



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Larose,









2013 BCCA 12




Date: 20130115

Docket: CA039487

Between:

Regina

Respondent



And

Anthony Andrew Larose

Appellant




Before:



The Honourable Mr. Justice Chiasson





The Honourable Madam Justice Neilson





The Honourable Madam Justice Garson




On appeal from: 
Supreme Court of British Columbia, March 1, 2011
(
R. v. Larose
, 2011 BCSC 693, New Westminster Docket No. 73890)




Counsel for the Appellant:



D.T. Redekopp





Counsel for the Respondent:



M.J. Brundrett





Place and Date of Hearing:



Vancouver, British
  Columbia

November 14, 2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January
  15, 2013





Written Reasons by:





The Honourable Mr. Justice Chiasson





Concurred in by:





The Honourable Madam Justice Neilson
The Honourable Madam Justice Garson








Reasons for Judgment of the Honourable
Mr. Justice Chiasson:

Introduction

[1]

This appeal examines circumstances where a trial judge determines not to
put a defence of self-defence to a jury when an accused is charged with aggravated
assault and possession of a weapon dangerous to the public peace.

Background

[2]

The incident giving rise to this appeal occurred on April 3, 2010. The appellant,
Anthony Larose, and a young woman (his friend) were waiting for a bus.  The
appellant became angry and threw a rock through a glass portion of the bus
shelter.  Mr. Hanna, who was intoxicated, crossed the street and
confronted the appellant about breaking the glass.  During the ensuring verbal
exchange, without warning, Mr. Hanna punched the appellant in the face.  The
appellant dropped to his knees.  Although he was not hurt significantly, the
blow caused considerable discomfort because his nose was sensitive due to a
previous drug addiction.

[3]

The appellant testified that while he was on the ground, the young woman
handed him a 20-centimeter knife.  He rose and saw that Mr. Hanna had been
joined by Mr. Marshall.  He testified they rushed him.  The appellant stabbed
Mr. Hanna twice in the chest and once in the abdomen.  Messrs. Hanna and
Marshall moved away.

[4]

During the altercation, the knife was either knocked away or thrown away
by the appellant.  It was in the middle of the street.  The appellant went to
retrieve it.  As he did so, Messrs. Hanna and Marshall turned and started
towards the appellant.  He testified at trial that he was surprised and thought
they were stupid, saying you dont come back for more.

[5]

The group met again at the bus shelter.  The appellant stated that
Messrs. Hanna and Marshall rushed him again.  He slashed Mr. Hannas face and sliced
Mr. Marshalls neck.  The injuries sustained by Messrs. Hanna and Marshall
were life threatening.

[6]

The appellant fled the scene; police apprehended him shortly thereafter.

[7]

The appellant was charged with two counts of aggravated assault, two
counts of assault with a weapon and one count of possession of a weapon
dangerous to the public peace.  His defence at trial was self-defence.  The
judge refused to put that defence to the jury on the basis it did not have an
air of reality.  The jury convicted the appellant on all counts.

Reasons of the trial judge on air of reality

[8]

In para. 2, the judge outlined the principles applicable to considering
whether a defence has an air of reality from
R. v. Cinous
, 2002 SCC 29,
[2002] 2 S.C.R. 3:

[2]
R. v. Cinous
, 2002 SCC 29 [
Cinous
],
at paras. 50 and 51 states:

50        The principle that a
defence should be put to a jury if and only if there is an evidential
foundation for it has long been recognized by the common law. This venerable
rule reflects the practical concern that allowing a defence to go to the jury
in the absence of an evidential foundation would invite verdicts not supported
by the evidence, serving only to confuse the jury and get in the way of a fair
trial and true verdict. Following
Pappajohn
,
supra
, the inquiry
into whether there is an evidential foundation for a defence is referred to as
the air of reality test. See
Park
,
supra
, at para. 11.

51        ...[A] trial judge has a positive duty to keep
from the jury defences lacking an evidential foundation. A defence that lacks
an air of reality should be kept from the jury. [References removed] This is so
even when the defence lacking an air of reality represents the accused's only
chance for an acquittal, as illustrated by
R. v. Latimer
,
[2001] 1 S.C.R. 3
,
2001 SCC 1
.

[9]

After referring to
R. v. Tran
, 2010 SCC 58, [2010] 3 S.C.R. 350,
which stated the test in a slightly different way, the judge returned to
Cinous
,
noting that he had to look at the evidence as a whole and was required to
assume as true the evidence of the accused.  He continued in paras. 8 and 9:

[8]        Judges and juries have different duties to
discharge when considering a defence raised by the defendant. The Judge says
whether the evidence establishes any facts from which [the matter in issue]
may
be
reasonably inferred; the jurors say whether, from those facts ... [the
matter in issue]
ought
to be inferred:
R. v. Arcuri
, 2001 SCC 54,
para 24 quoting
Metropolitan Railway Co. v. Jackson
(1877), 3 App. Cas.
193 (H.L.).

[9]        In summary, a judge
who fails to place before the jury all defences arising from the evidence errs
in law; but no less errs in law by placing before the jury a defence lacking an
air of reality. A trial judge should be very slow to take a defence away from a
jury, the more so where the defence taken away takes with it an accuseds sole
remaining defence. However, where a defence does not possess an air of reality,
the law requires the judge to instruct the jury to not consider it. No exercise
of judicial discretion is permitted.

[10]

At issue were ss. 34(1) and 34(2) of the
Criminal Code
, R.S.C.
1985, c. C-46, which state:

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.

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.

[11]

The judge noted that the Crown had the burden to establish the absence
of at least one of the essential elements of the sections.  The judge first
turned to s. 34(2).  He stated in paras. 16, 17 and 19:

[16]      In
R. v. Pétel
, [1994] 1 S.C.R. 3 [
Petel
],
Chief Justice Lamer stated at para. 19, in a case involving the accused killing
of the victim, that the three constituent elements of self-defence under s.
34(2):

... (1) the existence of an
unlawful assault; (2) a reasonable apprehension of a risk of death or grievous
bodily harm; and (3) a reasonable belief that it is not possible to preserve
oneself from harm except by killing the adversary.

[17]      Both
subjective and objective components of each of the elements must be present
before a judge can find the defence has an air of reality. The accused's
perception of the situation is the subjective part of the test. However, the
accused's subjective belief based on the situation he perceives must be
objectively reasonable.

...

[19]      Excessive force is not
an aspect of s. 34(2):
R. v. Hebert
, [1996] 2 S.C.R. 272. Section
34(2) does not require that proportionate force be used before the defence is
in play:
R. v. Brar
, 2009 BCCA 585.

[12]

The Crown conceded that the first element, the existence of an unlawful
assault, was present.  As to the other elements, the judge discussed his
approach in para. 22:

[22]      What follows is a
recounting of Mr. Laroses relevant evidence, including the most favourable
portions of it, taking it as true. When discussing specific elements of s.
34(1) and 34(2), I will again refer to specific portions of the evidence. This
evidence takes into account other favourable evidence and no contrary or
unfavourable evidence from the complainants or other witnesses.

[13]

The judge reviewed the evidence through to para. 42 and then turned to
the second element of s. 34(2): a reasonable apprehension of death or grievous
bodily harm.  The judge again reviewed some of the facts: neither of Messrs.
Hanna nor Marshall were armed; the appellant was larger than Mr. Hanna; the
appellant took the knife intending to confront Mr. Hanna; Messrs. Hanna and
Marshall did not attack the appellant when he was on the ground after the
assault by Mr. Hanna; objectively, the assault could not cause the appellant
serious bodily harm or death; at the time of the second altercation, Mr. Hanna
previously had been stabbed three times and any reasonable person would know he
was weakened; Mr. Marshall engaged the appellant after Mr. Hanna was out of
commission from the slash to his face; Mr. Marshall was unarmed; the appellant
did not state he retrieved the knife from the road because he feared grievous
bodily harm or death, but because he thought it was unwise  to leave it there.

[14]

In para. 59, the judge concluded that on the totality of the evidence
there was ... no air of reality to the second element of the defence of
self-defence under 34(2).  He then addressed whether the appellant could not
otherwise preserve himself from death or grievous bodily harm.

[15]

In para. 61, the judge stated that the appellant was required to rule
out other possible courses of action to preserve himself from grievous bodily
harm to justify stabbing and slashing Messrs. Hanna and Marshall.  The
appellant need not weigh his options with nicety.  The judge stated in para. 62:

[62]      In the circumstances of
this case, use of such a dangerous and lethal weapon as the 20 cm knife Mr.
Larose held could be only a last resort, not the first, as Mr. Larose had made
it. Mr. Laroses evidence, accepted as true, and with all available buttressing
from the totality of the evidence, comes nowhere near to depositing sufficient
evidence he had no alternative in the circumstances.

[16]

The judge observed that the appellant could have left the scene after he
was struck by Mr. Hanna.  The judge continued in paras. 64-66:

[64]      Most importantly, he could have spurned the knife
he said Marissa handed him. There were no emergent circumstances facing Larose.
No reasonable grounds for believing that a 6, 195 pound male could not
otherwise preserve himself from death or grievous harm except by using such
extreme means in the circumstances. When Larose decided to use the knife to
confront Hanna he had many different options. Further, when Hanna and Marshall had
walked away, Larose also could have walked away. Larose agreed he should have,
and nothing prevented him and Marissa from doing so.

[65]      Larose testified he felt uncomfortable turning his
back on Hanna and Marshall, who were creating more space between them. Feeling
uncomfortable is not a reasonable basis for believing he could not otherwise
preserve himself, except by his slicing of a persons neck, face, and torso.

[66]      Considering the
totality of the evidence, I find no air of reality to the third element of the
defence of self-defence under s. 34(2).

[17]

The judge then turned to his analysis of s. 34(1) in para. 67:

[67]      Under s. 34(1) of the
Code
, the same
principles as laid out under s. 34(2) apply. The four constitutive elements of
self-defence under s. 34(1) are that:

1.         The accused was unlawfully assaulted;

2.         The accused did not provoke the assault;

3.         The repelling force used was
not intended to cause death or grievous bodily harm; and

4.         The force used was no more than necessary.

The Crown conceded the first three elements.

[18]

The judge stated in para. 76:

[76]      It is important to keep
in mind, when conducting such an analysis, the focus is not on the consequences
of the stabbing and slashing or the extent of the injuries in terms of
hospitalization and blood loss. Rather, the trial judge must look at the force
used in the circumstance, and its proportionality.

[19]

In paras. 78-87, the judge reviewed the evidence concerning the
appellants use of the knife.  He observed that the appellant testified that he
intended to confront Mr. Hanna and scare him away.  The appellant stabbed Mr.
Hanna three times, twice in the chest and once in the abdomen.  After being so
injured, Mr. Hanna apparently attempted to assault the appellant a second
time.  It was at this point when the appellant inflicted the final injury on
Mr. Hanna. The appellant asserted he did not know what he was swinging at when
he stabbed Mr. Marshall.  The blow sliced Mr. Marshall from his left ear
to the mid-line of his neck. The judge noted that the appellant agreed it was
dangerous swinging at Marshall with a 20 cm knife if he did not know what he
was swinging at.

[20]

In para. 88, the judge stated that [c]onsidering the totality of the
evidence, I find no air of reality to the fourth element of the defence of
self-defence under s. 34(1).  He summarized in paras. 90-91:

[90]      In summary, I find Mr. Laroses evidence, taken for
the purposes of analysis under the air of reality test to be true, is not
objectively reasonable in light of the all the evidence presented to this
court.

[91]      I find a properly
instructed jury acting reasonably could not possibly find the objective
elements the law requires were present in the case at bar. Consequently, I
conclude my placing before the jury the defence of self-defence, either under
s. 31(1) or s. 34(2), in this case would amount to an error of law.

Positions of the
parties

[21]

In his factum, the appellant asserts the following errors by the trial
judge:

16.       In
his March 1, 2011 ruling that there was no air of reality toallow the jury to
consider the defence of self-defence, regarding counts 1, 2,4 and 5, pursuant
to section 34 of the Criminal Code of Canada, the Learned Trial Judge made
specific errors in law by:

a) Making
inappropriate and erroneous findings of fact ;

b) Failing to
apply the proper modified objective test in finding the accuseds subjective
perceptions were not objectively reasonable;

c) Improperly
placing a duty to retreat on the accused; and

d) Failing to give
appropriate weight to the fact that Mr. Larose was facing two attackers.

17.       In his
charge to the jury, the learned trial judge erred in law by failing to advise
the jury on the relevance of self-defence in determining Mr. Laroses purpose
for possessing a weapon with respect to count 3.

[22]

The Crown contends that the judge did not err.  In the alternative, it
states that if the judge did err, the curative provision in s. 686(1)(b)(iii)
of the
Criminal Code
should be applied.

[23]

The organization of these reasons will correspond to the alleged errors
raised by the appellant in his factum.  For the reasons that follow, I would
dismiss this appeal.

Discussion

Air of reality

[24]

In my view, the Crown correctly summarizes in its factum the legal
framework to be followed by a trial judge when considering whether a defence
has an air of reality:


48.       In
R. v. Cinous
,
2002
SCC 29
,
[2002] 2 S.C.R. 3,
the Court
stated that the core elements of the air of reality test had already been
clearly and authoritatively set out in
R. v. Park
, [1995] 2 S.C.R.
836, 99 C.C.C. (3d) 1.  In
R. v. Park
, LHeureux-Dube J. set out the
starting point for an analysis of air of reality:

The common law has long recognized that a trial judge need
not put to the jury defences for which there is no real factual basis or
evidentiary foundation. Courts must filter out irrelevant or specious defences,
since their primary effect would not be to advance the quest for truth in the
trial, but rather to confuse finders of fact and divert their attention from
factual determinations that are pertinent to the issue of innocence or guilt.
[at pp. 9,10]

49.
R. v. Park

also made clear that in
assessing air of reality, the trial judge must not look at isolated bits of
evidence:

This line can sometimes be a fine one, however, for although
we urge trial judges not to descend into the arena of facts, we nonetheless
require that they consider nothing less that the totality of the circumstances
in deciding whether an air of reality exists to found a particular defence.
[at p. 11]

50.       The trial judge had a duty to conduct a limited
weighing of the facts to determine whether an air of reality existed on the
issue of self-defence:
R. v. Cinous
, at ¶¶90-91;
R. v. Arcuri
,
2001 SCC 54, [2001] 2 S.C.R. 828, at ¶23.  In
R. v. C.(S.F.),

2001 BCCA 17, 147 B.C.A.C. 125
, this Court quoted
from
R. v. Pintar
(1996), 110 C.C.C. (3d) 402 (Ont. C.A.), in which the
Ontario Court of Appeal summarized the functional approach of the Supreme
Court of Canada in focusing on the self-defence provision most clearly
applicable to the circumstances of the specific case as follows:


Hebert
([1996] 2 S.C.R. 272, 107 C.C.C. (3d) 42)
admonishes trial judges to separate the wheat from the chaff when assessing the
applicability of the various self-defence provisions. It invites trial judges
to take a hard look at the evidence with a view to determining the essence of
the claim to self-defence and the Code provision(s) realistically available to
that claim. It advocates a careful and considered culling of the self-defence
provisions to avoid unnecessary, inappropriate and irrelevant legal instruction
of a kind that might well divert the jurys attention from the real basis upon
which the claim to self-defence rests.
[p. 344]

[25]

I would add that the air of reality test must be applied to each element
of the defence before it can be put to the jury (
Cinous
at paras.
93-95).

[26]

An application to remove a defence from a jury because the defence lacks
an air of reality is not a no-evidence motion.  It proceeds on the basis that
there is evidence, but, as was stated in
Tran
(at para. 41) and quoted
by the trial judge, the evidence must be reasonably capable of supporting the
inferences necessary to make out the defence....  It is for this reason and in
this context that a trial judge undertakes a limited weighing of the evidence. 
 The Supreme Court of Canada recently restated this point and the general
approach to evidence in an air of reality analysis in
R. v. Mayuran
,
2012 SCC 31, 234 C.C.C. (3d) 1 at para. 21:

[21]        In
determining whether a defence has an air of reality, there must be an
examination into the sufficiency of the evidence.  It is not enough for
there to be some evidence supporting the defence (
Cinous
, at para.
83).  The test is whether there is (1) evidence (2) upon which a properly
instructed jury acting reasonably could acquit if it believed the evidence to
be true (
Cinous
, at para. 65).  For defences that rely on indirect
evidence or defences like provocation that include an objective reasonableness
component, the trial judge must examine the field of factual inferences that
can reasonably be drawn from the evidence (
Cinous
,

at para. 91).

[27]

Several times in his factum, the appellant asserts that it is for the
jury to decide what weight, if any, to give to the inferences drawn from the
evidence.  In absolute terms, that is correct, but it does not detract from the
trial judges obligation to perform a limited weighing of the evidence.

[28]

In my view, when undertaking the limited review of the evidence, a trial
judge is entitled to exercise common sense.  That surely is at the core of
determining whether there is an air of reality.

[29]

With these thoughts in mind, I turn to the specific contentions of the
appellant the first of which is advanced under the broad heading: The Learned
Trial Judge made numerous inappropriate determinate factual inferences.

[30]

Under this heading, the appellant lists individual inferences from the
trial judge that he submits were inappropriate. I will address each in turn.

Mr. Hanna was much smaller than the appellant.

[31]

The appellant concedes that the jury would have been entitled to
consider the difference in size between the two men, but asserts that it was up
to the jury to decide what weight to give to that and other factors.

[32]

The judge referred to the relative sizes of the men in paras. 47, 48 and
78:

[47]      Hanna was a much smaller man than Larose, who was
at least 6 feet, 195 pounds and had been working out daily in prison before his
release 18 days prior to the incident. Larose said Hanna had been beaking off
at him for a minute and half with nothing happening except that Larose was
feeling annoyed. Larose said he was talking calmly to Hanna, said by Larose to
be upset about the damage to the bus shelter.

[48]      When Larose received the knife from Marissa (I
should note here she did not testify and this evidence is not supported by
other witnesses, but is accepted as true for the purpose of this analysis), he
said he intended to use it not because he was in fear of grievous bodily harm
or death from Hanna, a much smaller man, but to confront Hanna, one on one, and
scare him.

...

[78]      When Larose received
the knife from Marissa (I should again note that she did not testify and this
evidence is not supported by other witnesses, but is accepted as true for the
purpose of this analysis), he said he intended to use it to confront Hanna one
on one and scare him, not because he was in fear of grievous bodily harm or
death from Hanna, a much smaller man.

[33]

In my view, the judges comments were merely descriptive. In any event, these
were appropriate facts to be taken into account in a limited weighing of the
evidence.  The size of the men was not a controversial fact; it was not a
determinate finding of fact.

Mr. Hanna was weakened due to the wounds he received
during the first stabbing incident

[34]

The appellant refers to the judges comment in para. 52:

[52]      ...Any reasonable
person would know their assailant would be weakened as a result of such a
wounding, reducing their capacity to inflict significant harm of any kind. ...

[35]

He asserts there was no evidence to suggest that effects of the first
stabbing would have reduced Mr. Hannas capability to inflict significant harm
of any kind and notes that the appellant testified that Mr. Hanna was walking
around as if nothing had happened.

[36]

At this point in his reasons, the judge was considering whether the
appellant reasonably apprehended a risk of death or grievous bodily harm.  The
fact that Mr. Hanna likely was not capable of inflicting such harm was fully
consistent with the appellants testimony that he stabbed Mr. Hanna twice and
fully consistent with the agreed statement of facts that the appellant stabbed
Mr. Hanna three times.  It was open to the trial judge to make the common sense
inference that Mr. Hanna had a diminished physical ability to harm the
appellant.  It was but one of a number of factors the judge took into account
when considering whether there was an air of reality to the appellant reasonably
apprehending a risk of death or grievous bodily harm.

The appellant intended to confront Mr. Hanna with the
knife

[37]

The appellant asserts that the judge equated the word confront with
the word attack.  I do not agree.

[38]

In para. 28, the judge stated that the appellant intended to use [the
knife] to scare Hanna and confront him one on one.  In para. 48, he stated
that the appellant intended to use [the knife] not because he was in fear of
grievous bodily harm or death from Hanna, a much smaller man, but to confront Hanna,
one on one, and scare him.  This comment was repeated in para. 78.  The word confront
is used in a few other paragraphs of the reasons.  The judges observation was
based on the appellants testimony.  I do not see it being equated with
attack.  The simple fact is that to scare Mr. Hanna, the appellant had to
confront him.

[39]

The appellant asserts that it was for the jury to decide the degree and
nature of [the appellants] intent to confront Mr. Hanna.  That was not the
objective of the judges examination of the evidence.  He was concerned with
whether there was any air of reality to the proposition that the appellant
reasonably believed he had a risk of death or grievous bodily harm and that he
took the knife for that reason.  The fact is that, according to his testimony,
he took the knife for a different reason: to scare and to intimidate.  The
judge was not considering whether the appellant took the knife for the purpose
of attacking Mr. Hanna.

The appellant could have spurned the knife

[40]

The appellant refers to the first sentence of para. 64 of the trial
judges reasons.  I quote the full paragraph:

[64]      Most importantly, he
could have spurned the knife he said Marissa handed him. There were no emergent
circumstances facing Larose. No reasonable grounds for believing that a 6, 195
pound male could not otherwise preserve himself from death or grievous harm
except by using such extreme means in the circumstances. When Larose decided to
use the knife to confront Hanna he had many different options. Further, when
Hanna and Marshall had walked away, Larose also could have walked away. Larose
agreed he should have, and nothing prevented him and Marissa from doing so.

[41]

He submits that a jury could have come to a different conclusion: the
appellant armed himself to defend against another attack.

[42]

The judge was examining all of the circumstances, one of which is the
reasonable proposition that the appellant did not need a 20 centimeter knife to
deal with the situation he faced.  The judge stated in para. 61 that while the
appellant did not have to weigh his options to a nicety, it was necessary to
rule out other options.  On the evidence, the judge identified not taking the
knife as an available option along with others, like walking away.

The appellants injuries from Mr. Hannas punch played no
significant role

[43]

The appellant refers to the judges comments in paras. 41, 50 and 58:

[41]      Laroses only injuries were a scratch on his neck
and a small bruise on the left check.

...

[50]      ... Hannas original uppercut was objectively
incapable of causing serious bodily harm or death to Larose and indeed caused
no significant injury to him....

...

[58]      Throughout the entirety
of the altercations on the evening in question, Larose sustained the most minor
of injuries.

[44]

The appellant submits that it would be reasonable to conclude the blow
to his head was significant, particularly because it was very painful due to
his sensitive nose.

[45]

The statements in paras. 41 and 58 are merely descriptive; they also are
completely accurate.  The observation in para. 50 is correct and is merely one
of the factors considered by the judge in determining whether there was any air
of reality to the proposition the appellant reasonably believed he faced a risk
of death or grievous bodily harm.

Mr. Hanna did not attack
the appellant while he was disadvantaged by Mr. Hannas punch

[46]

The appellant asserts that the jury might have concluded that Mr. Hanna
was waiting for Mr. Marshall to join him so they jointly could attack the
appellant.  First, that proposition is pure speculation.  Second, the judge
merely noted the fact that Mr. Hanna did not attack the appellant at that time. 
That fact was relevant to whether the appellant reasonably feared death or
grievous bodily harm.  Mr. Hannas reason for not attacking was irrelevant.

Messrs. Hanna and Marshall walked away from the first
confrontation with no purpose other than to withdraw

[47]

The appellant asserts that the judge found that Messrs Hanna and
Marshall walked away with no purpose other than to withdraw.  He contends this
may have been reasonable had they continued, but they turned back when the
appellant retrieved the knife.  The appellant refers to para. 56 of the judges
reasons, which I quote:

[56]      Hanna and Marshalls
walking away from the scene after the initial contact, in the direction they
had come from, conveys the opposite message of an intention to pursue any other
purpose but to withdraw; and certainly not to pursue any purpose to inflict
grievous bodily harm or death on Larose.

[48]

The judge did not find that Messrs. Hanna and Marshall had no other
purpose.  He stated their action conveyed that message to the appellant and did
not convey to him the message that they intended to inflict on him death or
grievous bodily harm at that point in time; a point in time when the appellant
could have left the area.

Feeling uncomfortable is not a reasonable basis for the
appellant believing he could not preserve himself from attack

[49]

The appellant refers to paras. 65 and 89, which I quote:

[65]      Larose testified he felt uncomfortable turning his
back on Hanna and Marshall, who were creating more space between them. Feeling
uncomfortable is not a reasonable basis for believing he could not otherwise
preserve himself, except by his slicing of a persons neck, face, and torso.

...

[89]      Crown counsel, in his
submissions, urged me to consider the act of stabbing Chris Hanna in the torso
three times and slashing him in the face, and severely cutting Mr. Marshalls
neck. He submitted this was not force that was no more than necessary to repel
any assault made on Mr. Larose. I agree, especially in the light of Mr.
Laroses ability to have walked away from the conflict at any point. The fact
that he may have felt uncomfortable turning his back to Mr. Hanna and Mr.
Marshall, while accepted, is not sufficient to overcome Mr. Laroses testimony
he could have left at any point, particularly when Mr. Hanna and Mr. Marshall
were walking away.

[50]

The appellant states that the judge used the least significant meaning
of the word uncomfortable and that the word can connote the feeling of
extreme fear.  He contends that it was for the jury to decide the degree and
nature of [the appellants] discomfort.  The appellants proposition accords
neither with the dictionary definition of uncomfortable (not physically
comfortable:
Concise Oxford English Dictionary
, 11
th
ed.
(Oxford: Oxford University Press, 2004)), nor with the common understanding of
the word.  The appellant did not testify that he had extreme fear or that he
could not preserve himself without slashing Messrs. Hanna and Marshall or that
this played any part in him not walking away when Messrs. Hanna and Marshall
did so.

Summary on judges inferences

[51]

Although I have addressed each of the appellants contentions concerning
the judges factual findings, the exercise illustrates the basic error of the
appellants approach.  It is wrong to analyze each of these findings in
isolation.  Most of those identified by the appellant were but one factor in
the judges consideration of the various elements of s. 34(1) and (2) of the
Criminal
Code
.  Cumulatively, together with many other factors, these findings led
the judge to conclude that the defence of self-defence did not have an air of
reality in this case.

[52]

In my view, the judge did not err in his articulation or application of
the principles which guide the air of reality analysis in his limited weighing
of the evidence.

[53]

I turn now to address the appellants other contentions concerning the
air of reality analysis raised in his factum.

Inappropriate weight on the appellants failure to
retreat or call for help

[54]

The appellant again relies on paras. 64 and 89 of the judges reasons.  He
contends that the jury reasonably could infer that the appellants failure to
leave was explainable in that he believed he had to use the knife to protect
himself.  In his factum, the appellant lists a number of propositions to
support his contention:

a)         Mr.
Larose could not reasonably be expected to retreat from the surprise uppercut
from Mr. Hanna.

b)         Mr. Larose
could not reasonably be expected to retreat from the surprise, simultaneous
attack from both Mr. Marshall and Mr. Hanna immediately prior to the first
knifing incident.

c)         Mr.
Larose was acting reasonably in retrieving the knife, from the street, in order
to ensure that his attackers would not arm themselves with it.  Doing so was a
reasonable act in self-preservation.

d)         Mr.
Larose was acting reasonably in remaining at the scene so as not to abandon
Marissa, even if he was in fear for his own safety.

e)         Mr.
Laroses fear subsided when he observed Mr. Hanna and Mr. Marshall walking away
from the area. He believed the conflict was over.  That is why he did not take
the opportunity to leave and instead went to retrieve the knife.

f)          Mr.
Larose did reasonably regain his fear when Mr. Hanna and Mr. Marshall
approached and surrounded him before the second knifing incident.

g)         Mr. Larose could not reasonably
be expected to retreat from Mr. Marshall and Mr. Hanna when they surrounded him
just prior to the second knifing incident.

[55]

Paragraph 64 of the trial judges reasons addresses the third element of
s. 34(2), reasonable apprehension of death or grievous bodily harm; para. 89
deals with the fourth element of s. 34(1), no more force than reasonable.  The
appellant acknowledges that available avenues of retreat and failure to seek
help are relevant to a consideration of these elements.  He acknowledges that
the Supreme Court of Canada in
Cinous
gave considerable weight to these
factors, but distinguishes that case on the basis that the appellant was under
attack, while Mr. Cinous struck pre-emptively.  He states in para. 64 of his
factum:

In the case at bar the jury could
reasonably conclude that Mr. Laroses failure to call for help was reasonable
in that Mr. Larose only felt the requisite fear for his safety at the instants
he was attacked just prior to both stabbing incidents.  The jury may reasonably
conclude that Mr. Laroses concentration was fully on defending himself from
multiple attackers and/or he believed that calling for help would be a futile
endeavor in the heat of the moment.

[56]

The judges task was to determine whether this contention had an air of
reality.  In my view, he did not err concluding it did not.  I examine
propositions (a)-(g) above.

[57]

I accept proposition (a).  Proposition (b) is an open question.  I am
not aware of evidence that the appellant retrieved the knife from the street to
ensure his attackers would not arm themselves with it as stated in proposition
(c).  In fact, Messrs. Hanna and Marshall were heading in the opposite
direction.  The assertion also does not accord with proposition (e), which
states the appellant believed the conflict was over and that is why he
retrieved the knife.  We were not directed to evidence that the appellant
remained at the scene to protect the young woman as contended in proposition (d).
 Similarly, we were not directed to evidence that he regained his fear when
Messrs. Hanna and Marshall approached him as alleged in proposition (f).  In
fact, he testified that he thought they were stupid coming back for more.  I think
proposition (g) makes some sense: the appellant could not be expected to
retreat when surrounded by the others.

[58]

After examining the propositions advanced by the appellant, I am not satisfied
that the judge erred concluding there was no air of reality to the contentions
that the appellant acted out of a reasonable apprehension of death or grievous
harm or that he used no more force than reasonably was necessary.

Failure to apply the appropriate test in finding there
were no objective indicators [the appellant] was, at any time, in fear of
grievous bodily harm or death

[59]

The appellant asserts that in assessing objectively the reasonableness
of his conduct, the judge was obliged to take into account the appellants
particular circumstances.  Again, the appellant sets out a number of factors
supporting his contention the judge erred:

a)
Mr. Laroses experience in
jail conditioned him to fear that any attack             could lead to grievous
bodily harm or death.

b)
Mr.
Larose described the blow from Mr. Hanna to be very painful.  The jury may
conclude that his reasoning was impaired by the pain.

c)
Mr. Larose was hit in the
head with sufficient force to knock him to             one knee for ten
seconds.  The jury may conclude that his reasoning             was impaired due
to the blow to his head.

d)
Mr.
Larose has a sensitive nose that will cause him to be incapacitated for a
significant period of time, if he it is hit.  This makes Mr. Larose
particularly vulnerable to attack.

[60]

It is clear that the judge recognized that the conduct of the appellant
had to be considered subjectively and objectively.  He repeatedly noted this in
his reasons.

[61]

We were not directed to evidence that supported a number of the factors
advanced by the appellant.  Others are pure speculation.  I would not accede to
the appellants contention that the judge erred in his consideration of the
objective indicators that the appellant did not fear grievous bodily harm or
death.

Failure to consider properly the fact that the appellant
faced two attackers

[62]

In his factum, the appellant summarizes his position on this issue:

The appellant submits that the fact that Mr. Larose
was simultaneously       attacked by Mr. Hanna and Mr. Marshall is a factor
that, in and of itself,       provides an air of reality that:

a)

The force Mr. Larose used was no more than necessary to repel Mr.
Marshall and Mr. Hanna;

b)

Mr. Larose had a reasonable apprehension of death or grievous bodily
harm from the attack by Mr. Hanna and Mr. Marshall; and

c)

That it was not possible for Mr. Larose to preserve himself from harm
except by inflicting grievous bodily harm on his adversaries.

[63]

The judge obviously was aware that the appellant faced two attackers. 
He considered and rejected each of the propositions advanced by the appellant
based on the evidence overall.  I previously have alluded to much of it.  In my
view, the judge did not fail properly to take into account the fact that the
appellant faced two attackers.

Summary on air of reality

[64]

I would not accede to the appellants ground of appeal that the judge
erred concluding his defence of self-defence lacked an air of reality.

Failure to instruct the jury on self-defence on the
charge of possession of a weapon dangerous to the public peace

[65]

The weapons charge was laid pursuant to s. 88 of the
Criminal Code,
which states:

88
.
(1) Every person commits an offence who
carries or possesses a weapon, an imitation of a weapon, a prohibited device or
any ammunition or prohibited ammunition for a purpose dangerous to the public
peace or for the purpose of committing an offence.

Punishment

(2) Every person who commits an offence under subsection
(1)

(
a
) is guilty of an
indictable offence and liable to imprisonment for a term not exceeding ten
years; or

(
b
) is guilty of an offence punishable on
summary conviction.

[66]

The appellants position is stated in paras. 39 and 40 of his factum:

When a person anticipates being attacked and the attack is
completely inescapable, then possession of a weapon to thwart the attack is not
possession for a purpose dangerous to the public peace.



In the case at bar, the jury
should have been instructed that, if they found that Mr. Larose took the knife
from Marrisa, exclusively for the purpose of thwarting an attack from Mr. Hanna
and that said attack was inescapable at that time, Mr. Larose is not guilty of
an offence under section 88 of the Criminal Code of Canada.

[67]

Counsel for the appellant at trial spoke to the jury about the
appellants state of mind when he took the knife from the young woman.  In his
charge on the weapons offence, the judge reminded the jury that they should
consider what counsel stated about the state of mind of the appellant.

[68]

In my view, the judge did not err by not addressing self-defence in the
context of the weapons charge.  He had concluded there was no air of reality
to self-defence on the basis the appellant did not pick up the knife to defend
himself.  The appellant testified he did so to scare Mr. Hanna.

[69]

The issue under s. 88 is this: why did the accused have the weapon and
what was his purpose.  Self-defence could be a purpose, but an accused may not
need to go that far.  In that context, the judge was not obliged to discuss
self-defence with the jury.  He clearly advised the jury that they had to
decide the appellants purpose in possessing the knife.  He told them they must
do so considering all the circumstances.  In my view, quite apart from the fact
the judge had concluded the defence of self-defence had no air of reality, he
properly directed the jury to what they had to consider.

[70]

I would not accede to the appellants ground of appeal concerning the
judges instruction on the weapons charge.

Conclusion

[71]

I would dismiss this appeal.

The Honourable Mr. Justice Chiasson

I agree:

The
Honourable Madam Justice Neilson

I agree:

The Honourable Madam Justice
Garson


