





CITATION:
R. v. Forde, 2011
          ONCA 592



DATE: September 14, 2011



DOCKET: C49128



COURT OF APPEAL FOR ONTARIO



Feldman, LaForme and Karakatsanis JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Cedric Forde



Appellant



James Lockyer and Brian Snell, for the appellant



Lucy A. Cecchetto, for the respondent



Heard: May 31, 2011



On appeal from the conviction
          entered by Justice Christopher Speyer of the Superior Court of Justice,
          sitting with a jury, on September 28, 2007.



H.S.
    LaForme J.A.:

OVERVIEW

[1]

The appellant admitted killing Clive McNabb, the former
    spouse of his common law partner, Carol Allamby. However, he testified that he killed
    McNabb in self-defence by stabbing him once with a knife after McNabb moved
    towards him with an open knife.  The appellant
    further testified that McNabb had violently attacked him on two previous
    occasions.

[2]

The
    appellant was charged with second-degree murder.   Following a trial
    by jury, he was acquitted on the murder charge but convicted of
    manslaughter.  The principal issue at trial was whether the Crown proved
    beyond a reasonable doubt that the appellant did not act in lawful
    self-defence.  Implicit in the jurys verdict is a rejection of the
    appellants position that he killed McNabb in self-defence.

[3]

The
    principal issue on appeal is whether the trial judge erred in various alleged
    respects in his jury instructions concerning the elements of self-defence in s.
    34(2) of the
Criminal Code
, R.S.C.
    1985, c. C-46. I conclude that the trial judge erred in one respect:  by permitting the jury to consider the
    appellants failure to retreat from his home in assessing the reasonableness of
    the appellants response to the threat he perceived from McNabb.  That error was fatal in my view, and thus a
    new trial is required.

BACKGROUND

[4]

As I would allow the appeal and order a new trial, my review of the
    evidence is limited to what is necessary to dispose of the central issue on
    appeal.

[5]

The appellant and Allamby were involved in a
    long-term relationship. They lived in an apartment that the appellant had
    leased about one month before the events giving rise to the charge.  The
    stabbing of McNabb took place in the bedroom of their

apartment.

[6]

The common link between the appellant and McNabb
    was Allamby, who, in addition to being the appellants common law wife, was also
    the mother of McNabbs two children.

[7]

At trial, the defence led evidence of two prior incidents of violent
    behaviour by McNabb against the appellant. One of the incidents took place
    approximately two-and-one-half years prior to the stabbing; the other
    approximately one month prior.  This
    evidence was tendered by the defence in support of the assertion that McNabb
    had a propensity for violence against the appellant and was the aggressor in
    the fatal confrontation between them. Although the Crown disputed the
    nature, extent and responsibility for the prior two incidents between McNabb
    and the appellant, there was ample evidence of animosity between the two men before
    the date of the killing.

[8]

McNabb had a full-time job as a computer
    technician and ran a small computer business.  He and the appellant also both dealt in drugs. Indeed, McNabb supplied
    the appellant and Allamby with drugs and was allowed to use their premises as a
    base to sell cocaine.
The appellant acknowledged his
    own drug-dealing activities in his evidence at trial.  He testified to keeping several knives in
    various rooms, specifically the bedroom and bathroom of the apartment, to be
    used in the event that trouble arose during drug transactions.

[9]

The evidence at trial established that on the day of the killing an
    acquaintance of the appellant and Allamby named Lori Mazzei mentioned to McNabb
    that a man named Joe Grasso was at the appellants and Allambys
    apartment.  Grasso apparently owed McNabb a drug debt. McNabb went to the appellants
    apartment with the apparent intention of collecting his money from Grasso.

[10]

The stabbing occurred in the bedroom of the apartment.  McNabb went into the bedroom to confront Grasso
    about the drug debt. Allamby reproached McNabb for entering her bedroom
    and an argument occurred between them. The defence evidence was that McNabb either
    pushed or slapped Allamby.

[11]

The appellant then entered the bedroom and, after he and McNabb began to
    argue, Allamby left the bedroom. The defence evidence was that McNabb pulled
    out a knife and threatened the appellant with it. The appellant then grabbed
    for a knife that was hidden in a closet and stabbed McNabb once, after which
    McNabb slumped to the floor.

[12]

When the police arrived at the front door of the apartment
    building, they were approached by Allamby and Mazzei, who let the officers into
    the building and led them to the apartment. The police found McNabb on the
    floor of the bedroom in a seated position with his back against a chair. 
    He was unresponsive and had no pulse.  There was a stream of blood coming
    from his mouth and a large pool of blood located around him.
A knife belonging to McNabb with
    his blood on the blade was found by the police on the floor near his body. The
    knife was in a closed position.  The
    death of McNabb was caused by a single lethal stab wound to the chest.

[13]

The foregoing is a general account of some of the evidence adduced at
    trial that gave rise to the appellants conviction. I refer to other evidence
    relevant to the issues on appeal as I proceed through my analysis.

ISSUES

[14]

At trial, counsel agreed that the trial judge should
    only charge the jury on self-defence under s. 34(2)
[1]
and not under the other self-defence provisions in the
Criminal Code
.  The trial
    judge also charged the jury on the intent for murder and provocation.  Both the Crown and the defence were provided
    with draft and final copies of the charge. Counsel did not raise any objections
    to the charge.

[15]

For the first time on appeal, the appellant raises
    several issues concerning the trial judges charge on self-defence. The
    appellant submits that the trial judge committed three errors in the portion of
    his charge on the elements of the defence of self-defence under s. 34(2):

1.

The trial judge erred in asking the jury to
    consider whether the appellant was unlawfully assaulted.

2.

The trial judge erred in suggesting to the jury that
    self-defence was not available if the appellant was the initial aggressor.

3.

The trial judge erred in permitting the jury to consider
    whether the appellant ought to have retreated from his own home as a factor in
    assessing the availability of self-defence under s. 34(2).

[16]

Also in relation to self-defence, the appellant
    contends that the trial judge ought to have instructed the jury on the
    availability of other self-defence provisions in ss. 37 and 41 of the
Criminal Code
.

[17]

The appellant advanced two further grounds of appeal in
    his written submissions. First, he objected to the admission at trial of
    evidence of his general propensity for violence for purposes of balancing
    evidence concerning the deceaseds specific propensity for violence. This
    ground of appeal was abandoned in oral argument.

[18]

In addition, the appellant raised a ground of appeal
    concerning the conduct of the trial Crown (not the Crown on appeal), saying
    that her conduct resulted in a miscarriage of justice.  He did not press this ground in oral argument
    and conceded that the impugned conduct of the trial Crown was unlikely to be sufficient
    to warrant a new trial. There is no reason to canvass this issue in view of the
    result I reach.

[19]

As I explain more fully below, I would give effect to
    the appellants third argument concerning the trial judges instructions on s.
    34(2).  In particular, I conclude that
    the trial judge erred in his instructions on s. 34(2) of the
Criminal Code
by permitting the jury to
    consider whether the appellant ought to have retreated from his own home.  In my view, the authorities establish that,
    in the circumstances of this case, retreat was not a proper factor for the
    jury to consider.  That the jury was
    allowed to do so amounts to an error in law that requires a new trial.

ANALYSIS

Instructions on self-defence under
    s. 34(2)

[20]

For ease of reference, I first set out the provisions
    of s. 34(2) of the
Criminal Code
:

34. (2) Every one who is unlawfully assaulted and
    who causes death or grievous bodily harm in repelling the assault is justified
    if

(a) 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

(b) he believes, on reasonable grounds, that he cannot
    otherwise preserve himself from death or grievous bodily harm.

[21]

Self-defence under s. 34(2) requires proof of three
    elements: (i) an unlawful assault against the appellant; (ii) the appellant
    must have had a reasonable apprehension of a risk of death or grievous bodily
    harm; and (iii) the appellant must have reasonably believed that it was
    necessary to cause harm or death to the victim in order to avoid the same
    fate:  see
R. v Cinous
, [2002] 2 S.C.R. 3, at para. 93.

[22]

The appellant alleges that the trial judge committed
    two errors in his instructions on the first element of the defence of
    self-defence under s. 34(2). One of these alleged errors was raised for the
    first time in oral argument on appeal. In particular, the appellant asserts
    that the trial judge erred in permitting the Crown to argue that McNabb was not
    assaulting the appellant. According to the appellant, the jury ought to have
    been instructed that this first element under s. 34(2) was satisfied based on
    the evidence at trial.

[23]

The appellants other argument in connection with the
    first element of the defence is that the trial judge erred in instructing the
    jury that whether or not the appellant was being unlawfully assaulted turned on
    which one of the two men was the initial aggressor.  The appellant says that on these
    instructions, if the jury were to find that McNabb was not the initial
    aggressor, then the jury might decide that self-defence was not available to
    the appellant, which would be an error in law.

[24]

With respect to the third element under s. 34(2), the
    appellant argues that the Crown should not have made the appellants ability to
    retreat a live issue. He says that the trial judge, having permitted the Crown
    to raise this issue, was required to clearly instruct the jury that the
    appellant had no obligation to retreat from his home.  It is this issue that I conclude disposes of
    the appeal.

[25]

Because I would fully dispose of the appeal on
    the issue of retreat, I believe it is unnecessary to address the other two
    alleged deficiencies in the trial judges instructions on s. 34(2).  I would note again that the other two alleged
    deficiencies are being raised for the first time on appeal and that there was
    no objection to the jury charge at trial.

Ability to Retreat

[26]

Whether the appellant was able to retreat from his
    apartment was made a live issue by the Crown at trial. In cross-examination,
    the trial Crown explored the issue of the size of the appellants apartment and
    questioned him about how long it would have taken him to go from the bedroom to
    the front door.  He replied:

A.  In
    seconds, Id say seven seconds from my bedroom to the front door if that.

[27]

The following exchange then occurred in cross:

Q.  And if
    youre running out, Im going to suggest it would probably take you --

A.  A lot
    quicker.

Q.  A couple
    of seconds?

A.  Yeah.

Q.  And,
    again sir, um  and I know your answer is going to be:  I couldnt do that.  But you had that option available to you
    because youre on the outside of the bedroom.  Correct?

A.  Maam,
    yea, and hes pulling it [the bedroom door] open.  I got dress shoes on;  hes got running shoes on.  As soon as the door  and my hallway  and
    you can see it from the video across there I could have fall.  Ive been stabbed before by this man; Ive
    been attacked by this man. Im not taking that chance of running out and he
    falling on top of me.  I cant do that.
    Im sorry.

...

Q.  That was
    an option available to you to retreat and run out.  Scream for help.  Right?  You could have done that?

A.  Maam, I
    already experienced what happened when I tried to run off with that
    person.  I wasnt going to do that again.

[28]

In her closing argument before the jury, the trial
    Crown put the issue of retreat squarely to the jury and urged them to find that
    the appellant could have retreated from the apartment:

[H]e gives us
    an elaborate explanation that he couldnt have run
, he couldnt have asked
    someone to call the police, he couldnt have asked Carol [Allamby] to call 911
    even though he said she was there.   If
    hes on the outside of the door, ladies and gentlemen, someone is coming at you
    with a knife youre not going to be concerned that youre [not?] wearing
    running shoes.
I think youre going to bolt.  The door to the hallway was right there
.
If he wanted to pull the door
    why didnt he pull that door shut open [sic].  At least he was outside of the apartment,
there are other people living
    in the apartment. No. He goes for the knife; went for the knife because that
    was his initial intention. [Emphasis added.]

[29]

The trial judges oral instructions to the jury
    included this general statement of the Crowns position:

It is the Crowns position that Mr. Forde was not
    acting in lawful self-defence, and could have used other options instead of
    stabbing the deceased but chose not to avail himself of such options.

[30]

In his specific instructions on the third element of
    self-defence under s. 34(2), the trial judge told the jury:

Consider, as well, again the relative size,
    strength and positioning of Forde and McNabb, proximity of the two individuals,
    the suddenness of the assault by Clive McNabb, Mr. Fordes evidence as to his
    state of mind when he stabbed Mr. McNabb.
And the availability of other
    options for Cedric Forde to extricate him from the confrontation with Clive
    McNabb
.  And the likelihood of Mr.
    McNabb persisting in his attack. Those are all factors and questions youll
    consider. [Emphasis added.]

[31]

What the trial judge did not include in his
    instructions, which the appellant argues constitutes reversible error, is that
    retreat is not a required element of self-defence under s. 34(2), nor is it
    even a factor to consider when the accused is attacked in his own home.

[32]

There is no question
    that the trial judge in his charge to the jury made it clear that the issue was
    not whether the only way for the appellant to save himself from death or
    grievous bodily injury was to actually kill or cause serious injury to the
    deceased; rather, it was whether the appellant reasonably believed that to do
    so was the only way to save himself from a similar fate.

[33]

In addition, the trial
    judge charged the jury along the lines of
R.
    v. Baxter
(1975), 27 C.C.C. (2d) 96 (Ont.

C.A.
) to the effect that the jury
    must understand that a person under attack must often make a decision quickly,
    without time for calm and detached reflection. In other words, a person
    defending himself against attack, reasonably apprehended, cannot be expected to
    weigh to a nicety, the exact measure of necessary defensive action.  Nevertheless, I do not believe that these
    proper elements of his charge are sufficient to remedy the error relating to
    the appellants ability to retreat, which I now explain.

[34]

The
    Crowns position is that the trial judge did not suggest that there was an
    obligation on the appellant to retreat. Rather, he merely and quite properly
    left the appellants ability to retreat as a factor the jury could consider in
    deciding whether the appellant had no other means to preserve himself.  In support of its position, the Crown relies
    on this courts decision in
R. v. Cain
, 2011 ONCA 298, at paras. 9 and 11,
which state:

Unlike s. 35 of the
Criminal Code
, s. 34(2)
    does not require defendants to retreat in the face of an assault, but rather
    permits defendants to stand their ground during the early stages of a
    confrontation.  However, as the appellant properly concedes, the
    possibility of retreat is relevant to the second and third elements of the s.
    34(2) defence, namely, the issues of whether the appellant did have a
    reasonable apprehension of death or grievous bodily harm, and whether the
    appellant had a reasonable belief that it was not otherwise possible to save
    himself from harm except by killing Willis: [Citations omitted.]

...

... However, had Crown counsel told the jury that
    the appellant was precluded from raising the defence of self-defence because he
    had failed to retreat at the start of the
confrontation,
the
    respondent concedes that the trial judge would have been required to give a
    correcting instruction. The appellant in turn concedes that Crown counsel did
    not explicitly make that erroneous submission to the jury.  The issue for
    us to decide is whether there was a sufficient risk that the jury could have
    understood Crown counsel to be making that erroneous submission, requiring a
    correcting instruction from the trial judge.

[35]

T
he Crown concedes that there are two
    limitations on the issue of retreat: (i) retreat is not relevant where it is
    not a realistic option to the accused; and (ii) people are generally not
    expected to abandon their homes in order to avoid engaging in acts of
    self-defence. However, the Crown
    submits that while there is no specific duty or requirement to retreat in s.
    34(2), the ability to retreat is nonetheless a factor that may be taken into
    account in considering whether the accused had no other means to preserve
    himself  including in cases where the attack occurs in the accuseds own home.
    According to the Crown, this factor is relevant to the reasonableness of the
    accuseds belief that he could not otherwise save himself in the circumstances
    as he perceived them to be.

[36]

In other words,
    according to the Crown, there is no absolute bar against the consideration of
    retreat within the household context.  Rather, the home context merely attenuates or weakens considerations of
    retreat. The Crown submits that the trial Crown did not run afoul of these
    principles in suggesting in her cross-examination that the appellant had other
    options available to him such as screaming out, calling for help, and running
    out of the apartment, or in reminding the jury of these options in her closing
    argument. The trial Crown at no time suggested there was an obligation on the
    appellant to retreat from his home in order to avail himself of the defence of self-defence.
     Nor did the trial judge err in
    permitting the jury to consider as a factor the appellants ability to retreat.

Discussion

[37]

Retreat in the context of the law of self-defence
    reflects the principle that killing or seriously injuring another person should
    only be sanctioned as a last resort and should not be permitted if other
    reasonable options are available.  However, it is well-established at common law that different considerations
    apply where a person is attacked in his or her own home. These considerations
    are encapsulated in the rather archaic maxim a mans home is his castle. The origins of the so-called castle
    doctrine lie in Lord Cokes statement in
Semaynes
    Case
(1604), 77 E.R. 194 (K.B.), at p. 195:

That the house of everyone is to him as his castle
    and fortress, as well for his defence against injury and violence, as for his
    repose.

[38]

The maxim that
    a mans home is his castle has given rise to the principle that a person has
    the right to defend him or herself in his or her own home without the duty to
    retreat from the home in the face of an attack. As Cardozo J. put it in
People v. Tomlins
, 213 NY 240 (1914), at
    pp. 243:

It is not now, and never has been the law that a
    man assailed in his own dwelling, is bound to retreat.  If assailed there, he may stand his ground,
    and resist the attack.  He is under no
    duty to take to the field and the highways, a fugitive from his own home.

[39]

Many states in
    the

United States
have enacted legislation reflecting the castle doctrine, while in other states,
    the castle doctrine is applied by the courts.
[2]


[40]

In more recent
English case law
, on the other hand, while there is no specific requirement
    that a person must retreat in anticipation of an attack, the possibility of
    retreat is a factor for the jury to consider in assessing the reasonableness of
    self-defence even where the events take place in the accuseds own home: see
R.
    v. Bird
, [1985] 1 WLR 816
    (C.A.);
R. v. Zelda Mary M.
, [2007]
    EWCA Crim 376, at para. 28.


[41]

The rationale for not
    requiring a person to retreat when attacked or threatened in his or her own
    home is not difficult to discern. It was put this way by the Minnesota Supreme
    Court:  [T]he house has a peculiar
    immunity [in] that it is sacred for the protection of [a persons] family.... Mandating
    a duty to retreat for defense of dwelling claims will force people to leave
    their homes by the back door while their family members are exposed to danger
    and their houses are burgled:
State v. Carothers
, 594 NW (2d) 897
    (Minn 1999), at pp. 900-901 (citations omitted).

[42]



Ontario
    jurisprudence has recognized that in a claim of self-defence, extraordinary circumstances
    exist when a person is on his or her own property.  In
R.
    v. Antley
, [1964] 1 O.R. 545, the majority of this court held at para. 11 that
    an accused person who is assaulted while on his own property is not required
    to retreat from the home.
Rather,
    far from retreating he would have been entitled  to use such force as was
    necessary to remove the complainant therefrom.

[43]

In
Baxter
, Martin J.A. at p. 114 quoted
    with approval the comments of Lord Hewart of the English Court of Criminal Appeal
    in
R. v. Hussey
(1924), 18 Cr. App. R. 160:

In
Archibolds Criminal Pleaders, Evidence and
    Practice
... it appears that: In defence of a man's house, the owner or
    his family may kill a trespasser who would forcibly dispossess him of it, in
    the same manner as he might, by law, kill in self-defence a man who attacks him
    personally; with this distinction, however, that
in defending his home he need not retreat, as in other cases of
    self-defence, for that would be giving up his house to his adversary
. ... [Emphasis
    added.]

[44]

The facts in
Baxter
did not raise the issue of retreat
and so the decision is not
    otherwise relevant to the issue at hand. However, I would note that Martin J.A.
    in
R. v. Ward
(1978), 4 C.R. (3d) 190
    (Ont.

C.A.
)
    briefly dealt with retreat in the case of a woman charged with murdering her spouse
    in the circumstances of repeated domestic assault.  In a very brief oral decision, Martin J.A. stated
    at para. 5: 
It is not correct to say as a matter of law that self-defence is only
    justified where there is no other reasonable means whereby a person can retreat.  He went on to note: The jury may well have
    concluded that the trial judge was summarizing the effect of s. 34, rather than
    merely indicating that the failure to retreat was a relevant item of evidence.

[3]


[45]

Martin J.A. did not indicate whether the events in
Ward
occurred in the appellants
    home.  Indeed, his reasons do not
    specifically indicate whether a failure to retreat is a relevant item of
    evidence where the accused is attacked, or reasonably apprehends an attack, in
    his or her own home.

[46]

In
R. v. Boyd
(1999), 118 O.A.C. 85, this
    court reviewed a trial judges instruction on the third element of the defence of
    self-defence in s. 34(2) of the
Criminal
    Code
in the context of a fatal stabbing that occurred in the appellants
    own home. The Crown at trial had cross-examined the appellant to demonstrate that
    he could have avoided the fatal confrontation with the deceased, who had broken
    into the appellants house and was removing items of his property. The Crown
    put to him the suggestion that it would have been appropriate for him to flee
    out the back door while the deceased was in the house.  The appellant resisted this suggestion.

[47]

The trial judge
    instructed the jury as follows:

... A failure to retreat, if there was an
    opportunity to do so, is only a factor to be considered in determining whether
    the accused believed on reasonable grounds that he could not otherwise preserve
    himself from death or grievous bodily harm.

[48]

This court held at
    para. 13 that the trial judge ought to have told the jury that the appellants
    failure to retreat could not assist them in determining whether the appellant
    had reasonable grounds to believe he could not otherwise preserve himself from
    death or grievous bodily harm:

It would have been better for the trial judge to
    avoid the use of the word retreat, which suggests an abandonment of the
    appellants home, and to refer specifically to the other steps which Crown
    counsel suggested the appellant could have taken to avoid the confrontation.
It would also have been appropriate for the
    trial judge to tell the jury that the appellants failure to flee his own
    residence, unlike his failure to lock the front door, could not assist the jury
    in determining whether the accuseds conduct met the objective component of the
    standard set down in s. 34(2)
.
[4]
[Emphasis added.]

[49]

The issue of the
    relevance of retreat in the context of an attack in ones own home has also been
    considered several times by the British Columbia Court of Appeal.  In
R.
    v. Proulx
(1998), 127 C.C.C. (3d) 511, at paras. 45-46, the court referred
    to its prior case law, which established that an accused need not consider
    fleeing his or her own home when attacked there by an assailant:

The appellant has directed us to
R.
    v. Jack
(1994), 91 C.C.C. (3d) 446 (B.C.C.A.), a case where the accused had
    taken a stand in his home against an assailant rather than escaping out the
    back door.
This Court held it to be a
    reversible error for the trial judge to fail to point out that the accused was
    not required to consider fleeing from his house.
In
R. v. Irwin
(1994), 49 B.C.A.C. 143 this Court said much the same
    thing: that
if with respect to s. 34(2)
    the judge had suggested to the jury that the appellant could have escaped, then
    that would have amounted to misdirection
. But a fact common to both of
    these cases is that the person claiming self-defence was in his residence at
    the time of the assault.
The law is clear
    that flight from one's own home is not a reasonable option for self-preservation,
    and that the defence of self-defence will still apply even if there is another
    way out of the house. The rationale is that one's home is already one's last
    line of defence against an assailant.

The principle from
Jack
and
Irwin
, then, is simply that
within one's home one need not retreat from
    an assailant before claiming the defence of self-defence. But although retreat
    may be an irrelevant consideration when one is attacked at home, it does not
    follow that it is also irrelevant when one is attacked elsewhere.
[Emphasis
    added.]

[50]

The Crown submits that the Court of
    Appeal in
Proulx
merely says that
    retreat 
may
 be an irrelevant
    consideration when one is attacked at home, which implies that retreat may be
    relevant in the right circumstances. I think the Crowns proposed
    interpretation is belied by the courts earlier unqualified statement: 
The law
    is clear that flight from one's own home
is
    not a reasonable option
for self-preservation, and that the defence of
    self-defence will still apply even if there is another way out of the house. The
    rationale is that one's home is already one's last line of defence against an
    assailant (emphasis added).

[51]

The British Columbia
    Court of Appeal returned to the retreat issue in
R. v. Abdalla

(2006), 209 C.C.C. (3d) 172.
    This case did not involve an attack in the accuseds home and the court was not
    purporting to decide whether retreat is a factor under s. 34(2) in such
    circumstances. However, the court at para. 22 said the following about the need
    to retreat when attacked in ones own home:

A person is entitled to save himself, but self-defence is not to be
    used as a cloak to cover what is really murder proceeding from
animus
. Self-defence must be genuine. The wording of the applicable
Criminal Code
sections makes this plain by reference to
    phraseology such as "no more force than is necessary" and "he
    cannot otherwise preserve himself". If there is a sensible opportunity to
    avoid further combat, that opportunity should be taken.
There are, of course, special rules relating to a person attacked in
    his home - the concept that "a man's home is his castle" pretty much
    attenuates any need to retreat in the sanctuary of one's home
. [Emphasis
    added.]

[52]

The Crown relies heavily on the emphasized
    passage in support of its view that retreat may be a factor where one is
    attacked at home. I do not think that the courts use of the phrase pretty
    much attenuates was intended to qualify the previous language in
Proulx
.  Indeed, at para. 24 in
Abdalla
,
    the court went on to say in regard to
Proulx
:

Finch J.A.
    (as he then was) said that,
aside from
    the case of persons in their own dwelling home
, retreat was a factor to be
    considered in self-defence.

[53]

Further support for the view that retreating
    from ones own home is not a factor for the jury to consider under s. 34(2) is
    found in the Supreme Court of Canadas majority decision in
R. v. Lavallee
, [1990] 1 S.C.R. 852. In
    that case, the court considered the issue of retreat in the circumstances of a
    case of domestic abuse.  More specifically,
Lavallee
considered the s. 34(2) requirement that a person who pleads
    self-defence must believe on reasonable grounds that it is not possible to
    otherwise preserve him or herself from death or grievous bodily harm. Wilson J.
    for the majority referred at p. 884 to: the obvious question ... if the
    violence was so intolerable, why did the appellant not leave her abuser long
    ago? In answering this question at pp. 888-889, she referred to the castle
    doctrine:

I emphasize at this juncture that it is not for the jury to
    pass judgment on the fact that an accused battered woman stayed in the
    relationship.  Still less is it entitled
    to conclude that she forfeited her right to self-defence for having done so. I
    would also point out that traditional self-defence doctrine does not require a
    person to retreat from her home instead of defending herself:
R. v. Antley
(1963), 42 C.R. 384 (Ont.

C.A.
).  A man's home may be his castle but it is also
    the woman's home even if it seems to her more like a prison in the circumstances.

[54]

Finally, I note that in an
    extensive article on the law of self-defence in

Canada
titled Applying the Law of
    Self-Defence, (2007) 12 Can. Crim. L. Rev. 25, Professor David Paciocco reviews
    the issue of retreat.  He explains that
    while there is no duty on an accused to retreat, the failure to do so will be a
    relevant factor in resolving the success of the claim of self-defence.  He then observes, citing
Lavallee
,
Abdalla
, and
Boyd
, that retreat from ones own home
    is not a relevant factor (at p. 57):

There are two important limits on when retreat
    should be considered a factor in making these necessity determinations. First,
    it should not be considered to be a factor in any case unless retreat was a
    realistic option. So, where it is proved that the accused is a battered woman
    who exhibits the kind of learned helplessness that reasonably makes retreat
    seem to be an unrealistic option, the failure to retreat may not be important.
Second, the adage that a man's or woman's
    home is their castle has led courts to accept that no one is expected to
    abandon their own home in order to avoid self-defence. The failure to retreat
    from one's own home is not, therefore, a factor that can assist in determining
    whether self-defence was necessary.
[Emphasis added. Citations omitted.]

[55]

Having regard to these authorities, I reject the Crowns
    position that while retreat from ones own home is not a necessary element to
    claiming self-defence, it may nonetheless be a factor for the jury to consider.
    By giving an instruction along the lines the Crown suggests, the danger would
    always remain that the jury would all too quickly leap from the factor of
    retreat to the inference that there is no entitlement to self-defence.  As the case law referred to above
    establishes, a jury is not entitled to consider whether an accused could have retreated
    from his or her own home in the face of an attack (or threatened attack) by an
    assailant in assessing
the
    elements of self-defence under s. 34(2).

[56]

In the appellants case, the trial judge did not make this
    clear to the jury. On the contrary, the jury was urged by the Crown to consider
    the appellants failure to retreat from his home as a factor going to the
    reasonableness of his response to the perceived attack by McNabb and the trial
    judge improperly permitted the jury to consider this option. The trial judge
    was obliged to instruct the jury that they should not consider retreat as a
    factor in determining whether the appellants conduct met the standard set out
    in s. 34(2).

Application of the curative proviso

[57]

As an alternative position,
    the Crown submits
that there was no substantial wrong or miscarriage of
    justice in how self-defence was left with the jury for two reasons. First, the
    appellants answers to the Crowns questions showed the impracticality of the
    Crowns suggestion that he retreat. Second, defence counsel in his closing
    address also addressed the impracticality of this option.

[58]

Again, I disagree with the Crowns position.
    Indeed, in my view, the Crowns argument that the option of retreating was
    impractical on the evidence in this case serves only to reinforce the need for
    the trial judge to have clearly instructed the jury that they should not
    consider this option.  In any event, the
    appellant acknowledged in his testimony that the front door to his apartment
    was only a few seconds away from the bedroom where the stabbing occurred, and
    the jury may have found that the appellant had a ready escape route by which he
    could have avoided the fatal confrontation.

[59]

In pointing to this error
    in the charge, I wish to be clear that the trial judge should not be faulted
    for his
s. 34(2)
    self-defence
instruction. As I previously noted,
when presented with a verbatim copy of the charge, neither trial
    counsel nor the Crown raised any objection to the charge.

[60]

The Crown submits that
    trial counsels views must be given considerable weight when considering the
    objections raised by the appellant for the first time on this appeal:
R. v
.
Polimac
, 2010 ONCA 346, at
    paras. 89 and 96.
According to the Crown, t
he defence position at trial

is a reason for this
c
ourt to invoke
the curative
proviso
in
s.
686(1)(b)(iii)
of the
Criminal Code
and to conclude that, despite the trial
    judge's erroneous instruction, no substantial wrong or miscarriage of justice
    occurred.

[61]

Defence counsels position at trial is
indeed
relevant in assessing the
    seriousness of the error,
but the
    failure to object is not
determinative when a misdirection or
    non-direction is raised as a ground of appeal.  A legal error remains a
    legal error even if counsel does not object or even supports the erroneous
    instruction:
Polimac
, at para.
    97.  Moreover, the failure to object is
    not
determinative of
whether
    the curative
proviso
should be
    applied
:  see
R. v. Hill
(1995), 102 C.C.C. (3d) 469 (Ont.

C.A.
), at pp.
    476-77.

[62]

In this case, I would not app
ly the
proviso
because a

jury
properly
    instructed
on the issue of retreat in
    the context of an alleged assault in the appellants own home could, acting
    reasonably, have reached
a different verdict absent the
    erroneous instruction.  As I have said,
    the jury may well have concluded that the appellant was not entitled to the
    defence of self-defence because his failure to retreat (or bolt, in the
    Crowns words) from his home rendered unreasonable his belief that he could not
    otherwise have saved himself from harm.

DISPOSITION

[63]

I would allow the appeal, quash the appellant's
    conviction, and order a new trial.

RELEASED:

SEP 14
    2011                                  H.S.
    LaForme J.A.

KF                                                   I
    agree K. Feldman J.A.

I
    agree Karakatsanis J.A.





[1]
The text of s. 34(2) appears in
    the next section of these reasons.



[2]

For a general discussion of
    the castle doctrine in the United States, see Benjamin Levin, A Defensible
    Defense?: Reexamining Castle Doctrine Statutes (2010), 47 Harv. J. on Legis.
    523 at 534-35. In some states, the castle doctrine has been extended so as to abolish
    the duty to retreat even when a person is attacked outside of the home:  see e.g., Fla. Stat. § 776.013(3).



[3]

The
    trial judge in his summary of the Crowns case in his charge to the jury had
    said:  The Crown says that the accused
    had ample time to get out of the apartment had she wanted, ample time to leave,
    but she didnt...



[4]
This court set aside the
    conviction on another ground.


