



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Paul, 2020 ONCA 259

DATE: 20200417

DOCKET: C65497

Roberts, Paciocco and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tola Dirk Paul

Appellant

Maurice Mattis and Lucas Jack-Sadiwnyk,
    for the appellant

Kevin Rawluk, for the respondent

Heard: January 10, 2020

On appeal from the conviction entered by
    Justice Tamarin M. Dunnet of the Superior Court of Justice, sitting with a
    jury, on March 12, 2018, with reasons reported at 2018 ONSC 1643.

Harvison Young J.A.:

A.

Overview

[1]

The appellant, Tola Paul (Paul), was convicted
    of
aggravated assault, and possession of a weapon for a
    dangerous purpose
. He was also found guilty of assault with a weapon, but
    that charge was stayed to avoid double jeopardy. These charges were laid after Paul
    hit Paul Campbell (Tall P) in the hand with a machete. There is surveillance video
    footage of the events immediately prior to and following the strike, which
    occurred outside a strip mall bar. Paul appeals from his convictions on the
    basis that the trial judge erred in refusing to put the defences of
    self-defence and defence of others to the jury. The trial judge held that there
    was no air of reality to these defences, specifically because she found that the
    jury could not reasonably conclude that the act was reasonable in the
    circumstances.

[2]

I would allow the appeal. While the trial judge
    correctly identified the applicable legal principles, she erred in the
    application of these principles. There was evidence before her upon which a
    properly instructed jury acting reasonably could have concluded that the
    defences of self-defence and the defence of others were made out. The defences
    had an air of reality and should have been put to the jury.

B.

Background

[3]

At trial, the jury heard evidence from the
    security guard at Africa House that evening, Tequan Campbell, and from the
    appellant. They also saw surveillance video footage of much of what transpired from
    three different angles. Here, I review only the evidence relevant to the
    convictions on appeal.

(1)

Tequan Campbells Evidence

[4]

On April 17, 2016, Campbell was working as a
    security guard at the bar known as Africa House. The appellant entered with
    three other men: Kristian Gatto; a man referred to as the South Park guy; and
    a man referred to as Richard. Campbell testified that he asked the appellant not
    to leave the bar with a beer. Tall P also told the appellant to leave his beer
    in the bar, then Tall P went upstairs. According to Campbell, the appellant
    became upset, and also went upstairs and outside with his beer. At this point,
    Tall P and the appellant were having a face-to-face, during which Tall Ps
    shoulder touched the appellants shoulder.

[5]

Campbell then heard people yelling outside. He
    went upstairs and looked out the door. Tall P was on his cell phone and was arguing
    with Gatto and the South Park guy. Campbell then saw the appellant approach
    Africa House quickly from the south with a machete in his hand. When he was
    about ten feet from Tall P, the appellant was restrained by another man
    referred to as the dreadlocks guy, before turning and walking away. At this
    point, other people began coming outside from the bar and walking south,
    including Campbell.

[6]

Campbell testified to seeing Tall P and Gatto
    arguing on the sidewalk. Gatto lifted his shirt to reveal a machete in his
    waistband. Campbell also saw Tall P and the appellant fighting in the parking
    lot between an SUV and another car. At this point, Tall P had a machete in one
    hand and a knife in the other. The appellant had a hammer.

[7]

Campbell then saw the appellant running north
    with a machete. Campbell, and others who were outside, also ran north. The
    appellant caught up to Tall P at the door to Africa House, where he hit him
    with the machete.

(2)

The Appellants Evidence

[8]

The appellant testified to going to Africa House
    on the night in question with three friends. At some point, he went to go
    outside and Campbell asked him to leave his drink downstairs. As he went up the
    stairs, Tall P was walking behind him and said, All you fucking guys dont
    listen. You all just want to do what you feel like. Tall P was swearing at the
    appellant and the appellant was swearing back at him. While they were on the
    stairs, Tall P threatened him and pulled out a knife. The appellant walked
    outside and Tall P followed. Gatto and South Park guy were already outside. The
    appellant testified that Tall P threatened to stab the appellant and was on his
    cell phone asking someone to come and link him.

[9]

The appellant then walked south and retrieved a machete
    from the back of the SUV. He began walking towards Tall P to scare him but was
    restrained by the dreadlocks guy, and then returned the machete to the SUV.

[10]

The appellant says he then walked back to Tall
    P, this time with only a cigarette in his hands. At this point, Tall P was talking
    to Gatto, and the appellant testified that Tall P was still threatening him with
    the knife and he felt scared. He says he then returned to his SUV to listen to
    music and to smoke.

[11]

While he was in the SUV, he heard someone say, These
    guys stabbed me and recognized Gattos voice. He then saw Tall P running
    towards him with a machete. Tall P swung the machete which hit the SUVs door
    and fell to the ground. The appellant then reached for a sledgehammer in the
    SUV. Tall P struck the appellant on the back with the knife and the appellant
    swung the hammer, which touched Tall P and then dropped to the ground.

[12]

The appellant then picked up the machete, and
    Tall P turned around and ran. Tall P was carrying a knife. When Tall P reached
    the entrance to Africa House, he turned around. The appellant says that he did
    not know if Tall P was going to attack him or his friends, and was still
    afraid. He swung the machete at Tall P and cut his hand.

[13]

Tall P then went inside Africa House. The appellant
    testified to following him inside to see if Tall P was coming back with
    anybody.

(3)

The Agreed Statement of Facts

[14]

It was agreed that Tall P sustained an injury to
    his hand requiring surgery and that Gatto received a wound in his upper abdomen
    approximately three inches deep.

(4)

The Parties Submissions

[15]

The appellant brought an application to have the
    defences of self-defence and defence of others put to the jury on the charges
    of aggravated assault and assault with a weapon.

[16]

Before the trial judge, the appellant argued
    that there was a sufficient evidentiary foundation to ground the defences of
    self-defence and defence of others. He pointed to the evidence that Tall P, who
    is considerably taller than the appellant, threatened him with a knife and had
    a knife in his hand the whole time. The appellant then heard, while he was
    sitting in the SUV, that Tall P had stabbed and attacked his friend with a
    machete. Tall P came to the SUV and attacked the appellant with a machete and a
    knife. When the machete fell, the appellant chased Tall P and slashed him with
    the machete seconds later. The appellants evidence was that as he was chasing
    Tall P, Tall P was holding a knife, and he believed that Tall P would attack
    him or his friends. He submitted that the events happened at a fast pace and in
    a stressful environment with little time for reflection.

[17]

The respondents position below was that, even
    accepting the appellants evidence at its highest, the acts he committed were
    not objectively reasonable in the circumstances. The respondent submitted that
    before he started chasing Tall P, the appellant had already successfully
    defended himself with the hammer. It was not necessary, in the objective sense,
    for the appellant to then pick up the machete, chase after Tall P, and slash
    him.

(5)

The Trial Judges Ruling on Self-Defence and
    Defence of Others

[18]

After conducting a thorough review of the
    evidence adduced at trial, including the video surveillance footage, the trial
    judge set out the relevant evidence. Notably, she made a number of factual
    conclusions including that: (1) at the point where Tall P was on the cell phone,
    there were no indications of aggressive movements towards the appellant or
    towards anyone; (2) the fight between Tall P and the appellant at the SUV was
    almost consensual; and (3) following this fight, when the appellant chased
    Tall P north towards Africa House, the threat was over.

[19]

The trial judge concluded that the appellants
    conduct was not objectively reasonable in the circumstances. In her view, the appellant
    had no reason to hit Tall P with the machete. The appellant was chasing Tall
    P, who was trying to escape, and who did not engage the appellant.

[20]

Though cognizant that the threshold at this
    stage of the analysis is low, given these conclusions, the trial judge ruled
    that there was no air of reality to the defences of self-defence or to the
    defence of others and dismissed the application.

C.

Issue and Applicable Law

[21]

The sole issue for this panel to decide is
    whether the trial judge erred in finding that there was no air of reality to
    the defences of self-defence and defence of others.

[22]

A defence should be put to the jury if, and only
    if, there is an air of reality to that defence:
R. v. Cinous
, 2002 SCC
    29, [2002] 2 S.C.R. 3, at para. 51. A trial judges failure to put a defence to
    the jury for which there is an air of reality is therefore an error of law.

[23]

A defence has an air of reality if, and only if,
    a properly instructed jury, acting reasonably, could acquit the accused on the
    basis of the defence:
Cinous
, at para. 92. This inquiry requires a
    consideration of the totality of the evidence, assuming the evidence relied
    upon by the accused to be true:
Cinous
, at para. 53.

[24]

In the case of self-defence and the defence of
    others, the success of each defence turns on three requirements pursuant to s.
    34(1) of the
Criminal Code
, R.S.C. 1985, c. C-46: (a) the accused must
    believe on reasonable grounds that force or threat of force is being used
    against them or someone else; (b) the purpose for the act that constitutes the
    offence must be to protect oneself or others from that force or threat of force;
    and (c) the act committed must be reasonable in the circumstances. The first
    and last requirements blend objective and subjective considerations to
    determine what is reasonable in the circumstances, while the second requirement
    is subjective:
R. v. Khill
, 2020 ONCA 151, at paras. 54 and 57.

[25]

The ruling below turned on the third criterion,
    the reasonableness of the act. This criterion is evaluated in reference to a
    non-exhaustive list of factors at s. 34(2), with the trier of fact having wide
    discretion to determine how such factors are to be weighed and assessed:
Khill
,
    at paras. 62-63. In making this assessment, the trier of fact must be mindful
    that people using defensive force in stressful and dangerous situations are not
    expected to weigh their responses to a nicety:
R. v. Cunha
, 2016 ONCA
    491, 337 C.C.C. (3d) 7, at para. 7;
R. v. R.S.
, 2019 ONCA 832, at
    para. 36.

D.

Analysis

(1)

Observations
    on the Standard of Review

[26]

I begin with a brief comment on the proper
    standard of review. The appellant directs us to authority for the proposition that
    the question of whether a defence has an air of reality is a question of law
    reviewable on a correctness standard:
R. v. Budhoo
, 2015 ONCA 912, 343
    O.A.C. 269, at para. 40. The respondent directs us to authority for the
    proposition that the trial judges decision to leave a defence with a jury is
    entitled to some deference on appeal:
R. v. Dupe
, 2016 ONCA 653, 340
    C.C.C. (3d) 508, at para. 79. I accept both propositions as binding on me.

[27]

These principles are not obviously reconciled. As
    Paciocco J.A. recently observed in
R. v. Land
, this has resulted in the
    standard of review on appeal in these cases being afflicted by some complexity:
    2019 ONCA 39, 145 O.R. (3d) 29, at para. 71.

[28]

Reviewing a trial judges proper role in this
    exercise can assist in navigating this complexity. In some instances, there
    will be evidence that, if believed, would establish an element of a defence:
Cinous
,
    at para. 88. For example, an accused may testify and give direct evidence as to
    the existence of a subjective element of a defence. The trial judge, when faced
    with this direct evidence, must then find that there is an air of reality to that
    element. Since the trial judge must attribute an air of reality to an element
    supported by direct evidence in the record, we logically do not owe deference
    to this determination.

[29]

In other cases, there will be no direct evidence
    going to a particular element. I note, for example, there can be no direct
    evidence as to the reasonableness of the act in self-defence:
Cinous
,
    at para. 89. In this case, the trial judge must engage in a limited weighing
    of the evidence to determine whether the element can be reasonably inferred:
Cinous
,
    at para. 91. In so doing, she must not draw determinative factual inferences, nor
    make credibility assessments:
R. v. Pappas
, 2013 SCC 56, [2013] 3
    S.C.R. 452, at para. 22. The limited weighing is only for the relatively narrow
    purpose of deciding whether there is evidence upon which the trier of fact
    could reasonably conclude that the element has not been disproved beyond a
    reasonable doubt.

[30]

The deference owed when reviewing this limited
    weighing is necessarily less than that owed to a trial judges findings of fact.
    Some of the reasons for generally deferring to trial judges on their weighing
    of the evidence  namely their ability to assess credibility of live witnesses and
    their expertise in making findings of fact  are not relevant to a limited
    weighing: see
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235,
    at paras. 15-18. Nevertheless, I recognize that the trial judge has the privilege
    of extensive exposure and immersion in the entire trial record.

[31]

In any event, in this case, as in
Land
,
    the trial judges errors obviate the need for any deference: at para. 71.

(2)

The Trial Judge Erred in Her Approach to the Air
    of Reality Test

[32]

In this case, the trial judge erred in her
    application of the air of reality test by making a number of findings that went
    to the heart of the factual controversies between the parties. Accordingly, her
    conclusion that there was no air of reality to the plea of self-defence and
    defence of others does not warrant deference from this court.

[33]

After reviewing the evidence adduced at trial, instead
    of determining whether a reasonable trier of fact could accept either of the
    defences, the trial judge undertook her own assessment of the events. For
    example, she concluded that the altercation between Tall P and the appellant by
    the SUV was almost consensual. She also concluded that at the time Tall P
    began to run away from the appellant, the threat was over, and found further
    that the appellant had no reason to use a machete to chop Tall P.

[34]

The first of these conclusions contradicted the
    appellants version of events. It was the appellants evidence that he was
    sitting in the SUV when Tall P ran at him holding a machete and knife.
    According to the appellant, Tall P swung his weapons at him before he picked up
    a sledgehammer to defend himself. The appellants evidence was that when he
    chased Tall P, he was afraid because two people had attacked him, and he did not
    know if someone else was behind him. The appellant did not describe a
    consensual fight. Given that the trial judges finding that the fight was
    almost consensual is contradicted by the appellants evidence, the trial
    judge must necessarily have considered the appellants credibility, which she
    was not permitted to do. This finding cannot be found to have been reasonable:
Pappas
,
    at para. 53.

[35]

Further, there is evidence inconsistent with the
    trial judges finding that the threat was over at this point. Events happened
    quickly. Tall P had pursued Paul to his car and attacked him with weapons. Gatto
    had just been stabbed. There was evidence that Tall P still had a knife in his
    hand as he ran north after dropping the machete. There was evidence that Tall P
    had asked others to come and link him, in other words, to back him up, and
    there were a number of people moving about at the time. Video surveillance
    evidence shows that the appellant was followed when he ran after Tall P. By
    finding that the threat was over in the face of evidence that it was not, the
    trial judge exceeded her gatekeeping role.

[36]

The trial judges findings may have been
    findings which a trier of fact could have arrived at on this record. But this
    was not the trial judges task on the self-defence application:
Cinous
,
    at para. 54. These conclusions indicate that the trial judge did not restrict
    her role to that of limited weighing. This gives rise to the danger that her
    conclusion was based on these findings of fact, rather than an evidentiary
    assessment. Usurping the fact-finding function in this way is an error of law:
Budhoo
,
    at para. 49.

[37]

I note that this error is further evidenced by
    the wording of the trial judges conclusion on this point. She concluded that
    the appellants conduct was not reasonable in the circumstances. This was a
    conclusion for the jury to reach. The trial judges task was to ask whether a
jury
could reasonably reach this conclusion:
Cinous
, at para. 92. A simple
    misstatement does not positively establish a reviewable error. However, when
    read in context with the incorrectly made findings of fact, the trial judges
    misstatement indicates that she went beyond the scope of her role and usurped
    the jurys function.

[38]

Given that the trial judge erred in her
    application of the test, no deference is owed to the decision below. I must now
    consider whether there is an air of reality to self-defence and defence of
    others on this record.

(3)

There is an Air of Reality to Self-defence and
    Defence of Others

[39]

I conclude that there is an air of reality to
    the defences of self-defence and defence of others in relation to the machete
    chop of Tall P. As the foregoing discussion reveals, there is evidence on which
    a jury could reasonably find that each of the three criteria of self-defence and
    defence of others were not disproven beyond a reasonable doubt.

[40]

On the first criterion, a jury could reasonably
    conclude that the accused believed on reasonable grounds that force or threat
    of force was being used against him or someone else. The appellants evidence was
    that as he approached Tall P at the door to Africa House, Tall P turned around
    to face him, holding a knife. Further, while the subject act is the machete
    strike that occurred at the entrance to Africa House, I note that it would be
    open to the jury to find that this was one among a longer chain of violent
    events that occurred between Tall P, the appellant, and others. The jury could
    reasonably have considered this broader context. In particular, it was the
    appellants evidence that Tall P had threatened to stab him, and that Tall P
    attacked him with a machete as he was sitting in the SUV after hearing Gatto say
    that he had been stabbed.

[41]

On the second criterion, there is no real
    dispute that a jury could reasonably conclude that the subjective purpose of the
    act was for the appellant to protect himself or others. The appellant gave
    direct evidence to this effect. He testified that he heard Gatto yell that he
    had been stabbed just before Tall P approached him with the machete. He also testified
    that he was scared that there was someone else behind him as he was running
    after Tall P. He said that when Tall P turned around at the door of Africa
    House he was scared that Tall P would rush him with a knife. There is
    accordingly direct evidence which, if accepted, would establish this criterion.

[42]

The third criterion concerns the reasonableness
    of the act. As with the first criterion, I am mindful that there is evidence
    that the subject act occurred as part of a series of altercations between the
    appellant, Tall P, and others. I am also mindful that in assessing the
    objective reasonableness of the appellants conduct the jury must not weigh his
    response to a nicety:
Cunha
, at para. 7. Further, s. 34(2) of the
Criminal Code
makes clear that this is an inherently contextual
    exercise:
Khill
, at para. 60.

[43]

It may be open to the jury to conclude, as the
    trial judge did, that the altercation between Tall P and the appellant at the
    SUV was almost consensual. However, it would also be open to the jury to
    conclude, based on the appellants evidence, that Tall P was the aggressor in
    this altercation. Similarly, the jury could conclude that, after the appellant
    picked up the machete and Tall P started running away, the threat was over, as
    the trial judge would have found. Yet, the jury could also conclude that the
    threat was not over, but that the appellant and his friends continued to be in danger
    such that his subsequent actions were reasonable in the circumstances. Without
    commenting on the likelihood that a jury would reach this conclusion, it is a
    conclusion that would be open to the jury on this record.

[44]

Thus, the jury could reasonably have acquitted
    the appellant of all charges in reliance on the defences of self-defence and
    defence of others. The defences should have been put to the jury.

E.

Conclusion

[45]

For these reasons, I would allow the appeal, set
    aside the convictions, and order a new trial on the charges of aggravated
    assault, assault with a weapon, and possession of a weapon for a dangerous
    purpose.

Released: April 17, 2020

LR

A. Harvison Young J.A.

I agree L.B. Roberts J.A.

I agree David M. Paciocco J.A.


