COURT FILE NO.: 15-M7871
DATE: 20180614
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JOHN MCRAE
Applicant
Marie Dufort/John Ramsay, for the Respondent
Joseph Addelman/Mash Frouhar, for the Applicant
HEARD: June, 6 2018
ruling on self-defence
Beaudoin j.
[1] John McRae is charged with the second degree murder of his son Michael with an offence date of July 7, 2015. This is an application by the Defence for an order allowing self-defence to be put to the jury. The evidence presented at trial shows that on July 7, 2015, Michael McRae was stabbed to death by John McRae.
[2] In this trial, John McRae testified that Michael came into his room at around 6:30 p.m., kicked he door open and told him “I’m going to kill you, you fucking old bastard. Tonight’s the night.” Michael McRae then went to the living room, a short distance away and lay down on the couch watching television and drinking beer. John searched for a baseball bat he kept in his room for protection. He was going to use the bat “to conk Michael on the head.” He could not find the bat. He then went into the kitchen and grabbed a butcher knife. He then went into the living room; Michael stood up and swore at his father and John McRae stabbed Michael McRae twice in the abdomen. Michael then fell to the couch and then John cut the skin on Michael’s throat. He then told his roommate (Alain Chaput) to call 911. This version of events is inconsistent with other versions he has provided with regard to what happened that night.
[3] The new self-defence provisions set out in section 34 of the Criminal Code are applicable. These were recently discussed by the Court of Appeal in R. v. Philips 2017 ONCA 75 at paras. 70 and 71:
70 The new s.34 of the Criminal Code does not simply declare the law as contained in the former self-defence provisions; it has made some substantive changes to the law of self-defence: While in some circumstances the application of both the former and new provisions will result in the same verdict, that will not always be the case
71 The changes wrought by the amendments were described by this Court in Bengy, at paras. 46 to 48:
46 The new unified three-element framework in the Citizen’s Arrest and Self-defence Act may not have changed the scope of what is relevant to the defence. However, it changed the nature of what is relevant. Mandatory requirements were converted into discretionary factors (e.g. proportionality, provocation, the quantum of force used and the quantum of force apprehended)…
47 In some cases, the new self-defence provisions are more generous and in other cases they are more restrictive. The more generous elements of the new provisions include:
• The conversion of mandatory prerequisites into discretionary considerations, which means more claims, will be put before juries;
• The allowance of defence of other persons not necessarily “under [the accused’s] protection”, as required under the former s. 37;
• The elimination of a strict limitation on when fatal defensive force can be used, which previously required an apprehension of death or grievous bodily harm; and
• The expansion of acts of self-defence from “use of force” to any “act” (e.g. stealing a car or breaking into a house).
48 There are also less generous elements of the new provisions. Most significantly, they require that certain “pro-conviction” factors be considered in every claim of self-defence, such as whether other means of response were available to the accused, the nature and proportionality of the accused’s response, and the accused’s role in the incident (i.e. provocation). Such considerations were not always relevant under the old regime. For instance, the former s. 34(2) had no proportionality requirement and arguably justified excessive force if the accused was under a reasonable apprehension of death. The former provisions also did not require consideration of alternative means of response, which made it possible for self-defence to be based on “stand your ground” righteousness. [Internal citations omitted/ Emphasis added.].
[4] The applicable self-defence provisions are as follows:
Defence — use or threat of force
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
(c) the act committed is reasonable in the circumstances.
Factors
(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;
(c) the person’s role in the incident;
(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.
[5] These new self-defence provisions are discussed is in The Technical Guide for Practitioners issued by the Department of Justice in March, 2013 at pp. 10-11:
Core Self-Defence Elements: Balancing Objective and Subjective Assessments
The new basic rule for self-defence contains three required elements:
• A reasonable perception of force or a threat of force against the accused or other person (accused's subjective perception that is objectively verified);
• A defensive purpose associated with the accused's actions (accused's subjective state of mind); and
• The accused's actions must be reasonable in the circumstances (objectively assessed).
Overall, the new rule seeks to evenly balance objective and subjective considerations. However, it accomplishes the balance in a slightly different way than it did in the old law.
Briefly, under the new law, the threat perception is assessed on a combined subjective/objective basis, which is essentially the same as the old law. Mistakes as to the nature or existence of the threat are permitted, but only where such mistakes are reasonable ones.
The new law introduces an explicit “defensive purpose” requirement, which is judged on a purely subjective basis: is there some evidence on which a jury could conclude that the accused had a defensive purpose when he or she did the actions that form the subject-matter of the charge? This purpose is not subject to objective confirmation. It is a rough equivalent to the requirement under the old law that the accused believed that they needed to take the action they did. Under the old law, this belief had to be verified objectively.
Taking into account the accused’s reasonable threat perception and their subjective defensive purpose (as well as any other considerations that are relevant in those determinations), the actions the accused took must, as a final step, be assessed as objectively reasonable in the circumstances.
Overall, then, the new defence contains objective and subjective elements in equal measure:
• one element (triggering threat) is a combined subjective/objective element;
• one element is purely subjective (purpose); and
• one element is purely objective (the reasonableness of actions).
Although this represents a new structure for self-defence in Canada, the essential elements are familiar, as is the overall approach of blended subjective and objective assessments. This approach allows for both sensitivity to the unique experiences and perceptions of each accused in highly charged and volatile situations, as well as an appropriate degree of societal oversight and boundary-setting in relation to the commission of crimes in self-defence.
Reasonableness of Actions – Listed Factors
To assist with the interpretation and application of the third core element of the new defence, i.e. the reasonableness of the actions taken in self-defence, a non-exhaustive list of factors is included in the new law. One motivation for the list of factors is that it presents a means of codifying certain relevant considerations that derive from jurisprudence. In particular, two aspects of the landmark SCC decision in Lavallee are now codified:
• imminence of the attack is not a rigid requirement that must be present for the defence to succeed, but rather is a factor to consider in assessing the reasonableness of the accused’s actions; and
• an abusive history between the accused and the victim is a relevant factor in assessing the reasonableness of the accused's actions.
The codification of these (and other factors) signals that the new law is not intended to displace old jurisprudence. Rather, the list helps to indicate that previously recognized self-defence considerations continue to apply wherever relevant. The list of factors was provided to give some guidance to judges and juries, because the new element of actions being “reasonable in the circumstances” does reflect a change in the wording of the law and the enactment of a more flexible standard. (Emphasis mine)
[6] In R. v. Bengy, 2015 ONCA 397, the Court of Appeal said this about the new provisions at paras. 46-48:
46 The new unified three-element framework in the Citizen’s Arrest and Self-defence Act may not have changed the scope of what is relevant to the defence. However, it changed the nature of what is relevant. Mandatory requirements were converted into discretionary factors (e.g. proportionality, provocation, the quantum of force used and the quantum of force apprehended). The substantive significance of this change manifests in the air of reality test during jury trials. The former threshold requirements that once governed whether the defence was left with the jury are now, instead, relevant considerations for the jury in determining the defence’s ultimate success. (Emphasis mine)
47 In some cases, the new self-defence provisions are more generous and in other cases they are more restrictive. The more generous elements of the new provisions include:
• The conversion of mandatory prerequisites into discretionary considerations, which means more claims will be put before juries;
• The allowance of defence of other persons not necessarily “under [the accused’s] protection”, as required under the former s. 37;
• The elimination of a strict limitation on when fatal defensive force can be used, which previously required an apprehension of death or grievous bodily harm; and
• The expansion of acts of self-defence from “use of force” to any “act” (e.g. stealing a car or breaking into a house).
48 There are also less generous elements of the new provisions. Most significantly, they require that certain “pro-conviction” factors be considered in every claim of self-defence, such as whether other means of response were available to the accused, the nature and proportionality of the accused’s response, and the accused’s role in the incident (i.e. provocation). Such considerations were not always relevant under the old regime. For instance, the former s. 34(2) had no proportionality requirement and arguably justified excessive force if the accused was under a reasonable apprehension of death. The former provisions also did not require consideration of alternative means of response, which made it possible for self-defence to be based on “stand your ground” righteousness.
[7] In R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, the Supreme Court gave guidance to trial judges in determining whether or not a defence has an air of reality and should be put to a jury. Cinous continues to be good law on how to apply the air of reality test although the result in that case might not be same under the current self-defence regime. In Cinous, the Supreme Court gave direction in this way:
- The Basic Features of the Air of Reality Test
50 The principle that a defence should be put to a jury if and only if there is an evidential foundation for it has long been recognized by the common law. This venerable rule reflects the practical concern that allowing a defence to go to the jury in the absence of an evidential foundation would invite verdicts not supported by the evidence, serving only to confuse the jury and get in the way of a fair trial and true verdict. Following Pappajohn, supra, the inquiry into whether there is an evidential foundation for a defence is referred to as the air of reality test.
51 The basic requirement of an evidential foundation for defences gives rise to two well-established principles. First, a trial judge must put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused. Where there is an air of reality to a defence, it should go to the jury. Second, a trial judge has a positive duty to keep from the jury defences lacking an evidential foundation. A defence that lacks an air of reality should be kept from the jury. This is so even when the defence lacking an air of reality represents the accused’s only chance for an acquittal, as illustrated by R. v. Latimer.
52 It is trite law that the air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive. Dickson C.J. drew attention to the distinction between these two types of burden in R. v. Schwartz:
Judges and academics have used a variety of terms to try to capture the distinction between the two types of burdens. The burden of establishing a case has been referred to as the “major burden,” the “primary burden,” the “legal burden” and the “persuasive burden.” The burden of putting an issue in play has been called the “minor burden,” the “secondary burden,” the “evidential burden,” the “burden of going forward,” and the “burden of adducing evidence.” [Emphasis added.]
The air of reality test is concerned only with whether or not a putative defence should be “put in play”, that is, submitted to the jury for consideration. This idea was crucial to the finding in Osolin that the air of reality test is consistent with the presumption of innocence guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms.
53 In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true. The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses. It can also rest upon the factual circumstances of the case or from any other evidential source on the record. There is no requirement that the evidence be adduced by the accused.
54 The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury. The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences. Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue.
55 Whether or not there is an air of reality to a defence is a question of law, subject to appellate review. It is an error of law to put to the jury a defence lacking an air of reality, just as it is an error of law to keep from the jury a defence that has an air of reality. (Internal citations omitted)
[8] More recently in R. v Gauthier, 2013 2 S.C.R. 402. the Supreme Court held:
When It Is Appropriate to put a defence to the Jury?
23 It is well established that any defence with an air of reality should go to the jury This Court has held that a defence meets the air of reality test if there is “(1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true”.
24 The reason why the trial judge is required to screen the defences that can be put to the jury should be borne in mind. This requirement is essentially rooted in a concern not to confuse jurors by putting to them a defence that lacks an evidential foundation. This premise gives rise to two principles: On the one hand, a trial judge must put to the jury all defences that arise on the facts, regardless of whether they have been specifically raised by the accused. On the other hand, the judge must withhold from the jury any defences that lack an air of reality.
25 The burden on the accused is merely evidential. If the trial judge properly applies the relevant principles, he or she must identify the evidence that is most favourable to the accused and assume it to be true, regardless of whether it was adduced or mentioned by the accused. The judge must not enquire into whether the witnesses are credible or assess the probative value of this evidence. If each element of a defence is supported by direct evidence or may reasonably be inferred from circumstantial evidence, the judge must put this defence to the jury.
[9] In R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, the Supreme Court had to consider whether an air of reality existed with respect to the defence of provocation, at paragraph 14, the Court cited Cinous and concluded at paras. 21- 26:
- The Air of Reality Test
21 As discussed in the companion case R. v. Cairney, before leaving the defence to the jury, the trial judge must find that there is an air of reality on both the objective and subjective elements of the defence. The question is whether a properly instructed jury acting reasonably could be left in a state of reasonable doubt as to whether the accused is guilty of murder, on the basis of the defence of provocation. There must be an evidential foundation for both the objective and subjective elements of the defence, which s. 232(3) of the Criminal Code states are questions of fact.
22 The air of reality test requires courts to tread a fine line: it requires more than “some” or “any” evidence of the elements of a defence, yet it does not go so far as to allow a weighing of the substantive merits of a defence: A trial judge applying the air of reality test cannot consider issues of credibility and reliability, weigh evidence substantively, make findings of fact, or draw determinate factual inferences: However, where appropriate, the trial judge can engage in a “limited weighing” of the evidence, similar to that conducted by a preliminary inquiry judge when deciding whether to commit an accused to trial.
23 The ability of the trial judge to engage in “limited weighing” depends on the type of evidence on the record. “If there is direct evidence as to every element of the defence, whether or not it is adduced by the accused, the trial judge must put the defence to the jury”: The trial judge may not engage in any weighing of direct evidence, since this would require a consideration of the inherent reliability of the evidence.
24 “Direct evidence is evidence which, if believed, resolves a matter in issue”: However, “the mere assertion by the accused of the elements of a defence does not constitute direct evidence, and will not be sufficient to put the defence before a jury”. An air of reality “cannot spring from what amounts to little more than a bare, unsupported assertion by the accused”, which is otherwise inconsistent with the totality of the accused’s own evidence: For example, in R. v. Gauthier, Wagner J., suggested that a single statement made by an accused that is otherwise inconsistent with the accused’s “principal narrative” is insufficient to give an air of reality to a defence: paras. 60-61.
25 Where the evidence instead requires the drawing of inferences in order to establish the elements of a defence, the trial judge may engage in a limited weighing to determine whether the elements of the defence can reasonably be inferred from the evidence. “The judge does not draw determinate factual inferences, but rather comes to a conclusion about the field of factual inferences that could reasonably be drawn from the evidence.” In conducting this limited weighing, the trial judge must examine the totality of the evidence:
26 As discussed in Cairney, in cases where there is a real doubt as to whether the air of reality test is met, the defence of provocation should be left to the jury. However, this principle does not exempt the trial judge from engaging in a limited weighing of the evidence, where appropriate. The fact remains that the trial judge exercises a gatekeeper role in keeping from the jury defences that have no evidential foundation. Defences supported only by bald assertions that cannot reasonably be borne out by the evidence, viewed in its totality, should be kept from the jury. (Internal citations omitted/ Emphasis mine)
[10] Turning to this case:
- Did John McRae believe on reasonable and probable grounds that the threat of force was being used against him?
[11] This is based on John’s direct evidence at trial that Michael threatened to kill him that night and in cross examination where John was questioned about stabbing his son twice: This exchange took place at p.74, of the May 29, 2018 transcript:
Q. you did it twice.
A. yeah to get it over with fast I guess.
Q. yeah, sure, you wanted to kill him, right?
A. yeah. Well he was gonna kill me.
Q. that’s what you’d have us believe, sir, and I’m going to explore that.
A. it was either kill or be killed in that thing.
[12] These are more than bare assertions that are otherwise inconsistent with the accused’s principal narrative or without any evidential foundation which were considered insufficient to give an air of reality to the defence in Pappas.
[13] Moreover, there was evidence of threats made earlier that day during an argument and a fight between Michael and John at around 3:30 p.m.
[14] Alain Chaput testified that John came in the back of the building where he met with Michael and they start arguing. Michael said to his dad:
You’re better dead, and fuck I am going to fucking kill you one day, Johnny says yeah I will fucking kill you one day man, you are good for nothing. I will go to jail for life if I have to. I don’t care.” “Mike called his dad an asshole, you are a fucking bastard, you beat your mom, you beat your brother and you are beating me now, and you start beating me again.”
[15] Alain Chaput went in to Johnny’s room after first looking in on Michael after being told about the stabbing and initially concluding that Michael was just sleeping. He had a conversation with John McRae, and asked him:
What happened Johnny? John replied: “I just stabbed him. I was fed up with him. He kept pushing me around, threatening to kill me and all that bullshit. Just fed up. I went there and stabbed him, so I seen he was full of blood.
[16] Darcy Kretzul, the upstairs neighbour testified:
Michael told his father to go fuck himself. John replied to Michael to go fuck himself. Then Michael said I have a baseball bat. John said I have a knife. Then John said to Michael go get the knife and bring out the bat and I will take it away from you and I will bash your fucking head in. Michael goes yeah fuck you try it.
[17] Kyle Bonville-Gagne was in the backyard when the argument and fight broke out. He testified that Mike said something about a baseball bat. He told his father to go get the baseball bat and John replied that he did not need a baseball bat that he had his fists. Kyle he did not recall any mutual threats of weapons or any mention of knives.
[18] The argument started when John accused Michael of not paying his share of the rent. John would have thrown a punch at Michael, who pushed him away. John got up and approached Michael again who pushed him down the second time. John claims that Michael cracked his skull open.
[19] There was evidence at trial about the relationship between the parties, of their alcohol abuse, of mutual threats, and of prior assaults. I conclude that there is an air of reality to John McRae’s reasonable belief that a threat of force was being made against him. This comes from the evidence of his own subjective perceptions, but is also supported by the evidence of others at trial.
- Did John McRae commit the act for the purpose of defending or protecting himself from that use or threat of force?
[20] John’s evidence is that he immediately searched for a bat after Michael threatened him and could not find it. He then went to get the knife. He describes this as being a matter of seconds. He said that Michael was awake, stood up and swore at him before he stabbed him. John testified that it was a “kill or be killed” kind of situation. I conclude that there is an air of reality to this second element. To borrow a phrase from Cinous “this conclusion goes hand-in-hand with the determination that there is an air of reality to the first element of self defence.” Once again, this is a credibility issue.
- Was the act committed reasonable in the circumstances?
[21] This act is the stabbing of Michael McRae. In determining whether the act committed was reasonable, the Court has to consider the relevant circumstances of the person, the other parties and the act, including but not limited to a list of 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;
c) the person’s role in the incident;
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.
[22] There has been a great deal of evidence about a number of these factors at trial, all of which have to be viewed in a manner that is most favourable to the accused at this stage. All of the factors have to be considered. No single factor is determinative or more heavily weighted than the others. This is a non-exhaustive list.
[23] I am troubled by the fact that Michael did not have a weapon at the moment that John stabbed him nor is there any evidence that Michael repeated any threat at that moment. Given the short time frame that may be in play, it is open for a jury to conclude that John was still operating under the original death threat when he stabbed Michael. There is an important issue of credibility in play.
[24] Jurors are instructed that anyone who defends or protects himself or another person cannot be expected to know exactly how to respond to or deal with the situation or to know how much force to use to achieve his purpose. What is reasonable may include several alternatives. The issue here is not whether John McRae believed on reasonable grounds that he had no other course of action available to him, but rather whether what John McRae did was a reasonable thing to do in the circumstances as John McRae knew them or reasonably believed them to be.
[25] Finally, I am persuaded by the view expressed by the Court of Appeal in Bengy:
The substantive significance of this change manifests in the air of reality test during jury trials. The former threshold requirements that once governed whether the defence was left with the jury are now, instead, relevant considerations for the jury in determining the defence’s ultimate success.
[26] I am left with the doubt of whether or not there is an air of reality to this element of the defence and conclude that self-defence must be put to the jury.
Mr. Justice Robert N. Beaudoin
Released: June 14, 2018
COURT FILE NO.: 15-M7871
DATE: 20180614
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
JOHN MCRAE
Defendant
ruling on self-defence
Beaudoin J.
Released: June 14, 2018