



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110.
    (1)
Subject to this section, no person shall publish the
    name of a young person, or any other information related to a young person, if
    it would identify the young person as a young person dealt with under this Act.

111.
    (1)
Subject to this section, no person shall publish the
    name of a child or young person, or any other information related to a child or
    a young person, if it would identify the child or young person as having been a
    victim of, or as having appeared as a witness in connection with, an offence
    committed or alleged to have been committed by a young person.

138.
    (1)
Every person who contravenes subsection 110(1)
    (identity of offender not to be published), 111(1) (identity of victim or
    witness not to be published), 118(1) (no access to records unless authorized)
    or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure)
    of this Act, or subsection 38(1) (identity not to be published), (1.12) (no
    subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15)
    (information to be kept separate), 45(2) (destruction of records) or 46(1)
    (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985,

(a)     is
    guilty of an indictable offence and liable to imprisonment for a term not
    exceeding two years; or

(b)     is
    guilty of an offence punishable on summary conviction.




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. S.M., 2012
    ONCA 255

DATE: 20120420

DOCKET: C50403

Weiler, Sharpe and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.M.

Appellant

Philip Campbell and Jonathan Dawe, for the appellant

Robert Gattrell, for the respondent

Heard: February 1, 2012

On appeal from the conviction entered by Justice Robert
    L. Maranger of the Superior Court of Justice, sitting with a jury, on November
    28, 2008.

Sharpe
    J.A.:

[1]

Following a trial before a judge and
    jury, the appellant was convicted of the first degree murder of Michael Oatway.
    The appellant was 17 years old at the time of the alleged offence. He was tried
    as a youth, and sentenced as an adult to life imprisonment with ten years of parole
    ineligibility. He appeals his conviction and raises two grounds of appeal. The
    first ground of appeal is that the trial judge erred by refusing to put
    self-defence to the jury on the ground that there was no air of reality on the
    evidence to the defence. The second is that the trial judge erred by failing to
    correct or remedy certain statements made by Crown counsel in his closing
    address.


FACTS

[2]

On September 21, 2006, the appellant
    spent the evening with a group of five friends at a park where they were
    drinking. After they left the park, the appellant and three of his friends
    boarded a bus around 11 p.m. The bus was an articulated model with separate
    front and back sections. The appellant and his friends went to the back of the
    bus, where Michael Oatway, a 23-year old man, who was unknown to the appellant,
    sat listening to an iPod in the rearmost corner seat on the drivers side.


[3]

The appellant, 17 years old, was 56 and
    weighed 141 pounds. He had a muscular and athletic build. Oatway, 23 years old,
    was also 56 but weighed only 123 pounds and suffered from a muscular
    condition that restricted the mobility of his arms.


[4]

O.L., one of the members of the appellants
    group, asked for a cigarette.
One witness testified that Oatway said
    that he did not have any cigarettes; another said that Oatway had a cigarette
    tucked behind his ear, but refused to give it over.
The appellant then obtained a butterfly knife from another member of the
    group. According to the evidence of two witnesses, the appellant moved to the
    seat directly beside Oatway. T.J., the only member of the group that got on the
    bus with S.M. to testify, told the jury that the appellant asked to listen to
    Oatways iPod. T.J. testified that after Oatway refused, the appellant pointed
    the knife at Oatways midriff and told him to give him his iPod or he would get
    sliced. Oatway did not submit. Both stood up and there was a struggle for the
    knife. T.J. testified that the fight got ugly when Oatway grabbed for the
    knife. T.J. characterized the struggle as indicating a kill or be killed
    mentality on both sides. T.J. testified that he heard the appellant say give
    me the knife and let go of the knife and other witnesses also heard a voice asking
    for the knife to be returned.

[5]

According to a witness, Steve
    Panagiotopoulos, the appellant had Oatway in a headlock during the altercation.
    Another witness, Bradley Huffman, described seeing Oatway in a sleeper hold.
    It was unclear whether these witnesses were describing the same or two separate
    situations. There was also conflicting evidence as to whether the fight
    continued after Oatway was being held in this manner.


[6]

As the bus pulled into a bus stop, the
    fight ended and Oatway stumbled to the front of the bus. He had been stabbed.
    There was no direct evidence of exactly when Oatway was stabbed. He collapsed
    and fell through the open door onto the sidewalk. The appellant and his friends
    exited from the rear of the bus. The entire course of events, from when the
    appellant demanded that Oatway give him the iPod to the point at which Oatway
    collapsed having been stabbed, took approximately two or three minutes to
    transpire.


[7]

Oatway lost consciousness and had no
    vital signs when paramedics arrived at the scene. He was declared dead by an
    emergency room doctor who characterized the cause of death as xsanguinations
    caused by the laceration in the heart. He also had scratches on his left hand 
    consistent with defensive actions against a blade  but no deep cuts to suggest
    that he grabbed it.


[8]

The Crown led a statement made by the
    appellant to T.J. immediately after they got off the bus. T.J. testified that
    when he asked the appellant what had happened the appellant replied:

I didnt want  I didnt want to do it, but he grabbed me  but
    he grabbed it from me and he was trying to kill me, so I had to defend myself.



I wasnt actually gonna try to kill him.I just wanted to
    scare him



I had to defend myself.



I wasnt actually gonna try to kill him. I just wanted to
    scare him and he grabbed the knife from me and he tried to kill me so I just
    defended myself and I had to get him.

TRIAL RULINGS

[9]

It was clear from the way the case
    proceeded at trial that the appellant was advancing two defences: (1)
    self-defence, which would lead to an acquittal, and (2) accidental stabbing, which
    would lead to a verdict of manslaughter.

[10]

Both at trial and before this court, the defence
    theory of self-defence placed primary reliance on s. 34(2), which provides:

Everyone
    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.

[11]

The appellant also made submissions as to s. 35, which
    provides:

Everyone who has without
    justification assaulted another but did not commence the assault with intent to
    cause death or grievous bodily harm, or has without justification provoked an
    assault on himself by another, may justify the use of force subsequent to the
    assault if

(a) he uses the force

(i) under reasonable apprehension of
    death or grievous bodily harm from the violence of the person whom he has
    assaulted or provoked, and

(ii) in the belief, on reasonable
    grounds, that it is necessary in order to preserve himself from death or
    grievous bodily harm;

(b) he did not, at any time before the
    necessity of preserving himself from death or grievous bodily harm arose,
    endeavour to cause death or grievous bodily harm; and

I he declined further conflict and
    quitted or retreated from it as far as it was feasible to do so before the
    necessity of preserving himself from death or grievous bodily harm arose.

[12]

When the issue was raised after the completion of
    evidence, Crown counsel stated: I concede that there is an air of reality to
    self-defence and probably 34(2) would be the appropriate section. It was only
    when the trial judge expressed some doubt as to the applicability of
    self-defence that the Crown changed its position and resisted self-defence
    being put to the jury.


[13]

The
    trial judge recognized that although the appellant had initiated the incident
    by threatening Oatway with his knife, self-defence is still available to an
    initial aggressor. This is clear from
R. v. McIntosh
, [1995] 1 S.C.R.
    686 with respect to s. 34(2) and from the opening words of s. 35: Every one
    who has without justification assaulted another. The trial judge ruled,
    however, that there was no air of reality to the triggering condition of s.
    34(2) of the
Criminal Code
, namely, the requirement that the accuseds
    perception that he was responding to an assault was objectively reasonable.

[14]

During the pre-charge conference, defence counsel
    recognized that s. 35I posed a significant hurdle for the defence. It was
    for that reason that he placed primary reliance on s. 34(2). While defence
    counsel did address the possible application of s. 35, in the end he told the
    trial judge: Im not asking for 35. If you feel it necessary to consider it,
    thats my submission on that score, but Im not asking for it.

[15]

In an oral ruling made during the trial, the trial
    judge held that the issue of whether s. 34(2) should be put to the jury turned
    on whether there is any evidence for a jury to consider that the accuseds
    subjective view, as expressed in his statement to [T.J.] that he was being
    assaulted, is objectively reasonable. The trial judge stated that [w]hat this
    really comes down to is [S.M.s] bold [sic] assertion to a colleague who has
    just finished chastising him for what just occurred that he was acting in
    self-defence. The assertion he made to a friend is only evidence of his
    subjective perception, nothing more, nothing less.

[16]

In a written ruling released several weeks after the
    trial, the trial judge provided more elaborate reasons that reiterated the same
    conclusion.

None of the evidence allows for an inference that S.M.s stated
    subjective perception was objectively reasonable. There would have had to have
    been some direct evidence or indirect evidence allowing for an inference that S.M.
    could reasonably perceive that Michael Oatway was assaulting him or attempting
    to assault him. In this case, in my view, this evidence simply did not exist.

[17]

The trial judge ruled that there was no air of reality
    to self-defence under s.  35. He found that there was no objective
    evidence that the accused had a reasonable apprehension of death or bodily
    harm. In his written ruling, he stated: there is no evidence at all to
    support the final element contained in s. 35 that S.M. declined further
    conflict and quitted or retreated from it as far as it was reasonable to do so
    before the necessity of preserving himself from death or grievous bodily harm
    arose.

[18]

The trial judge concluded his discussion of
    self-defence as follows:

I am mindful of the important principle that every available
    defence should be put to a jury in a criminal case. It can never be clearer
    than in a first degree murder trial. However, there are cases where the overall
    perception or logic of putting a defence to a jury should come into
    consideration. In this case, apart from the evidence already referred to, the
    jury was aware of the following facts:

·

Michael Oatway was an innocent passenger on a city bus.

·

Four individuals proceeded to the back of the bus and one of the
    individuals accosted him with a knife.

·

Michael Oatway was 56 and weighed 123 to 128 pounds. The accused
    was 56 and weighed 141 pounds with a muscular and athletic build.

·

The entire matter lasted about three minutes.

·

Michael Oatway was alone minding his own business and listening
    to an iPod.

·

Despite several persons being present no one, including the three
    friends who went on the bus with S.M., could testify about Michael Oatway
    assaulting or attempting to assault the accused.

·

Michael Oatway died of a single stab wound to the heart.

·

There was no evidence that S.M. sustained injuries.

In view of these facts, it is inconceivable that a jury acting
    reasonably could acquit on the basis of a self-defence argument in this case.
    It seems to me that to do so would offend anyones basic concept of justice.

analysis

Issue 1. Did the trial judge err in ruling that there was
    no air of reality to self-defence under s. 34(2)?

[19]

The elements of the defence under s. 34(2) in cases
    where the victim is killed were described in
R. v. Pétel
, [1994] 1 S.C.R. 3 at p. 12: 
(1) the existence of an
    unlawful assault; (2) a reasonable apprehension of a risk of death or
    grievous bodily harm; and (3) a reasonable belief that it is not possible
    to preserve oneself from harm except by killing the adversary.


[20]

As I have noted, the trial judge
    refused to put the defence to the jury on the ground that that there was no air
    of reality to the first element.

[21]

Pétel
also holds, at p. 13, that self-defence rests on
    whether the accused reasonably believed that the three elements were present. With
    respect to the first element:

The existence of an assault
    must not be made a kind of prerequisite for the exercise of self-defence to be
    assessed without regard to the perception of the accused.  This would
    amount in a sense to trying the victim before the accused.  In a case
    involving self-defence, it is the accuseds 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?

[22]

While the ultimate burden of proof on self-defence
    remains with the Crown throughout, there was an evidential burden on the
    appellant to ensure that there was some evidence to give an air of reality to
    each of the requisite elements:
R. v. Cinous
,

[2002] 2 S.C.R. 3, at pp. 30-31. The air of reality
    test requires that there be evidence on the record upon which a properly
    instructed jury acting reasonably could acquit:
Cinous
, at p. 29.

[23]

In my view, the trial judge did not err in concluding
    that there was no air of reality to the first element required by s. 34(2),
    which in this case was:
did the appellant
    reasonably believe, in the circumstances, that he was being unlawfully
    assaulted by Oatway? While the trial judge stated
that there was no
    evidence capable of supporting an inference that the appellant might have
    reasonably perceived that Oatway was assaulting him rather than unlawfully
    assaulting him, this error or misstatement was harmless as the evidence did
    not give rise an air of reality to the possibility that the appellant could
    have reasonably perceived that Oatways response to the appellants attack was
    an unlawful assault as required by s. 34(2).

[24]

The appellant attacked Oatway by threatening to rob
    and stab him. As I have noted, the trial judge recognized that the fact that
    the appellant was the initial aggressor does not,
per se
, deprive him of the benefit of s. 34(2).
R.
    v. McIntosh
rejected the argument that the
    words without having provoked the assault should be read in to s. 34(2) and
    held, at p. 707, that s. 34(2) must be interpreted according to its plain
    terms and that it is therefore available where an accused is an initial
    aggressor, having provoked the assault against which he claims to have defended
    himself.

[25]

However, the fact that the appellant was the initial
    aggressor cannot be ignored as a factor to be considered when assessing the
    reasonableness of his perception of what followed. The appellant did not
    testify as to what he perceived at the crucial time. We have only his
    out-of-court utterances indicating that Oatway
grabbed the knife and he was trying to kill me, so I had to defend
    myself.

[26]

I do not agree with the appellant that the trial judge
    misapprehended the evidential value of the appellants out-of-court statements.
    Both his oral and his written rulings refer to those statements and demonstrate
    that the trial judge did consider and weigh them when assessing whether there
    was an air of reality to self-defence. I agree with the trial judge that the
    appellants out-of-court statements must be considered together with the
    balance of the evidence. As the trial judge noted, no one who witnessed the
    incident, including the appellants three friends, testified that Oatway had threatened
    the appellant with the knife.

[27]

As
    a matter of law Oatway was entitled to respond to the appellants attack and to
    defend himself. He was entitled to resist the appellants attempt to rob him
    and he was entitled to grab for and gain control of the knife to prevent the
    appellant from carrying out the threat to stab him. It follows that to the extent
    Oatway did assault the appellant by grabbing the knife and struggling to gain
    control of it, Oatway was not unlawfully assaulting the appellant.

[28]

While the appellants out-of-court statements may be
    sufficient to give rise to an air of reality to the appellants
subjective
belief that Oatway was unlawfully assaulting him, there was no air of reality
    to the proposition that that subjective belief was reasonable. It would be
    unreasonable for a person in the appellants shoes not to anticipate that
    pointing a knife at someone and threatening to rob and stab that person was
    likely to provoke a defensive response. It would be unreasonable to think that Oatway
    was not entitled to try to wrestle the knife away from the appellant. There is
    nothing to show that the appellant could have reasonably believed that Oatway
    was doing anything more than legitimately defending himself against the
    appellants attack. When considered against the background of the appellants
    own conduct towards Oatway and the evidence of the on-lookers as to a struggle
    to gain control over the knife, the appellants out-of-court utterance that
    Oatway was trying to kill him does not give an air of reality to the existence
    of a reasonable belief on the part of the appellant that Oatway was unlawfully
    assaulting him.

[29]

I
    do not agree with the appellants submission that this case is on all fours
    with
McIntosh
. There, while the accused was in possession of a knife, it
    is not clear that he threatened to stab the deceased at any point before the
    deceased, who he had provoked the accused with a verbal insult, came at the
    accused with a dolly raised at head level. On those facts, it would be open to
    a jury to find that the accused reasonably believed that by approaching the
    accused with the raised dolly, the victim was unlawfully assaulting the
    accused.

[30]

For
    these reasons, I conclude that the trial judge did not err in finding that
    there was no air of reality to the s. 34(2) defence.

Issue 2. Did the trial judge err in ruling that there was
    no air of reality to self-defence under s. 35?

[31]

The
    Crown urges us to interpret s. 35 as applying only where the accused acts in
    response to an
unlawful
assault by the victim. In other words,
    according to the Crown, s. 35 should be interpreted to include the same
    qualification as s. 34(2) and render self-defence unavailable where the
    victims response was lawful. I note that there is conflicting authority on
    this proposition. Compare
R. v. Mohamed
, [2009] O.J. No. 398 (S.C),
    holding that s. 35 applies only where the victims response was unlawful with
R.
    v. Merson
(1983), 4 C.C.C. (3d) 251 (B.C.C.A.), Taggart J.A., holding the
    contrary. I note as well that the refusal to read words into s. 34(2) in
McIntosh
makes this a difficult argument for the Crown. As it is my view that this
    appeal can be resolved without deciding that issue, I will assume, without
    deciding, that s. 35 requires only an assault and not an unlawful assault.

[32]

In
    my view, the trial judge did not err in finding that there was no air of
    reality to the element required by s. 35I, namely that the accused must have
    declined further conflict and quitted or retreated from it as far as it was
    feasible to so do before the necessity of preserving himself from death or
    grievous bodily harm arose.

[33]

From
    the start, the appellant was the aggressor. The appellant attempted to rob
    Oatway by threatening him with a knife. When Oatway refused to hand over his
    iPod, the appellant persisted by pointing his knife at Oatway and verbally
    threatening to slice him. Section 35I required the appellant to have declined
    further conflict from the very situation he had provoked 
before the
    necessity of preserving himself from death or grievous bodily harm arose

    (emphasis added). That means that there must be some evidence that the
    appellant attempted to extricate himself when Oatway resisted his attempted
    robbery
before
the point at which the appellant found himself in a
    position where he had to use lethal force to save himself. There is no such
    evidence. Nor, for that matter, is there any evidence that the appellant made
    any attempt to back away at any time.

[34]

The Supreme Court stated in
Cinous
,
    at para. 124:

Self-defence under s. 34(2) provides a justification for
    killing. A person who intentionally takes another human life is entitled to an
    acquittal if he can make out the elements of the defence. This defence is
    intended to cover situations of last resort.

[35]

That
    statement certainly applies to the s. 35 defence which, if anything, is more a
    matter of last resort as it covers situations where the accused provoked the
    altercation that led to the killing.

[36]

All
    the evidence indicated that the appellant persisted in his attack despite
    meeting with Oatways resistance. In the absence of any evidence that Oatway
    made it impossible for the appellant to withdraw or retreat, there was no basis
    for the trial judge to leave s. 35 with the jury. The trial judge applied the
    correct legal test, carefully assessed the evidence, and found no air of
    reality to the proposition that the appellant had met the requirements of s. 35I.

[37]

Accordingly,
    I reject the submission that the trial judge erred by refusing to put
    self-defence under s. 35 to the jury.

Issue 3: Did the trial judge err by failing to correct or
    remedy the Crowns closing address?

[38]

Two
    witnesses testified that at some point, the appellant had Oatway in a
    headlock (Panagiotopoulos) or a sleeper hold (Huffman). It was unclear
    whether these witnesses were describing the same situation. It was also unclear
    when, during the altercation, the appellant was holding Oatway in this manner
    and when Oatway was stabbed.

[39]

As
    the defence had called evidence, defence counsel addressed the jury first.
    Defence counsel advanced the defence of accident and made no reference to the
    headlock/sleeper hold evidence.

[40]

Crown
    counsel, on the other hand, placed considerable emphasis on the headlock/sleeper
    hold evidence. He submitted that it completely disproved the defence theory of
    accident as it demonstrated that the appellant was the clear winner in the
    struggle. Crown counsel submitted that the appellant had stabbed Oatway while
    holding him in the headlock or sleeper hold that had ended their confrontation.
    Crown counsel further submitted that the location of Oatways stab wound, as
    identified by the pathologist, exactly aligned with where Oatway would have
    been wounded if he had been stabbed by the appellant while in the sleeper hold
    position described by Huffman. Crown counsel also placed significant emphasis
    on the fact that defence counsel had not mentioned the headlock/sleeper hold
    evidence during his closing.

[41]

Defence
    counsel complained that he had been taken by surprise. He pointed out that the
    Crown had not previously advanced the theory that the stabbing occurred during
    the headlock either in opening address or by putting it as a hypothetical to
    the pathologist. He asked the trial judge to include in his charge a reply,
    written by defence counsel, referring to the Crowns submission that defence
    counsel made no reference to the headlock/sleeper hold evidence and stating:

It is the defence position that Michael Oatway was wounded in
    the course of the struggle for the knife and it is hardly surprising that,
    having been so wounded, he offered no further resistance to [S.M.] and was
    easily placed in a headlock. One [S.M.] recognized that Mr. Oatway was no
    longer fighting, he released him allowing Mr. Oatway to run to the front of the
    bus. This is perfectly consistent with the evidence of many witnesses on the
    bus, including Brad Huffman.

[42]

The
    trial judge refused defence counsels request. He ruled that defence counsel
    must have been aware of the evidence of the headlock/sleeper-hold, and that the
    Crown was entitled to put positions and theories based on the evidence to the
    jury.  He ruled this did not fall into the exceptional category of cases where
    the defence was entitled to a right of reply. The trial judge did, however,
    indicate that he would instruct the jury that there was no direct evidence of
    exactly when the stabbing took place.

[43]

I
    see no error on the part of the trial judge in failing to accede to defence
    counsels request. I agree with his observation that defence counsel could and
    should have anticipated that the Crown would likely rely on the evidence of the
    headlock/sleeper-hold. If that evidence could be tied to the actual stabbing,
    it had obvious relevance to the defence of accident as well as to the Crowns
    case for first degree murder based on forcible confinement. I can only assume
    that defence counsel refrained from dealing with that evidence in his closing
    for tactical reasons.

[44]

The
    trial judges instructions to the jury made it clear that there was no direct
    evidence as to the timing of the stabbing. This pointed out the weakness in the
    Crowns position. I am satisfied that the trial judges instructions left the
    jury with a fair and balanced presentation of the positions of the parties and
    that it was well within the trial judges discretion to refuse to include in
    his charge the reply submission requested by defence counsel.

Disposition

[45]

For
    these reasons, I would dismiss the appeal.

Robert J. Sharpe J.A.

I agree K.M. Weiler
    J.A.

I agree R.A. Blair
    J.A.

Released: April 20, 2012


