Court File and Parties
COURT FILE NO.: CR-18-1333 DATE: 2020 05 26
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN :
HER MAJESTY THE QUEEN Eric Taylor, for the Crown
- and -
CAMERON BAKKER Michael Moon and Ilona Andersen, for the Accused
HEARD: November 21, 2019 to December 12, 2019
PRE-TRIAL AND TRIAL RULINGS
COROZA J.
A. INTRODUCTION
[1] Cameron Bakker was found guilty of manslaughter by a jury on December 12, 2019.
[2] Before the jury returned with a verdict, a number of issues arose that I gave rulings on with a promise to provide written reasons to follow. In these reasons, I will address the following issues that were raised before or during the trial: (1) the Crown application to introduce Mr. Bakker's prior statement about street fights; (2) defence counsel's attempt to introduce hearsay through the Crown witnesses; (3) defence counsel’s application to exclude members of the public from the courtroom during Anton Bura's testimony; (4) defence counsel’s request that I charge the jury on the defence of accident; and (5) the jury's question of December 12, 2019.
B. FACTUAL OVERVIEW
[3] During the early morning hours of October 7, 2017, Cameron Bakker and his friend Anton Bura encountered Connor Drew in the Village of Streetsville in the City of Mississauga. They had been drinking.
[4] Words were exchanged between all of them. Mr. Bakker punched Mr. Drew in the face twice. Mr. Drew fell to the ground and hit his head on the pavement. He died the next day.
[5] Mr. Bakker was charged with the offence of manslaughter. At his trial, he acknowledged punching Mr. Drew, but he claimed he was acting in self-defence. Mr. Bakker also argued that the jury could find that Mr. Drew consented to a fight and the Crown had not proven beyond a reasonable doubt that Mr. Drew's consent had been vitiated – a finding that would lead to an acquittal.
[6] I now turn to the issues that were raised by either the Crown or defence counsel before or during the trial. In order to keep things moving, I delivered a short written endorsement or brief oral reasons when the issues were raised.
C. ANALYSIS
Issue 1: The Crown application to introduce Mr. Bakker's prior statement about street fights
(i) Overview
[7] Mr. Bakker had been involved in another fight about one year before this incident (in December 2016). He was arrested for assault as a result of an altercation that occurred at a local bar. The charge was ultimately withdrawn, and he entered into a peace bond.
[8] During that investigation, Mr. Bakker gave a videotaped police statement to DC Garry Rawlinson of the Peel Regional Police. In the statement, Mr. Bakker explained that he had been involved in a fight that continued outside the bar but that the entire time he was simply trying to protect himself from an attack by a group of people.
[9] The Crown seeks a ruling that it can introduce parts of this earlier statement. The Crown specifically seeks to introduce the parts of the statement in which Mr. Bakker discussed the nature of "consent fights" with DC Rawlinson. Mr. Bakker admitted to DC Rawlinson that in that scenario, he knew that a person could get seriously hurt. The Crown contends that the jury in this trial, after hearing this statement, could infer that Mr. Bakker was well aware of the potential risks and consequences of his actions and that when he punched Mr. Drew, he intended to cause Mr. Drew bodily harm. The Crown submits that the inference is relevant to the issue of whether the Crown has proven that he committed manslaughter. The Crown points out that to prove the offence of manslaughter, it must prove that Mr. Bakker assaulted Mr. Drew and that when Mr. Bakker committed the assault, he had the objective foreseeability of the risk of bodily harm that is neither trivial nor transitory: see R. v. Creighton, [1993] 3 S.C.R. 3.
[10] I dismiss the Crown's application for two reasons.
[11] First, I find that the Crown has not proven this statement voluntary beyond a reasonable doubt.
[12] Second, I am not persuaded that the probative value of this statement outweighs the prejudicial effect of introducing it.
(ii) The Crown has not proven the Statement Beyond a Reasonable Doubt
[13] DC Rawlinson first encountered Mr. Bakker at about 8:10 a.m. on December 4, 2016 in the cell area of 12 Division. The officer had been assigned to obtain a statement from Mr. Bakker, who was being held in custody after being arrested at the bar by PC Colada at about 2:32 a.m.
[14] After this initial encounter in the cell area, Mr. Bakker was taken to an interview room and interviewed by DC Rawlinson from 8:21 a.m. to 9:54 a.m.
[15] DC Rawlinson explained that this initial interaction between him and Mr. Bakker in the cell area was not recorded. He explained that he was not going to elicit a statement but that he simply wanted to introduce himself and prepare Mr. Bakker for the interview, which would take place in an interview room.
[16] Mr. Bakker had already been advised of his right to counsel and had spoken to duty counsel at the station earlier that morning at about 3:42 a.m.
[17] DC Rawlinson testified that that there was some conversation in the cell area. According to DC Rawlinson, Mr. Bakker claimed that he had acted in self-defence because a bouncer at the bar was choking him. However, DC Rawlinson acknowledged that he could not recall the specific details of what was said and by whom during their conversation.
[18] DC Rawlinson acknowledged that he may have told Mr. Bakker that he was going to be released and that if he told the officer his side of the story, it may work out favourably for him. During cross-examination, the officer disagreed with defence counsel that this was an inducement. DC Rawlinson explained that he later clarified to Mr. Bakker on the video statement that all he was asking for was the truth.
[19] DC Rawlinson acknowledged that Mr. Bakker had been in custody since at least 2:30 a.m. and that there was an opportunity for other officers to speak with Mr. Bakker before he interviewed him. To his knowledge, no one had spoken to Mr. Bakker. According to DC Rawlinson, a log is kept by a cell officer who supervises detainees in the cells of 12 Division. This log would contain the names of officers who had contact with the detainee.
The Crown Position
[20] The Crown argues that the videotaped statement is clearly voluntarily because there are no inducements, threats or promises made by DC Rawlinson and Mr. Bakker had an operating mind at the time he made the statements.
[21] I am not persuaded by the Crown's argument. There are aspects of the evidence that cause me concern about finding that the Crown has proven that this statement was voluntarily made beyond a reasonable doubt.
There are Materials Gaps in the Evidence
[22] A review of the jurisprudence on the voluntariness of statements reveals that there are two relevant principles that are important for the purposes of this application.
[23] First, the accuracy and completeness of the record of the circumstances surrounding the making of the statement can relate to proof of voluntariness: see R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at para. 62.
[24] Second, when there is a material gap in the circumstances surrounding a confession, it is not for the accused to prove that something untoward took place, but it is for the Crown to prove that it did not: R. v. Bou-Chahine, 2013 ONSC 6355, at paras. 24, 27-28.
[25] Applying these principles to this case, I conclude that there is a gap in the surrounding circumstances leading to the taking of Mr. Bakker’s statement. That gap leaves me in a state of uncertainty about the voluntariness of his statements. I cannot resolve that gap in favour of the Crown.
[26] My concern lies primarily with the fact that Mr. Bakker may have been induced to provide his statement to DC Rawlinson.
[27] DC Rawlinson has a poor recollection of what occurred during the initial encounter in the cell area. The officer testified as to what his usual practice would be during this pre-interview stage. However, he did not take any verbatim notes of this encounter. Given the lack of a complete record, I have concerns about the reliability of his evidence about what occurred in the cell area. To be clear, I am not suggesting that DC Rawlinson was oppressive or threatened Mr. Bakker.
[28] However, DC Rawlinson admitted that he told Mr. Bakker that things could work out in his favour if he told his side of the story. Although I agree with the Crown that the actual video statement does not reveal any explicit offer made by DC Rawlinson to Mr. Bakker, the discussion in the cell area may have implicitly suggested to Mr. Bakker that he would receive favourable treatment if he spoke to the police.
[29] Context matters here. Mr. Bakker did not strike me as a mature individual at the time of his statement. He was a very young man. Nor can it be said that he was a savvy participant during the interview. I agree with the Crown’s submission that Mr. Bakker appears to be a very eager and willing participant in the interview with DC Rawlinson. I accept that his earnestness may be as a result of his own free will. Equally, however, his desire to talk may relate to what he was told in the cell area: that things may work out in his favour if he told his side of the story.
[30] There is yet another concerning aspect of the statement. I have no evidence about what contact Mr. Bakker may have had with other police officers between the time he was lodged in the cells by PC Colada and the time DC Rawlinson went to the cell area to speak to Mr. Bakker. PC Colada testified that Mr. Bakker was lodged in the cells and he had no contact with Mr. Bakker after 3:42 a.m. when he spoke to duty counsel. It was not until about 8:00 a.m. that DC Rawlinson spoke to him. While I acknowledge that there is no absolute rule that every person in authority, irrespective of the degree of contact with a detainee, should be called during a voir dire, it is the Crown who bears the onus on this voir dire to prove the statement voluntary. In such circumstances, the Crown is required to persuade me that any gaps are immaterial. I am unable to resolve this issue in favour of the Crown because I simply do not know whether there was any contact between Mr. Bakker and another officer during this five-hour period. PC Colada gave no evidence on this point and neither did DC Rawlinson. I observe that DC Rawlinson did testify about a cell officer who kept a log book that would keep track of Mr. Bakker in the cells, however that cell officer was not called, nor was the log book placed into evidence. A gap in the evidence remains.
[31] It is for these reasons that I concluded that the statement was not voluntary and could not be introduced in this trial.
(iii) The Probative Value of this Prior Statement does not Outweigh the Prejudicial Effect
[32] In any event, even if I am wrong and the prior statement is voluntary, I am not satisfied that the Crown has established on a balance of probabilities that the probative value of the statement outweighs its prejudicial effect.
[33] The Crown argues that the statement is relevant to a live issue at trial and that portions of the statement can be put before this jury in a way that would not reveal that Mr. Bakker was previously charged with the offence of assault.
[34] From a practical perspective, I am not persuaded that the statement could be introduced without telling the jury that Mr. Bakker was previously charged with an offence. The Crown argues that if certain portions of the statement were isolated, the jury would believe that Mr. Bakker was a witness to the assault. In my view, the Crown’s argument ignores the fact that the portions of the statement that the Crown wishes to lead would be confusing to the jury unless the jury were given the complete narrative. For example, many of the questions that were put to Mr. Bakker about street fighting were leading questions put to Mr. Bakker by a skilled interrogator. Clearly, DC Rawlinson was trying to elicit a statement from Mr. Bakker that he had committed an assault and was not acting in self-defence.
[35] To isolate certain leading questions asked by the officer and Mr. Bakker’s brief answers would be unfair to the defence. The entire statement would have to be played to give the exchange about street fighting and consent fights some context. As I see it, the defence may take the position that the statements about consent street fights were actually DC Rawlinson's views and that Mr. Bakker was simply answering in the affirmative. Either DC Rawlinson or Mr. Bakker would have to explain the significance of these leading questions and it would likely come out that Mr. Bakker had been charged with assault but that his position was that he was acting in self-defence and trying to prevent someone from choking him. All of this evidence would be very distracting to the jury and cause significant reasoning prejudice because it would turn this event into a trial about whether Mr. Bakker truly understood the consequences of consent fights.
[36] Finally, I do not share the Crown's view that these statements have significant probative value. As I understand the Crown's argument, the jury could find that Mr. Bakker's statements suggest that he was aware that punching someone in a street fight could cause serious bodily harm and that, given his previous admission, the jury could infer that when Mr. Bakker hit Mr. Drew, he intended to inflict bodily harm. The difficulty with this submission is that this previous statement refers to an incident that is dissimilar to the circumstances of this case. In the previous statement, during the interview, Mr. Bakker took the position, in clear terms, that he was the victim of an assault and that he was being choked by a bouncer and receiving blows from unknown men when he attempted to defend himself by throwing his own punches. In contrast, this case involves an exchange of words between Mr. Bakker and Mr. Drew followed by Mr. Bakker hitting Mr. Drew twice. The prior incident does not appear to involve a consent fight. Even if the prior statement could shed some light on Mr. Bakker’s state of mind when he threw the punch, it does not outweigh the significant prejudice and confusion that could result in admitting these prior statements.
[37] To conclude, bad character evidence is prima facie inadmissible. The Crown has not persuaded me on a balance of probabilities that the admission of this prior statement is warranted in this trial. Therefore, I dismissed the Crown’s application to admit Mr. Bakker’s prior statement about street fights.
Issue 2: Defence counsel’s attempt to introduce hearsay to the Crown witnesses
(i) Overview
[38] On several occasions, counsel for Mr. Bakker attempted to elicit evidence through Crown witnesses about what third parties had told them outside of the courtroom. For example, PC Kosher, an investigating officer, was asked by defence counsel about the comments that Mr. Drew's friends had made to him about his drinking. On these occasions, the Crown did not object to this evidence.
[39] However, the Crown did voice a strong objection on two occasions. First, during defence counsel's cross-examination of the Crown’s expert witness in forensic pathology, Dr. Rebekah Jacques, he suggested to her that Mr. Bakker's mother had told PC Kosher that Mr. Drew had suffered a prior head injury before the incident in question. Second, during the cross-examination of Anton Bura, defence counsel suggested to Mr. Bura that immediately after Mr. Bakker punched Mr. Drew, Mr. Bakker exclaimed that he had hit Mr. Drew because he was afraid.
[40] On both occasions, the Crown argued that defence counsel was attempting to improperly introduce hearsay evidence that had no relevance to any issue. I agreed and directed defence counsel to refrain from asking these questions. The jury was given a mid-trial instruction defining hearsay.
(ii) The Definition of Hearsay
[41] It is not disputed that a statement is hearsay if a party attempts to adduce an assertion, made out of court, in an attempt to prove the truth of the fact asserted.
(iii) The Information from Mr. Drew's Mother is Hearsay
[42] Dr. Rebekah Jacques was called by the Crown to provide an expert opinion as to the cause of Mr. Drew's death. During cross-examination, defence counsel suggested to her that Mr. Drew’s mother had told a police officer that Mr. Drew had suffered a prior injury to the head. Indeed, this evidence was already before the jury because PC Kosher, an investigating officer, testified that he spoke to Mr. Drew's mother when he attended at the hospital immediately after the incident and she disclosed this to him.
[43] Mr. Drew's mother was not called at trial. The Crown objected to this line of questioning. The Crown argued that the statement had no legitimate use in this trial other than to the confuse the jury.
[44] I agree. Respectfully, this statement had no relevance to the issues the jury had to decide.
[45] Generally speaking, an expert witness such as Dr. Jacques may be asked questions that will require the witness to consider hearsay. For example, it is common for counsel to suggest hypotheticals or alternative scenarios to experts like Dr. Jacques and ask them whether their ultimate opinion would be affected if the facts in these hypotheticals or scenarios were true. These hypotheticals will sometimes contain hearsay statements. Jurors will usually be directed that if their view of facts is different or the same as those relied on by the expert, it could affect their view of the opinion.
[46] In this case, the purpose of introducing what Mr. Drew's mother told PC Kosher is not clear. Clearly, defence counsel was attempting to have Dr. Jacques provide evidence on what, if any, impact a prior injury would have on her opinion.
[47] I do not see the relevance of that evidence. Even assuming there was admissible evidence that Mr. Drew suffered a prior injury, that evidence had no part to play in this trial. That is because the Crown is only required to prove that Mr. Bakker's actions (i.e. the punching) were a significant contributing cause of death: see R. v. Maybin, [2012] 2 S.C.R. 30. Therefore, even if Mr. Drew's pre-existing medical conditions from a prior injury were accelerated by Mr. Bakker's actions, this would not necessarily have absolved him of criminal liability. As the Crown repeatedly argued throughout the trial, in order to prove manslaughter, the Crown was only required to prove that the punch was at least a contributing cause of death outside the de minimis range. Even if Mr. Drew had some pre-existing injury, Mr. Bakker took his victim as he found him: see R. v. Smithers, [1978] 1 S.C.R. 506.
[48] Therefore, asking Dr. Jacques to consider information that Mr. Drew's mother provided to PC Kosher was not proper. That information was hearsay. Moreover, even if this sparse information was properly before the jury for the truth, it was not relevant to the issues in this case. Therefore, I restricted the use of that information when defence counsel attempted to ask Dr. Jacques this question. To permit Dr. Jacques to provide an opinion about this information would confuse the jury.
(iv) The Statement by Mr. Bakker is Hearsay
[49] Anton Bura was called by the Crown as a witness who directly observed Mr. Bakker punch Mr. Drew. According to Mr. Bura, it was Mr. Drew who had been the aggressor that evening and he appeared to want to fight.
[50] Mr. Bura testified that after Mr. Drew was hit, he fell to the ground. Mr. Bura testified that he was in shock and asked Mr. Bakker: "what the fuck”? During cross-examination, defence counsel then suggested to Mr. Bura that Mr. Bakker responded to him by telling him that he was afraid. The Crown immediately objected.
[51] Crown counsel submitted that defence counsel was impermissibly attempting to lead his defence through Mr. Bura by eliciting a prior statement that had not been introduced by the Crown.
[52] The jurisprudence supports the Crown's position. The general rule is that an accused is precluded from eliciting from witnesses self-serving statements which he has previously made and that a witness, whether a party or not, may not repeat his own previous statements concerning the matter before the court, made to other persons out of court, and may not call other persons to testify to those statements: see R. v. Campbell (1977), 17 O.R. (2d) 673 (C.A.).
[53] In Campbell, the accused was charged with the murder of his wife. Shortly after he left the scene of her death, the accused made exculpatory statements to customs officials as he left Canada through a border crossing. At his trial, the accused argued that these statements were admissible to rebut the Crown's allegation of recent fabrication. His counsel argued that, upon giving his undertaking to call the accused as a witness, he should be permitted to elicit the accused's prior exculpatory statements through cross-examination of Crown witnesses. The trial judge excluded the statements.
[54] The Court of Appeal held that the trial judge had properly excluded the statements at issue. Martin J.A. explained that the rationale for the exclusionary rule was based on two separate rules of evidence. First, the rule which precludes an accused from eliciting from witnesses self-serving statements which he has previously made. Second, the rule that a witness, whether a party or not, may not repeat his own previous statements concerning the matter before the court, made to other persons out of court, and may not call other persons to testify to those statements. The statements, according to Martin J.A., were excluded as hearsay and on the basis that an accused person should not be permitted to advance their own evidence of a defence through out of court statements and avoid cross-examination.
[55] However, there are exceptions to this rule. One such exception was set out by Sharpe J.A. in R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161. In that case, Sharpe J.A. set out the general rule of exclusion but held that a spontaneous exculpatory statement made by an accused person upon or shortly after being confronted with an allegation may be admitted as an exception to the general rule for the purpose of showing the reaction of the accused when first confronted with the accusation.
[56] Sharpe J.A. also held that the exception only applies if the accused testifies and thereby exposes (himself or herself) to cross-examination.
[57] The relevance of the statement is that it is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence.
[58] Having reviewed Edgar and Campbell, it is my view that permitting defence counsel to make the suggestion to Mr. Bura that Mr. Bakker had made an exculpatory statement when he confronted him after punching Mr. Drew would be improper. Indeed, it was not the subject of any application brought by defence counsel well in advance of trial. Although it was quite clear that self-defence was going to be a live issue, I viewed it as unfair to the Crown for defence counsel to advance his self-defence claim by simply making the suggestion to Mr. Bura that Mr. Bakker claimed that he was afraid.
[59] That said, it was relevant for the jury to hear that Mr. Bakker did say something when he was confronted by Mr. Bura. It was also relevant for the jury to understand Mr. Bakker’s reaction after being confronted by Mr. Bura. If the jury heard that Mr. Bakker made a statement almost immediately after he was confronted by Mr. Bura and then Mr. Bakker later testified that he made the statement and told the jury what it was, then in my view, this would be a functional equivalent of the Edgar exception.
[60] Therefore, in order to comply with the principles set out in Edgar, I ruled that defence counsel could elicit from Mr. Bura that something was said by Mr. Bakker. I also ruled that, if Mr. Bakker testified, he was permitted to tell the jury what he told Mr. Bura. Of course, if defence counsel had requested to recall Mr. Bura after Mr. Bakker had testified to verify Mr. Bakker’s testimony, then he would have been permitted to do that: see Edgar, at para. 73. However, defence counsel made no such request.
Issue 3: The defence application to exclude members of the public from the courtroom during Anton Bura's testimony
(i) Overview
[61] During Anton Bura's testimony, he claimed he had been threatened by Cory Droy and a man named Zaid during a recess in the proceedings. Defence counsel asked that the public be excluded from the courtroom for the duration of his evidence. As a result of this request, I held a voir dire in the absence of the jury.
[62] Mr. Bura testified on the voir dire that he was intimidated by the presence of Cory Droy and Zaid in the body of the court watching the proceedings. Cory Droy was a Crown witness and had already completed his evidence. According to Mr. Bura, Cory Droy had threatened him and his family before the trial. The male identified as Zaid was a friend of the deceased Mr. Drew and had attended the court proceedings and sat with Mr. Drew’s family.
[63] Defence counsel argued that to obtain a candid account from Mr. Bura I should exclude all members of the public, including the families of Mr. Drew and Mr. Bakker from the courtroom. The Crown was opposed to a blanket exclusion order. The Crown suggested that I could exclude Cory Droy and Zaid but not the entire public. The Crown argued that courts in Canada were open and that Mr. Drew’s family had a right to be in the courtroom and observe these proceedings.
[64] After considering the position of both counsel, I decided to exclude Cory Droy and Zaid but not the rest of the public.
(ii) The Power to Exclude the Public under s. 486(1).
[65] It is not disputed that in Canada courts are open to the public, with few exceptions. One of the exceptions is set out in the Criminal Code. The court retains the discretion to exclude the public (or any member thereof) where it is in the interests of the proper administration of justice to do so: Criminal Code, s. 486(1). The factors to consider in exercising this power are set out in s. 486(2). They are also set out in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480.
(iii) A Blanket Exclusion Order is Not Necessary
[66] After considering the factors set out in s. 486(2), I am satisfied that the real issue for Mr. Bura was the presence of Cory Droy and Zaid. Mr. Bura acknowledged on the voir dire that he could still provide a candid account in open court. Furthermore, he did not appear to be intimidated by the presence of the families of Mr. Bakker and Mr. Drew. As such, I was not concerned about him having to testify in the presence of the families, nor was I concerned about his protection.
[67] While the record before me did not establish that Anton Bura would suffer hardship without a blanket s. 486(1) order, I was persuaded that I could exclude Cory Droy and Zaid pursuant to the section but only for the duration of Mr. Bura’s evidence. The Crown did not necessarily oppose this order.
[68] To summarize, a blanket exclusion order was not necessary to further the proper administration of justice and the deleterious effects of the order were not outweighed by its salutary effects. Therefore, I did not exclude the public from any part of the proceedings. Only Cory Droy and the male named Zaid were excluded and only during Anton Bura's evidence.
Issue 4: Defence counsel’s request that I charge the jury on the defence of accident
(i) Overview
[69] During the pre-charge conference, defence counsel requested that I charge the jury on the defence of accident. I declined to do so.
(ii) The Air of Reality Test
[70] A court must put all defences to a jury where there is an air of reality to them: R. v. Cinous, [2002] 2 S.C.R. 3. In this case, the test is whether "a properly instructed jury acting reasonably could have a reasonable doubt as to whether the elements of the defence of accident are made out".
[71] In light of the defence request, I must engage in a limited weighing of the whole of the evidence in order to determine if a jury acting reasonably on that evidence could draw the inferences necessary to have a reasonable doubt as to whether the accused is guilty of manslaughter on the defence of accident.
[72] The air of reality test 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": see R. v. Pappas, [2013] 3 S.C.R. 452; R. v. Mayuran, [2012] 2 S.C.R. 162. In short, a trial judge must determine whether there is an evidentiary foundation for the defence. If I have any doubt about whether the air of reality threshold is met, this doubt should be resolved in favour of the defence.
(iii) No Air of Reality to the Defence of Accident
[73] In my view there is no air of reality to the defence of accident. An unsupported assertion by defence counsel during a pre-charge conference which is inconsistent with the totality of the evidence including Mr. Bakker's own evidence does not provide an evidentiary foundation for the defence.
[74] Again, the elements of the offence of unlawful act manslaughter are simply that the accused committed an unlawful act that caused (or was a contributing cause of death outside the de minimis range) the death of the victim: R. v. Nette, [2001] 3 S.C.R. 488. Furthermore, the Crown must prove that it was objectively foreseeable that the assault would cause bodily harm. The defence of accident, raised for the first time really during the pre-charge conference, is based on the theory that if the jury accepts that Mr. Bakker punched Mr. Drew, he did so accidentally, or that it is possible that Mr. Drew fell accidentally and hit his head as he fought with Mr. Bakker.
[75] In my view, there is no air of reality to the defence because it would require a finding that there is some evidence that Mr. Bakker hit Mr. Drew accidentally or that he fell back accidentally and hit his head during the course of this struggle. It is inconsistent with the accounts given by Mr. Bura, Mr. Bakker and the videotape that captured the incident.
[76] As a practical matter, to leave the defence of accident with the jury would also confuse them. Again, Mr. Bakker’s position throughout the trial was that he deliberately struck Mr. Drew, but he was acting in self-defence. Alternatively, Mr. Bakker argued that it was open to the jury to find that this was a consent fight and that Mr. Drew's consent had not been proven to have been vitiated by the Crown. Both of these defences are anchored in Mr. Bakker's voluntary acts. There is nothing in the evidence that speaks to the manner in which Mr. Drew's death was caused by an accident that could lead the jury to conclude that the actions of Mr. Bakker were not voluntary.
[77] For these reasons, I declined to charge the jury on the defence of accident.
Issue 5: The response to the jury's question on December 12, 2019
(i) Overview
[78] On December 12, 2019, just before they returned a verdict of guilty, the jury asked a question about the definition of a reasonable person as defined at paragraphs 323 and 360 of my final charge to the jury. For ease of reference I will briefly review those aspects of my charge to the jury.
(ii) Paragraph 323: Self-Defence
[79] In paragraph 323, I told the jury that in assessing the defence of self-defence the Crown bore the onus to prove, beyond a reasonable doubt, that Mr. Bakker's conduct was not reasonable. I specifically told the jury that the issue here was whether what he did (i.e. punched Mr. Drew twice) was a reasonable thing to do in the circumstances as Mr. Bakker knew them or reasonably believed them to be. I then defined the reasonable person for the jury and instructed the jury that a reasonable person is sane and sober, but not exceptionally excitable, aggressive or fearful.
(iii) Paragraph 360: Objective Foreseeability as an Element of Manslaughter
[80] In paragraph 360, I explained to the jury that in order to find Mr. Bakker guilty of manslaughter, the Crown needed to prove that when Mr. Bakker punched Mr. Drew, he objectively foresaw the risk of bodily harm that was more than merely trivial harm or transitory harm. I specifically told the jurors that they must decide if the particulars of the assault were such that a reasonable person in Mr. Bakker's circumstances would realize that the assault would likely put Mr. Drew at risk of bodily harm.
(iv) Analysis
[81] Distilled to the essentials, the jury's questions requested clarification of the definition of a reasonable person. I agree with Crown counsel that after referring to the reasonable person as sane and sober during my discussion of self-defence, the jury was asking whether that definition also applied to the objective foreseeability element of manslaughter. The jury pointed out in their question that Mr. Bakker had been drinking.
[82] The Crown contended that while Mr. Bakker's intoxication might ultimately be a mitigating factor on sentencing, it did not provide a defence and that impairment had no role to play in the definition of the reasonable person at paragraph 323 or 360. The Crown urged me to instruct the jury that intoxication was irrelevant.
[83] Defence counsel argued that impairment was not irrelevant. Counsel submitted that impairment could be a factor for the jury to consider when assessing Mr. Bakker's circumstances because the jury could find that Mr. Bakker was acting under a mistaken belief because of his intoxication.
[84] After considering the submissions of counsel, I decided to tell the jury that intoxication was irrelevant to the definition of a reasonable person in paragraphs 323 and 360.
[85] I will now turn to my reasons for doing so.
(v) Self-Induced Intoxication is not Relevant to Self-Defence
[86] The defence of self-defence is set out in s. 34(1) of the Criminal Code. Self-defence, as defined in s. 34(1), has three elements. The first element relates to the accused's belief. Mr. Bakker must believe, on reasonable grounds, that force is being used or threatened against him. The second element relates to the accused's purpose. The act of Mr. Bakker said to constitute the offence (i.e. punching Mr. Drew) must be done for the purpose of defending himself. Finally, the third element considers the response of the accused. The act said to constitute the offence (i.e. the punches) must be reasonable in the circumstances. Section 34(2) provides a list of factors that should be considered in assessing the third element. These factors were set out for the jury in my charge.
[87] Notably, intoxication is not one of those factors. The Crown argued that the Supreme Court of Canada's decision in R. v. Reilly, [1984] 2 S.C.R. 396, at p. 404, was a complete answer to the jury’s question. The court in Reilly considered an older provision of self-defence in the Criminal Code and held that a belief that arises solely from the effects of self-induced intoxication is not a "reasonable" belief and the protection of s. 34 of the Criminal Code is not available to the accused.
[88] I see nothing in s. 34(2) that suggests that self-induced intoxication should be considered when assessing the response of Mr. Bakker under the third element.
[89] Although the new provisions of self-defence came into force on March 11, 2013, I see nothing in the jurisprudence after Reilly that suggests that it is no longer good law. Nor has it been overtaken by the change in the legislation. Indeed, in a recent decision from the Court of Appeal for Ontario decided after the jury rendered its verdict in this case, Doherty J.A. held that s. 34(2) invites the kind of contextualization of the reasonableness inquiry developed under the previous self-defence provisions: see R. v. Khill, 2020 ONCA 151, 60 C.R. (7th) 233.
[90] It is for these reasons that I told the jury that intoxication was not relevant to the assessment of the third element of self-defence. The opinion of Professor Kent Roach in his article, "A Preliminary Assessment of the New Self-Defence and Defence of Property Provisions" (2012) 16 Can. Crim. L. Rev. 275, only fortifies my conclusion. In that article, Professor Roach states that intoxication is simply not relevant to determining whether an act of self-defence is reasonable in the circumstances.
(vi) The Reasonable Person
[91] Nor am I persuaded that Mr. Bakker’s self-induced intoxication was relevant to a basic element of the offence of unlawful act manslaughter. In this case, the Crown was required to prove that Mr. Bakker committed an assault on Mr. Drew (i.e. the punches) accompanied by the objective foresight of the risk of bodily harm that is neither trivial nor transitory.
[92] When assessing the objective foresight of bodily harm, a jury is required to measure the conduct of the accused against the standard of a reasonable person in his circumstances: see Creighton; R. v. Javanmardi, 2019 SCC 54, 439 D.L.R. (4th) 579, at para. 32.
[93] In Creighton, over a lengthy time period, the accused and a woman shared a large quantity of alcohol and drugs in the woman's apartment. Tragically, the woman died as a result of a drug injection given to her by the accused. The accused was charged with manslaughter.
[94] McLachlin J., writing for the majority in Creighton, held that incorporating personal characteristics into the objective test for manslaughter is unwarranted. Indeed, in that case she held that Creighton's habitual drug use was not to be considered.
[95] In rejecting the minority's view that personal characteristics were relevant to the objective test for crimes such as manslaughter, McLachlin J. referred at p. 64 of her decision to Dickson C.J.'s comments in R. v. Hill, [1986] 1 S.C.R. 313, where he defined the underlying rationale for the ordinary person standard:
Lord Simon of Glaisdale has perhaps stated it most succinctly when he suggested in Camplin, at p. 726, that "the reason for importing into this branch of the law the concept of the reasonable man [was] ... to avoid the injustice of a man being entitled to rely on his exceptional excitability or pugnacity or ill-temper or on his drunkenness ". [emphasis added]
[96] I see nothing in the majority decision of Creighton or the authorities that have subsequently been decided that suggests intoxication has any role to play in the reasonableness inquiry when the accused is charged with manslaughter. The personal strengths and weaknesses of Mr. Bakker were generally irrelevant to the assessment of objective fault.
[97] Even on the minority’s view in Creighton, self-induced intoxication could not absolve the accused. Lamer C.J., writing for the minority, explicitly set out that intoxication or impairment through drug use which occurs as a result of voluntary consumption cannot serve to vitiate liability for the risks created by the negligent conduct of an accused: see Creighton, at pp. 29-30.
[98] Moreover, as a practical matter, there is no defence of self-induced intoxication for general intent offences such as manslaughter: see R. v. Daley, [2007] 3 S.C.R. 523; Criminal Code, s. 33.1. In my view, to tell the jury that intoxication had a role to play in absolving Mr. Bakker from criminal liability would be wrong in law.
[99] It is for these reasons that I told the jury in my answer to them that intoxication was irrelevant when looking at the definition of the reasonable person in paragraph 360.
Coroza J. Released: May 26, 2020