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Lecture 10

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LAWS 2302
John Hale

Lecture 10 Self-defense cases - R. v. Petel (1994, SCC, p. 939) • Jury must seek to determine: 1. how ∆ perceived the relevant facts (subjective test), and  perceive that they were in danger, and in assessing that one would take into account the accused’s prior relationship with the victim, the personal characteristics of the accused 2. whether the perception was reasonable (objective test)  objective test, if the accused has an honest, reasonable mistake as to whether she is in danger, it does not preclude the defence of self-defence • An honest but reasonable mistake as to the existence of an assault is a defense - Is battered wife syndrome a defence since Lavellee? No, because it falls under the heading of self-defence and what it really is an explanation for why someone was acting on self-defence à dealing with situations in which the woman is not under attack and that given moment (untraditional to the meaning on self-defence). Lavelle expands on the scope of self-defence to the accused who perceives that she is in danger and has acquired “learned helplessness” and does not feel anyway out as well as feeling trapped and not seeing any option between the moment where they pull the trigger and the unknown future date where her husband may turn on her in a violent way - Petel: not a battered wife syndrome case – it is a case where a woman shoots a man who is violent but they were not in a domestic relationship, it was her daughters “boyfriend” who was a violent drug dealer R. v. Petel (1994, SCC, p. 939) - ∆ convicted of 2nd degree murder; Qué. C.A. overturned conviction 2:1 and ordered a new trial; Crown appeals - Facts: • ∆ is charged with killingAlain Raymond • ∆ is mother of Josée Desjardins, who was going out with Serge Edsell • Josée and Serge started dating in March 1989, and moved in together in • in May, Josée and Serge were evicted and moved in with ∆ • Serge was involved in drug trafficking, had customers come to ∆’s house • Serge was always angry, and he beat Josée regularly • In July, ∆ moved out to get away from Serge; Serge continued to go to ∆’s new home to sell drugs • On July 21, Serge went to ∆’s place with a revolver, cocaine and scales; he asked ∆ to hide the weapon • Serge forced ∆ to weight some coke, and he suggested he would kill her along with Josée and her granddaughter • shortly after, Josée arrived withAlain Raymond • ∆ consumed a bit of cocaine, then went and got the gun • ∆ shot once at Serge, who fell • Raymond lunged at her, and she fired at him • ∆ told police that she wanted both of them dead • trial judge told jury that evidence of Serge’s previous assaultive behaviour was relevant to the issue of whether Serge andAlain Raymond in fact threatened ∆ on July 21st and whether they had present ability to carry out the threat - Decision: (5:4; female judges are split: McLachlin with majority) • Here, ∆ is relying on s.34(2) • there are 3 elements of the defence of self-defence:  existence of unlawful assault;  a reasonable apprehension of a risk of death or GBH; and  a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary - p. 940: “In a case of self-defense it is the accused’s state of mind that must be examined, and it is the accused (and not the victim) who must be given the benefit of a reasonable doubt. The question that the jury must ask itself is therefore not, “was the accused unlawfully assaulted?” but rather “did the accused reasonably believe, in the circumstances that she was being unlawfully assaulted?” • In order to rely on self-defence the accused does not have to “prove” that they were in fact being unlawfully assaulted, they only have to “prove” that they has reason to believe that they were being unlawfully assaulted even if it is a mistake • “proved” because the accused only has to raise a reasonable doubt to the various elements to self-defence • The Crown has to raise a reasonable doubt that the accused was not in danger or being unlawfully assaulted - “Lavallée rejected the rule requiring that the apprehended danger be imminent. This alleged rule, which does not appear anywhere in the text of the Criminal Code, is in fact only a mere assumption based on common sense.As Wilson J. noted in Lavallée, this assumption undoubtedly derives from the paradigmatic case of self-defense, which is an altercation between 2 persons of equal strength… • The court points out the requirement that the danger be imminent – and that the word “imminent” is just a requirement that is involved in common-law, it is just something that exists based on common sense and the word “imminent” has to be given some elasticity as it did in Lavallee à “imminent” really means that there is no chance of escape to avoid hard - … However, evidence may be presented (in particular expert evidence) to rebut this presumption of fact. There is thus no formal requirement that the danger be imminent. Imminence is only one of the factors which the jury should weigh in determining whether the accused had a reasonable apprehension of danger and a reasonable belief that she could not extricate herself otherwise than by killing the attacker.” - As Wilson J. noted in Lavallée, • “The issue is not, however, what an outsider would have reasonably perceived but what the accused reasonably perceived, given her situation and her experience.”  All of the personal characteristics of the accused are relevant: seen this in distress  It is a reasonable person who shares background and characteristics of the accused à it is a very different “reasonable person” from the negligence type - Is Petel inconsistent with Creighton? • “In my view, considerations of principle and policy dictate the maintenance of a single, uniform legal standard of care for such offences, subject to one exception: incapacity to appreciate the nature of the risk…” • “The principle that the criminal law will not convict the morally innocent does not, in my view, require consideration of personal factors short of incapacity.” • “The criminal law, while requiring mental fault as an element of a conviction, has steadfastly rejected the idea that a person’s personal characteristics can (short of incapacity) excuse the person from meeting the standard of conduct imposed by the law.” R. v. Cinous (2002, SCC, pp. 869) - Starring… • Jacques Cinous as “TheAccused” • Mike Vancol as “The Victim” - Guest starring… • Kent Laforest (as ∆’s friend) • Yves “Ice” Louis (as “the other guy who stole computers”) nd - ∆ convicted of 2 degree murder; appeal to Que. C.A. dismissed; appeals to SCC - Facts: ∆, Jacques Cinous, was charged with 1 degree murder of Mike Vancol on Feb. 3, 1994 • ∆testified that he and a friend, Kent Laforest, had been involved in theft and resale of computers sinceAugust 1993, earning about $5,000 per week each. Yves (“Ice”) Louis and Mike Vancoul were also involved in some of the thefts • In January 1994, a month before the killing, ∆went with Ice and Mike to steal computers. They abandoned the theft because there were security guards and other employees present. • When ∆got home, he discovered that his gun was missing. He was convinced that Mike took it, and decided that he would have no more contact with Ice or Mike • Did not bring the gun with him to the robbery, and there is no evidence that Mike took it • Ice and Mike kept contacting ∆, trying to talk him into more thefts • ∆heard rumours on the street that Mike and Ice wanted to kill him • on Feb. 3 at 7 AM, Ice and Mike called ∆; they agreed to meet at 7 PM at ∆’s house in order to do a theft (∆ testified he had no plans on going through with it) • Kent arrived at 7 PM, and Ice and Mike arrived at 7:15. ∆ testified that Ice and Mike kept whispering to each other, and he saw Ice keep putting his hand inside his coat. He thought they were armed, but they said they weren’t • ∆ decided to participate in the theft in order to see whether they really intended to kill him • there was no evidence that Ice had ever previously assaulted or threatened ∆ • ∆ noticed that Mike changed his gloves to a pair of grey gloves, rather than the black leather gloves they kept in the van for robberies; more significantly to ∆, Mike put on a pair of surgical gloves to wear to the theft • ∆said that he had seen hit men in movies where surgical gloves • ∆ drove; Kent sat behind him. Ice was in the front passenger seat, and Mike in the rear passenger side • Kent testified that the mood was relaxed in the van • Ice avoided making eye contact with ∆, and kept touching his jacket as if he had a gun • ∆ testified that he was sure he was going to be killed, and assumed it would be from behind, from Mike. He felt trapped, as he was the driver and could not reach his own gun quickly • ∆ pulled into a gas station. He bought some washer fluid, filled up the fluid container, and went to the back of the van • He saw an opportunity, and “instinctively” shot Mike from behind in the back of the head • ∆ testified that it did not occur to him to run away or call the police: he felt that the police would want him to work as an informant, and also he didn’t see why he should have to leave his van • Ice ran away; ∆and Kent ran away as well, leaving Mike’s body in the van • No gun was found on Mike, although he had a knife • Trial judge allowed self-defence to be put to the jury - Issue: Is there an air of reality to the defense of self-defense? R. v. Cinous (2002, SCC) - Decision: Important points on “air of reality” test (no air of reality here); this applies to ALL defences: 1. The air of reality test imposes an evidential burden on ∆, but not a persuasive burden 2. In applying the air of reality test, the trial Judge assumes that the accused’s version is true 3. The trial judge does not decide the substantive merits of the defense, as this is a question for the jury. 4. The trial Judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw factual inferences. 5. The test is not intended to assess whether the defense would succeed. 6. 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. 7. The question is whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true R. v. Cinous (2002, SCC) - In this case there are 3 elements to the defense of self-defense under s. 34(2): [1] the accused reasonably believed that he was going to be attacked; [2] the accused reasonably believed that, if attacked, he would suffer death or GBH; [3] the accused reasonably believed that he had no alternative but to kill V • Self-defence is not a single issue of defence – it is a defence that has a number of elements and what the elements of the defence are is going to base what section of the Criminal Code is being relied on • There are all sorts of elements that have to be proven for self defense but which elements are relevant are going to be which section is being relied on • There has to be an “air of reality” to every element in the defense of self-defence à if the accused is relying on one section of the code, there has to be an air of reality to those particular issues • If there is an air of reality to 3 out of the 4 elements then it does not go to the jury because not all of the elements are present à this is the point of the Cinous case - There is an air of reality to the subjective and objective components of [1] and [2], and to the subjective component of [3]; however, the belief that there were no alternatives must have been reasonable, and there is no air of reality to this assertion. Therefore, there is no air of reality to the defense. R. v. LaKing and Simpson (2004, OCA) nd - ∆’s acquitted of 2 -degree murder; Crown appeals - Facts: • Donald LaKing and Robert Simpson were inmates of Kingston Penitentiary, as was V, Alfred Martin • 19-day trial, neither of ∆’s testified • January 26, 1999:  Early in AM, Martin and his friend “X” started making “shine”, which they were going to trade for heroin  When they were unable to find heroin, they began drinking the shine and they shared a morphine pill  Correctional officers first took note of Martin’s behaviour around 3:15 PM. He was intoxicated and belligerent, challenging the officers to a fight, frothing at the mouth. He was escorted back to the range.  At 3:48 (according to video), Martin picked a fight with Simpson. It started as a play fight, but degenerated to punches and Martin threatening to kill Simpson. Simpson said, “I got no problems with you…I don’t want to fight.”  At 4:39 PM, Martin pulled a 6-8” weapon that looked like an ice pick and threatened a third ∆, Pierre Carriere. This happened in the video camera’s blind spot and was not filmed.  LaKing saw this and told Martin to stop. LaKing went to his cell and got a knife, and Martin and LaKing started swiping at each other with their weapons. Martin advanced on LaKing, who walked backwards. Martin either dropped his knife or threw it over the railing as they went up some stairs, and the confrontation died down.  The Acting Unit Manager heard about the incident and ordered a lockdown on Upper G Range. Martin refused to lock himself in, saying there had been no fight. He said that he would give the staff a reason to lock up the range; he threatened to set up a barricade and start a fire.  The Emergency Response Team was notified, as no officers wanted to go onto the range until the range was locked down.  Simpson and LaKing told another inmate that they wanted to end the whole thing peacefully, but they were “paranoid” about Martin’s knife. The inmate went and got Martin’s knife and threw it away, but it is not clear that Simpson and LaKing knew this.  At 6:05 PM, Martin broke some furniture and set fire to it. He yelled for other inmates to help him, but only X joined in. Martin threw an accelerant onto the fire, and it rose to 6 feet. The sprinkler system came on.  After the fire had been going a few minutes, X jumped onto the washer/dryer and covered the video camera. Martin told him to do this because he was going to “kill those goofs”.  LaKing noticed the covered camera and told Simpson  At 6:14, a guard started filming with a handheld camera from the pod. At 6:15, X covered the pod window with a blanket. By 6:19, Martin had been fatally stabbed.  During those few minutes, LaKing called Martin to his cell and told him to stop. Martin called out to X to get his shank. X said that he couldn’t find it. Martin challenged LaKing to a fight. There was evidence that LaKing then pushed Martin towards Simpson.  Simpson had come upstairs to LaKing’s cell to see what was going on. Martin challeneged Simpson to a fight, saying that he didn’t have a knife: “If you want to fight, let’s just fight it out now. I know that you’re paranoid about me having a knife. You know I don’t have a knife, so if you want to fight it out, we can just fight it out.”  Simpson kept saying that he did not believe that Martin didn’t have his shank.  Simpson walked into LaKing’s cell, got a knife, came back out and stabbed Martin several times. LaKing then joined in, hitting Martin over the head with a metal pipe. • Trial judge acquitted, finding that self-defence was a live issue and - The first issue to be determined is whether self-defence was a live issue in this case. • There is some evidence bearing on that issue. The stabbing occurred in Kingston Penitentiary. The barrier door was locked. There was some tension on the range. Martin had been acting out. He and Simpson fought, and he had threatened to kill Simpson. He held a knife in a threatening way, while he chased Carrierre to the far end of the range. He and LaKing had a knife-swinging episode. His language was loud and threatening. He started the fire near the barrier. He told [X] to cover the camera lens. He may have had a knife or a shiv on his person. When he went to LaKing’s cell, the nearest COs were in the bubble, more than 75 feet away, and, given the mood on the range, none of them were likely to leave the bubble. Martin was drunk, loud and aggressive. He stood near the door of LaKing’s cell, and said something which was the same as, or similar to, “You know I don’t have a knife. If you want to fight, let’s.” • If Simpson and LaKing believed that, there was no reason for them to fear anything other than a fist-fight. If they didn’t believe him, if they thought that he had a knife on him, and said that only to bait them into a fist-fight, during which they might get stabbed, then they had genuine reason to be concerned for their lives. • In my opinion, self-defence was a live issue. - Issues: • Can words alone constitute an “unlawful assault”? • Was there an air of reality to the defense of self-defense? - Held: • Yes, depending on the surrounding circumstances. • Yes. (person does not have to testify) - Second degree murder case and the trial judge acquitted so it went up to the Court of Appeal - Issue: Is it enough that you have been verbally assaulted? Can words alone constitute an unlawful assault? - Does the accused have to testify in order for there to be an “air of reality” or can that air of reality come from other witnesses? - Held: The circumstances drive how serious the verbal assault is – in some situations the verbal assault may not be serious or threatening yet in others it could be very frightening (e.g walking home alone and being in a dark alley) à the same words depending on the circumstances in which they were spoken could give rise to self-defence. If a reasonable person would not take them seriously then there would not be self-defence “Assault”, s. 265(1) - Aperson commits an assault when… • (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose…  “Threatens by an act or gesture” – can words be classified as an act or gesture? There is another section of the code that deals with uttering threats. - If you are uttering words that you are going to kill someone it can be considered assault R. v. LaKing and Simpson - According to Cinous, “it is necessary only that the evidence of an unlawful assault on an accused person meet the standard of being capable, if accepted by a properly instructed trier of fact acting reasonably, of forming the basis for an acquittal. - In Petel, the SCC said that in determining whether ∆ was unlawfully assaulted, the correct focus is not “on trying the victim”, but rather on ∆’s state of mind: “It is the accused (and not the victim) who must be given the benefit of a reasonable doubt”. - Here, in the context of Martin’s behavior leading up to the stabbing, “the evidence of his words, actions and gestures was sufficient to meet the minimal threshold evidentiary requirement imposed under s. 34(2).” - Therefore, words alone can constitute an “unlawful assault”, depending on the context in which the words were said. - According to Cinous, the same factors that are relevant to the issue of whether ∆ was assaulted are relevant to whether he or she had a reasonable apprehension of bodily harm - Therefore, ∆ had been unlawfully assaulted, and had a reasonable apprehension of death/GBH - I cannot now say, on the basis of the evidence I heard, whether Simpson was in danger of being stabbed. No knife was found on Martin afterward. No witness said that he saw a knife in Martin’s hand, or on his person, while he stood in the doorway of LaKing’s cell. But given the evidence I heard about Martin, about life in general on the range that day, about the earlier events of the day, and about the circumstances at the cell door, including Martin’s statement that he didn’t have a knife… - …it seems to me that a reasonable man would be under a reasonable apprehension of death or critically serious bodily harm. That same reasonable man, standing where Simpson did, could think of retreating - but there was really no place to go. ... - Crown says that trial Judge confused objective and subjective tests, i.e., he decided what a reasonable man would think, then extrapolated that this is what ∆ thought or perceived - However, what a reasonable person would have perceived is circumstantial evidence of what ∆ perceived. - If ∆ does not testify, conclusions can be drawn about what ∆ perceived based on what a reasonable person would have thought - Therefore, it is not always necessary that ∆ testify in order to raise self-defence. R. v. Flood (2005, OCA) - If ∆ is relying on s. 34(2), it is not necessary for TJ to instruct jury that s. 34(2) is available even where ∆ provoked the assault on himself - Stands for the proposition that if the accused is relying on S. 34(2) the trial judge does not have to specifically tell the jury that the defence of self-defence is available even when the accused provoked the assault Bill C-26: The Citizen’sArrest and Self-DefenceAct - 2. Sections 34 to 42 of the Criminal Code are replaced by the following: • 34. (1) Aperson 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; i. is about to enter, is entering or has entered the property without being entitled by law to do so, ii. is about to take the property, is doing so or has just done so, or iii. is about to damage or destroy the property, or make it inoperative, or is doing so;  (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 i. preventing the other person from entering the property, or removing that person from the property, or ii. preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and  this defence does not restrict itself to whether or not the accused killed or did not kill, this is any situation in which the accused act in self-defence, it is not done for revenge or punishment (would not be able to use this if you shot someone robbing your house)  (c) the act committed is reasonable in the circumstances.  the act is reasonable à we determine this in subsection 2 • (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;  that the accused was defending themselves against  (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;  “imminent” will probably be given an elastic meaning, it does not mean that the force was going to be used by the attacker within the next few seconds but that there is now way out before being attacked  (c) the person’s role in the incident;  e.g. did they start the fight or were they attacked that resulted in the death or injury à what happened to lead to the self-defence?  (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;  comes out of case law, the “reasonable person test” can be different for different people à the victim is a 25 year old body builder or an 80 year old woman and the attacker is a kid with a slingshot or a man with a knife  (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;  comes straight out of the Patel case  (f.1) any history of interaction or communication between the parties to the incident;  tied in with the previous one, and seems to be more general because the previous one seems to be based on the history of violence between the two but F1 is interaction in a general sense  (g) the nature and proportionality of the person’s response to the use or threat of force; and  has always been a part of self-defence à you cannot use excessive force, and the force in order to be reasonable should be proportionate to the threat being made to you  (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.  e.g. a bouncer at a bar is throwing you out, he has lawful authority to throw you out of the bar • NO DEFENSE (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. • have to take into account in whether or not the accused knew that the person acting was acting lawfully and if they did know that then it would make it less reasonable • *there is a third section missing that is in the notes* • Puts limits on the power of police or other people who are authorized to make arrest • If the accused is defending themselves against someone who is allowed to use force on them … a person can rely on self-defence if the person genuinely does not know that the person is allowed to use force against them but they cannot use it If they know it is someone who can use force against them • Now there is a single provision of self-defence that covers everything and is much more streamline, better, and defence when it comes into effect - Deals with: • Citizens arrest • Self defence: completely changes this law in the direction that the critics of the current law have been begging for, for ages • Defence of property provisions: analogist to the self-defence provisions and reduce the number of these defenses down to 1 defence (NOT ON EXAM) Defense of Personal Property - 38. (1) Everyone who is in peaceable possession of personal property, and every one lawfully assisting him, is justified • (a) in preventing a trespasser from taking it, or • (b) in taking it from a trespasser who has taken it, if he does not strike or cause bodily harm to the trespasser. • “Personal property” – things – e.g. computer, cell phone, etc. • “Real property” – land and the house that we live in • Allowed to use force to prevent someone from taking something from you that you are in peaceful possession of (something that you own), or in getting it back - 38 (2) Where a person who is in peaceable possession of personal property lays hands on it, a trespasser who persists in attempting to keep it or take it from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation. • Practical effect: it becomes self-defence because the person is now deemed to be committing assault on you, and you are now allowed to e.g. punch the person in the face as soon as you try to prevent the person from taking your property Defense with Claim of Right - 39. (1) Everyone who is in peaceable possession of personal property under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending that possession, even against a person entitled by law to possession of it, if he uses no more force than is necessary. - Still deals with personal property where there is a lawful claim of right DefenseAgainst B&E - 40. Everyone who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority. - You, or anyone who is helping you, can use as much force as necessary to prevent someone from breaking in à it is not defined anymore than that DefenseAgainst Trespassing - 41(1) Everyone who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary. • Does not only deal with the dwelling house but deals with “real property” (e.g. the land around the house) • Specifies that you cannot use more force than necessary (e.g. cannot shoot them because they are urinating on your law), but you are allowed to use physical force (e.g. drag them off) - 41 (2) Atrespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a person lawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault without justification or provocation. • If the trespasser refuses to leave the charge converts to self-defence and you are relying on those provisions instead R. v. Taylor (1970, YT Mag. Ct.) - Trial re Unlawful Use of Firearm - Facts: Dec. 26, 1969, 2:52AM: officer called to scene of shooting in a small one-room house where ∆ lived with his C/L wife and her child; 15’3” x 8’7”; 2 beds • Joseph John Jack and his brother Joseph Paul Jack had visited ∆ at 2:30 AM to retrieve 2 chairs that Edith Kane had loaned ∆ • Jack says that ∆ invited him in, then shot him in the leg and told him to get out • his brother says there was no invitation • ∆: went to bed at 12:30AM; wife and son were in next bed • ∆ sleeps with rifle • door not locked when he went to bed • next memory is of door opening; ∆ yelled, “Get out!” and switched on the lights • heard no knock; didn’t recognize the people who came in • intruders wouldn’t leave, even though he told them several times to get out • ∆ reached over, grabbed the rifle and loaded it • ∆ shot into the floor as a warning, but Jack had come too close and his leg was shot • neighbours heard the shot, and came over to say that Jack was there just to pick up a chair • ∆ lives in rough area • police confirm that ∆’s house was broken into - Issue: Was the use of the rifle lawful, acc. to s.41(1)? - Held: Yes: acquitted - Ratio: The Jacks were trespassers • The question of whether there was excessive force is not to be considered objectively, but must be determined according to the state of mind of the accused at the time • the event occurred suddenly and quickly in the early morning hours, when ∆’s family was present and at risk • have to take into account the accused’s state of mind at the time, therefore it was lawful because he was probably startled and terrified • Lawful to use the rifle in self-defence of the property R. v. Baxter (1975, OCA, p. 956) 1. defense of property is simply a branch of self-defense 2. the rules re self-defense apply, including the rule that force be proportional 3. a trespasser is not deemed to be committing an assault until he actually uses some force to resist being removed. - The force being used by the accused is proportional to the forced they are being threatened with - It is not enough that the trespasser simply says no or does not move à the trespasser is deemed to be using assault if they are using force back in order to get back into the house R. v. Spencer (1977, BCSC, p. 958) - Wagenaar, a tenant, tried to remove ∆ from a common hallway of the apartment. ∆ resisted, and was found guilty of assault under s.41(2); she appeals - Issue: who has the right to remove ∆? (because if Wagenaar had no right to remove her, she was not assaulting him) - Held: landlord has peaceable possession; so does building manager who acts under landlord’s authority • a tenant has a right to use common areas, but that does not put him in peaceable possession • the removal of trespassers is a matter for landlords or police • Since Wagenaar had no authority, ∆’s resistance did not constitute an assault. • The tenant does not have the right to remove someone from the common area of the building, only the landlord or someone delegated from the landlord has the right to do that • Spencer was not committing a deemed assault by resisting Wagenaar R. v. Dr. Robert Hugh Scott (1991), Ont. Prov. Ct. - Dr. Scott worked at Morgentaler Clinic in Toronto - Pro-Lifers gathered, tried to prevent people from entering (Operation Rescue) - a couple arrived, and Operation Rescue went into effect - 3 people blocked the stairs; others talked to the couple, convincing them not to go in - Scott told the protesters to get off his property - tried to get to couple to help them in, but protesters would not let him open the door - V assaulted one of the nurses who was trying to get in; there was a lot of commotion, pushing and shoving - ∆ kicked V a number of times as V walked up the stairs - ∆ told couple to go to a law office next door - V followed the couple - ISSUE: Defending property. - HELD: even though there was more force than necessary, Scott could not weigh the amount of force needed to be used in order to get the person off his property, especially when he saw the way his nurse and clients were in. Dr. Scott could also rely on self- defence because the victim refused to leave when being removed - Decision: this was an assault, but it was justified under s.41 • “It was not necessary in these circumstances for Dr. Scott to measure that force used to a degree of nicety that would be required in other circumstances” • didn’t use more force than necessary • also a defense under s.37 R. v. Born With a Tooth (1992, Alta. C.A.) - Case involves Natives who tried to keep gov’t officials from walking across their reserve to get to a river that was overflowing - Defense under s.41(1) has 4 elements: • (1) ∆ must be in possession of land  must have control, though not necessarily exclusive control  defense of mistake is available  You can also be mistaken to the boundaries of the land and rely on the defence of mistake. • (2) possession must be peaceable  means possession is not seriously challenged by others • (3) victim must be trespasser  defense of mistake available  The victim cannot have a right to be on the property but they are not trespassing until someone tells you to get off and if you think the person is trespassing and they are not, you can still rely on the defence • (4) force used to eject trespasser must be reasonable in the circumstances  it has to be reasonable with someone proportionality with the force that both parties were using and the reasonableness will also take into the various factors of the accused R. v. Gunning (2005, SCC, p. 958) - ∆ convicted of murder; lost appeal to BCCA; appeals to SCC - Facts: ∆ hosted a party, at which Mr. Charlie showed up uninvited. • ∆ asked Charlie to leave; Charlie refused and became belligerent • ∆, who had consumed a lot of alcohol, got his shotgun and told Charlie to leave • during the argument, the gun went off • ∆ convicted of murder in that he was committing the unlawful act of Careless Use of a Firearm when he killed Charlie • ∆ argued that he was not guilty of Careless Use because he got the gun to scare off Charlie, who was trespassing; also, the gun went off accidentally • TJ told jury that they had to find that ∆ had committed the offence of Careless Use - Issue: Is s. 41(1) available on the issue of Careless Use? - Held: Yes: new trial ordered. • The defensive property has the same 4 elements that were set out in “Born With a Tooth” case and there has to be an “air of reality” to all 4 elements in the defence of the property. Since the trial-judge did not deal with it properly, it had to go back for another trial - Ratio: ∆ is not arguing that this is self-defence, i.e., that this was a justified intentional killing • Rather, ∆ is arguing that it was lawful to be in possession of the gun • Defense has same 4 elements as set out in Born with a Tooth. There are 4 elements to the defence 1. ∆ in possession of the dwelling house 2. possession is peaceable 3. victim was a trespasser 4. Force used to eject the trespasser was reasonable in all the circumstances • Only the 4 element was an issue in this case • There was an air of reality to the defence and it should have been put to the jury • The question as to whether the force used was reasonable is a question for the jury • The “force” here is not the shooting, which ∆ contends was unintentional, but the obtaining and loading the gun for the purpose of intimidating Charlie • TJ erred by deciding the merits of the defence, rather than leaving the defence with the jury - “Air of reality”: defense must be left with jury Provocation, s. 232 - Available only as a “partial defence” — will reduce murder to manslaughter (s.232(1)) - Not available for attempt murder: R. v. Campbell (1977, Ont. C.A.) - (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. - (2) Awrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool. - Statutory defence and a partial and very limited defence that is only available for murder charges - If successful, it does nothing more than reduce murder to manslaughter à it is not a complete defence, it is just a partial defence - *the wording is very important* - The judge does not have an option to reduce it to manslaughter, it HAS to be reduced to manslaughter - If the person who committed it did so in the heat of passion (subjective) - Objective test (2) : could an ordinary person could have lost their self-control because of the words or gesture that was done towards them Wright v. R., (1969, S.C.C.) - There are 2 inquiries to be made when the defense of provocation is raised: 1. strictly objective standard of the average or normal man [defined in Hill]: is the provocation sufficient to deprive that “ordinary man” of self-control • Character, background, temperament, drunkenness and ∆’s idiosyncracies are not relevant here, but… 2. they are relevant to the 2nd inquiry, which involves the subjective test of whether ∆ was, in fact, provoked and acted upon it “on the sudden” before there was time for his passion to cool - The court said that there are two questions for the jury when considering if someone is guilty of murder or manslaughter based on provocation Provocation cases R. v. Parnerkar (1971, SCC) - ∆ was told by girlfriend, “I am not going to marry you because you are a black man.” - ∆ was born in India, and was Hindu - claimed that, to a Hindu, being called black was a tremendous insult; equivalent to being called a member of the slave class, or a criminal, or a prostitute - stabbed victim to death in front of her 16-year-old son, to the point where her ribs were visible and her intestines were spilling out; then set himself on fire - Court held that cultural and religious background were irrelevant to objective test - (In Hill, SCC backs off on this, says it may be relevant) - his background was not relevant to an objective test – the question is not, would an ordinary Hindu lose his self-control? It is just an ordinary person, period. Olbey v. R. (1979, SCC) - Intoxication of ∆ can be considered in the subjective test inquiry, but not the objective part - ∆’s race can be considered where he is called a “two-bit nigger punk” - The SCC that the persons intoxication can be taken into account in the subjective test but not the objective test. The fact that he was black and the comment was made toward his race allowed the courts to take into account how a “normal black person” would act. R. v. Ly (1987, BCCA) - In the absence of racial slurs, evidence of ∆’s own cultural background is not to be considered in the objective test - ∆ killed his wife when he thought that she was having an affair - ∆ called expert evidence that a wife’s infidelity would be a great blow to a Vietnamese man - Court: Vietnamese background is irrelevant on the objective test - Unless there are racial slurs evidence to the accused’s cultural background should not be taken into the objective test. His wife was cheating on him and so he killed her and in this case his background was irrelevant because there was no racial slur toward his background even though infidelity was highly offensive towards his race. R. v. Nahar (2004, BCCA, p. 985) - ∆ convicted of 2 degree murder; appeals to BCCA - Facts: ∆ stabbed his wife to death on May 19, 2001 • ∆ immigrated to Canada from the Punjab in 1995 • 3 years later, he returned to the Punjab to participate in an arranged marriage, the purpose of which was to facilitate his wife’s parents’immigration to Canada • at the time, ∆ was 20 and his wife was 17 • although the marriage was arranged, ∆ felt that he and his wife had a loving relationship • initially, ∆ and his wife lived with ∆’s parents • from the start, ∆’s wife was attracted to the company of other men; she also hung out with a group of young Sikh women who did not adhere to Sikh conventions; they smoked, drank and consorted with men • this caused friction between ∆ and his wife • ∆’s wife became pregnant shortly after arriving in Canada; shortly after, she moved into ∆’s sister’s home until the daughter was born, then returned briefly to live with ∆, then ran away again; she ended up in hospital for 2 months, treated for depression; then moved with her daughter to a basement suite in fall 2000 • ∆ moved into the basement suite, and stayed there until he was charged with assaulting his wife in January 2001 • relationship worsened between ∆ and his wife; she became more defiant; ∆ began to drink more as a result • no-contact order was lifted at wife’s request; she continued to invite ∆ over • On the night of the incident, ∆ was at his parents’home with his daughter; he had been drinking • ∆ had an affectionate phone conversation with his wife, so he went to see her • they got into another argument about her behaviour • ∆ followed his wife, who was trying to get out of the argument, into the bedroom and then back to the living room. His description of what happened:  I continued talking to her as to why she goes out with boys, why she drinks.And she said, “What have you to do with it?” Then she started like swearing at me. Said, “Go, run away from here. I don’t want to talk to you.”  And I said “you don’t need me. You need other men?”And she said, “Yes. I do go and I will go. You can’t do anything to me. You can’t stop me.” Then I became angry and then I don’t know what happened.” • ∆ says his wife was trying to push him out th
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