follows that such a deadly weapon can, of course, be used for purposes of threatening and intimidating. Indeed, it is hard to imagine anything more intimidating or dangerous than a brandished firearm. A person waving a gun and calling “hands up” can be reasonably certain that the suggestion will be obeyed. A firearm is quite different from an object such as a carving knife or an ice pick which will normally be used for legitimate purposes. A firearm, however, is always a weapon. No matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to those in its presence.[^40]

[77] Indeed, the courts have said that mere possession of a loaded firearm is inherently dangerous. “When such weapons are allowed in the community, death and serious injury are literally at hand, only an impulse and trigger pull away.”[^41] Hence, our Court of Appeal has said that: “[t]here is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms.”[^42]

[78] In the instant case, Mr. Bonyai made a conscious choice to confront his trespassers on the early morning of July 4, 2014. He did so more than once. On the first occasion, he scared away the trespassers while staying within the confines of his own property boundaries. However, on the second occasion, Mr. Bonyai paused to arm himself with a loaded firearm before sneaking around his house in the hope of catching the transgressors by surprise. That action in itself might have resulted in dire consequences. When the trespassers dispersed, Mr. Bonyai decided to give pursuit. With the firearm in hand, Mr. Bonyai left the confines of his own property and chased after a young male, down an alleyway, continuing for some 160 to 200 feet, before entering a neighbour’s backyard and arriving at the rear door of a residential home, four doors down from his. By itself, that conduct is inconsistent with the duty of care that society is entitled to expect of reasonable people in such circumstances. Objectively, society cannot countenance private citizens running through public thoroughfares at the break of dawn in hot pursuit of suspected trespassers while brandishing firearms. The conduct of Mr. Bonyai put himself, the youth he was chasing, and the general public in danger.

[79] Instead of contacting the police at that point, Mr. Bonyai was intent on confronting the trespasser. Banging on the rear door of a residential home, he knew that anyone could answer. He knew that he had a gun in his hand. He thus orchestrated a careless scenario that involved a firearm. Anyone answering that door at that time of the early morning hours and being confronted with the man holding a menacing firearm in his hand would be traumatized. Any reasonable person acting in an objectively reasonable manner would appreciate that. Ms. Hooper’s alarm and distress was clearly foreseeable by any reasonable person. In other circumstances, the outcome may well have resulted in tragedy.

[80] In my view, the appellant has not established that the trial judge’s findings and conclusion were either unreasonable or unsupported by the evidence before him.

Did the trial judge err by rejecting the appellant’s position that he was engaged in a lawful citizen’s arrest under s. 494(2)(b)?

[81] The same analysis as set out above in respect of s. 494(1)(a) applies with equal force to the appellant’s complaint that the trial judge erred by rejecting the defence position that Mr. Bonyai was engaged in a lawful citizen’s arrest under s. 494(2)(b).

[82] The appellant is correct that the trial judge did not expressly cite s. 494(2)(b) in his reasons for judgment. In fairness to the trial judge, his silence on the point is no doubt a function of the fact that at trial defence counsel appeared not to rely on s. 494(2)(b). Indeed, in the written submissions filed by defence counsel at trial, there is only one, passing reference to s. 494(2)(b). In para. 22 of his submissions, counsel pointed out that, in contradistinction to s. 494(2)(b), “section 494(2)(a) authorizes a citizen to arrest a person they find committing a criminal offence even if they believe that it would otherwise be feasible in the circumstances for a peace officer to make the arrest.” A fair reading of counsel’s submissions is that counsel appeared to eschew reliance on s. 494(2)(b).

[83] In any event, all of the Code provisions relied upon by the defence, both at trial and on appeal, require that the conduct of Mr. Bonyai be moderated by a reasonableness standard. Subsection 494(4) mandates that the provisions of s. 494 be read together with s. 25 and, as set out above, s. 25(1)(a) authorizes an arrest by a private citizen only “if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.”

[84] Again, the trial judge found that the actions of Mr. Bonyai “were not reasonable in the circumstances.” For the reasons set out above, the appellant has not established that the trial judge’s findings and conclusion were either unreasonable or unsupported by the evidence before him.

Conclusion

[85] The appellant has failed to establish that the trial judge’s findings were unreasonable or unsupported by the evidence.

[86] Indeed, the trial judge’s finding that the actions of the appellant constituted a marked departure from the norm was reasonable and amply supported by the evidence before him. There is no basis for appellate intervention.

[87] Accordingly, despite the able argument of Ms. Santarossa, the appeal must be dismissed.

Original signed by “Howard J.”

J. Paul R. Howard

Justice

Released: July 31, 2017

CITATION: R. v. Bonyai, 2017 ONSC 4631

COURT FILE NO.: CR-16-3620-AP

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JOHN BONYAI

Appellant

REASONS ON APPEAL

Howard J.

Released: July 31, 2017

[^1]: Criminal Code, R.S.C. 1985, c. C-46. [^2]: Transcript of the Reasons for Judgment in R. v. John Bonyai, of G. Campbell J., Ontario Court of Justice, delivered December 1, 2015, at p. 1 [Reasons for Judgment]. [^3]: Transcript of the Proceedings at Trial in R. v. John Bonyai, held before G. Campbell J., Ontario Court of Justice, on September 9, 2015, at p. 100, l. 9 [Trial Transcript]. [^4]: Ibid., at p. 102, ll. 1-3. [^5]: Ibid., at p. 102, l. 27 – p. 103, l. 2. [^6]: Reasons for Judgment, at p. 6. [^7]: Ibid., at p. 6. [^8]: Ibid., at p. 5. [^9]: Ibid., at pp. 6-7. [^10]: Ibid., at p. 11. [^11]: Ibid., at p. 10. [^12]: Ibid., at p. 10. [^13]: R. v. Smits, 2012 ONCA 524, 36 M.V.R. (6th) 217 (C.A.), at para. 67. [^14]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paras. 5, 6, 10, and 29-20. [^15]: Ibid., at para. 8. [^16]: R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3, at p. 73h. [^17]: Reasons for Judgment, at p. 1. [^18]: Ibid., at p. 3. [^19]: Ibid., at p. 5. [Emphasis added.] [^20]: R. v. Creighton, at p. 58b. [^21]: Ibid., at p. 74h. [^22]: Ibid., at pp. 71c – 72c. [Citations omitted. Italicized emphasis added. Underlined emphasis in the original.] [^23]: Ibid., at p. 72h. [Emphasis added.] [^24]: Ibid., at p. 70h. [Citations omitted.] [^25]: R. v. Horvat (1995), 66 Q.A.C. 149, 1995 5088 (Que. C.A.). [^26]: Reasons for Judgment, at p. 8. [^27]: In my view, the same analysis applies to the appellant’s complaints that the trial judge failed to follow or incorrectly distinguished the decisions in R. v. Lee, 2003 NSPC 26, 216 N.S.R. (2d) 124 (N.S. Prov. Ct.), and R. v. Zazulak, [1991] O.J. No. 199, 47 O.A.C. 386 (C.A.), the latter being a case that was decided before the Supreme Court’s judgment in R. v. Creighton. [^28]: Trial Transcript, p. 132, l. 22 – p. 135, l. 18. [^29]: Trial Transcript, at p. 132, l. 23 – p. 143, l. 19. [^30]: Reasons for Judgment, at p. 6. [Emphasis added.] [^31]: Ibid., at p. 8. [Emphasis added.] [^32]: Ibid., at p. 11. [Emphasis added.] [^33]: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, [1995] O.J. No. 639 (C.A.), at para. 30. [^34]: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 24. [^35]: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 30. [^36]: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 60. [^37]: Reasons for Judgment, at p. 10. [^38]: Trial Transcript, p. 127, l. 26 – p. 128, l. 5. [^39]: R. v. Elliston, 2010 ONSC 6492, 225 C.R.R. (2d) 109 (S.C.J.), at para. 12. [^40]: R. v. Felawka, 1993 36 (SCC), [1993] 4 S.C.R. 199, at p. 211. See also R. v. Dunn, 2013 ONCA 539, 117 O.R. (3d) 171 (C.A.), at paras. 33-34. [^41]: R. v. Chin, 2009 ABCA 226, 457 A.R. 233 (Alta. C.A.), at para. 10. [^42]: R. v. Danvers, 2005 30044 (ON CA), [2005] O.J. No. 3532, 199 C.C.C. (3d) 490 (C.A.), at para. 78.

R. v. Bonyai, 2017 ONSC 4631

Case Summary

Overview

Factual Background and Decision of the Trial Judge

Issues

Standard of Review

Analysis

Did the trial judge err in finding that the actions of the appellant constituted a marked departure from the norm?

Did the trial judge err by rejecting the appellant’s position that he was engaged in a lawful citizen’s arrest under s. 494(1)(a)?

Did the trial judge err by rejecting the appellant’s position that he was engaged in a lawful citizen’s arrest under s. 494(2)(b)?

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 1