



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Batson, 2015 ONCA 593

DATE: 20150902

DOCKET: C54935

Laskin, Feldman and Simmons JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tyler Lee Batson

Appellant

Howard L. Krongold, for the appellant

Grace Choi, for the respondent

Heard: February 5, 2015

On appeal from the conviction entered on February 18,
    2011, by Justice Albert J. Roy of the Superior Court of Justice, sitting with a
    jury.

Feldman J.A.:

[1]

The appellant went to an apartment to make a small purchase of
    marihuana. Because he had once been attacked when purchasing drugs, he carried
    a concealed loaded handgun when he went to make a drug purchase. In this case,
    he pulled out his gun and soon after shot and killed a man at the apartment. He
    claimed the death was unintentional and that he shot the man in self-defence.
    He was charged with first degree murder. The trial judge charged the jury on
    self-defence only under s. 34(2) of the
Criminal Code
, R.S.C. 1985, c.
    C-46. The jury convicted the appellant of second-degree murder.

[2]

The appellant raises two grounds of appeal: 1) whether the trial judge
    erred in his charge on s. 34(2); and 2) whether the trial judge erred by
    failing to also charge on self-defence under s. 35 of the
Code
.

[3]

For the reasons that follow, I would not give effect to either ground of
    appeal.

Facts

[4]

The story of the events leading to the shooting came from four
    witnesses: the appellant; his girlfriend, Tashi Simpson; Ms. Simpsons friend,
    Agatha Krakowski; and Ms. Krakowskis friend, Christelle Dory.

[5]

Ms. Simpson and the appellant testified that on the day of the shooting,
    December 17, 2008, Ms. Simpson had arranged for the appellant to visit Ms.
    Krakowskis apartment to buy $20 worth of marihuana. Ms. Krakowski had told Ms.
    Simpson that her friend Paul Marcelus was at her apartment, but Ms. Simpson
    testified she did not mention this detail to the appellant. The appellant also
    said he did not know ahead of time that Mr. Marcelus would be there.

[6]

The appellant did not know Mr. Marcelus personally, but a few months
    earlier he had seen his cousin talking to him. When he asked his cousin whom he
    was talking to, his cousin told him that it was Polo, a guy who had once
    ripped him off. The appellant assumed the rip-off had occurred during a drug
    deal.

[7]

Before the appellant left for Ms. Krakowskis apartment on the day of
    the shooting, he took his loaded handgun out of the trunk of his car and put it
    into the front pocket of his jeans. The gun had no trigger safety and could be
    fired rapidly. He testified that although he had obtained the gun several years
    earlier, he had never unloaded it or even brandished it at anyone before.
    However, because he had been attacked during a drug purchase when he was 17 (he
    was 24 at the time of the shooting), he usually brought the gun when he was
    buying drugs from someone he did not know. The appellant testified that he
    brought the gun along on this occasion as a precaution because Ms. Simpson told
    him that someone would be dropping the drugs off to Ms. Krakowskis apartment.

[8]

The appellant testified that when he entered the small apartment, he saw
    a man sitting on the couch and assumed it was the person who was going to sell
    him marihuana. When he realized that the man was Mr. Marcelus, he was surprised
    and became concerned that Mr. Marcelus was going to rip him off. The appellant
    asked Mr. Marcelus if he was Polo. Mr. Marcelus said he was, and the appellant
    then said: I heard that you ripped off my cousin.

[9]

According to the appellant, Mr. Marcelus reacted by dropping the cell
    phone he was holding, quickly rising from the couch, and making a screwface
    (tilting his head to the side and sucking his teeth), which is a sign of
    disrespect in the Caribbean community. Mr. Marcelus also reached behind his
    back as if for something in his back pocket. The appellant thought Mr. Marcelus
    was angry and was reaching for a weapon. A small knife was later discovered in
    Mr. Marceluss back pocket.

[10]

The
    appellant, who was approximately the same size as Mr. Marcelus, then drew his
    gun, pointed it down toward Mr. Marceluss waist, and took a step back. He
    testified that he pulled out the gun to deter Mr. Marcelus and that he was
    trying to leave by backing out of the apartment. At that point, Ms. Krakowski
    and Ms. Dory ran out of the apartment. The appellant heard the door hit the
    wall and turned around, at which point Mr. Marcelus grabbed the gun and pulled
    on it. When the appellant squeezed the gun to keep hold of it, it accidentally
    discharged. When Mr. Marcelus kept trying to yank the gun away, the appellant
    fired a second time.

[11]

The
    appellant testified that his hands were sweaty and the gun was slipping. He
    thought he was going to die. At that point, he screamed for Mr. Marcelus to let
    go of the gun, but Mr. Marcelus held strong. The appellant decided that he was
    not prepared to let go of the gun and run out of the apartment because of the
    risk that Mr. Marcelus would seize the gun and shoot him. He decided he had to shoot
    again and hope that Mr. Marcelus would let go. He fired two more shots, and Mr.
    Marcelus fell back onto the couch. After Mr. Marcelus let go of the gun and
    fell backwards, the appellant ran out of the apartment, drove home, changed his
    clothes and eventually went to his night shift job. He was arrested during his
    coffee break. Under interrogation at the police station, he denied any involvement
    in the shooting.

[12]

In
    cross-examination, the appellant claimed he did not want to shoot the gun or
    hurt Mr. Marcelus. He said that before the first shot, which went off
    accidentally, he had no intention of firing the gun. However, when Mr. Marcelus
    refused to let go, the appellant thought that Mr. Marcelus would kill him if he
    got the gun.

[13]

There
    was some other evidence about the sequence of events. Ms. Dory was uncertain
    whether the appellant pulled out the gun while Mr. Marcelus was sitting on the couch
    or as he was attempting to rise from the couch. However, she said that as soon
    as Mr. Marcelus agreed he was Polo, the appellant pulled out the gun and said:
    I heard you robbed my  cousin. She also said that she and Ms. Krakowski ran
    out before the gun was fired and that she heard the shots when she was outside
    the apartment.

[14]

Ms.
    Krakowski testified that she saw the appellant fire the first shot after he
    asked Mr. Marcelus if he had robbed his cousin. However, she did not say this
    in her preliminary inquiry testimony.

[15]

There
    was expert forensic evidence at trial regarding the gunshots. Mr. Marcelus had
    two gunshot wounds on his hands and two on his torso, as well as a graze injury
    on the front of his left leg. There was also some powder on one hand suggesting
    close proximity to the gun barrel when it discharged. At the scene, the bullets
    had gone through the couch to the floor and one had gone out the window behind
    the couch. The forensic analysis could not account for the order of the firing
    of the shots.

[16]

Closed
    circuit videotape from the lobby of Ms. Krakowskis apartment showed the
    appellant waiting to go up the elevator at 6:41 p.m. Three minutes later, at
    6:44 p.m., he was seen leaving the building.

[17]

The
    appellant was charged with first degree murder. The Crowns theory was that the
    appellant knew from Ms. Simpson that Mr. Marcelus would be at Ms. Krakowskis
    apartment, and that he went there to kill Mr. Marcelus because Mr. Marcelus had
    ripped off the appellants cousin. The defence position was that the appellant
    went to Ms. Krakowskis apartment to make a small drug purchase and did not
    expect to see Mr. Marcelus there. The confrontation between the appellant and
    Mr. Marcelus was not premeditated, but escalated into a life-and-death struggle
    for the gun that eventually resulted in the appellant shooting and killing Mr.
    Marcelus in self-defence.

Issues

[18]

The
    appellant raises two issues on the appeal. The first concerns the trial judges
    charge on s. 34(2). The issue is whether the trial judge erroneously left the
    jury with the impression that the s. 34(2) defence was not available to the
    appellant if Mr. Marcelus was acting in lawful self-defence when he assaulted
    the appellant. The appellant submits that the jury ought to have been told that
    the unlawful assault requirement in s. 34(2) would be satisfied if the
    appellant reasonably believed he was being unlawfully assaulted, even if Mr.
    Marcelus was acting in lawful self-defence.

[19]

The
    second issue on the appeal is whether the trial judge erred by failing to also
    leave self-defence under s. 35 of the
Code
with the jury.

Analysis

(1)

Did
    the trial judge err in his charge to the jury on s. 34(2) in his description of
    the requirement of an unlawful assault?

Self-defence under s. 34(2)

[20]

The
    self-defence provisions of the
Code
in force at the time of the
    offence and trial have been repealed and replaced and are no longer in effect:
Citizens
    Arrest and Self-defence Act,
S.C. 2012, c. 9, s. 2. Section 34(2) of the
Code
,
    in force at the time of the offence and the trial,  read as follows:

34(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. [Emphasis
    added.]

[21]

Case
    law from this court and the Supreme Court of Canada has explained that the
    requirement of an unlawful assault by the victim is satisfied if there was an
    actual unlawful assault, or the accused reasonably believed that he was being
    unlawfully assaulted:
R. v. Pétel,
[1994] 1 S.C.R. 3, at p. 13;
R.
    v. Pilon
,

2009 ONCA 248, 243 C.C.C. (3d) 109, at para. 62;
R.
    v. S.M.,
2012 ONCA 225, 291 C.C.C. (3d) 64, at paras. 19, 21, 23;
R.
    v. Stewart
,

2014 ONCA 70, 306 C.C.C. (3d) 269, at para. 22. The
    concept of reasonable belief includes both a subjective as well as an objective
    component:
R. v. Cinous,
2002 SCC 29,

[2002] 2 S.C.R. 3, at
    paras. 93-5.

[22]

Consistent
    with that explanation, s. 34(2) can apply even if the victims assault on the
    accused was lawful because the victim was also acting in self-defence. For this
    to be the case, the jury must accept, or have a reasonable doubt, that the
    accused reasonably believed the victims assault was unlawful (i.e. that the
    victim was not acting in self-defence). Stated another way, s. 34(2) can apply
    where the victim is objectively acting in lawful self-defence by assaulting the
    accused, but the accused reasonably believes that the victim is unlawfully
    assaulting him:
R. v. Mohamed
, 2014 ONCA 442, 310 C.C.C. (3d) 123, at
    paras. 12-13, 16, 23.

The parties positions at trial

[23]

The
    defence position at trial was that the appellant reasonably believed Mr.
    Marcelus unlawfully assaulted him when Mr. Marcelus dropped his cellphone, rose
    from the couch, made the disrespectful screwface, and reached behind his back
    as if for a weapon in response to the appellants comment about ripping off his
    cousin.  The defence said that it was only then that the appellant drew his
    gun, which Mr. Marcelus grabbed, resulting in the ensuing struggle over the gun
    and the appellants belief that he had to shoot or be shot.

[24]

The
    Crowns position was that the appellant was the initial aggressor and that all
    of Mr. Marceluss actions, including grabbing the gun barrel, were lawful,
    self-defensive reactions to the position he found himself in (being accused of
    a rip-off then facing a gun at very close range).

The appellants submissions on appeal

[25]

On
    appeal, the appellant submits that the trial judge misdirected the jury by
    suggesting to them that if they were satisfied that Mr. Marcelus was acting in
    lawful self-defence, then the appellant could not claim self-defence under s.
    34(2). He points to the following passage in the charge:

As I said, there is other evidence for you to consider. Counsel
    has gone over it. The purpose of this exercise is not to cover the minutia, all
    of the evidence. You will remember some of the evidence. This is just a brief summary
    of what took place there.

It is for you to decide whether the actions of Mr. Marcelus was
    an assault or was he just defending himself as he is lawfully entitled to do
    from the assault of the accused.



Both counsel, for the Crown and the defence, ask you to make
    different inferences or come to a different conclusion from that evidence.

Defence asks you to conclude that when you consider all of the
    evidence, and I do not intend to repeat it all, it is a reasonable inference,
    defence is making the case, that the accused believed that he was being
    assaulted by Mr. Marcelus. That is the defence position; that there was an
    assault, that Mr. Batson reasonably believed that he was going to be assaulted
    by Mr. Marcelus.

Counsel for the Crown says, wait a minute, here we have Mr.
    Marcelus facing a pretty violent confrontation on the part of the accused. He makes
    the accusation about ripped off my cousin and then he is looking at a
    loaded 357 Magnum. What Mr. Marcelus was doing was what he was entitled to do,
    and he was attempting to defend himself.

So you can see the different inferences. You are going to have
    to make a decision; what inference you are going to make from those facts.

[26]

The
    appellant argues further that to the extent that the trial judge also told the
    jury that they had to decide whether the appellant reasonably believed he was
    being assaulted, that did not cure the error in the charge. Rather the effect
    of that part of the charge was to suggest to the jury that it had to choose
    between finding that the appellant reasonably believed he was being unlawfully
    assaulted or that Mr. Marcelus was acting in lawful self-defence, and that the
    two were mutually exclusive.

Discussion

[27]

The
    problem with the appellants argument is that the concern raised is not borne
    out when the isolated passage quoted above is read together the following
    paragraph that preceded the impugned passage:

It is not necessary that Paul Marcelus actually assaulted Tyler
    Batson. The issue is whether Tyler Batson reasonably believed, in the
    circumstances as he knew them to be, that he was being unlawfully assaulted,
    not whether Tyler Batson was actually assaulted by Paul Marcelus.

as well as with what immediately follows in the charge:

If you are satisfied beyond a reasonable doubt that Mr. Batson
    was not unlawfully assaulted
or, did not reasonably believe that he was
    being unlawfully assaulted
, Tyler Batson was not acting in lawful
    self-defence on this basis. Your consideration of self-defence would be at an
    end, because one of the essential elements of self-defence is not met, if that
    is your conclusion.

If you find or have a reasonable doubt about whether Tyler
    Batson
reasonably believed
that he was unlawfully assaulted, you would
    move on to the next question. [Emphasis added.]

[28]

These
    further portions of the charge make it clear that either an actual unlawful
    assault by Mr. Marcelus, or the appellants reasonable belief that Mr. Marcelus
    was unlawfully assaulting him, would satisfy the unlawful assault component of
    s. 34(2).

[29]

Furthermore,
    the earlier part of the quoted portion of the charge would have been heard and
    understood by the jury together with, and in the context of, the last two
    quoted paragraphs which immediately followed it. The trial judge put the issue
    to the jury using the defence and Crown arguments. The defence argued the
    accused believed he was being or going to be assaulted by Mr. Marcelus, while
    the Crown said Mr. Marcelus was attempting to defend himself in the face of an
    accusation and a gun drawn.

[30]

The
    jury would have understood that when the trial judge referred to the Crowns
    argument, they would not only have to consider what Mr. Marcelus was actually
    doing, but also the appellants reasonable perception of what Mr. Marcelus was
    doing, including whether his actions constituted an unlawful assault.
    Otherwise the latter two paragraphs quoted above would have been meaningless.

[31]

The
    appellant also submits that counsel and the trial judge misunderstood the law
    because the trial took place before this courts decision in
Mohamed
,
    where the court held that s. 34(2) could apply when both the accused and the
    victim were acting in lawful self-defence. As such, the charge must be viewed
    in that context.

[32]

I
    agree that it appears from the record that trial Crown counsel took the
    position in pre-charge discussions that self-defence could not apply on these
    facts, relying in part on the trial judges decision in
Mohamed
, that
    s. 34(2) could not apply if the victims initial assault was in lawful
    self-defence. However, the trial judge disagreed with the Crown on this point,
    concluding instead that self-defence under s. 34(2) could apply depending on
    the jurys view of the evidence and the inferences to be drawn from it.

[33]

To
    summarize, when the charge is read as a whole, it is clear that the trial judge
    charged the jury that either an actual unlawful assault by Mr. Marcelus, or an
    action by Mr. Marcelus that the appellant reasonably perceived as an unlawful assault,
    would satisfy the unlawful assault component of s. 34(2). The trial judge
    therefore made no error in his explanation of that component of the test.

[34]

I
    would not give effect to the first ground of appeal.

(2)

Did the trial judge err by failing to leave self-defence with the jury
    under s. 35 of the
Code
?

Self-defence under s. 35

[35]

Like
    s. 34(2), s. 35 of the
Code
has also now been repealed and replaced by
    the one new self-defence provision in s. 34. However, at the time of the
    offence and of the trial, s. 35 read as follows:

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.

The appellants changed position on the applicability of s. 35

[36]

During
    the pre-charge discussion at trial, defence counsel, Mr. Weinstein, initially
    raised the suggestion that self-defence under both ss. 34(2) and 35 should be
    left with the jury. Ultimately, he agreed with the trial judge that s. 34(2)
    fit most closely with the appellants version of events, i.e. that the
    appellant drew his gun only in response to Mr. Marceluss unlawful assaultive
    actions, and that in accordance with this courts direction in
R. v. Pintar
(1996), 30 O.R. (3d) 483, the trial judge should charge only on the most
    appropriate section.

[37]

I
    note that most recently in
R. v. Rodgerson
, 2015 SCC 38, where
    Moldaver J. reiterated the principle he first set out in
Pintar
, he
    also stated at para. 49 that defence counsel has an obligation to assist the
    trial judge in crafting a jury charge that provides clear comprehensible
    instructions on the defences that are actually implicated by the defence theory
    of the case. That is what Mr. Weinstein did at this trial.

[38]

On
    appeal, the appellant now submits that the trial judge was obliged to leave s.
    35 with the jury, as well. He argues that the jury could have rejected the
    appellants version of events and accepted the Crowns position that the
    appellant was the initial aggressor when he pulled out his gun. If the jury
    were to have accepted that the appellant could not reasonably have perceived
    Mr. Marceluss reaction to his accusation about ripping off his cousin as an
    unlawful assault, then there would be no unlawful assault by Mr. Marcelus to
    satisfy that requirement of s. 34(2). In those circumstances, he submits, there
    was an air of reality to the applicability of s. 35 and it filled a gap in the
    availability of the defence of self- defence.

Discussion

[39]

Section
    35 has been described in the jurisprudence over time as both a broader and a
    narrower defence than s. 34(2). Before the Supreme Courts decision in
R.
    v. McIntosh
, [1995] 1 S.C.R. 686, s. 35 was understood to be the only
    self-defence section that applied where the accused was the initial aggressor.
    However, in
McIntosh
, the majority found that because s. 34(2) does
    not contain the limiting words found in s. 34(1) (without having provoked the
    assault), those words could not be read in. Therefore, along with s. 35, s.
    34(2) could also apply to an accused who was the initial aggressor where death
    or grievous bodily harm to the victim ensued.

[40]

However,
    as McLachlin J. discussed in her dissenting reasons in
McIntosh
, s. 35
    had been traditionally viewed as the narrower defence, because while it allowed
    an initial aggressor to be able to rely on self-defence, it was only available
    where that aggressor tried to disengage and retreat before it became necessary
    to preserve himself from death or grievous bodily harm by assaulting or killing
    the victim.

[41]

In
    Applying the Law of Self-Defence (2008), 12 Can. Crim. L. Rev. 25, at p. 73,
    Professor Paciocco (as he then was) explained that the evident purpose of s. 35
    was to provide for self-defence where the accused is responsible for what he intends
    to be a relatively minor confrontation, but then the retaliation by the
    ultimate victim requires the accused to use violence to preserve himself from
    death or grievous bodily harm. He also observed that the provision provides a
    narrower defence than s. 34(2) because of the extra retreat requirement.

[42]

In
Cinous
, at para. 124, McLachlin C.J. and Bastarache J. explained that
    s. 34(2) provides a justification for killing where the elements of the defence
    are made out, but observed that the defence is intended to cover situations of
    last resort. In
R. v. S.M.
, 2012 ONCA 255, 291 C.C.C. (3d) 64, at
    paras. 34-5, this court noted that description from
Cinous
and added
    that the same could be said for s. 35, which, if anything, is more a matter of
    last resort as it covers situations where the accused provoked the
    altercation that led to the killing. In other words, the section is one of
    last resort because of its narrow application and availability.

[43]

To
    test the potential applicability of s. 35, the trial judge had to ask whether
    there was some evidence to give an air of reality to each of the requisite
    elements of the s. 35 defence:
Cinous
, at paras. 93 and 97. That is,
    the trial judge had to be satisfied that there was evidence on the record upon
    which the jury acting reasonably could acquit:
Cinous
, at para. 49.

[44]

Applied
    to the facts of this case, the six requisite elements under s. 35 are:

1) the appellant assaulted Mr. Marcelus without justification;

2) when the appellant commenced the assault  in this case when
    he drew his loaded handgun and pointed it at Mr. Marcelus  he did not intend
    to cause death or grievous bodily harm;

3) the appellant shot and killed Mr. Marcelus under the
    reasonable apprehension that Mr. Marcelus was going to kill him or cause him
    grievous bodily harm if Mr. Marcelus had been able to wrest the gun away from
    him;

4) the appellant believed on reasonable grounds that shooting
    Mr. Marcelus was necessary to preserve himself from death or grievous bodily
    harm;

5) the appellant did not endeavor to cause death or grievous
    bodily harm before the necessity of preserving himself arose; and

6) the appellant declined further conflict and retreated from
    it as far as was feasible before the necessity of preserving himself arose.

[45]

I
    will address the required elements in order. The first element would have
    required the jury to reject the appellants evidence that he pulled out his
    loaded handgun in response to Mr. Marceluss unlawful assault, and to accept
    the Crowns position that the appellant was the initial aggressor.  I agree
    that there was an air of reality to this element because there was some
    evidence to support the Crowns position, including the evidence of Ms.
    Krakowski and Ms. Dory about the sequence of events leading up to the shooting.

[46]

The
    second requirement of the defence is that when the appellant drew his loaded
    gun and pointed it at Mr. Marcelus, he did not intend to cause death or
    grievous bodily harm. In my view, the defence must fail at this stage: there
    could be no air of reality to the second requirement once it was accepted that
    the appellant was the initial aggressor.

[47]

I
    agree with Professor Paciocco (now Justice Paciocco), that s. 35 was intended
    to provide the defence of self-defence in situations where, through a minor
    initial assault, an accused person provokes an encounter that escalates to the
    point where the accused believes he cannot retreat and has to use force in
    order to protect himself from death or grievous bodily harm.

[48]

By
    contrast, where the accused is the initial aggressor who draws and points a
    loaded handgun at the victim, there can be no air of reality to the proposition
    that, in the opening words of s. 35, he did not commence the assault with
    intent to cause death or grievous bodily harm. Even if he testifies that his
    subjective intent was not to shoot as his first option, it is difficult to
    imagine a situation where he did not intend to do so in order to protect
    himself from the victims reaction  which is exactly what occurred here  and
    what would have occurred in any case where the defence is relied on.

[49]

This
    case illustrates the point. If the jury were to accept that the appellant drew
    his loaded gun, unprovoked by the victim, there is no evidence to suggest any
    other purpose or motive for doing so except that he intended to shoot it. And
    the only evidence is to the contrary. The appellant asked Mr. Marcelus whether
    he was Polo, learned that he was, accused him of ripping off his cousin, and
    pulled out his gun. One could at best speculate that his intent might have been
    to rip off Mr. Marcelus in retaliation for what he did to the appellants
    cousin, and he pulled out the gun only to threaten him, but that would be
    complete speculation with no evidence to support it. The appellant did not
    testify to that effect.

[50]

In
    my view, this conclusion also fits with the purpose and structure of the s. 35
    defence. To find an air of reality to the assertion that an accused initial
    aggressor who draws and points a loaded handgun does not intend to cause death
    or grievous bodily harm would allow the defence to apply, for example, where an
    accused breaks into a home and points a loaded gun at the occupant. If the
    occupant reacts in self-defence by also drawing and pointing a gun, then the
    intruder could shoot the occupant and claim self-defence, saying he did not
    draw his gun with the intent to kill or cause the victim grievous bodily harm.
    Such a result would be contrary to community standards of justice.

[51]

The
    appellant points to the decision of the British Columbia Court of Appeal in the
    case of
R v. Merson
(1983), 4 C.C.C. (3d) 251 (B.C. C.A.) for an
    example of a situation where a jury applied s. 35 notwithstanding that the
    accused commenced his assault on the victim by brandishing a loaded gun, where
    he testified that he did not intend to kill or harm the victim. Although it may
    be open to a jury to accept such an accuseds testimony, a properly instructed
    jury, applying its common sense to the totality of the circumstances, would in
    most cases conclude that such an accused must have intended to shoot the victim
    if he came to believe that it was necessary to do so to in order to preserve
    himself.

[52]

I
    agree with the opinion of Chief Justice Nemetz in dissent, that there was no
    evidence that could convey a sense of reality to an aggressor invoking s. 35 in
    the factual circumstances of that case.

[53]

Turning
    back to the other requisite components of the defence under s. 35, there was
    arguably an air of reality to elements three, four and five, in the
    circumstances of this case.

[54]

The
    last issue is whether there was an air of reality to the sixth element for the
    s. 35 defence to apply: that the appellant declined further conflict and
    retreated as much as feasible before the necessity of shooting to preserve
    himself arose.

[55]

Although
    there may well have been an air of reality in that once there was a struggle
    over the gun, the appellant could not safely let go and try to retreat, this
    demonstrates in another way why initial aggression with a loaded firearm does
    not fit into the s. 35 framework. Here, the important salutary effect of the
    essential retreat requirement of s. 35 is effectively neutered because the
    initial assault by the accused that led to the escalation was with a loaded gun.

[56]

To
    summarize, on its wording, s. 35 applies where an accused is the initial
    aggressor, but only where his initial aggression was not commenced with the
    intent to cause death or grievous bodily harm. If the initial aggression was
    not done with that lethal intent, and the victim then reacts with violence such
    that the accused then finds himself in grave peril and cannot retreat but must
    use force to preserve himself, the accused can claim self-defence under s. 35
    for that responsive use of force. However, s. 35 should not have an air of
    reality where the accuseds initial aggression by its very nature carries with
    it the intent - although not necessarily the initial desire  to cause death or
    grievous bodily harm if it is ultimately perceived necessary by the accused.

Conclusion on s. 35

[57]

There
    must be an air of reality to each component of the defence. In this case, once
    the first component is accepted  i.e. that the appellant was the initial
    aggressor  there was no air of reality to the second requirement, that the
    appellant did not commence the assault with the intent to cause death or
    grievous bodily harm by drawing his loaded gun on Mr. Marcelus.

[58]

In
    my view, leaving this defence with the jury would undoubtedly have
    disadvantaged the appellant. It would have required the jury to reject the
    appellants evidence that he was reacting to Mr. Marceluss actions that he
    perceived as an unlawful assault as untruthful, and instead find that he acted
    as the initial aggressor by pointing a loaded gun at the victim. If they
    accepted that scenario, it could have been perceived by the jury as more
    consistent with the charge of a planned and deliberate first degree murder.
    This was completely contrary to the defence position that the appellant did not
    know that Mr. Marcelus would be at Ms. Krakowskis apartment and that he only
    drew his gun in reaction to what he believed to be an impending armed assault
    by Mr. Marcelus. Both defence counsel and the trial judge correctly saw that
    leaving this section with the jury would have been contrary to the appellants
    interest.

[59]

For
    the foregoing reasons, I would dismiss the appeal.

Released: JL SEP 2, 2015

K. Feldman J.A.

I agree. John Laskin
    J.A.

I agree. J. Simmons
    J.A.


