



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Frank
,









2012 BCCA 2




Date: 20120103

Docket: CA038608

Between:

Regina

Respondent

And

Martin Gene Frank

Appellant




Before:



The Honourable Mr. Justice Lowry





The Honourable Mr. Justice Groberman





The Honourable Madam Justice Bennett




On appeal from the
Supreme Court of British Columbia, April 10, 2010,
(
R. v. Frank
, Williams Lake No. 28121-4)
(Oral Ruling on Defence of Self-Defence pronounced April 9, 2010)




Counsel for the Appellant:



Brock Martland

Matthew Scott





Counsel for the Respondent:



Michael J. Brundrett





Place and Date of Hearing:



Vancouver, British
  Columbia

November 18, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 3, 2012









Written Reasons of the Court








Reasons for Judgment of the Court:

[1]

Mr. Frank appeals his convictions before a judge and jury on one count
of committing mischief in relation to property (
Criminal Code
, R.S.C.
1985, c. C-46, s. 430(4)), one count of possessing a firearm for a
purpose dangerous to the public peace (
Criminal Code
, s. 88), and
one count of using a firearm while committing an indictable offence (
Criminal
Code
, s. 85).  The appellant contends that the trial judge erred in
failing to leave the defence of self-defence with the jury.

Factual Background

[2]

The charges arose out of events which occurred on April 14, 2007. 
During the afternoon, the accused was at a party at the residence of a young
man by the name of Dylan Dick, on the Anaham Reserve near Alexis Creek.  A
neighbour, Nathan Sam (who we will refer to as Nathan in order to distinguish
him from his father, Theodore Sam, who we will refer to as Mr. Sam) got into
an altercation with Mr. Dick over a beer.  It appears that during the course of
the ensuing scuffle, Mr. Dick used a stick to hit Nathan.  Nathan fled, having
taken the worst of the battle.  As he ran back to his residence, which was
across the street from Mr. Dicks residence and about 100 metres away, someone
 not Mr. Frank  grabbed a gun and shot at him, but missed.

[3]

A short time later, Nathan returned, accompanied by Mr. Sam and a third
man.  The three caused damage to the Dick residence and smashed up vehicles
parked outside.  At least one of the three had a firearm, and there was
evidence to the effect that he used it to cause damage.

[4]

The people at the Dick residence contacted the police, who eventually
attended and arrested Nathan and Mr. Sam.  Nathan was held by the police, but
Mr. Sam was released on conditions, and was returned to his residence at 9:45
p.m.

[5]

Shortly after Mr. Sams return, Mr. Frank, Mr. Dick and a 13-year-old
girl were standing on the porch of the Dick residence.  Mr. Sam armed himself
with a rifle and took a shot at them.  They ran back into the house in fear. 
Once inside, the girl collapsed on the floor, and the others who were present
realized that she had been shot and seriously injured.

[6]

At that point, the scene inside the Dick residence was one of confusion
and panic.  Someone called 9-1-1, but it was quickly decided that waiting for
an ambulance might not be the best plan in view of the girls injury.  Mr. Dick
decided to drive her to the first aid post in Alexis Creek.  There was some
difficulty finding the keys to the only serviceable truck on the property, but
eventually, Mr. Dick succeeded in getting into the vehicle and taking the girl
to the first aid post.  Mr. Frank remained in the Dick residence.

[7]

At some point  the evidence as to whether it was immediately or some
hours later is unclear  Mr. Frank took possession of a firearm.  Mr. Frank did
not testify at trial, but his statement to the police was in evidence. 
According to that statement, Mr. Frank obtained a 12-gauge shotgun from Mr.
Dick.  Mr. Frank said that he fired two shots into the air while standing near
the fence line of the Dick property.  He described the shots as being [j]ust
to let em know that we had a gun, too  just so he doesnt try and come up to
us.  He told police that he was apprehensive of another attack, and that the
shots were, in effect, warning shots to deter further aggression by Mr. Sam.

[8]

Mr. Frank agreed with the police that he had told others that he had
gone to Mr. Sams residence and shot at the door.  He said, however, that his
statements were untrue (he used a somewhat more vulgar expression), and
intimated that he had merely been bragging.

[9]

As the police continued to question Mr. Frank, he admitted that he had
taken a single shot at the Sam residence, hitting the back corner of it.  He
stated that he had left the Dick residence, and gone into an open field between
Mr. Sams house and the neighbouring house.  From there (a distance of about 95
metres from the Dick residence) he shot towards the rear corner of the Sam
residence.

[10]

The defence called Mr. Franks brother for the purpose of showing that
Mr. Frank had a poor memory and was easily confused.  His mother also testified
to having consumed alcohol during her pregnancy with him.  It was the defence
position that the latter part of Mr. Franks statement was unreliable, and Mr.
Franks counsel invited the jury to accept only the part of Mr. Franks
statement in which he said he had fired two warning shots into the air.

[11]

There was extensive damage to the Sam residence from gunshots.  The
Crown theory was that Mr. Frank had shot at the north side of the residence
(the area furthest from the Dick residence) several times.

[12]

The defence asked the trial judge to leave the defence of self-defence
to the jury.  While it suggested several provisions of the
Criminal Code
that might be left with the jury, it is agreed on this appeal that the relevant
provision is s. 37:

37. (1) Every one is justified in
using force to defend himself or anyone under his protection from assault, if
he uses no more force than is necessary to prevent the assault or the
repetition of it.

[13]

The trial judge ruled that there was no air of reality to such a
defence.  In doing so, he referred to the decisions of the Supreme Court of
Canada in
R. v. Cinous
, [2002] 2 S.C.R. 3, and
R. v. Osolin
,
[1993] 4 S.C.R. 595.  He cited, in particular, paragraphs 53 and 54 of
Cinous
:

[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. See
Osolin
,
supra
;
Park
[
R. v.
Park
, [1995] 2 S.C.R. 836
]
.  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. There is no requirement
that the evidence be adduced by the accused. See
Osolin
,
supra
;
Park
,
supra
;
Davis
[
R. v. Davis
, [1999] 3 S.C.R. 759].

[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. See
Finta
[
R.
v. Finta
, [1994] 1 S.C.R. 701];
R. v. Ewanchuk
, [1999] 1 S.C.R. 330.
The trial judge does not make determinations about the credibility of
witnesses, weigh the evidence, make findings of fact, or draw determinate
factual inferences. See
R. v. Bulmer
, [1987] 1 S.C.R. 782;
Park
,
supra
.  Nor is the air of reality test intended to assess whether
the defence is likely, unlikely, somewhat likely, or very likely to succeed at
the end of the day.  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.

[14]

The judge differentiated between self-defence
and retaliation where a person is not in danger:

[24]      Self-defence
is a legal justification explaining and excusing the results of a persons
actions.  It is not to be used to cloak a retaliatory strike in circumstances
where the accuseds self-preservation is not in peril.  In other words, acts of
retaliation do not amount to self-defence.  In making this observation, I refer
to the Supreme Court of Canada decision in
Brisson v. The Queen
, [1982]
2 S.C.R. 227.

[15]

He then analyzed the case as follows:

[29]      While there is evidence to support the position
that subjectively Mr. Frank believed he needed to arm himself and fire the
weapon as a means of defending himself and the others in the Dick residence
against another possible attack,
I find the evidence fails to establish that
he held this belief on reasonable grounds
.

[30]      In reaching this decision, it must be kept in mind
the defence of self-defence would only arise in the present circumstances as a
defence to the mischief charge if the jury rejected Mr. Franks denial that he
shot at the Sam residence, and found that he actually did shoot at and strike
the house.  The evidence on that point would have Mr. Frank leaving the
security of the Dick house after the passage of a period of time since the
single shot was fired at the [Dick] residence, going out into the dark of
night, in an isolated area, not knowing where Mr. Sam was, and proceed 95
metres or so across the street to an open area and shoot at Mr. Sams house
multiple times.

[31]      Asking myself whether there is some evidence
reasonably capable of supporting an acquittal on the mischief charge, I find
myself answering in the negative.
On all of the evidence, it would appear
the Crowns submission that Mr. Frank was not objectively as scared as he
claims he was and was not as concerned about his own protection or about the
others in the house whom he abandoned is well-founded.

[32]      I agree with the Crowns submission that Mr.
Franks conduct of arming himself with a shotgun, going over to Mr. Sams
property, raising the firearm towards Mr. Sams house, and discharging the
weapon a number of times, all while not knowing where Mr. Sam was or if he or
others were in or around the residence, can be objectively characterized as a
calculated retaliation, well after the need for self-defence existed, and
therefore eliminates his recourse to ... s. 37 of the
Code
.  I again
make reference to the
Brisson
decision of the Supreme Court of Canada.

[Emphasis added.]

[16]

There are errors in the judges reasoning.  The underlined statements
indicate that the trial judge engaged in weighing the evidence.  It was not his
role to do so in determining whether there was an air of reality to the defence
of self-defence.  He also erred in referring to the evidence as being that Mr.
Frank shot at Mr. Sams house multiple times and a number of times.  The
judge was required, for the purpose of his ruling, to take the evidence at its
most favourable to the accused.  There was evidence, in Mr. Franks statement,
that he had taken only a single shot at the house.  The judges statement that
the accused shot at the house well after the need for self-defence existed
also represents a finding of fact that trenched on the jurys role.

[17]

We must ask ourselves whether these errors serve to vitiate the judges
determination that there was no air of reality to the defence of self-defence.  In
our view they do not.

[18]

The Crown took the position that Mr. Frank could only be convicted of
mischief and use of a firearm in the commission of an indictable offence if the
jury found that Mr. Frank went over to the Sam house and shot at it.  The judge
appears to have accepted that Mr. Frank could not be convicted if he had only
taken warning shots into the air from the Dick property.

[19]

The only evidence capable of establishing that Mr. Frank shot at the Sam
residence was evidence that would have required him to take deliberate steps to
leave a place of comparative safety and proceed for some considerable distance
in the darkness towards a place of greater danger.  There was no explanation as
to how such steps would have assisted in preventing a further assault; rather,
the only rational explanation available was the one postulated by the judge:
this could only be characterized as calculated retaliation.

[20]

While they could, perhaps, have been more explicit, the judges instructions
to the jury made it clear that Mr. Frank could not be convicted of mischief in
relation to property unless the jury was satisfied beyond a reasonable doubt
that Mr. Frank had shot at and caused damage to the Sam residence:

Now, there are several ways in
which a person may interfere with another persons property, and they are
listed in s. 430 of the
Code
, and I set that out for you earlier in my
reasons [sic].  But the only way that the Crown is alleging  because there are
a number of ways you can commit mischief  the only way that the Crown is
alleging is that by causing damage, there was damage to the door area on the
north side of the house.

And as I say ..., the Crown says
Mr. Frank caused damage to Mr. Sams house when he shot at it with a firearm
and put holes or marks in the house on the night of April 14th, 2007, and more
particularly, on that north side.

If you are not satisfied beyond
a reasonable doubt that Mr. Frank interfered with Mr. Sams property, that is,
caused damage to Mr. Sams house by discharging a firearm at it, you must find
Mr. Frank not guilty.  Your deliberations on Count number 1 on the indictment
would then be over.  If, however, you are satisfied beyond a reasonable doubt
that Mr. Frank damaged Mr. Sams property there then you must go on to address
the next question: Was Mr. Franks conduct wilful? ...

Crown counsel may prove that Mr.
Franks conduct was wilful in either of two ways.  Mr. Franks conduct was
wilful if he meant to damage Mr. Sams house in the way that I have just
described.  Mr. Franks conduct will also be wilful if he meant to do something
that he knew would probably damage the property in the way that I have
described to you but went ahead and did it anyway; being reckless as to whether
the damage to the property happened as a result.



If you are satisfied beyond a
reasonable doubt that Mr. Frank is guilty of mischief in relation to property,
the offence charged in Count 1 of the indictment, you go on to answer the next
question:  Did Mr. Frank use a firearm?  As I have said to you, a firearm is a
gun, a weapon with a barrel that can discharge a shot, bullet, or other
projectile, and can cause death or serious bodily harm to another person.

In
the present case, the Crown counsel alleges Mr. Frank discharged a firearm
towards Mr. Sams residence, thereby causing damage to that property.

[21]

These instructions made it clear that Mr. Frank could not be convicted of
either mischief or using a firearm while committing an indictable offence unless
the jury was satisfied beyond a reasonable doubt that he had crossed the
street, walked 95 metres toward the Sam house, and shot at and hit it.

[22]

Mr. Frank could not be convicted for taking warning shots into the
air, or, indeed, for taking any shots from the Dick property.  He could only be
convicted for taking the shots that hit the north side of the Sam house, which
could not have been hit from the Dick property.  There is no air of reality in
the suggestion that such shots could have been taken in self-defence.

[23]

The judges instructions on the count of possession of a weapon for a
purpose dangerous to the public peace (Count 3) were less adequate.  The judge
set out the Crowns position as follows:

With respect to count number 2
on the indictment, the Crown position is that Mr. Frank possessed the weapon
for the purpose of shooting at the Sam residence and that such a purpose was
dangerous, not only to anyone in the Sam residence but also to anyone else
around the property.  [Emphasis added.]

[24]

The judges instructions, however, were not in accordance with this
position.  Instead, he said:

Crown counsel does not have to
prove that Mr. Franks purpose in taking possession of the weapon was to do a
specific act or to use it in a particular way.  There is no requirement that
Mr. Frank actually use the weapon, but if he does so, that fact, the fact it
was used, how it was used, and the circumstances in which Mr. Frank used it,
may help you decide Mr. Franks purpose in having the weapon in the first
place.

To
decide what Mr. Franks purpose was, you should consider all of the
circumstances of his possession of the weapon.  You should, once again, take
into account what he did or did not do; what he did or did not [do] to or with
it; and what he said or did not say.

[25]

This instruction left it open to the jury to convict Mr. Frank on Count
3 even if it found that he only fired the gun in the air from his own property.

[26]

On Count 3, the judge should either have instructed the jury in
accordance with the position taken by the Crown or left the defence of
self-defence to the jury.  If Mr. Franks purpose in possessing the weapon was
only to fire warning shots, it could not be said that the defence of
self-defence lacked an air of reality.

[27]

Given that we find the judges instructions with respect to Count 3
erroneous, we must consider whether s. 686(1)(b)(iii) of the
Criminal
Code
applies in respect of that count:

686. (1) On the hearing of an appeal against a conviction or
against a verdict that the appellant is unfit to stand trial or not criminally
responsible on account of mental disorder, the court of appeal

...

(b) may dismiss the appeal where

...

(iii) notwithstanding that the
court is of the opinion that on any ground mentioned in subparagraph (a)(ii)
the appeal might be decided in favour of the appellant, it is of the opinion
that no substantial wrong or miscarriage of justice has occurred, ...

[28]

The jury was instructed that in order to convict Mr. Frank on Count 1 (mischief),
it had to be satisfied beyond a reasonable doubt that he shot at and damaged
Mr. Sams house.  As the jury convicted Mr. Frank of that offence, it is
apparent that it was left in no doubt that Mr. Frank took shots at the Sam
residence.  The jury must have found that the purpose for which Mr. Frank possessed
the weapon was to shoot at the Sam residence.  Given this finding, we are
satisfied that there was no substantial wrong or miscarriage of justice with
respect to the Count 3, and that the verdict would necessarily have been the
same if proper instructions on that count had been given.  We would apply the
curative provision in respect of that count.

[29]

In the circumstances, the appeal is dismissed.

The Honourable Mr. Justice Lowry

The Honourable
Mr. Justice Groberman

The Honourable
Madam Justice Bennett


