



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Budhoo, 2015 ONCA 912

DATE: 20151223

DOCKET: C56507

Feldman, Benotto and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Budhoo

Appellant

Michael W. Lacy and Brad Greenshields, for the appellant

Michael Bernstein, for the respondent

Heard: October 19, 2015

On appeal from the conviction entered by Justice Faye E.
    McWatt of the Superior Court of Justice, sitting with a jury, on November 29,
    2012.

Benotto J.A.:

Overview

[1]

The appellant was sitting in a pizza restaurant when another patron
    allegedly insulted his companion. The appellant got up and punched the
    offending patron.

[2]

A brawl broke out between two groups of men  the appellant and his
    companion on one side, and the man the appellant punched and his friends on the
    other. The fight lasted less than 60 seconds and was captured on video
    surveillance.

[3]

During the course of the brawl, the appellant brandished a knife.
    Shortly thereafter, the man who was initially punched by the appellant was
    stabbed with the knife.

[4]

The appellant was charged with aggravated assault by wounding,
    possession of a weapon for a purpose dangerous to the public peace (weapons
    dangerous) and assault.

[5]

The appellant testified that he brandished the knife to protect his
    friend and then continued to hold it to protect himself. He said that he never
    intended to stab the man; rather, he claimed it was an accident. The jury was
    not charged on self-defence. The appellant was convicted of all three counts.

[6]

For the reasons that follow, I would allow the appeal and order a new
    trial.

FACTS

The fight begins

[7]

In the early morning hours of January 21, 2007, the appellant was
    sitting in a Pizza Pizza restaurant with his friend, Franklin Bishop. The
    appellant was not drunk. Bishop most likely was  he had been drinking
    excessively, was unsteady on his feet and was slurring his words.

[8]

Jeffery Burns was also in the restaurant with a group of his friends.
    There was evidence that Burns friends were being disrespectful to a black
    woman who appeared to have mental health issues. The appellant testified that
    Bishop told Burns friends to leave her alone.

[9]

Shortly thereafter, as Burns was leaving the restaurant, he allegedly
    uttered a racial slur directed at Bishop. In response, the appellant stood up
    and punched Burns twice in the head. Burns then punched the appellant in the
    head, knocking him to the ground.

[10]

Bishop
    stood up to assist the appellant, but was dragged away by Burns. The appellant
    testified that Burns and his friends began punching Bishop.

The Appellant brandishes a
    knife

[11]

The
    appellant testified that as he was getting up from the ground, he reached into
    his coat pocket hoping to find his keys to put in his fist. Instead, he found a
    folding knife that he had used at his office to take apart cardboard boxes. He
    took the knife out, held it up, and told the men assaulting Bishop to stop.

[12]

The
    appellant said that he was concerned for Bishops safety because Bishop was
    drunk and Burns was saying he was going to kill Bishop. The appellant said this
    in his testimony:

[S]o, I take the knife out and hold it in  my hand and I said,
    Leave him alone. I shouted, Leave him alone, at which point  the guy with
    the toque  he lets go of Mr. Bishop.



Im looking over at whats going on. I can clearly see that
    Bishops still getting  pounded.



Burns  hes still shouting, Im gonna kill you, Im gonna
    kill you, and taking shots at  Bishop. The other guy in the pea coat, to me,
    seemed like he was holding onto Bishop as  Burns is taking shots at him.

[13]

The
    guy with the toque was Brett Rowlands, one of Burns friends. After he let go
    of Bishop, he approached the appellant and tried to hold him back from Burns
    and Bishop. Burns was still hitting Bishop. The appellant was still holding the
    knife.

[14]

Rowlands
    confirmed in his testimony that the appellant was holding the knife up and
    telling Burns to stop hitting Bishop.

Burns is stabbed

[15]

The
    appellant moved around Rowlands and managed to get between Bishop and Burns.
    Bishop was then removed from the brawl and was no longer being punched by
    Burns. This left the appellant and Burns face-to-face.

[16]

The
    appellant testified he held the knife in front of him to keep Burns away. He
    then testified that Burns came toward him and was stabbed by the knife:

[A]t that point, Mr. Burns, he came in. He was trying -- it
    looked like he was trying to come -- I dont know what his intent was, but he
    came forward and thats when I believe that the knife  went into his  body.

[17]

The
    appellant said that he held the knife first to defend Bishop and then, when
    Bishop was removed from the brawl, to defend himself.

[18]

The
    appellant said he did not mean to stab Burns  it was an accident. He said that
    he held the knife out only to keep Burns away. He said that Burns either walked
    or lunged into the knife as he approached the appellant to assault him.

THE JURY CHARGE

[19]

The
    trial judge charged the jury on the three counts: (1) assault arising from the
    first two punches; (2) weapons dangerous in relation to the knife; and (3)
    aggravated assault by wounding. I will discuss them in reverse order.

Charge on Aggravated
    Assault

[20]

I
    will address two aspects of the charge on aggravated assault: the rejection of
    self-defence and the two pathways to conviction.

(i)

Rejection of Self-Defence

[21]

At
    the conclusion of evidence, the trial judge asked for submissions on
    self-defence. Both counsel agreed that the only self-defence provision that
    should be put to the jury, if any, was s. 35 of the
Criminal Code
,
    R.S.C. 1985, c. C-46, which has since been repealed. This was the provision for
    self-defence in the case of aggression.

[22]

For
    ease of reference, I will set out s. 35:

35. Every one 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

(c) 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.

[23]

The
    Crown submitted that s. 35 should not be left with the jury because there was
    no evidence that the appellant reasonably believed he was at risk. Further,
    even if he did, there was no evidence he declined further conflict and quitted
    or retreated.

[24]

Defence
    counsel submitted that it was not feasible for the appellant to retreat in the
    circumstances, given the timing, the physical location and the positioning of
    those involved in the brawl.

[25]

In
    coming to her conclusion that there was no air of reality to self-defence under
    s. 35, the trial judge relied extensively on the video surveillance. She was
    also of the view that the theories of self-defence and accident were
    incompatible in this case. For this, she relied on
R. v. Teskey
, 2008
    BCCA 288, [2008] B.C.J. No. 1266, where the court commented, at para. 19, that:

Since the appellant did not intend to stab [the victim], it cannot
    be said that his motive or purpose in doing so was to preserve himself from
    harm. It follows that a finding of self-defence was not open and it was not a
    live issue at the trial.

(ii)

Two Pathways to Conviction

[26]

The
    Crown urged the trial judge to include the definition of assault under s.
    265(1)(b) of the
Criminal Code
as a means by which the
actus reus
of aggravated assault could be established. Here, it is helpful to review the
    provisions.

[27]

Aggravated
    assault is found under s. 268 of the
Criminal Code
:

268. (1) Every one commits an
    aggravated assault who wounds, maims, disfigures or endangers the life of the
    complainant.

[28]

Aggravated
    assault is, at is core, an assault. Therefore, it incorporates the definition
    of assault under s. 265 of the
Criminal Code
: see
R. v. Cuerrier
,
    [1998] 2 S.C.R. 371, at para. 10. The relevant portions of s. 265 are:

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 on reasonable grounds that he has, present ability to effect
    his purpose;

[29]

The
    Crown asked the trial judge to put both definitions of assault to the jury 
    ss. 265(1)(a) and 265(1)(b). The Crown relied on the evidence of a threat prior
    to the allegedly accidental stabbing and submitted that the facts of this case
    were analogous to other cases in which both pathways were given to the jury:
R.
    v. Nurse
(1993), 83 C.C.C. (3d) 546 (Ont. C.A.), at 556;
R. v. MacKay
,
    2004 NBCA 66, 274 N.B.R. (2d) 302, at para. 30, affd 2005 SCC 79, [2005] 3
    S.C.R. 725, at paras. 1-4.

[30]

The
    trial judge agreed with the Crowns submissions. As such, the jury charge
    provided that the
actus reus
element of the offence of aggravated
    assault could be proven one of two ways.

[31]

First,
    it could be proven if the appellant intentionally applied force. This referred
    to the stabbing. Second, it could be proven if the appellant intentionally
    threatened, by act or gesture, to apply force and had the ability to carry out
    that threat. This referred to the brandishing of the knife.

[32]

With
    respect to these two pathways to conviction, the trial judge explained to the
    jury members that they did not all have to agree on the same pathway  it would
    be sufficient that all jury members agree that one of the two pathways had been
    proven beyond a reasonable doubt.

[33]

If
    the jury members agreed that the appellant either intentionally applied force,
    or intentionally threatened to apply force, the decision tree led them to
    decide whether the applied force wounded Burns. If yes, the decision tree led
    to a guilty verdict on aggravated assault.

Charge on Weapons Dangerous

[34]

The
    trial judge instructed the jury on the three essential elements of weapons
    dangerous.

[35]

She
    then directed the jury to find that the first two essential elements were
    proven beyond a reasonable doubt: that (1) the appellant possessed a weapon;
    and (2) that the appellant knew what he possessed was a weapon.

[36]

The
    only issue left for the jury to decide was whether the appellant had the weapon
    for a purpose dangerous to the public peace.

Charge on Assault

[37]

On
    consent of both counsel, the trial judge directed a verdict of guilty on the
    assault charge. This related to the first two punches thrown by the appellant
    before the brawl began.

THE JURY VERDICT

[38]

The
    jury convicted the appellant of all three counts  aggravated assault, weapons
    dangerous and assault.

ISSUES ON APPEAL

[39]

The
    issues on appeal are:

1. On the
    aggravated assault charge, did the trial judge err in holding there was no air
    of reality to self-defence?

2. On the
    weapons dangerous charge, did the trial judge err in her charge to the jury?

3. On the
    assault charge, did the trial judge err in directing a verdict of guilty?

ANALYSIS

Issue #1: On the aggravated
    assault charge, did the trial judge err in holding there was no air of reality
    to self-defence?

[40]

A
    determination as to whether there is an air of reality to a defence is a question
    of law, subject to appellate review on a correctness standard: see
R. v.
    Cinous
, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 55.

[41]

I
    have concluded that the trial judge erred in three ways: (1) by usurping the
    function of the jury in making factual findings; (2) by finding that
    self-defence and accident were incompatible defences; and (3) by not
    considering other sections of the
Criminal Code
relating to
    self-defence.

(i)

Judicial Findings of Fact

[42]

In
Cinous
, the Supreme Court of Canada set out the role of a trial judge
    in determining whether an air of reality exists (at para. 54):

The threshold determination by the trial judge is not aimed at
    deciding the substantive merits of the defence. That question is reserved for
    the jury. The trial judge does not make determinations about the credibility of
    witnesses, weigh the evidence, make findings of fact, or draw determinate
    factual inferences  The question for the trial judge is whether the evidence
    discloses a real issue to be decided by the jury, and not how the jury should
    ultimately decide the issue. [citations omitted.]

[43]

In
    determining whether the evidence discloses a real issue to be decided, the
    Supreme Court explained that (at para. 53):

In applying the air of reality test, a trial judge considers
    the totality of the evidence, and assumes the evidence relied upon by the
    accused to be true. The evidential foundation can be indicated by evidence
    emanating from the examination in chief or cross-examination of the accused, of
    defence witnesses, or of Crown witnesses. It can also rest upon the factual
    circumstances of the case or from any other evidential source on the record.
    [citations omitted.]

[44]

Here,
    the trial judge was entitled to view the surveillance video as part of her
    consideration of the totality of the evidence. However, by using the video to
    make factual findings, while at the same time ignoring reasonable inferences
    that could arise from the appellants testimony, the trial judge usurped the
    function of the jury as the trier of fact.

[45]

Section
    35 of the
Criminal Code
required that the appellant decline further
    conflict and quit or retreat as far as was feasible. This was an issue for the
    jury.

[46]

The
    trial judge concluded, based on her view of the video, that the appellant made
    no attempt to retreat. She said this in her ruling:

There is no evidence in this case that [the appellant] 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. He testified he went into the fray out of concern for his friend yet he
    offered no evidence and there is no other evidence that he tried to assist Mr.
    Bishop from being assaulted. Once his friend had been extricated from the
    danger of Mr. Burns assault by others, [the appellant] began to fight with Mr.
    Burns with a knife in his right hand. He made no attempt to retreat. This is
    clear from the videotape evidence; this is evident from his own testimony. The
    defence cannot be given to the jury in the charge. It lacks an air of reality.

[47]

These
    were findings of fact that were within the purview of the jury, particularly in
    light of the appellants testimony that:

·

the events happened very quickly in a short time frame;

·

he was fearful;

·

he was worried about Bishop, who was drunk;

·

he heard Burns repeating that he was going to kill Bishop; and

·

he held up the knife to get Burns and his friends to stop hitting
    Bishop and then to protect himself.

[48]

The
    trial judge did not consider competing factual inferences that could reasonably
    be drawn from the record, including whether retreat was feasible. She rejected
    or ignored the appellants testimony and other evidence favourable to the
    defence, which she was required to accept for the purposes of applying the air
    of reality test.

[49]

In
    doing so, the trial judge usurped the jurys function and erred in law. The
    impugned findings directly impacted the low threshold for the air of reality
    test.

(ii)

Compatibility of Self-Defence and Accident

[50]

By
    determining that self-defence and accident could not co-exist, the trial judge
    misapprehended the defence position. The appellant testified that he held out
    the knife at first to protect Bishop and then kept it out to protect himself.
    The subsequent stabbing was an accident. This sequence of events allowed the
    two defences to co-exist.

[51]

In
R. v. Mulligan
(2006), 80 O.R. (3d) 537 (C.A.), this court held that
    self-defence and accident could co-exist in a similar fact scenario. Although
    this court held that the trial judges error in this regard did not cause
    prejudice, the comments of Rosenberg J.A. are instructive. At para. 15 he
    stated:

It is the appellants submission, with which I agree, that the
    two defences were closely related. The appellants defence was that he shot the
    deceased by accident (
i.e.
, without an intent to kill) while brandishing
    the rifle in self-defence.

[52]

Likewise
    in this case, the defences were closely related and compatible. The appellant
    had a two-pronged defence  he acted in self-defence by brandishing the knife
    and by continuing to hold it out. He then accidentally stabbed Burns.

[53]

The
    trial judges reliance on
Teskey
does not withstand scrutiny. On the
    surface, the facts of this case appear similar to those in
Teskey
. An
    argument began on a bus about a skateboard. It continued off of the bus. The
    accused produced a knife, the complainant was stabbed and the accused was
    convicted of aggravated assault. The accused testified that he took out the
    knife to scare the complainant and did not intend to stab him. The stabbing, he
    said, was an accident.

[54]

The
    trial judge, sitting without a jury, did not believe the accused. Specifically,
    he did not believe that the accused took out the knife for defensive purposes.
    He also found that the accused intentionally stabbed the victim. Those factual
    findings distinguish that case.

[55]

Here,
    the consequences of the judges conclusion as to the incompatibility of
    self-defence and accident were magnified when the trial judge agreed to provide
    the jury with a second pathway to conviction.

[56]

As
    a result of there being two pathways to conviction on the aggravated assault
    charge, the appellant could have been found guilty for intentionally applying
    force or for intentionally threatening to apply force.

[57]

In
    conjunction with the instruction to the jury on the second pathway to
    conviction  the threat by brandishing the knife  the defence of self-defence
    had to be put to the jury. Without self-defence on the threat, the jury members
    were required to convict the appellant under the second pathway, even if they
    believed or had a reasonable doubt about his testimony.

[58]

In
    short, the trial judge did not make it clear to the jury that the defence was
    that the appellant raised and held up the knife in self-defence and then
    stabbed Burns by accident.

[59]

In
    light of these conclusions, I do not need to address the defence position at
    trial that it was not appropriate to add section 265(1)(b) to the
actus
    reus
of the aggravated assault.

(iii)

Additional Self-Defence Provisions

[60]

The
    appellant submits that the trial judge, having rejected s. 35, should have gone
    on to consider s. 37 or perhaps even s. 27 of the
Criminal Code.

[61]

I
    agree.

[62]

A
    trial judge must put to the jury all defences that arise on the facts, whether
    or not specifically raised by an accused: see
Cinous
, at para. 51.
    Here, notwithstanding the submissions of both counsel, the trial judge should
    have considered and ruled on the applicability of the other self-defence
    provisions.

[63]

Section
    37, now repealed, justified the use of the minimum force necessary to defend
    oneself or anyone under ones protection from assault:

37.
(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.

[64]

The
    appellant repeatedly testified that he initially brandished the knife, and
    threatened Burns, to protect Bishop, who was in a vulnerable state as a result
    of being drunk. This was also corroborated by other witnesses.

[65]

Further,
    s. 37 would have provided a wider defence than s. 35, in that there was no
    requirement to retreat. It also would have addressed the brandishing of the
    knife in the first place and the initial threat against Burns, which is not
    addressed under s. 35.

[66]

There
    may also have been an air of reality to self-defence under s. 27 and it too
    should have been potentially considered. This section allows a party to use no
    more force than is reasonably necessary to prevent the commission of an
    offence.

[67]

The
    trial judge should have considered whether these additional sections met the
    air of reality test, particularly after rejecting the s. 35 defence. In not
    doing so, when there was evidence capable of supporting the defences, the trial
    judge erred in law.

(iii)

The New Self-Defence Provisions

[68]

The
    appellant conceded in oral argument that, in light of this courts decision in
R.
    v. Bengy
, 2015 ONCA 397, 325 C.C.C. (3d) 22, the new self-defence
    provisions could not be applied.

[69]

For
    the reasons just articulated, I would allow the appeal on the conviction for
    aggravated assault.

Issue #2: On the weapons dangerous charge, did the
    trial judge err in her charge to the jury?

[70]

I
    have concluded that there should also be a new trial on the weapons dangerous
    charge.

[71]

The
    trial judge erred in two respects: (1) she failed to adequately instruct the
    jury on the appellants purpose for possessing the knife; and (2) she usurped
    the function of the jury by directing the jury to find that the first two
    essential elements of the count were proven beyond a reasonable doubt.

(i)

The Purpose of
    Possession

[72]

The
    appellant was convicted of weapons dangerous in relation to the knife used in
    the stabbing. The use of a dangerous weapon for a dangerous purpose is not
    enough for a finding of guilt. The jury must find that the appellant possessed
    the knife for a purpose dangerous to the public peace.

[73]

That
    purpose must be determined at the instant of time which preceded the use of the
    weapon. The use of a knife in a manner dangerous to the public peace does not
    constitute the offence, although the formation of the unlawful purpose may be
    inferred from the circumstances in which the knife was used: see
R. v.
    Proverbs
(1983), 9 C.C.C. (3d) 249 (Ont. C.A.), at 251.

[74]

In
    this case, the appellant testified that he reached into his coat to grab his
    keys and did not realize that the knife was in his pocket. He then claimed he
    took out the knife in self-defence.

[75]

The
    trial judge did not explain the significance of this evidence to the jury. The
    trial judge erred by not telling the jury members that, for the appellant to be
    found guilty of weapons dangerous, they had to reject his evidence that his
    purpose for brandishing the knife was self-defence.

[76]

Instead,
    the trial judge instructed the jury on the opposite:

No single circumstance, even a claim that the purpose of having
    a weapon was so that [the appellant] could defend himself or others under his
    protection or his property against others is conclusive.

[77]

This
    instruction misdirects the jury on this count. The jury members should have
    been instructed that if they believed that the appellant possessed the knife
    for the purpose of self-defence, then they could not be satisfied beyond a
    reasonable doubt that the appellant possessed the knife for a purpose dangerous
    to the public.

(ii)

Directing a Finding on the Essential Elements

[78]

Additionally,
    the trial judge erred by directing the jury to find that the first two elements
    of weapons dangerous were proven beyond a reasonable doubt.

[79]

In
R. v. Gunning
, 2005 SCC 27, [2005] 1 S.C.R. 627, the Supreme Court of
    Canada held that a trial judge should not assess the evidence or provide a
    direction to a jury that to an essential element of an offence had been proven
    beyond a reasonable doubt (at para. 31):

Hence, it is never the function of the judge in a jury trial to
    assess the evidence and make a determination that the Crown has proven one or
    more of the essential elements of the offence and to direct the jury
    accordingly. It does not matter how obvious the judge may believe the answer to
    be. Nor does it matter that the judge may be of the view that any other
    conclusion would be perverse. The trial judge may give an opinion on the matter
    when it is warranted, but never a direction.

[80]

Even
    if the essential elements seem obvious, it remains a determination for the
    jury.

Issue #3: On the assault
    charge, did the trial judge err in directing a verdict of guilty?

[81]

The
    parties consented to a directed verdict on the assault charge. The appellant
    now submits that defence counsel made a strategic decision on the expectation
    that self-defence would be before the jury. In essence, it was believed that if
    the appellant admitted his guilt on the first assault, it would enhance his
    credibility before the jury on his self-defence claim for the remaining counts.

[82]

The
    appellant argues that if this court allows the appeal on the first two counts,
    then the assault charge should also be sent back to trial as it is inextricably
    linked. In particular, because defence counsel made a strategic decision on the
    basis of a defence that should have been before the jury, it would be a
    miscarriage of justice to not order a new trial on the assault charge as well.

[83]

I
    accept that the strategic decisions on all charges were inextricably linked. In
    order to avoid a miscarriage of justice, the assault charge should be also be
    retried.

CONCLUSION

[84]

The
    appellants defence was never put to the jury. It was this: he held up the
    knife to defend Bishop, then to defend himself. He never intended to stab Burns
     it was an accident. Self-defence and accident can co-exist.

[85]

By
    incorporating s. 265(1)(b) into the first essential element of the offence of
    aggravated assault, without charging on self-defence, the trial judge
    effectively took away both self-defence and accident from the jury. The essence
    of the appellants defence was eliminated and there was no path to acquittal 
    even if the jury believed the appellants testimony.

[86]

On
    the weapons dangerous count, the jury members should have been told that to
    find the appellant guilty, they had to reject his evidence that he had the
    knife for the purpose of self-defence. There should not have been an assessment
    of the evidence or a direction that the Crown had proved the first two
    essential elements beyond a reasonable doubt.

[87]

Finally,
    to prevent a miscarriage of justice, the assault charge should also receive a
    new trial.

DISPOSITION

[88]

I
    would allow the appeal, set aside the jury verdict and order a new trial on all
    three counts.

Released: December 23, 2015

M.L. Benotto J.A.

I agree K. Feldman
    J.A.

I agree L.B. Roberts
    J.A.


