Citation: Gallant v. The Queen Date: PESCTD 04 Docket: S1-GC-182 Registry: Charlottetown

Transcription

1 Citation: Gallant v. The Queen Date: PESCTD 04 Docket: S1-GC-182 Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION BETWEEN: JEFFREY ALFRED GALLANT APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Before: The Honourable Chief Justice J. Armand DesRoches Donald H. MacKenzie Darrell E. Coombs Solicitor for the Appellant Solicitor for the Crown Place and Date of Hearing Place and Date of Judgment Charlottetown, Prince Edward Island October 29, 2002 Charlottetown, Prince Edward Island January 7, 2003

2 Citation: Gallant v. The Queen 2003 PESCTD 04 S1-GC-182 BETWEEN: JEFFREY ALFRED GALLANT APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Prince Edward Island Supreme Court - Trial Division Before: DesRoches C.J. Date of Hearing: October 29, 2002 Date of Decision: January 7, 2003 [10 Pages] Criminal Law - Assault causing bodily harm - defence of self-defence. Cases Considered: R. v. Walker, [2001] S.J. No. 73 (Sask. Prov. Ct.); R. v. Jobidon (1991), 7 C.R. (4 th ) 233, (S.C.C.); R. v. Godin (1994), 31 C.R. (4 th ) 33 (S.C.C.); R. v. Dewey (1999), 21 C.R. (5 th ) 232 (Alta. C.A.); R. v. McIntosh (1995), 95 C.C.C. (3d) 481 (S.C.C.); R. v. Hebert (1996), 107 C.C.C. (3d) 42 (S.C.C.); R. v. Deegan (1979), 49 C.C.C. (2d) 417 (Alta. C.A.); R. v. Westhaver (1992), 17 C.R. (4 th ) 401 (N.S.C.A.); R. v. Kandola (1993), 80 C.C.C. (3d) 481 (B.C.C.A.); R. v. Marky, [1976] 6 W.W.R. 390 (Alta. C.A.). Statute Considered: Criminal Code of Canada, R.S.C. 1985, c. 46, ss. 34, 37, 265(1)(b). Donald H. MacKenzie, solicitor for the appellant Darrell E. Coombs, solicitor for the Crown

3 DesRoches C.J.: [1] Jeffery Alfred Gallant ( Gallant ) appeals from the conviction entered against him following a trial by judge alone in the Provincial Court of Prince Edward Island, at Charlottetown, on January 30, The Appellant was convicted on a charge that on the 27th day of October 2001 at North Rustico, Prince Edward Island, he did commit an assault causing bodily harm to Lorne Larkin ( Larkin ) contrary to s. 267(b) of the Criminal Code of Canada and amendments thereto. [2] For the reasons that follow, I would allow the appeal. In my opinion, the trial judge erred in law in reaching the conclusion that the defence of self-defence was not available to the appellant. Factual Background [3] On October 27, 2001 a fight broke out at a dance in the North Rustico Legion. In the melee, there was confusion as to who said and did what to whom. Larkin, who was drinking in the bar, attempted to assist the bouncer by escorting one of the troublemakers out of the building. In the process, he was punched in the face, but did not see who hit him. Gallant, the appellant, was attending the dance with his girl friend and was also drinking. When the fight broke out, Gallant escorted one of the troublemakers out of the building and then Gallant re-entered the Legion. [4] At this point the testimony of witnesses as to what transpired is conflicting. In one version of events, Larkin asked who had hit him and was told by a bystander that Gallant was the assailant. Larkin then told the accused to get out and, while apparently leaving, Gallant hit the victim a second time, the second blow breaking Larkin s jaw. Thus it was alleged the accused struck the victim twice, the second blow being a sucker punch in which he feigned to leave and caught the victim off guard. [5] In the second version of events, Gallant re-entered the building and joined his girl friend who was waiting for him inside the door. At that point, Larkin accused Gallant of being the assailant and Gallant denied the accusation. Larkin invited the accused outside to settle this and in rather colorful language threatened to kick Gallant s teeth in. The appellant told Larkin that he did not want to fight. This exchange was repeated a few times until Larkin moved towards Gallant with his arms raised. Gallant, who was holding his girlfriend s hand with his left hand, then straight armed punched Larkin in the face with his right hand. At Trial [6] Gallant was charged with assault causing bodily harm under section 267(b). At trial, the appellant relied on the defence of self-defence under ss. 34 and 37 of the Criminal Code and also argued that Larkin had consented to fight. The Crown

4 Page: 2 maintained that the defence of self-defence was not available to the appellant as there was no actual assault; that is, the victim never laid hands on the accused and the appellant was not in a situation of imminent harm. In addition, the Crown argued the appellant could have simply walked away, and the appellant was either excessive or reckless in the amount of force used. [7] The trial judge found it was not necessary to come to a conclusion on the credibility of the witnesses giving conflicting testimony. She reasoned that if she were to find the defence witnesses were less credible than the Crown s witness, then the Crown s case was made out. If, on the other hand, she were to find the witnesses for the defence were more credible than the Crown s, then the question was whether or not the appellant was acting in self-defence. Following this line of reasoning, the trial judge gave the appellant the benefit of the version of facts put forward by the defence, and proceeded to address the question whether Gallant was acting in self-defence when he struck Larkin and is thereby exempt from any criminal liability? [8] In her analysis of the applicable law, the trial judge relied particularly on R. v. Walker, [2001] S.J. No. 73, (Sask. Prov. Ct.) and to cases referred to in that case: specifically R.v. Jobidon (1991), 7 C.R. (4 th ) 233, (S.C.C.); R.v. Godin (1994), 31 C.R. (4 th ) 33, (S.C.C.); R.v. Dewey (1999), 21 C.R. (5 th ) 232 (Alta. C.A.). [9] Applying the law to the facts before the court, the trial judge made a number of findings: a. On the issue of whether or not Larkin consented to fight, she found that if there was such consent it was not a defence to the charge in light of the serious harm that was inflicted on the victim. b. On the issue of whether Larkin assaulted Gallant first, and thus whether Gallant acted in self-defence, the trial judge found that while Larkin s words and gestures may have caused Gallant to believe he may be assaulted, there was no actual assault. c. Finally on the issues of excessive force and the possibility of retreat, the trial judge found Gallant could have avoided the perceived danger by walking away, and used excessive force in a preemptive strike against the victim. The Provincial Court Judge stated: It may well be that the words and gestures of Mr. Larkin caused Mr. Gallant to conclude that he may have been assaulted and that he would therefore need to defend himself but the manner in which he

5 Page: 3 purported to do so showed a reckless disregard for the well being of the victim and it exceeded the bounds of what was necessary in the circumstances. He used more force than was necessary to defend himself and I am satisfied that the Crown has established that he did have the opportunity to retreat, to quit from the conflict in order to preserve himself and that he did not avail himself of that opportunity. Therefore, section 34 and 37 of the Code are not available. This is not a case of self-defence in the circumstances, and where an accused fails to preserve himself by quitting or retreating when there s an opportunity to do so, self-defence is not available under 34(2) or 35 of the Criminal Code and in this case it s acknowledged that there was no prior, there was no actual assault by Mr. Larkin on Mr. Gallant, it was only the possible threat of that through the step that the defence witnesses indicate that he said that he took in the matter. [10] In brief, the trial judge concluded the defence of self-defence was not available to the appellant because he did not retreat when he had such an opportunity, and he used more force than was necessary to repel the perceived threat. On these grounds, the trial judge found the defence of self-defence was not available to the appellant. In my view, in reaching such a conclusion the trial judge erred in law. Issues on Appeal [11] On appeal, the counsel for the appellant submitted: The Applicable Law [12] The Criminal Code provides: a. That the learned Provincial court Judge erred in law in rejecting the defence of self-defence as an answer to the charge, and by finding that Sections 34 and 37 of the Criminal Code were not available to the appellant. b. That the learned Provincial Court Judge erred in law by finding that the complainant did not and could not consent to the application of force to his person, which resulted in bodily harm. 34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

6 Page: 4 (a) (b) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it. (2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. [13] There is some controversy as to whether ss. 34 and 37 can be used together. It has been held that s. 37 was enacted to serve a gap-filling role, providing the basis for self-defence where ss. 34 and 35 are not applicable (see R. v. McIntosh (1995), 95 C.C.C. (3d) 481 (S.C.C.)). Section 37 also has been described as providing an alternative basis for a defence of self-defence (see R. v. Hebert (1996), 107 C.C.C. (3d) 42 (S.C.C.)). It appears the essential difference between s. 34(1) and s. 37 is that being assaulted is not an element of the latter defence. Where the circumstances confronting a person do not amount to an assault, but the person has reason to apprehend that an assault may occur, he or she is justified under s. 37 in striking a preemptive blow. [14] The Criminal Code provides the following definition of an assault: 265. (1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (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 upon reasonable grounds that he has, present ability to effect his purpose; or (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

7 Page: 5 Analysis [15] To begin, it is necessary to reiterate that the trial judge did not evaluate the credibility of the witnesses who gave conflicting testimony. Instead, she gave the appellant the benefit of the version of facts put forward by the defence and predicated her analysis on those facts. In answering the issues raised in this appeal, that is whether the trial judge erred in law, this Court is limited by the evidentiary assumption upon which the trial judge based her analysis. [16] Proceeding on the basis of that assumption, the questions before this Court are: (1) Did the victim s actions constitute an assault on the appellant? If the answer to that question is affirmative, the following issues are raised; And finally, 2) Did the appellant s failure to leave the scene vitiate the defence of selfdefence; and 3) Did the appellant use excessive force and thus vitiate the defence of selfdefence? 4) Did the victim consent to fight and, if he did, does that consent foil a charge of assault causing bodily harm pursuant to 267 of the Code? Did the victim s actions constitute an assault on the appellant? [17] Section 265(1)(b) of the Criminal Code states that a person commits an assault when 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. Based on the evidence tendered by the defence, which the trial judge accepted for the purpose of her analysis, the victim threatened to take the appellant outside and kick his teeth in. In response, the appellant said he did not want to fight. The victim repeated his threat and, with arms raised, moved toward the appellant. [18] In R. v. Walker, supra, Provincial Court Justice Kolenick stated: 25 In "Criminal Proceedings and Practice in Canada (2nd), Mr. Justice E.G. Ewaschuk refers to various legal principles which may have relevance herein.

8 Page: 6 In this regard, he noted that the defence of self-defence is unavailable in the absence of an assault by the victim, or a "reasonable anticipation of a threatened assault by the victim" although an "honest and reasonable mistaken belief" that an assault is in progress or is imminent may render selfdefence available in the circumstances. The proper test in this regard is whether the accused s belief was subjectively honest and objectively reasonable. [19] In this instance, the victim had already dragged one individual outside. He then turned his attention to the appellant, and threatened to take him outside and kick his teeth in. Finally, the victim moved toward the appellant in a manner the appellant perceived to be threatening. In this circumstance, I find the appellant s belief that he was about to be actually assaulted is both honest and reasonable, and meets the test in Walker. [20] The application of s. 265(1)(b) of the Code to the above version of the facts is clear. By words and physical gesture, the victim threatened and attempted to apply force to the appellant. The answer to the first question is affirmative. Therefore, the defence of self-defence provided for in s. 34 of the Code is raised by those circumstances. Did the appellant s failure to leave the scene vitiate the defence of self-defence? [21] In Regina v. Deegan (1979), 49 C.C.C. (2d) 417 (Alta. C.A.), the appellant and the victim had an altercation in the victim s apartment. The appellant retreated to his apartment where he locked the door. The victim followed him and attempted to break in. The appellant opened the door and the two men engaged in a fight in which the appellant stabbed the victim. One issue before the court was whether the appellant could claim a defence of self-defence in that he did nor retreat from his apartment so as to avoid the confrontation. Justice Harradence of the Alberta Court of Appeal stated at p. 440: Even if the appellant were not in his home, I do not accept that retreat is imperative if a defence of self-defence is to be relied on; rather, I adopt the statement of Dixon, C.J., in R v. Howe (1958), 100 C.L.R. 448 at pp : The view of the Supreme Court appears also to be correct as to the position which the modern law governing a plea of self-defence gives to the propriety of a person retreating in face of an assault or apprehended assault before resorting to violence to defend himself. The view which the Supreme Court has accepted is that to retreat before employing force is no longer to be treated as an independent and imperative condition if a plea of self-defence is to be made out. [22] Justice Freeman, in delivering the judgment of the Court in R. v. Westhaver

9 Page: 7 (1992), 17 C.R. (4 th ) 401 (N.S.C.A), followed the reasoning in Deegan, supra, and stated at page 403: Failure to retreat does not necessary preclude a defendant from relying on s. 34. [23] In the instance case, while Gallant s effort to persuade Larkin that he (the appellant) did not want to fight does not constitute a retreat from the physical location of the confrontation, his effort does reflect an attempt to extricate himself from a confrontation with the victim. In other words, the appellant attempted to talk his way out of a fight, but that strategy did not work. Given the distance between the appellant and the victim, after Larkin moved towards Gallant, the amount of time the appellant had to retreat would be measured in seconds. In order to retreat, he would have had to quickly turn and run. [24] On this point, I concur with the appellant that the trial judge erred in law in finding that because he did not attempt to retreat, the self-defence provisions of the Criminal Code are not available to him. While s. 34(2)(b) of the Code justifies the use of force to repel force where there are reasonable grounds to believe there is no other way to preserve oneself from death or grievous bodily harm, s. 37. does not contain this qualification. Rather that section of the Code states that a person is justified in using force to defend himself as long as he uses no more force than is necessary. However, under s.34, as Justice Harradence observed in Deegan, retreat is not imperative to a successful defence of self-defence. In Gallant s situation, Larkin stood between him and the door. Gallant could have only retreated further into the bar where Larkin might have followed. In brief, the trial judge overestimated the opportunity to retreat once Larkin moved toward Gallant. In addition, the trial judge failed to take into account the appellant s effort to extricate himself from the situation. Did the appellant use excessive force and thus vitiate the defence of self-defence? [25] In Regina v. Kandola (1993), 80 C.C.C. (3d) 481 (B.C.C.A.), Justice Wood addressed the issue of the force that is justified under section 34.(1). He noted that in Canada the defence of self-defence is codified and the force applied in self-defence is justified if the requirements of the statute are met. Justice Wood stated at page : It is important to note that it is the force itself, and not the consequence of the force used, which is justified if the limiting conditions of the statute are met. The only consequences of the application of force in self-defence which are specifically mentioned in the statute are death and grievous bodily harm. Those consequences are relevant only to the extent they are intended. The force which is justified under s. 34(1), if all of the conditions for such justification are met, is force which has been intentionally applied, in the sense that it results from what the law recognizes as a volitional act. The

10 Page: 8 accidental application of force needs no defence. The only state of mind which the sub-section recognizes as relevant, apart from the basic one required for the intentional application of force, is the ulterior intention to cause death or grievous bodily harm. If either of those specific intents accompanies the volitional application of force used in self-defence, the defence described in s. 34(1) is lost. Recklessness is a ''state of mind'', in the sense the law recognizes it as at least part of the fault element of certain crimes, e.g., s. 220, causing death by criminal negligence. But recklessness is not mentioned as a relevant state of mind in s. 34(1). Logically, of course, force which is so recklessly applied in self-defence as to be excessive, will be unnecessary force and by that finding the defence will fail. But what deprives the accused of the defence in that circumstance is his recklessness as to the measure of force necessary, not recklessness as to the consequences, or the risk of consequences, flowing from the application of that force. While that may seem somewhat subtle, it is an important distinction which flows from the previously mentioned fact that it is the force itself, and not the consequences of its use, which is justified on a successful defence of self-defence. [26] In Regina v. Marky, [1976] 6 W.W.R. 390 (Alta. C.A.), the appellant (a bar manager) was holding and attempting to remove an unruly patron from the bar when the patron s sister attempted to kick the manager in the groin. To fend off the attack by the woman, the appellant grabbed and swung a beer mug, striking the victim in the face and causing a cut that required 176 stiches. At trial, the provincial court judge found the force used to be excessive and was convicted of assault causing bodily harm. On appeal, the Alberta Court of Appeal found the force used by the manager was justified, quashed the conviction and ordered a new trial. McGillivray C.J.A. stated at page 393: While it is clear from his discussion with counsel that the learned provincial judge recognized the principle that when one has to use force to protect himself, he is not to be expected to weigh the degree of such force to a nicety, yet he does not appear to have considered the principle in relation to the facts as the appellant might reasonably view them. [27] In Walker, supra, the appellant and the victim got into a heated, face to face exchange. The victim twice blocked the appellant s path when the appellant tried to leave. Instead of leaving by another door, the appellant faced the victim a third time, and again was verbally insulted, and threatened by gestures and mannerism. The appellant felt compelled to defend himself and proceeded to do so by striking the victim in the face while holding a drinking glass in his hand. Provincial Court Judge Kolenick found the appellant showed a reckless disregard and used more force than was necessary. Justice Kolenick stated : 26 As well, the amount of force which is used must not be disproportionate or excessive in relation to the force of the aggressor, and recklessness as to the amount of force necessary to defend oneself may

11 Page: 9 deprive the accused of the defence. However, the accused is not required to measure the force used in the necessitous circumstances to a nicety, because the frenzy of the occasion may not allow for detached reflection. Further, in assessing whether reasonable force was used to defend oneself, the resultant injuries are not determinative. [28] In this instance, on the testimony the trial judge accepted as the basis of her analysis, Gallant threw a single, straight arm punch. He did not wind up or step into the punch to deliver it with maximum force. He did not use a beer mug, or a glass, or any other object. I do not agree the appellant acted with an intention to cause death or grievous bodily injury, and I do not agree he was reckless in the measure of force. While the victim did sustain a serious injury as a result of the blow, the test under s. 34(1) is whether the appellant intended to cause or was reckless in causing a grievous injury. As Justice Wood noted in Kandola, it is the force itself, and not the consequences of its use, which is justified on a successful defence of self-defence. Thus I concur with the appellant. In my opinion, the trial judge applied the wrong test in assessing whether the force used by Gallant was excessive. [29] In summary, the trial judge erred in law in finding that the defence of selfdefence as provided by s. 34 of the Code was not available to the appellant on the grounds that he did not retreat from the confrontation and used excessive force in repelling the assault. Did the victim consent to fight and is that consent a defence to the charge of assault causing bodily harm? [30] The appellant was found guilty of an offence under 267(b) of the Criminal Code. Section 265 (1)(a) of the Code provides that a person commits an assault when without the consent of the other person he applies force intentionally to that other person directly or indirectly. At trial, the defence presented testimonial evidence that the victim invited the appellant outside to settle this and, when the appellant said he did not want to fight, the victim moved toward the appellant in a manner the later perceived to be threatening. The defence contended the victim consented to fight and therefore the appellant was not guilty of assaulting the victim. [31] At trial, the Provincial Court Judge found that even if the victim s action could be considered an indication of a consent to fight, it was of no relevance in light of the serious harm that resulted from the conflict. While I concur with the trial judge that the issue of consent is not relevant, I do so for a different reason. Having found the victim s initial threats and gestures meet the definition of assault under s.265(1)(b), I must conclude the victim was the aggressor and not the appellant. Based on the version of events accepted by the trial judge, it was the appellant who was not consenting to fight. As soon as Larkin moved to take hold of or strike Gallant, the latter was justified in defending himself and, at that point, the victim s consent to engage in a fight is

12 Page: 10 irrelevant. CONCLUSION [32] In summary, I find the trial judge erred in law in finding that the defence of selfdefence provided by s. 34 of the Criminal Code was not available to the appellant. I allow the appeal and order that the conviction of Jeffery Alfred Gallant be set aside and an acquittal be substituted therefore. COSTS [33] The appellant seeks his costs on this appeal. Costs may be awarded to a successful appellant against the Crown pursuant to s. 826 of the Code. However, there is nothing remarkable about this case. There is no oppressive or improper conduct alleged against the Crown in laying the charge and in bringing the matter to Court, and it was the appellant and not the Crown who brought the matter to this Court. I am not convinced costs should be awarded in this case, and I make no order in that respect. January 7, 2003 C.J.