





CITATION:
R. v.
Scotney
, 2011 ONCA 251



DATE: 20110401



DOCKET: C46687



COURT OF APPEAL FOR ONTARIO



Feldman, Lang and LaForme JJ.A.



BETWEEN:



Her Majesty the Queen




Respondent



and



Troy Scotney



Appellant



Brian Snell, for the appellant



Alison Wheeler, for the respondent



Heard: September 23, 2010



On appeal from conviction entered by Justice Ian S. McMillan
          of the Superior Court of Justice, sitting with a jury, dated September 23,
          2005.



Feldman J.A.:

[1]

The appellant and the deceased were strangers who
    taunted each other into a fight that turned out to be fatal for the deceased.
    The appellant was charged with second degree murder after he stabbed the
    deceased with a knife during the fight. His only defence was self-defence. The
    trial judge charged the jury only on s. 34(2) of the
Criminal Code
. The jury rejected self-defence but convicted the
    appellant of manslaughter, having concluded either that he did not have the
    intent for murder, or because they accepted that the accused was provoked,
    thereby reducing murder to manslaughter.

[2]

On this appeal, the appellant says that the trial judge
    erred by failing to charge the jury that they could also find self-defence
    based on ss. 34(1) and 37 of the
Code
.
    I would dismiss the appeal. Although the appellant was entitled to have the
    jury consider every definition of self-defence that could be applicable, I
    agree with the trial judge that there was no air of reality to the application
    of s. 34(1), taking the facts at their highest. No one addressed s. 37 at
    trial. However, I agree with the respondent on appeal that there was also no
    air of reality to an application of s. 37. Nor did either section fill a gap
    left by s. 34(2) on this record.

Facts

[3]

The appellant testified in this case, as did several
    witnesses to the events. For the purposes of considering the availability of
    the various configurations of self-defence, we must take the best case for the
    appellant, which was his own description of the event. Where other witnesses
    differed, I have included some of their observations.

[4]

Intending to start a new life in Sault Ste. Marie, the
    appellant rented a room in a house and spent the next day, October 1, 2004,
    fishing. He returned at night carrying his gear, went to a pub then walked
    home. As he neared his new home, he encountered the deceased, McWatch (also
    known as Witzell), walking with his girlfriend. There were in fact two girls
    walking home with McWatch. The deceased was quite drunk (his blood alcohol
    ratio was later tested at 197 milligrams in 100 millilitres of blood), and was
    calling out to people as he walked along. When the appellant stepped off the
    sidewalk to let McWatchs group pass, McWatch called him a 
fuckn
nigger. (The appellant is not a black man.) The appellant recalled that he
    raised his hands and said I dont know what it is but I dont want anything to
    do with it. And McWatch responded: So thats how its going to be, eh?  Well, okay, well see about that.

[5]

According to the girls who were with McWatch, the
    appellant put his hand on McWatchs arm, the two men argued, the girls told
    McWatch to come on and he said: okay, I am not in the mood anyway. According
    to the appellant, McWatch put down the case of beer he was carrying and
    attacked the appellant from behind by smashing him on the back. The appellant
    said I dont want to fight you. I dont want anything to do with you, but
    McWatch struck him again on the back, then walked away toward the building
    where the appellant had just rented a room.

[6]

The appellant described McWatch as a much bigger man
    than himself. In fact he was taller but lighter than the appellant. He was also
    a lot younger: McWatch was 22 while the appellant was 38 years old. The girls
    described McWatch as a muscular guy who looked strong and like he was probably
    into sports.

[7]

The appellant then became concerned about his
    situation. His landlord had told him that there was a group of people who had
    partied the night before. He felt that McWatch could be part of a group that he
    should fear. He felt confused about his whole new situation and concerned for
    his safety in his new home and whether he would be able to stay there. He
    walked to a nearby parking lot where he retrieved his fishing knife from his
    duffle bag and put it inside the lining of his nylon jacket. He did not want to
    go home without a means of protection and testified that: It looked like there
    was going to be some trouble.

[8]

The appellant did not know exactly where McWatch had
    gone, but he thought he might be in the residence next door to his. On
    returning to his house, the appellant started yelling up, saying: I dont know
    where you are, you son of a bitch. Where you are and how many of you there are,
    ok, but you better, you know, just show yourselves. McWatch then came to a
    second story window and made some sarcastic comments. The appellant yelled
    obscenities and warned McWatch not to come near him again. He also called him a
    goof or a fool. That brought McWatch downstairs.

[9]

The appellant walked to the enclosed porch at the front
    of his residence. Marlene Patterson, who also lived in the house, was standing
    at the door. The appellant testified that he told her he had been attacked. As
    the deceased approached the house, he told her to get inside. He felt that
    this was going to be for real and that things were escalating out of
    proportion, fast.

[10]

McWatch came onto the porch and punched the appellant,
    cutting the inside of his mouth and cracking the bridge of his nose. He pulled
    the appellant off the porch. The appellant was bleeding profusely and
    half-stunned. When McWatch let go of him for a moment, the appellant pulled off
    his jacket as he feared that McWatch would otherwise immobilize him by pulling
    his jacket up over his head. The appellant fell and while he was on the ground,
    he removed the fishing knife from his jacket and hid it under his shirt.

[11]

After the appellant stood up, McWatch attacked him
    again, striking the appellant in his stomach and chest. The appellant fell,
    then crawled over to a truck where he raised himself up against the truck then
    brandished the knife at McWatch who was standing three feet away. He told
    McWatch to get the fuck off me and get off my property now.

[12]

In response, McWatch tried to get the knife. He threw
    his body weight into the appellant against the truck, held the appellants left
    arm, which held the knife, then struck the appellant twice more, once in the
    jaw and once in the chest. In response, the appellant stabbed McWatch in the
    chest by thrusting the knife in as hard as he could. He explained that by then
    he could barely physically support himself. He testified that:

I dont  I wasnt even thinking on a level anymore
    of, of what Im going to do or how Im going to do it. This is happening within
    seconds. I didnt  there
was no thoughts
. This was a
    fight.

[13]

McWatch then staggered back and collapsed, whereupon
    the appellant screamed out no, threw the knife away and approached the
    deceased to try to help him. He yelled toward the house for someone to call
    911,
then
called 911 himself on his cell phone,
    telling the operator that he had been attacked and that he defended himself,
    and he tried to administer CPR. He said he was in shock.

[14]

Upon later examination, the appellant had no broken
    bones, but the doctor felt he had suffered a facial smash and there were
    abrasions on his knee. The deceaseds blood was found on the appellants track
    pants, on the tailgate of the truck, and on the screen door of the porch, while
    the appellants blood was found on the porch.

[15]

The cause of death was hemorrhage due to a single
    penetrating stab wound that severed the aorta five centimetres above the heart.
    The pathologist identified an abrasion at the lower edge of the wound
    apparently caused by the hilt of the knife. There were also some areas of
    abrasion and a laceration on the right thumb.

The Trial

[16]

The appellant was charged with second degree murder.
    His defence was self-defence. At trial, the Crown submitted that none of the self-defence
    sections in the
Code
could apply and
    that self-defence was not available to the appellant. Defence counsel
    originally asked the trial judge to charge the jury on ss. 34(1) and 34(2) of
    the
Code
. The trial judge suggested,
    referring to this courts decision in
R.
    v.
Pintar
(1996), 30 O.R. (3d) 483 (C.A.), that
    only s. 34(2) should be left with the jury. Defence counsel agreed with the
    trial judges analysis, but asked for time to think about the issue. He did not
    renew his request. He also asked that the jury be charged on provocation,
    which, if accepted, would reduce the appellants culpability to manslaughter
    from murder. The trial judge accepted that submission. During its
    deliberations, the jury asked the court to clarify the definition of self-defence
    and what is not self-defence, following which, the trial judge repeated his
    charge on the law of self-defence. Ultimately, the jury convicted the appellant
    of manslaughter.

Issues

[17]

The appellant says that the trial judge made three
    errors of law that require this court to order a new trial:

(1)       The
    trial judge erred by failing to leave the jury with two further routes to self-defence,
    s. 34(1) and s. 37 of the
Code
;

(2)       The
    trial judge erred by failing to give a
Baxter
instruction as part of his charge on s. 34(2), that tells the jury that
    they should not weigh to a nicety the actions of the appellant in the heat of
    the moment;

(3)       The
    trial judge failed to sufficiently clarify the elements of self-defence in
    response to the question from the jury.

Relevant Code Provisions

34. (1)
Every
one who is
    unlawfully assaulted without having provoked the assault is justified in repelling
    force by force if the force he uses is not intended to cause death or grievous
    bodily harm and is no more than is necessary to enable him to defend himself.

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

(a)
he
causes
    it under reasonable apprehension of death or grievous bodily harm from the
    violence with which the assault was originally made or with which the assailant
    pursues his purposes; and

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

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.

(2)
    Nothing in this section shall be deemed to justify the wilful infliction of any
    hurt or mischief that is excessive, having regard to the nature of the assault
    that the force used was intended to prevent.

Analysis

Issue 1  Failure to leave ss. 34(1) and 37

[18]

In
Pintar
,
    this court set out a functional structure for trial courts to use to determine
    which of the self-defence provisions should be left with the jury in any
    particular case in order to avoid the confusion that consistently arose when
    all the sections were left, while at the same time giving the accused the
    maximum benefit of the available provisions. In articulating this approach,
    Moldaver J.A. carefully explained the latter point at p. 496:

Let me be
    clear about the underlying purpose of the functional approach in the context of
    self-defence.  The functional approach is not designed to remove
    legitimate cases of self-defence from the jury's consideration; nor is it meant
    to impinge upon the principle that an accused is entitled, as a matter of law,
    to have all defences put to the jury that are realistically available on the
    evidence.  Rather, its purpose is to relieve against some of the confusion
    and complexity that has plagued self-defence instruction by enabling trial
    judges to be somewhat more selective and proactive in the formulation of their
    instruction.  It is designed to encourage trial judges to pinpoint the
    real basis upon which the claim to self-defence rests and communicate that
    defence to the jury in as clear and comprehensible a fashion as possible.

[19]

I set out again the four part test from
Pintar
:


(
1
)       Consider the
    evidence carefully with a view to determining the essence of the claim to
    self-defence and the
Code
provision(s) realistically available to that
    claim.


(
2
)       To the extent that
    the evidence fails the air of reality test in respect of one or more of the
    constituent elements of a particular provision, that provision should not be
    left with the jury.


(
3
)       To the extent that
    the evidence clearly establishes one or more of the constituent elements of a
    particular provision, Crown counsel should be encouraged to admit the
    underlying facts and thereby avoid unnecessary legal instruction.


(
4
)       Where a particular
    provision affords the accused a wider scope of justification than a companion
    provision, the narrower provision should only be put to the jury if the
    evidence lends an air of reality to the factual underpinnings of that
    provision,
and
the provision somehow fills a gap unaccounted for in the
    justification afforded by the wider provision.

[20]

Moldaver J.A. explained that the purpose of the fourth
    part of the exercise is directed in particular to the relationship between ss.
    34(1), the narrower self-defence provision, and 34(2), the wider one. He
    observed that often in murder cases, although there may theoretically be a way
    that s. 34(1) could apply, when the evidence is examined practically and
    logically, it is difficult to imagine a scenario where the jury would reject
    self-defence under s. 34(2), but accept it under s. 34(1).

[21]

That was how the trial judge in this case analyzed the
    evidence in the pre-charge discussion with counsel, and came to the conclusion
    that only s. 34(2), the wider provision, and not s. 34(1), should be left with
    the jury. On appeal defence counsel renews the submission, ultimately abandoned
    by defence counsel at trial, that under s. 34(2), the jury may have
    rejected the requirement that the appellant was under a reasonable apprehension
    of death or grievous bodily harm from the deceased. In those circumstances he
    submits, s. 34(1) could fill the gap.

[22]

The problem with this approach is the one identified by
    the trial judge: there is no air of reality to the application of s. 34(1) to
    the evidence in this case. Under s. 34(1), the accused cannot have provoked the
    victims assault, he cannot have intended to cause death or grievous bodily
    harm, and the force cannot have been more than was necessary to enable him to
    defend himself.

[23]

Addressing only the third requirement, since the
    appellant deliberately stabbed the deceased forcefully in the chest with a
    knife, if he did not reasonably apprehend that he was in danger of death or
    grievous bodily harm from the deceased, it would not be logical to say that the
    force he used was not more than was necessary to defend
himself
.

[24]

There are also serious problems with the first and
    second requirements. Taking the case at its highest for the appellant, the
    deceased had returned to his room when the appellant yelled up at him, taunting
    him, swearing at him and eventually calling him a name. Counsel submits that
    there was no invitation to fight. However, it was the appellant who instigated
    a reaction from the deceased which the jury could well have viewed as provoking
    the assault by the deceased.

[25]

Finally, under s. 34(1), the appellant cannot have
    intended to cause death or grievous bodily harm. I first want to address the
    case law that states that where there is an issue whether the accused intended
    to cause death or grievous bodily harm, the trial judge should instruct the
    jury on both ss. 34(1) and (2). (See
R.
    v. Baxter
(1975), 27 C.C.C. (2d) 96 (C.A.) at p. 111.)

[26]

In my view, this direction was intended to apply, as it
    states, where there is an issue, raised by the evidence, regarding the intent
    of the accused. Both in
Baxter
, as
    well as other case law that has followed it on this point, such as
R. v. Mulligan
(2006), 80 O.R. (3d) 537 (C.A.),
    where the appellant said his rifle discharged accidentally, and
R. v. Kong
, [2006] 2 S.C.R. 347, where the
    appellant acknowledged that he waved a knife possibly touching the victim but
    did not stab him, the evidence of the force used by the accused was capable of
    being construed as an unintended response. For example, in
Baxter,
although the accused fired many shots from his shotgun, on
    his version of events, he was shooting over the victims car to scare them off
    and did not intend to shoot anyone.

[27]

In this case, although the appellant testified that when
    he brandished the knife it was not his intention to stab McWatch in the first
    place but just to tell him to get off of him, after McWatch hit him twice more
    he stabbed McWatch as hard as he could in the chest. On that evidence, no issue
    could be raised regarding the intent to cause grievous bodily harm. The
    analysis is similar to this courts assessment in
R. v. Tallen
(1995), 24 O.R. (3d) 77 (C.A.) at p. 81 where the
    court explained:

At no time did the appellant testify that he did
    not intend to stab Copeland. Further, the appellant used his weapon, knowing
    that the metal part of it was approximately ten inches in length. The evidence
    of the pathologist Dr. Sengupta was that the weapon would have had to go into
    Copelands body eight or ten centimetres, which would mean approximately
    two-thirds of the blade would have gone into the body. Dr. Sengupta testified
    that the force used would have to have been considerable for the blade to pass
    through the lower front chest wall, the diaphragm, the liver, and into the
    aorta. While the above-noted evidence might fall short of establishing that the
    appellant did not intend to cause death, it is incapable of raising an
    evidentiary foundation that he did not mean to cause grievous bodily harm. The
    jurys finding that the appellant was guilty of manslaughter supports the contention
    that the jury found that the appellant intended to stab Copeland. Accordingly,
    a proper instruction could have been limited to s. 34(2) of the
Code


[28]

The fact that appellants trial counsel, who took the
    opportunity to consider the issue overnight, did not renew his request to leave
    s. 34(1), is a strong indicator that to do so would have caused confusion and
    not benefitted the appellant. Of course the trial judge had come to the same
    conclusion. In my view, he made no error in doing so.

[29]

At trial, no one raised in pre-charge discussions the
    potential applicability of s. 37. On appeal, counsel submits that because s. 37
    can apply even when the accused intended death or grievous bodily harm and did
    not reasonably apprehend death or grievous bodily harm to
himself
,
    that section could fill a gap if the jury rejected self-defence under ss. 34(1)
    and (2).  Again, there is no air of
    reality to the suggestion that the appellants act of deliberately and
    forcefully stabbing the deceased could be viewed as proportional if he did not
    reasonably perceive himself to be in danger of death or grievous bodily harm.

[30]

In reply submissions, counsel suggested that the jury
    could also have rejected s. 34(2) self-defence on the basis that there was no
    unlawful assault by McWatch, in which case s. 37 could fill the gap. Examining
    the Crowns closing, it is true that the Crown tried to minimize the deceaseds
    role in the fight, but it was in the context of how threatened the appellant
    really felt for his safety. There was no serious issue that the deceased had
    come down from his room to fight the appellant. Although the lawfulness of the
    assault by the deceased was left as the first element under s. 34(2) for the
    jury to decide, it was not an issue open to serious doubt on the record.

[31]

In my view, counsel and the trial judge made no error
    by not referring to s. 37.

Issue 2  Failure to give a
Baxter
instruction

[32]

In
Baxter
,
    Martin J.A. made the following statement:

[I]n deciding whether the force used by the accused
    was more than was necessary in self defence under both s.  34(1) and 34(2), the jury must bear in mind
    that a person defending himself against an attack, reasonably apprehended,
    cannot be expected to weigh to a nicety, the exact measure of necessary
    defensive action. [Citations omitted.]

[33]

This court recently confirmed in
R. v. Onigbinde
(2010), 251 C.C.C. (3d) 15 (C.A.) that it is an
    error of law not to give a
Baxter
instruction where either s. 34(1) or 34(2) is relied on.

[34]

The trial judge in this trial, which was held in 2005,
    four years before this courts decision in
Onigbinde
,
    followed Watts Manual of Criminal Jury Instructions and did not include a
Baxter
instruction as part of the charge
    on s. 34(2). The instruction was not requested, nor was any objection taken. Although
    it is an error of law not to give the instruction, the seriousness and
    significance of the error must be assessed in each case to determine whether
    the error would have had any effect on the jurys consideration of the issues.
    In
Onigbinde
and in
R. v. Hebert
, [1996] 2 S.C.R. 272, there
    were other serious errors requiring the courts to order a new trial. Neither
    court stated that the
Baxter
error
    alone would have required that result. Nor was a new trial ordered in
Baxter
itself.

[35]

In my view in this case, the absence of a specific
Baxter
instruction was mitigated by other
    aspects of the charge. One was the trial judges review of the evidence the
    jury could consider as part of their

assessment
    of whether the appellant acted in self-defence as defined. Although the trial
    judge properly balanced the appellants version of events with the observations
    of other witnesses regarding who had the upper hand in the fight, the trial
    judges description of the appellants testimony would have made it clear to
    the jury that they could accept his reactions as being legitimate ones for the
    purposes of the defence. For example, as part of the evidence going to whether
    the appellant reasonably believed Mr. McWatch was going to inflict death or
    grievous bodily harm on him, which evidence the trial judge told the jury was
    also relevant to whether the appellant reasonably believed he could not
    otherwise save himself, the trial judge charged the jury as follows:

Troy Scotney testified that he brandished the knife
    to ward off Trevor Witzell, and that Troy Scotney was in fear for his life. He
    was in fear because of what he had suffered in other cities. Trevor Witzell was
    fighting him for the knife. The situation he described as a nightmare. It was
    dark, raining heavily, and to the knowledge of the accused, there were no other
    persons in the vicinity. The two were grappling for the knife, and in
    examination-in-chief, the accused testified that he was struck again by Trevor
    Witzell. Troy Scotneys repeated efforts to warn off Trevor Witzell were
    unsuccessful.

[36]

Also, the legal instructions explaining how the jury
    should approach the issue of whether the appellant reasonably believed he could
    not otherwise save himself,  although
    they did not specifically include the
Baxter
wording, would have indicated to the jury that the subjective component was a
    state of mind of the appellant and that the reasonableness aspect superimposed
    only the attributes of an ordinary person, not an extraordinarily calm person
    who had the fullness of time to gauge an appropriately proportional reaction.

[37]

I quote those instructions in full:

The third question: Did Troy Scotney reasonably
    believe that he could not otherwise save himself from being killed or seriously
    injured by Trevor Witzell?

This question also requires you to consider not
    only Troy Scotneys state of mind when he used force against Trevor Witzell,
    but also what a reasonable person would believe in the same circumstances.

Did Troy Scotney believe that he could not save
    himself from being killed or seriously injured by Trevor Witzell other than by
    killing or seriously injuring Trevor Witzell? Would a reasonable person have
    the same belief in the same circumstances?

Belief is a state of mind, Troy Scotneys state of
    mind. To determine whether Troy Scotney believed that he could not save himself
    from being killed or seriously injured by Trevor Witzell, other than by killing
    or seriously injuring Trevor Witzell, you should consider all the evidence. You
    should consider what Troy Scotney and Trevor Witzell did or did not do; how
    they did or did not do it; and what they said or did not say.

You should look at their words and conduct before,
    at the time and after Troy Scotney used force against Trevor Witzell. All these
things,
and the circumstances in which they happened
    may shed light on Troy Scotneys state of mind at the time. They may help you
    decide whether Troy Scotney believed that he could save himself from death or
    serious injury only by killing or seriously injuring Trevor Witzell. Use your good
    common sense.

Troy Scotneys belief must also be reasonable in
    the circumstances as Troy Scotney knew or honestly believed them to be. Would a
    reasonable person in those circumstances have a similar belief in the need to
    kill or seriously injure Trevor Witzell to preserve himself from a similar
    fate?

A reasonable person is sane and sober, not
    exceptionally excitable, aggressive, or fearful, a person who has the same
    powers of self-control that we expect our fellow citizens to exercise in
    society today.

The danger that Troy Scotney was in, or honestly
    and reasonably believed
himself
to be in does not have
    to be immediate. The immediacy, or otherwise of it, however, is a factor for
    you to consider in assessing the honesty and reasonableness of Troy Scotneys
    belief.

The issue involved in this question is not whether
    the only actual way for Troy Scotney to save himself from death or serious
    injury from Trevor Witzell was to kill or cause serious injury to Trevor
    Witzell. The issue is whether Troy Scotney honestly and reasonably believed
    that to do so was the only way to save
himself
from a
    similar fate.

[38]

To summarize on this ground of appeal: although it was
    an error not to give the
Baxter
instruction,
    in light of the circumstances that no request or objection was made by counsel
    at the time, and that the other contents of the charge sufficiently indicated
    to the jury that self-defence was available on this record, depending how they
    viewed the evidence, I would not give effect to this ground of appeal. In my opinion,
    no substantial wrong or miscarriage of justice was occasioned by the error in
    this case.

Issue 3 
    Whether the trial judge adequately answered the jurys question on self-defence

[39]

During their deliberations, the jury asked the
    following question:  Please define
    unlawful death for us again. Could we have it in writing as mentioned in
    question number two? After discussing the meaning of the question with
    counsel, the court called in the jury and asked for clarification. After
    retiring, the jury returned and the foreperson explained:  What the jury would like to clarify is the
    definition of self-defence and what
is not self-defence
    according to the law
. The court asked further questions including
    whether the jury needed the evidence repeated. The foreperson responded, no,
    that they knew the evidence. With the acquiescence of counsel, the trial judge
    then recharged on self-defence giving the full legal instruction but without
    the review of relevant evidence.

[40]

The appellant submits that this answer did not provide
    the required assistance to the jury contemplated by Cory J. in
R. v. S
.(
W.D.)
,
    [1994] 3 S.C.R. 521, at pp. 528 and 530. In particular, he raises again that
    the recharge should have included reference to ss. 34(1) and 37 and a
Baxter
instruction.

[41]

I would not give effect to this ground of appeal. The
    trial judge specifically addressed the concern raised by the jury by repeating
    the portions of the charge that dealt with the definition of self-defence.
    Counsel agreed with this approach. Having decided to
leave  s
. 34(2) as the only configuration of self-defence
    that had an air of reality, there was no basis for the court to charge on
    another section in answer to the question from the jury. What I have already
    discussed regarding the
Baxter
issue
    also applies in the context of answering the jurys question.

Conclusion

[42]

I would dismiss the appeal.

RELEASED:

APR -1 2011                                             K. Feldman J.A.

KF                                                               I
    agree S. E. Lang J.A.

I
    agree H.S. LaForme J.A.


