



COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Cunha, 2016 ONCA 491

DATE: 20160621

DOCKET: C59489

MacPherson, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Valter Cunha

Appellant

Michael Dineen, for the appellant

Davin M. Garg, for the respondent

Heard:  May 19, 2016

On appeal from the conviction entered on May 12, 2014, and
    the sentence imposed on October 27, 2014 by Justice John MacDonald of the
    Superior Court of Justice.

Lauwers J.A.:

[1]

The trial judge convicted Valter Cunha of one count of intentional
    discharge of a firearm with intent to wound, contrary to s. 244 of the
Criminal
    Code
, and one count of aggravated assault, contrary to s. 268. Mr. Cunha
    admitted shooting Fernando Barros twice.  Mr. Cunha testified and asserted
    he was acting in self-defence. The trial judge rejected that defence.

[2]

The trial judge sentenced Mr. Cunha to five years imprisonment, which
    is the mandatory minimum required by s. 244(2)(a)(i) of the
Criminal Code
for a first offence, and to four and a half years for the aggravated assault,
    concurrent to the first conviction.  He gave credit of one year for pre-trial
    custody and 10 months for onerous bail terms.

[3]

For the reasons set out below, I would allow the appeal, set aside the
    conviction, and order a new trial. I would not address the appellants sentencing
    submission that the mandatory minimum in this case is unconstitutional.

[4]

I begin with a brief description of the law relating to self-defence. I next
    consider the narrative context, then the trial judges approach, and conclude
    with the legal analysis.

(1)

The Legal Elements of Self-Defence

[5]

On March 11, 2013, the
Citizens Arrest and Self-Defence Act
, S.C. 2012, c. 9,
came into force,
    repealing the former ss. 34 to 37 of the
Criminal Code
and replacing
    them with a new s. 34 self-defence provision. At trial, the parties did not
    have the benefit of this courts decision in
R. v. Bengy
,
2015 ONCA 397, 325 C.C.C. (3d) 22, in
    which this court held that the new
Criminal Code
provisions regarding
    self-defence do not apply retrospectively. However, the parties submit, and I
    agree, there is no relevant difference, for the purposes of this case, between
    the old provisions and the new.

[6]

At para. 28 of
Bengy
, Hourigan J.A. set out the elements of
    self-defence:

The test for self-defence was, therefore, simplified into three
    basic requirements, applicable to all cases:

Reasonable belief (34(1)(a))
:
the accused must reasonably believe that force or threat of force is being used
    against him or someone else;

Defensive purpose (34(1)(b)): the
    subjective purpose for responding to the threat must be to protect oneself or
    others; and

Reasonable response (34(c))
:
the act committed must be objectively reasonable in the circumstances.

[7]

As for the objective element of the defence, it is accepted
    that in considering the reasonableness of the defendants use of defensive
    force, the court must be alive to the fact that people in stressful and
    dangerous situations do not have time for subtle reflection, as this court
    noted in
R. v. Mohamed
, 2014 ONCA
    442, 310 C.C.C. (3d) 123, at para. 29:

As Professor Paciocco notes at p. 36:

The law's readiness to justify
    "mistaken self-defence" recognizes that those in peril, or even in situations
    of perceived peril, do not have time for full reflection and that errors in
    interpretation and judgment will be made.

In a similar vein, Martin J.A. commented in
R. v. Baxter
(1975), 27 C.C.C. (2d) 96, at p. 111, that

in deciding whether the force used by
    the accused was more than was necessary in self-defence under both s. 34(1) and
    (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.

[8]

It is well established that self-defence can be invoked on the basis of
    reasonable mistakes of fact, including whether the putative assailant was
    armed.    As this court noted in
R. v. Currie
[2002] O.J. No. 2101,
    166 C.C.C. (3d) 190 (C.A.), at para. 43:

The Supreme Court of Canada in
Cinous
[2002 SCC 29] confirmed
    the principle established in
R. v. Pétel
, [1994] 1 S.C.R. 3 that the
    existence of an actual assault is not a prerequisite for a defence under s.
    34(2). The question that the jury must ask itself is not whether the accused
    was unlawfully attacked, but whether he reasonably believed in the
    circumstances that he was being unlawfully attacked. The question for the trial
    judge on the threshold evidential test is whether there is evidence upon which
    a jury acting reasonably could conclude that the accused reasonably believed he
    was about to be attacked and that this belief was reasonable in the
    circumstances.

[9]

It is also the law that a person who is defending himself, and other
    occupants of his house, is not obliged to retreat in the face of danger. In
R. v.
    Forde
, 2011 ONCA 592, 277 C.C.C. (3d) 1, this court considered the issue
    of retreat at some length, and concluded at para. 55: a jury is not entitled
    to consider whether an accused could have retreated from his or her own home in
    the face of an attack (or threatened attack) by an assailant in assessing the
    elements of self-defence.

(2)

The Narrative Context

[10]

It is trite law that in assessing self-defence, the trier of fact must
    pay close attention to the entire factual context. As I will explain, in this
    case, the trial judge failed to do so. He made several palpable and overriding
    errors that led him to misapprehend what was really going on in the encounter
    between the appellant and Mr. Barros.

[11]

It became clear in oral argument that the parties do not substantially
    disagree about the facts and the sequence of events that led to the shooting.

[12]

The appellant lived in a house that was separated into two apartments. 
    He occupied the ground floor unit which was accessed by two doors on the main
    floor, the main door at one end of the foyer and a French door at the other
    end.  The door to the upstairs unit, occupied by the appellants friend Peter
    Silva, was right beside the main door to the appellants unit.

[13]

On December 13, 2011, Mr. Barros and his two associates, Momokai
    Massaquoi and Cody Rocha, went to Mr. Silvas residence to purchase marijuana.
    Mr. Rocha waited in the car while Mr. Barros and Mr. Massaquoi went into the
    house. Mr. Barros and Mr. Silva exchanged money for drugs, $4,500 for one and a
    half pounds of marijuana. Mr. Barros discovered that he had only received a
    pound; Mr. Silva explained that he had withheld the half pound because during
    their last drug deal Mr. Barros had underpaid by $1,500.  Mr. Barros
    objected and when he tried to get his money back a physical struggle broke out
    in the foyer of the house.

[14]

At the time, the appellant was having dinner with his friend George
    Fotopoulos.  Mr. Silva called for help, and the appellant and Mr. Fotopoulos
    came out to the front foyer through the appellants main door. They discovered
    the scuffle, got Mr. Silva inside the appellants unit and locked the door. The
    appellant and Mr. Fotopoulos then went downstairs where the appellant retrieved
    his registered handgun and loaded it. While downstairs, Mr. Fotopoulos heard a
    voice saying shoot him, shoot him. Although it is not clear where Mr. Cunha
    was when this statement was made, the trial judge accepted that he heard it
    too.  Mr. Cunha went back upstairs and, instead of accessing the foyer through
    the main door, decided to enter it from the French doors at the other end.  As
    he was about to go into the foyer, he saw Mr. Massaquoi moving past carrying a
    shotgun.

[15]

Mr. Cunha then stepped into the foyer, but Mr. Massaquoi was gone,
    apparently through the main door to the appellants unit that had been locked,
    but was now open. He found Mr. Barros facing the main door to his unit and told
    him to freeze.  Mr. Barros, whose back was turned to the appellant, did not
    freeze, but began to turn and Mr. Cunha shot him twice, once in the leg and
    once in the lower back.

[16]

In the meantime, Mr. Fotopoulos exited the basement through the rear
    entrance, and Mr. Silva exited the main floor through the back door of Mr. Cunhas
    unit. Neither had come to harm. Mr. Barros limped out the front door.
    Eventually, the police arrived.

(3)

The Trial Judges Approach

[17]

The trial judge found the Crown had proven beyond a reasonable doubt
    that none of the elements of self-defence applied to Mr. Cunha in the
    circumstances.

[18]

With respect to Mr. Cunhas belief that force or threat of force was
    being used against him or someone else, and whether his belief was reasonable,
    the trial judge held:

I am satisfied beyond a reasonable doubt on the evidence as I
    have assessed it that Mr. Cunha did not have reasonable grounds for believing
    and did not believe that Mr. Barros was using or threatening force against him.

[19]

With respect to whether Mr. Cunha subjectively had a defensive purpose,
    the trial judge found: because Mr. Cunha did not believe that Mr. Barros was
    threatening to use force on him, I am satisfied beyond a reasonable doubt that
    in shooting Mr. Barros, Mr. Cunha did not do so for the purpose of defending or
    protecting himself from that alleged threat.  He added:

In addition, I find it proven beyond a reasonable doubt that
    Mr. Cunha shooting at Mr. Barros was not for the purpose of either defending or
    protecting the other person threatened with the use of force, because the
    person, Mr. Silva, whom he might have been defending, was somewhere else.

[20]

The trial judge concluded his analysis of Mr. Cunhas defensive purpose
    with the following statement:

He shot an unarmed man in the back of his body twice without
    knowing whether the person was a threat of any sort, and without believing that
    he was a threat, likely, I find, because he was afraid that Mr. Barros might be
    armed, and because of that fear, Mr. Cunha wasnt going to wait to find out if
    he was armed.

[21]

As to whether Mr. Cunhas response was objectively reasonable, the trial
    judge found that:

[T]he act of firing at and wounding Mr. Barros was not
    reasonable in the circumstances.  It is not reasonable to shoot an unarmed man
    in the back of his body, when it is not known whether he is armed, because he
    has begun to turn towards the shooter.  As Mr. Cunha stated, he fired a split
    second after saying freeze and thats a split second after Mr. Barros, on Mr.
    Cunhas own version of events, began to turn.

[22]

The trial judge went on to say:

Mr. Cunha could have waited a very short period of time in
    order to see whether Mr. Barros had a gun or other weapon in his hands before
    resorting to the use of devastating force.

He found Mr. Cunhas use of force was disproportionate.

[23]

The trial judge found Mr. Cunha did not shoot Mr. Barros for the
    purpose of preventing Mr. Barros from entering Mr. Cunhas unit, or for the
    purpose of removing Mr. Barros from the property, or for the purpose of
    preventing Mr. Barros from doing anything to Mr. Cunhas property.  He
    found, in relation to s. 35(1)(d) of the
Criminal Code,
that Mr.
    Cunhas actions in defending his property were not reasonable, and convicted
    him.

(4)

The Analysis

[24]

I accept the appellants argument that the trial judge parsed the
    appellants reactions down to the split-second and held him to a standard of
    perfection, informed by his hindsight knowledge that Mr. Barros was actually
    unarmed and that Mr. Massaquoi had already left the house through the back
    door. This was an error in principle, since the trial judge lost sight of the
    whole factual context and the tableau of the evidence.

[25]

This was plainly a case for the court to keep in mind that in
    considering the reasonableness of the defendants use of defensive force, the
    court must be alive to the fact that people in stressful and dangerous
    situations do not have time for subtle reflection. However, the trial judge
    held the appellant to a standard of perfection.

[26]

The trial judge found that the appellant subjectively feared for his
    life, for his friend, and for his property. He stated: I accept also that Mr.
    Cunha was probably feeling fear at that time, including fear for his life and
    also fear for his friend Mr. Silva.

[27]

As noted above, self-defence can be invoked on the basis of reasonable
    mistakes of fact. This includes mistaking whether the putative assailant was
    armed as was the case here. The trial judges finding that Mr. Barros was
    unarmed is not fatal to the appellants self-defence claim.

[28]

As I see it, the trial judge effectively imposed on the appellant an
    obligation to wait and see whether Mr. Barros had a gun or other weapon before
    acting.  Although the appellant had the advantage over Mr. Barros at the moment
    when he ordered him to freeze, he would have lost that advantage had he waited,
    and would have exposed himself to risk of serious harm if Mr. Barros had been
    carrying a gun. As this court noted in
R. v. Quinn
,
2014 ONCA 650 at para. 10: This was a
    fast-paced event that should have not be viewed on a frame-by-frame basis.

[29]

The problem with the trial judges analysis is that it paid little
    regard to the overall evidence, but focused excessively on whether Mr. Cunha
    was a credible witness. The trial judge found that he was not credible because
    of several inconsistencies in his evidence, which led him to make the following
    comment: This causes me to conclude that Mr. Cunhas testimony is likely
    incredible and unreliable unless it is confirmed by other credible or reliable
    evidence.

[30]

The blanket rejection of the appellants evidence in the absence of
    corroboration lies at the root of the trial judges errors. With respect, such
    an approach is flawed. It boils down to saying that the appellant must be lying
    except where other witnesses can confirm what he says. But this goes too far -
    if the appellant is telling the truth in certain situations that another
    witness can corroborate, then it does not necessarily follow that he must be
    lying in all other situations.

[31]

Proceeding from this flawed blanket credibility finding, the trial judge
    then relentlessly rejected Mr. Cunhas version of events. This led him to make a
    number of troubling factual findings that do not hold up to scrutiny against
    the flow of the narrative or the tableau of the evidence that he did accept. I
    refer below to five instances in the trial judges treatment of the evidence.

[32]

First, the trial judge said that: I find that Mr. Cunha did not pull
    Mr. Silva into his unit.  The problem with this statement is that it does not
    account for how Mr. Silva escaped from the scuffle in the foyer, and ended up
    behind the locked door in the appellants unit before exiting safely from the
    rear door.

[33]

The second instance relates to the damage to the front door of Mr. Cunhas
    unit. Mr. Cunha did not see anyone breaking through the door into his unit
    since he was elsewhere when it happened. Mr. Cunhas evidence was that the door
    had been replaced a few weeks before during renovations.  There is clear damage
    to the door in the police photographs and Mr. Cunha said that this damage
    occurred during the events in question. The trial judge considered whether to
    infer from that whether there was a forced entry into Mr. Cunhas premises on
    the night in issue. He refused to draw the inference:

I find that Mr. Cunhas evidence about the condition of the
    door before the events in issue is incredible and unreliable for all of the
    aforesaid reasons. Given that, the proven condition of the door after the
    events in issue does not, on the whole of the evidence, lead to a reasonable
    inference that the door was broken open in the events in issue.

[34]

However, the narrative demonstrates that the trial judges conclusion on
    the state of the door is unreasonable and inconsistent with the whole of the
    evidence.

[35]

When Mr. Cunha burst into the foyer intending to pursue Mr. Massaquoi, who
    was carrying a shotgun, he found Mr. Barros there, with his back turned to him
    facing the now open main door to his unit, which had previously been closed and
    locked. In the circumstances, it is highly unlikely that anyone inside Mr.
    Cunhas unit opened the door, but much more likely that someone in the foyer
    forced their way into it. Since Mr. Massaquoi and the shotgun were nowhere to
    be seen when Mr. Cunha entered the foyer, it is likely that Mr. Massaquoi was
    the one who broke open and damaged the door.

[36]

Third, the way in which the trial judge assessed the shooting scenario
    is problematic. He stated:

[] as Ive also held, [Mr. Massaquoi] was armed with a shotgun
    and was present in the home to Mr. Cunhas knowledge, and was at or about the
    location when Mr. Cunha shot Mr. Barros, at or about the time he shot him. In
    addition, Mr. Fotopoulos testified that he heard someone who was neither
    Mr. Silva nor Mr. Cunha say shoot him, shoot him, and that that was said in
    the area above him, which was the main floor level of Mr. Cunhas premises
    towards the westerly side of the building. Mr. Cunha states that he heard
    that. With Mr. Fotopoulos confirmation that that was said, I accept that
    Mr. Cunha heard that said shortly before he shot Mr. Barros. I accept also that
    Mr. Cunha was probably feeling fear at that time, including fear for his life
    and also fear for his friend Mr. Silva.

[37]

The trial judge also noted that Mr. Barros said that Mr. Massaquoi ran
    out to the car while he wrestled with Mr. Silva.  Mr. Fotopoulos, whose
    evidence was accepted by the trial judge, gave evidence that as he looked out
    the basement door, he saw Mr. Silva run from the house to the garage presumably
    being pursued by Mr. Massaquoi who, Mr. Fotopoulos stated, was armed with a
    shotgun. Mr. Fotopoulos saw Mr. Silva lock himself in the garage, and Mr.
    Massaquoi kicking at the garage door.

[38]

Against that backdrop, Mr. Cunha testified that when he came upon Mr.
    Barros in the foyer, Mr. Barros had his hands clasped in front of his chest
    much in the way a person holding a gun would be positioned. The trial judge
    found this to be entirely incredible, unreliable and false evidence.  He
    based this on his assessment that Mr. Cunha could not have seen what he claims
    to have seen since Mr. Barros body blocked Mr. Cunha from seeing his hands. 
    He added that Mr. Cunha could not have seen the position of Mr. Barros hands as
    he was starting to turn around because he shot Mr. Barros within a split
    second.  The trial judge concluded that Mr. Cunha did not wait to see what was
    in his hands before shooting.

[39]

There was a conflict in the evidence between what Mr. Cunha said
    Mr. Barros was doing, and what Mr. Barros said he was doing.  Mr. Barros
    said he was picking up the money that Mr. Silva dropped on the floor. The trial
    judge stated: if this evidence is credible and reliable, it would mean that
    Mr. Barros hands probably were visible to Mr. Cunha, and Mr. Cunha
    probably could see that Mr. Barros was unarmed. With respect, this does not
    make sense in light of his earlier finding that Mr. Barros back was blocking
    Mr. Cunhas view of his hands.

[40]

The trial judge went on to say: As well, if Mr. Barros hands, which
    were not clasped in front of him, were at his sides, they were probably visible
    to Mr. Cunha and Mr. Cunha probably could see that Mr. Barros was unarmed.
    This again is sheer speculation. Perhaps sensing this, the trial judge stated
    that these are not findings.  He described them as issues which I have
    considered.

[41]

The trial judge then made the following comments:

Having entirely rejected as incredible and unreliable
    Mr. Cunhas testimony that Mr. Barros hands were clasped in front of him,
    and having some doubt about whether Mr. Barros was benignly picking money up
    off the floor as he claims, I can make no finding of fact about where Mr.
    Barros hands actually were for what they were actually doing in the moments
    before Mr. Cunha shot Mr. Barros,
except for the
    finding that Mr. Barros hands were not clasped in front of him as Mr. Cunha
    said they were
. (Emphasis added.)

[42]

There is, with respect, no reasonable basis for the trial judge to make a
    positive finding about the position of Mr. Barros hands after saying that he
    did not know where Mr. Barros hands actually were.

[43]

Fourth, the trial judge made inconsistent findings with respect to Mr. Cunhas
    state of mind.  Mr. Cunha admitted he did not know if Mr. Barros had a gun in
    his hands but he feared he might have one. The trial judge noted I am left
    with a reasonable doubt about whether Mr. Cunha felt afraid that Mr. Barros
    might be armed. Having said this, however, he then went on to state the
    following:

Nonetheless, I am satisfied beyond a reasonable doubt on the
    evidence as I have assessed it that Mr. Cunha did not have reasonable grounds
    for believing and did not believe that Mr. Barros was using or threatening
    force against him. As he testified, he was not going to wait to see what he had
    in his hands.

[44]

Two paragraphs later in his reasons, the trial judge said:

He shot an unarmed man in the back of his body twice without
    knowing whether that person was a threat of any sort, and without believing
    that he was a threat, likely, I find, because he was afraid that Mr. Barros
    might be armed, and because of that fear, Mr. Cunha wasnt going to wait to
    find out if he was armed.

[45]

In my view, the two preceding statements are not consistent with each
    other. If Mr. Cunha did not believe that Mr. Barros was using or threatening
    force against him, then there was no reason for Mr. Cunha to fear that Mr.
    Barros might be armed. Neither statement can be read together with the trial
    judges statement: I accept also that Mr. Cunha was probably feeling fear at that
    time, including fear for his life and also fear for his friend Mr. Silva.

[46]

Fifth, the trial judge completely discounted any personal threat to Mr. Cunha.
    He noted that the words Shoot him, shoot him were simply overheard by [Mr.
    Cunha] and were not said about him, and the man with the shotgun was seen not
    present when he, Mr. Cunha, fired at someone else, being Mr. Barros.  The
    trial judge noted:

Mr. Barros was a person who was not known to Mr. Cunha.
    There was no history between them which would have fed Mr. Cunhas apparent
    fear and which, if it existed, could have made precipitous action necessary for
    defensive or protective purposes.

[47]

Overall, the trial judge failed to take account of the entire situation
    from Mr. Cunhas perspective  a frightened home owner suddenly confronted
    with armed men in his home. The trial judge artificially separated out the
    sequence of events relating to Mr. Massaquoi, who was carrying a shotgun, from
    the encounter a very short time later between the appellant and Mr. Barros, and
    treated them as though they were virtually unrelated events. This is clearly
    inconsistent with what happened, and failed to pay sufficient attention to the factual
    context and to the entire tableau of the evidence. This was an error in principle
    in assessing self-defence.

(5)

Disposition

[48]

For the reasons set out above, I would allow Mr. Cunhas appeal, set
    aside the conviction, and order a new trial. It is not open to this court to
    acquit Mr. Cunha, since the viability of self-defence is an issue for the
    trier of fact. However, on these facts, this may well be a case where the Crown
    decides it is appropriate to elect not to proceed with a new trial. In light of
    this disposition, I would not grant leave to appeal sentence.

Released: June 21, 2016 J.M.

P.
    Lauwers J.A.

I
    agree J.C. MacPherson J.A.

I
    agree C.W. Hourigan J.A.


