



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fougere, 2019 ONCA 505

DATE: 20190618

DOCKET: C60022

Juriansz, Pepall and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David R. Fougere

Appellant

Bernadette Saad and Joanne Prince, for the appellant

Grace Choi, for the respondent

Heard: March 6, 2019

On appeal from the conviction entered by Justice Robert
    B. Reid of the Superior Court of Justice, sitting with a jury, on September 3,
    2014.

Lauwers
    J.A.:

[1]

The appellant was convicted of aggravated assault on John Marcheson. He
    was sentenced to 12 months incarceration and 24 months probation. He appeals
    his conviction. For the reasons that follow, I would allow the appeal.

[2]

Between September 28, 2012 when the fight occurred on which the charge
    was based, and the beginning of the jury trial on August 25, 2014, the
    self-defence provisions of the
Criminal Code
, R.S.C. 1985, c. C-46,
    were amended. The amendments came into force on March 11, 2013. The trial judge
    applied the new provisions retrospectively, and used them to instruct the jury.
    Defence counsel did not object to the trial judges use of the new provisions,
    and did not object to the jury charge. The appellant was convicted of
    aggravated assault.

[3]

Since the appellants trial, this court held in
R. v. Bengy
,
    2015 ONCA 397, 335 O.A.C. 268, that the amended provisions apply prospectively,
    not retrospectively. There is no doubt that the trial judge erred in using the
    post-amendment self-defence provisions to instruct the jury. But in and of
    itself that is not sufficient to allow the appeal.
R. v. Phillips
,
    2017 ONCA 752, 355 C.C.C. (3d) 141, calls for a case-specific, functional
    inquiry to determine whether the error prejudiced the accused: at paras. 74-75.

[4]

However, there is no need to conduct the inquiry that
Phillips
calls
    for in light of another error relating to the trial judges failure to adequately
    correct a legally erroneous assertion made by the trial Crown in the jury
    address. Crown counsel said four times
that if
    the jury found that the appellant struck the complainant, Mr. Marcheson, first,
    then self-defence did not apply. This error, on its own, renders the verdict
    unsafe.

A.

Factual overview

[5]

The appellant and Lisa Beamer were each renting a room in William
    Vullings home. Mr. Marcheson was there with them. The appellant and Mr. Marcheson
    had known each other for about 40 years but had a history of tension, including
    some physical altercations. Ms. Beamer and Mr. Marcheson were good friends. Ms.
    Beamer and the appellant were not friends. Mr. Vullings was friends with all
    three of the others.

[6]

The group began drinking beer and playing cards in the afternoon. As the
    drinking continued through the evening and into the morning hours, tension grew
    between the appellant and Mr. Marcheson. Eventually, the appellant went to bed
    in his own room.

[7]

The appellant awoke and complained about the noise that the rest of the
    group was making. He directed offensive comments at Mr. Marcheson, who
    confronted the appellant. They fought. Both the appellant and Mr. Marcheson
    agreed that the appellant is much smaller than Mr. Marcheson in terms of
    height, weight, and build. The appellant suffered from a knocked-out tooth and
    bloody nose and lip. The appellant had a beer glass in his hand during the
    altercation, from which Mr. Marcheson suffered multiple lacerations to his face
    and neck. This led to the charge of aggravated assault.

B.

The trial evidence

[8]

The appellant and Mr. Marcheson gave different accounts of the physical
    altercation. Mr. Marcheson testified that the appellant struck him first with
    the beer glass. The appellant testified that Mr. Marcheson attacked him, and he
    used the glass in self-defence.

The appellants testimony

[9]

The appellant testified that the noise from the group woke him up. He
    heard Mr. Marchesons voice, and he yelled at him from inside his room. The
    appellant opened his door to go rinse a beer glass from which he had been drinking
    milk, and found Mr. Marcheson standing at his doorway. He tried to get past Mr.
    Marcheson, who said [y]oure gettin it and then punched the appellant in the
    face, knocking him out, with the glass still in his hand.

[10]

The
    appellant testified that he came to still holding the now broken glass. He
    dulled the glass on the coffee table to avoid hurting Mr. Marcheson, and held
    onto it as the two scuffled in the doorway. The appellant held the glass under
    Mr. Marchesons chin, who then backed off.

[11]

The
    appellant testified that as he headed back to his room, Mr. Marcheson picked
    him up, threw him onto the bed, sat on him, and proceeded to hit him 30 to 40
    times. The appellant rubbed the glass against Mr. Marchesons face to scratch
    him in order to get him to back off. He characterized Mr. Marchesons injuries
    as being self-inflicted as a result of his attack on the appellant.

[12]

The
    appellant denied striking the first blow.

The testimony of the other witnesses

[13]

Mr.
    Marcheson testified that he heard the appellant shouting insults from his room.
    He stood up and went to the appellants room door, opened it, and went inside.
    He stated that he left the room without incident. As he headed back to join Ms.
    Beamer and Mr. Vullings, he heard the appellant behind him. Mr. Marcheson
    turned around and the appellant hit him in the face with what he thought was a
    beer bottle. Ms. Beamer later told him it was a beer glass. She told him he was
    bleeding, and after hearing this he went back to the appellants room and hit
    him a few times.

[14]

Ms.
    Beamer testified that the group heard the appellant shouting at Mr. Marcheson
    from his room. Mr. Marcheson went into the hallway and shouted thats fucking
    enough. After ten minutes they heard the appellant come out of his room. Mr.
    Marcheson went into the hallway to see why the appellant was coming out. Ms.
    Beamer was behind Mr. Marcheson. She testified that the appellant came out of
    his room with a big thick glass mug in his hand and just clocked [Mr.
    Marcheson] right in the face.

[15]

Mr.
    Vullings testified that an argument took place between the two men, and Mr.
    Marcheson became increasingly frustrated. The two faced off in the hallway, and
    Mr. Marcheson said, Thats it, hes getting it! They then moved into the
    appellants bedroom. Mr. Vullings heard rustling, banging, and a smash. He got
    up after hearing the smash and saw Mr. Marcheson on top of the appellant
    punching him.

[16]

The
    jury was obliged to sort through this divergent evidence.

C.

Analysis

[17]

The
    issues to be resolved are: (1) whether the Crown misstated the law of
    self-defence, and (2) whether the trial judge erred by not correcting the
    misstatement.

(1)

Did the Crown misstate the law of self-defence in the jury address?

[18]

In

his jury
    address, Crown

counsel

stated

four

times

that

if

the

jury

found

that

the
    appellant

had

struck

the

complainant

first,

then

self-defence
was not available to the appellant
:

These are the factors: a

person
    is



that if

it's believed, on reasonable
    grounds, that force is

being

used

against
    that

person

or

another person, or
    that

the

threat

of

force

is

being

made against

them

or

another

person.

So

what

that

is

is

whether

Mr.

Fougere

believed

that, on

reasonable grounds, that

force

was

being

used

against

him,

against

him

or

another

person that's  in that

instance

self-defence is

open

to

him.

So
    if

on

the

Crown's theo
r
y  if

Mr. Fougere struck firs
t
,

if you find

that

he

struck first, self-defence is

over,

all

right, because Mr.

Fougere struck

first
.

So if you find that as a fact
,
that

Mr.

Marcheson
    was

struck

first, self-defence is

done,
    all right
. You don't  the Crowns met that  the Crown has, has established
    that that does not apply, that the reason the force was used was in

self-defence.

Now,

the

next

factor

is,

the

act

that

constitutes the

offence

is

committed for

the

purpose of defending

yourself.

Okay,

so

going

back

to

the

first

one,

Mr.

Fougere

would

have

to

believe
    that Mr. Marcheson had,

had assaulted
    him or was threatening to assault him; thats the first thing. Was  did Mr.
    Fougere believe, on reasonable grounds, that Marcheson was  had assaulted him
    or was threatening to assault him?
And if

you find that Mr. Fougere struck first, that

one's done
, but it

goes
    further

than

that.

The

next

one

is,
that
the

act

that

constitutes

the

offence,

the

aggravated

assault, is

committed

for the

purpose

of

defending

or

protecting
    oneself or

another person. Okay, what

that

means

is, is  you

have

to

find,

first

of

all,

that

Mr.

Fougere

thought

he

was

being
    attacked

or

there

was

a

threat

of

attack.

If

he

struck

him

first, obviously

that's not

the

case
.
    [Emphasis added.]

[19]

In
    his testimony at trial, the appellant denied striking the first blow. Is
    rejection of this denial fatal to his claim of self-defence? The appellant
    argues that even if

the

jury

rejected
his denial

and

believed

that he

struck

the

first

blow,

the jury,

properly

instructed,

could

still

have

found

that

the

Appellant

was

acting

in self-defence.

[20]

I
    agree with the appellants argument that there is

no automatic

preclusion
    of

self-defence where

the

trier

of

fact

finds

that

the

accused

struck

the

first blow. Under the old

provisions, a

first blow might
have
been

justified

as

self-defence

under s.
3
7

for

the

purpose

of

preventing

an

assault

against

the

accused.

Under

the
new
provisions, s. 34 may provide

justification for

a

first

blow

against
    another

where

the accused

is

reacting to

a

threat of

force.
Under
    both provisions, t
he

trier

of

fact

would

also

have

to
    determine whether the

force used

was

proportionate
    to the threat

perceived.

The defence would

apply

if

an

accused

believed

that he was being

assaulted

or

facing

threat

of

being assaulted, even if

the accused was mistaken in

that belief, so long

as

the

belief was objectively reasonable.

[21]

The
    appellant paints this picture. A jury

could
    have concluded that a

startled and frightened
    Fougere, who happened to be

holding a
    beer

glass while on his

way to the kitchen, reacted

to

a

perceived threat

of

force

(i.e.

Marcheson
    stating

that

Fougere

was

going to

get

it)

by striking

Marcheson as

they

encountered each

other

at

or

near

the

bedroom

door. The appellant argues that

a properly

instructed jury

could

have

found

that

Fougere

struck

the

first

blow

and

that

the

Crown

had not

proven

that

Fougere

was

not

acting

in

self-defence (emphasis in
    original). The appellants fear, notes counsel, could have been found to be reasonable
    in light of several contextual facts, taken from the appellants factum, and which
    do not appear to be in dispute:

·

Marcheson was 100 lbs. heavier than Fougere, and much taller;

·

Both Fougere and Marcheson acknowledged history of tension
    between them;

·

Vullings testified that Marcheson would pick on Fougere, while
    Fougere characterized it as being bullied by Marcheson;

·

Fougere recalled a previous physical altercation wherein Marcheson
    had him to the ground as someone else goaded that Marcheson should kill him;

·

All parties noted tension brewing on the night in question
    between Fougere and Marcheson;

·

Fougere testified that Marcheson made him nervous that night as
    he kept hovering outside his bedroom door;

·

Fougere testified that immediately preceding the physical altercation,
    he opened his door to find Marcheson right there;

·

Fougere, Vullings and Beamer all testified that Marcheson stated
    that he had had enough and/or that Fougere was going to get it just prior
    to the physical altercation; .

Consequently there was, argues the appellant, an air of
    reality to self-defence even if the appellant struck the first blow.

(2)

Did the trial judge err by not correcting the Crowns misstatement?

[22]

The
    trial judges charge was conventional on self-defence. But he did not comment
    at all on the Crowns assertion that if the appellant struck the first blow
    then he could not claim to have been acting in self-defence. This was an error.
    The Crowns submission on the first blow took on added force from the lack of
    correction. Arguably the charge reinforced the Crowns submission. First, after
    outlining the three conditions required to disprove self-defence, the trial
    judge stated that in considering them, the jury might find assistance in
    considering who struck the first blow. Absent a correction that self-defence
    was still available even if the appellant struck the first blow, if the jury
    considered only the Crowns position then a consideration of who struck the
    first blow might lead them to the erroneous conclusion that self-defence was
    not available. Second, in outlining the Crowns theory of the case, the trial
    judge repeated the Crowns position that the appellant did not believe on
    reasonable grounds that force or a threat of force was being used against him
    because he struck Mr. Marcheson first, before Marcheson ever acted
    aggressively.

[23]

The
    respondent argues that the appellants alternative position was not put to the
    jury at trial (perhaps for strategic reasons), and that the trial Crowns
    argument was, in any event, correct on the facts of this case. The respondent
    submits:

It is clear that the Crown was referring to the Appellant
    striking first
with the glass
, in anger, and causing serious lacerations
    to Mr. Marcheson as a first blow. There would have been no air of reality to a
    self-defence claim that the Appellant
reasonably
had to cause multiple
    serious lacerations on the face of the unarmed Mr. Marcheson as a first blow in
    response to the words youre getting it. [Emphasis in original.]

The respondents factum then recites all the reasons
    why the appellant was not actually in fear of Mr. Marcheson.

[24]

Regarding
    the Crowns argument that the alternative position was not put to the jury, I
    note that the trial judges duty is to instruct the jury on all available
    defences, even when counsel does not raise or rely on them
. See
R. v. Jackson
(1991), 51 O.A.C. 92 (C.A.), at para.
    64, aff d [1993] 4 S.C.R. 573. Even though the appellant did not put its
    alternative position before the jury, it would have still been incumbent on the
    trial judge to instruct the jury on the application of self-defence, based on
    the evidence led.


[25]

With
    respect, the respondents formulation oversimplifies the factual situation and presupposes
    a jury finding in favour of that view. It was the jurys responsibility as the
    trier of fact to consider the widely divergent evidence in light of a proper
    understanding of the applicable law, both in relation to the appellant striking
    first and whether the force he used was proportionate to the threat perceived.
    The trial judges failure to correct the Crowns misstatement inhibited that
    understanding. As a confounding factor, the trial judges erroneous decision to
    apply the new law may also have affected the argument and the jurys assessment
    of the evidence, to the appellants prejudice.

D.

Disposition

[26]

In
    the circumstances, I consider the verdict to be unsafe. I allow the appeal, set
    aside the conviction and order a new trial on the count of aggravated assault.

Released: P.L. JUN 18, 2019

P. Lauwers J.A.

I agree. R.G. Juriansz
    J.A.

I agree. S.E. Pepall
    J.A.


