



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Mohamed, 2014 ONCA 442

DATE: 20140605

DOCKET: C55990

Rouleau, Lauwers and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdi Mohamed

Appellant

P. Andras Schreck and Candice Suter, for the appellant

Michael Bernstein, for the respondent

Heard: March 4, 2014

On appeal from the conviction entered on December 5, 2008,
    by Justice Anne M. Molloy of the Superior Court of Justice, sitting with a
    jury.

Rouleau J.A.:

OVERVIEW

[1]

Abdi Mohamed was charged with second degree murder
    after a barroom altercation during which he fatally stabbed the
    bartender/owner. After a trial by judge and jury, he was convicted of the
    lesser included charge of manslaughter. At trial, the appellant argued that he
    had acted in self-defence. He appeals his conviction on the ground that the
    trial judge erred in her charge to the jury on self-defence. Specifically, he
    argues that the trial judge erred in instructing the jury that the self-defence
    provision in the former s. 34(2) of the
Criminal Code
, R.S.C. 1985, c. C-46 (
Code
),
was not available to the appellant if
    the jury concluded that the victims attack on the appellant immediately
    preceding his death was an act of self-defence on the victims part. Further,
    he argues that the trial judge erred in not leaving the former s. 35
    self-defence provision with the jury. These self-defence provisions have since
    been repealed and replaced with a single new section of the
Code
,
    namely the new s. 34 as it came into effect on March 11, 2013, pursuant to the
Citizens
    Arrest and Self-defence Act
, S.C. 2012, c. 9. The appellant advances the
    further argument that the new s. 34 should be interpreted as applying
    retroactively so as to define the limits of the defence of self-defence
    available to him in this case. Unless otherwise noted, my references to ss. 34
    and 35 are to the sections as they appeared before the 2013 amendments.

FACTS

[2]

The appellant, his half-brother Mohamed Hassan, and
    an acquaintance Abdi Farah, were drinking on the night of August 18, 2004. They
    were already pretty drunk by the time they entered Ross Bar, around 10:30 or
    11 p.m., and met up with Mo, an acquaintance of Farah. They were refused
    service in Ross Bar and headed next door to Jupiter Bar, entering at 11:31 p.m.
    What happened over the next three minutes resulted in the death of the bar
    owner, Pathiaga Peiris, and forms the subject matter of this case. The events
    were captured by four video cameras, three covering different but somewhat
    overlapping areas within Jupiter Bar and one covering the entrance area outside
    the bar. The parties accept as accurate the following summary prepared by the trial
    judge of the events as captured on video and reproduced in a set of PowerPoint
    slides combining frames from all four cameras:

[The appellant, Abdi Farah, and Mo] proceeded to the bar area
    where Mr. Peiris was located. However, Mohamed Hassan turned around almost
    immediately after entering and headed back outside.



Meanwhile ... Abdi Mohamed and Mo are creating quite a
    disturbance in the bar. They are angry that Mr. Peiris refused to serve them.
    After this first exchange with Mr. Peiris, Abdi Mohamed initially walked away
    from the bar, kicking over a chair, then a table and then another chair on his
    way back towards the front door. Then he turned back and headed straight to the
    bar area, picked up a billiard ball from one of the billiard tables and hurled
    it at Mr. Peiris who was behind the bar. The ball rolled back out into the
    room, Mr. Mohamed picked it up and threw it again at Mr. Peiris. Mo also threw
    some object at Mr. Peiris and then picked up a chair and threw it at the bar.
    At this point, Abdi Mohamed turned and headed back through the room towards the
    front door. Mr. Peiris came out from behind the bar carrying a piece of metal
    pipe and ran after Mr. Mohamed.



When Abdi Mohamed was about halfway back to the front door, he
    turned and faced Mr. Peiris while continuing to move backwards towards the
    front door. Mr. Mohamed can be seen pulling up his shirt and reaching into the
    area around his waistband. It seems apparent that it is at this point that Mr.
    Mohamed pulled a knife, although the knife is never visible on the video. Mr.
    Peiris continued to advance with the metal pipe clenched in both hands and Mr.
    Mohamed continued to move backwards towards the front entrance.



When Abdi Mohamed was about two-thirds of the way to the
    entrance door, Mr. Peiris raised the metal bar above his head, using both
    hands, and swung at Mr. Mohamed.



It appears from the video that this first swing by Mr. Peiris
    did not connect with Mr. Mohamed. However, Mr. Peiris wound up again and again
    raised the pipe over his head, swinging at Mr. Mohamed. At this point, Mr.
    Mohamed was very close to the exit. This swing connected and gashed the top
    back portion of Mr. Mohamed's head.



After Mr. Mohamed was hit, he and
    Mr. Peiris made physical contact and Mr. Mohamed's arm can be seen coming
    around Mr. Peiris' back.  This is the point at which a fatal knife wound was
    inflicted on Mr. Peiris. Mr. Peiris buckled at the knees and at this point Mo,
    who had been advancing from behind him, grabbed at Mr. Peiris and struggled
    with him. Mr. Peiris fell to the ground at a point just outside of the cameras
    range, not far from the front door.

[3]

At that point, the appellant immediately left
    Jupiter Bar, as captured by the video camera recording the entrance area
    outside the bar.

[4]

In the course of pre-charge discussions with
    counsel, the trial judge was called upon to rule on the proper wording of the
    charge on s. 34(2) and whether to charge on s. 35. The trial judge considered
    the wording of s. 34(2) and, in particular, the requirement that a person
    seeking to rely on s. 34(2) be acting in response to an unlawful assault. She
    determined that the threshold issue to be decided by the jury was whether Mr.
    Peiris was acting in self-defence during the altercation with the appellant. In
    particular, she concluded that, if the jury were satisfied beyond a reasonable
    doubt that Mr. Peiris was acting in self-defence, then he was acting lawfully and
    s. 34(2) was not available to the appellant. This, she reasoned, is because the
    appellant can only be acting in self-defence if he is repelling an unlawful
    assault.

[5]

The trial judge then considered the self-defence
    provision in s. 35. Provided that certain conditions are met, s. 35 offers a
    defence to an initial aggressor, that is, to a person responding with force to
    an assault he has himself provoked or otherwise triggered by an earlier assault
    of his own. Some preconditions to the application of s. 35 do not appear in s.
    34(2). For instance, s. 35 requires that the initial aggressor retreat as far
    as feasible before he may justifiably defend himself with force against the
    counter-attack he has provoked or triggered.

[6]

Section 35 is also different in another respect. It
    applies to an accused who is responding to an assault as opposed to
    responding to an unlawful assault as provided in s. 34(2). The trial judge considered
    this difference in wording and determined that the unlawfulness requirement
    should be read into s. 35. She reasoned that an assault, by definition, was
    unlawful and that, as a result, the absence of the word unlawful in s. 35 was
    of no moment. Assault in s. 35 should be given the same meaning as unlawful
    assault in s. 34(2). Therefore, if the jury concluded that Mr. Peiris was
    acting in lawful self-defence, the appellant could not be responding to an
    assault.

[7]

The trial judge then compared the defence available
    under s. 34(2) and the defence offered by s. 35. She concluded that, because of
    the additional requirement of retreat imposed by s. 35, s. 35 provided a more
    limited defence than s. 34(2) and could not benefit the appellant if the jury
    rejected the s. 34(2) defence. She therefore determined that putting s. 35 to
    the jury would add nothing in the circumstances of this case and s. 35 should
    not be left with the jury.

ISSUES

[8]

The following three issues are raised on appeal.

1)

Did the trial judge err in instructing the jury that self-defence under
    s. 34(2) was not available to the appellant if they were satisfied beyond a
    reasonable doubt that Mr. Peiris was acting in self-defence?

2)

Did the trial judge err in not leaving s. 35 with the jury?

3)

Do the recent amendments to the self-defence provisions of the
Code
apply retroactively to this case?

ANALYSIS

1)

Did the trial judge
    err in her interpretation of s. 34(2) of the
Code
?

[9]

Section 34(2) provides as follows:

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.

[10]

In
R. v. Pétel
, [1994] 1 S.C.R. 3, at p. 12, Lamer C.J.,
    writing for a majority of the Court, articulated the elements of s. 34(2) as
    follows:

It can be seen from the wording of
    s. 34(2) of the
Code
that there are three constituent elements of
    self-defence, when as here the victim has died: (1)
the existence
    of an unlawful assault; (2) a reasonable apprehension 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
.

With respect to the third element, this
    court has clarified that it is not necessary that an accused invoking s. 34(2)
    have had the intention to kill or cause grievous bodily harm at the time he
    defended himself, but only that he have reasonably believed that he could not
    preserve himself from death or grievous bodily harm otherwise than by using the
    force he in fact used to repel the assault:
R. v. Pintar
(1996), 30
    O.R. (3d) 483;
R. v. Fudge
(1997), 103 O.A.C. 153. As Moldaver J.A.
    explained in
Pintar
, at pp. 510-11, when the passage quoted above from
Pétel
is read in context, it is clear that Lamer C.J.
did not mean to 
suggest
    that the intent to kill or cause grievous bodily harm forms a constituent
    element of that provision.

[11]

The appeal here centers on the trial judges instruction on the first
    element, the requirement that the accused be responding to an unlawful assault.
    Specifically, is the jury to consider the lawfulness of the assault committed
    by the victim from the victims perspective or from the perspective of the
    appellant? In other words, even if the jury are satisfied beyond a reasonable
    doubt that the victim was acting in self-defence, i.e. lawfully, is it
    nonetheless open to the jury to decide that, viewed from the appellants
    perspective, it was reasonable for the appellant to believe that the assault he
    was repelling was unlawful?

[12]

The trial judge was of the opinion that the jury should approach the
    question of the lawfulness of the assault committed by the victim from the
    perspective of the victim. As a result, she instructed the jury that if they
    were satisfied beyond a reasonable doubt that Mr. Peiris was acting in lawful
    self-defence, then Mr. Mohamed cannot be said to be acting lawfully when he
    stabbed Mr. Peiris and there would be no need for you to consider the next
    section of these instructions dealing with the issue of self defence as it
    relates to Mr. Mohamed.

[13]

In my view, the trial judge erred in limiting the jury in this way. In
    fairness to the trial judge, the appellants trial counsel (not the same as
    counsel on appeal) did not object to this aspect of the charge. This may well have
    been due to her belief that the s. 35 defence should and would be left with the
    jury. She understood that s. 35 offered a broader defence to the appellant
    and was therefore more favourable than s. 34(2). As it turned out, the trial
    judge disagreed with the appellants trial counsel and the jury was not charged
    on s. 35. The error in the charge on s. 34(2), however, is an error of law and
    the fact that defence counsel did not object to this aspect of the charge is
    not a bar to it being raised on appeal: see e.g.
Pintar
, at pp.
    519-20, where Moldaver J.A. concluded that defence counsels failure to raise
    appropriate objections at trial to the jury instructions on s. 34(2) was not
    fatal [to the defences appeal of those instructions] having regard to the
    nature of the errors and their potential prejudicial effect on the appellants
    primary defence;
R. v. Jacquard
, [1997] 1 S.C.R. 314, at para. 37,
    where Lamer C.J., writing for a majority of the Court, stated that defence
    counsels failure to object to a jury charge is not determinative and stressed
    that ultimately the jury charge is the responsibility of the trial judge and
    not defence counsel.

[14]

As noted above, the Supreme Court of Canada dealt with the
    interpretation of s. 34(2) in
Pétel
. Writing for the majority, Lamer C.J.
    cautioned that the jury should not be instructed to view the situation from the
    victims perspective. He explained, at p. 13, that deciding first whether the
    victim was acting lawfully in self-defence would amount in a sense to trying
    the victim before the accused. The correct approach to s. 34(2), according to
    Lamer C.J.,
ibid
., is to approach it from the perspective of the
    accused:

In a case involving
    self-defence, it is the accuseds state of mind that must be examined, and it
    is the accused (and not the victim) who must be given the benefit of a
    reasonable doubt. The question that the jury must ask itself is therefore not
    was the accused unlawfully assaulted? but rather did the accused reasonably
    believe, in the circumstances, that she was being unlawfully assaulted?

In other words, the appellants actions in
    response to those taken by Mr. Peiris have to be assessed in terms of what the appellant
    reasonably believed.

[15]

This interpretation was reaffirmed in
R. v. Cinous
, 2002 SCC
    29, [2002] 2 S.C.R. 3, at para. 94, where the Court stated that:

Each of the three
    elements under s. 34(2) has both a subjective and an objective component. The
    accuseds perception of the situation is the

subjective part of the test. However, the accuseds belief must also
    be reasonable on the basis of the situation he perceives. This is the objective
    part of the test.  Section 34(2) makes the reasonableness requirement
    explicit in relation to the second and third conditions.
Pétel
held that the same standard applies to the first component of the
    defence, namely, the existence of an assault.

With respect to each of the three elements,
the approach is first
    to inquire about the subjective perceptions of the accused, and then to ask
    whether those perceptions were objectively reasonable in the circumstances
.
    [Emphasis added.]

[16]

What an accused must show in order to meet the unlawful assault
    requirement in s. 34(2) was explained by Professor David M. Paciocco (as he
    then was) in his article 
Applying the Law
    of Self-defence
 (2007) 12 Can. Crim. L. Rev. 25, at p. 66, as
    follows:

i)

the accused was being unlawfully assaulted (as an
objective
fact);
or

ii)

the accused:

a.

subjectively
apprehended that he or she was being unlawfully assaulted;
and

b.

evaluated
    objectively
, it was reasonable for the accused to believe
    that he or she was being assaulted;
and

c.

the assault the accused reasonably apprehend[ed] would (as an
objective
fact) be an unlawful assault

[Emphasis in
    original.]

[17]

The Crown acknowledges that
Pétel
is the governing authority
    but submits that the appeal should be dismissed on two bases.

[18]

First, the Crown argues that
Pétel
stands for the proposition that

the law [of] self-defence permits
    reasonable mistakes to be used in justification, when those mistakes relate to
    the questions of fact (eg. whether there was assault). Mistakes, reasonable or
    otherwise, of law  for example, a mistaken belief by the accused that the
    assault he experienced or apprehended was unlawful  are not permitted.

[19]

The Crowns second response is that any error in the trial judges s.
    34(2) instruction was harmless. In the Crowns submission, if the jury was
    satisfied beyond a reasonable doubt [that] Mr. Peiris acted in self-defence  then
    they had to have concluded that there existed no evidence upon which a properly
    instructed jury acting reasonably could have acquitted, at least in respect of
    the objective component of the unlawful assault in section 34(2).

[20]

I will deal with each of the Crowns arguments in turn.

a)

Is an error as to the
    lawfulness of an assault an error of fact or an error of law?

[21]

The appellant acknowledges that the accused is not entitled to act on
    his belief as to what the law is. He does not argue that he had a reasonable
    but mistaken belief as to the legal elements of self-defence. Rather, he argues
    that when Mr. Peiris approached him swinging the metal pipe, he reasonably
    believed that Mr. Peiris was assaulting him and that the assault, as he
    perceived it, was unlawful.

[22]

The appellant submits that, when the jury views the various videos of
    the altercation and considers them from the perspective of the appellant, they
    may well reasonably conclude that Mr. Peiris conduct and actions, as they
    would have been perceived by the appellant at the time and in context,
    constituted an unlawful assault and would not be understood to be acts of
    self-defence. In the circumstances of this case the evidence allowed for the
    seemingly inconsistent finding that, although Mr. Peiris was acting in
    self-defence, it was nonetheless subjectively and objectively reasonable to
    conclude that, viewed from the appellants perspective, Mr. Peiris was acting
    unlawfully. The appellants assessment of the factual matrix differed from Mr.
    Peiris assessment and, applying the same legal test, the appellant could have reached
    a different result.

[23]

I agree with the appellants submission. What
Pétel
tells us
    is that a jury, after calm and deliberate reflection on the totality of the
    evidence, could conclude, beyond a reasonable doubt, that a person such as Mr.
    Peiris was acting out of fear and in self-defence but that the other party to
    the altercation, the appellant, could reasonably have believed that his
    attacker, Mr. Peiris, was acting out of anger and seeking vengeance. In such a
    scenario, the appellant would be reasonably mistaken about Mr. Peiris motive
    and purpose, giving rise to a possible finding that both he and Mr. Peiris were
    acting in self-defence. In such a case, the appellant would have committed a
    mistake of fact, not a mistake of law.

b)

Was the trial judges
    error harmless?

[24]

The Crowns second response is to argue that, even if we were to
    conclude that the jury charge was contrary to
Pétel
, the error was
    harmless. As noted earlier, the Crown argues that if the jury concluded that
    Mr. Peiris had acted in self-defence, the jury acting reasonably could not have
    acquitted the appellant because the objective component of the unlawful assault
    requirement in s. 34(2) could not possibly be satisfied.

[25]

The Crowns submission, in effect, is that the objective component of
    the unlawful assault in s. 34(2) makes
Pétel
irrelevant. In the
    Crowns submission it matters not whether the jury views the situation through
    the eyes of the victim or through the eyes of the appellant. An objective
    assessment will yield the same result.

[26]

I disagree. First, the video allows the jury to assess the situation
    from the perspective of both persons. Each of the appellant and Mr. Peiris was
    called upon to decide how to act based on the information he had or could glean
    from his particular point of view. Their respective points of view naturally
    differed. For example, Mr. Peiris would have been facing not only the appellant
    but would also have been aware of the presence of Mo behind him. He may,
    therefore, have been reacting not only to the actions of the appellant but also
    to the presence and actions of another potential assailant. The appellant,
    however, was facing Mr. Peiris and may not have been factoring in the presence
    of Mo or Mr. Peiris concern about facing at least two potential assailants. This,
    among other factors, may give rise to the possibility that Mr. Peiris and the
    appellant reached different, yet both objectively reasonable, understandings of
    the respective motivations and risks involved in their confrontation.

[27]

The trial judge gave reasons in support of her rulings that the issue
    of Mr. Peiris self-defence should be left with the jury and that, if Mr.
    Peiris was acting in self-defence, then self-defence was not available to the
    appellant. Those reasons provide a useful summary of the considerations the
    jury might take into account in deciding whether Mr. Peiris was acting in
    self-defence at the time of the assault. The relevant considerations she listed
    include:

a)

The fact that the appellant came into the bar with others, one of whom
    (Mo) was also acting in a violent, assaultive manner;

b)

the degree of violence already displayed by the appellant;

c)

the degree to which the appellant was intoxicated and out of control;

d)

the fact that the appellant had already headed for the exit once, but
    returned;

e)

the advisability of preventing the appellant from returning to the bar
    area where the presence of glass and bottles was particularly dangerous and
    where Mr. Peiris wife would also be in danger;

f)

the fact that the appellant was armed with a knife; and

g)

the fact that the appellant was taller, heavier and considerably younger
    than Mr. Peiris.

[28]

All of these factors could well have weighed in favour of concluding
    that Mr. Peiris was acting in self-defence. It becomes immediately apparent,
    however, that the appellants perspective on many of these points would, quite reasonably,
    have been different. For example, the appellant may not have been taking into
    account the presence of Mo in the bar and, in all likelihood, would not have
    been aware of Mr. Peiris concern for his wife.

[29]

Invariably a jury would have access to considerably more information
    about the assault than either the appellant or Mr. Peiris had at the time each
    had to respond to the confrontation. For example, the jury had the benefit of
    viewing the scene from four different camera angles and could view the
    recordings repeatedly, stopping or slowing them as desired. In addition, the jury
    is allowed time for sober reflection to interpret the events. As Professor Paciocco
    notes at  p. 36:

The laws 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.

Martin J.A.s point about not
    weigh[ing] to a nicety was quoted by both the majority and the dissent in
R. v. Kong
, 2005 ABCA 255, 371 A.R. 90. The
    reasons of the dissent were adopted by the Supreme Court of Canada in
R. v. Kong
, 2006 SCC 40, [2006] 2 S.C.R. 347.

[30]

Put another way, each of the victim and the appellant can, in the heat
    of the moment, viewing the scene from different perspectives and benefitting
    from different information, come to the reasonable and objectively supported
    conclusion that he is himself responding to an unlawful assault by the other
    and that his use of force is justified in response.

[31]

In many instances, such a seemingly paradoxical result will not be
    available on the evidence. The circumstances of this case, however, are such
    that a jury could, in my view, after careful deliberation, reach this conclusion.
    The jury may have reached their verdict because they were convinced beyond a reasonable
    doubt that Mr. Peiris was acting in self-defence. Assuming they did, it is
    certainly conceivable that on the same facts, but viewed from a different
    perspective, they could at the same time have been left with a reasonable doubt
    as to whether Mr. Peiris conduct and motivation, as reasonably but perhaps
    mistakenly perceived by the appellant, amounted to an unlawful assault. The
    appellant was faced with Mr. Peiris moving towards him, he had already been
    swung at once and the second swing of the pipe hit him on the head causing a
    gash. The appellant had only seconds to react. An objectively reasonable
    conclusion available in the circumstances is that the appellant believed that
    Mr. Peiris was aggressively seeking vengeance despite the appellant being
    already in retreat.

[32]

The trial judges misdirection prevented the jury from considering this
    potential route to an acquittal of the appellant. As a result, I would reject
    the Crowns submission that the error was harmless.

2)

Did the trial judge
    err in not leaving s. 35 with the jury?

[33]

Section 35 of the
Code
provides as follows:

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.

[34]

There are several important differences between s. 34(2) and s. 35.
    First, s. 35 is restricted to those cases where the person seeking to invoke
    self-defence is the initial aggressor in the sense that that person first assaulted
    the other or has provoked an assault on himself. Second, s. 35 does not contain
    the explicit restriction that the force used in self-defence be in response to
    an unlawful assault. Third, there is a requirement in s. 35 that the person
    invoking the section must have declined further conflict and quitted or
    retreated from it as far as it was feasible to do so 

[35]

In the pre-charge conference at trial, both the Crown and the appellant
    were of the view that s. 35 applied even if the victim of the initial
    aggression acted lawfully in response to that aggression, so long as all other
    requirements of s. 35 were satisfied. The trial judge disagreed.

[36]

The trial judge noted that s. 35 contemplates two different situations where
    the accused initiates the aggression. The first situation applies where the
    initial aggressor has without justification assaulted another and the second where
    the initial aggressor has without justification provoked an assault on himself
    by another. The trial judge went on to explain that because the victims response
    in the second contemplated situation is characterized as an assault, while
    the victims response in the first contemplated situation is not characterized,
    there exists an ambiguity in the section.

[37]

The trial judge then did two things. First, she concluded that she
    should resolve the apparent ambiguity by reading into the first contemplated
    situation (has without justification assaulted another) the requirement that
    the victims response to the initial assault be an assault on the aggressor. In
    other words, the initial aggressor would only have the right to respond with
    force if he was being assaulted by the victim. This, the trial judge reasoned,
    made sense because the first contemplated situation is more serious. The
    initial aggression is an assault, whereas in the second contemplated situation
    (has without justification provoked an assault on himself by another) the
    initial aggression is simply a provocation. It could not be the case that s. 35
    offered a broader defence to the initial aggressor who actually assaulted the
    victim than to an initial aggressor who merely provoked the victim.

[38]

Second, the trial judge reasoned that an action taken in self-defence
    could not in law be considered an assault. It was, therefore, implicit in
    the description of both situations contemplated in s. 35 that the section does
    not apply if the victim of the initial aggression is acting in self-defence. In
    effect, she determined that there was no difference between the reference to an
    unlawful assault in s. 34(2) and the simple reference to assault in s. 35.

[39]

In my view, the trial judge erred in her interpretation of s. 35. In
    effect, she read into the section the requirement that the assault to which the
    initial aggressor is responding must be an unlawful assault despite the
    absence of the word unlawful. Neither the words nor the context of s. 35
    justify imposing such a requirement.

[40]

As noted above, the trial judge justified reading words into s. 35 on two
    bases: that this was necessary to resolve an ambiguity and that an assault, by
    definition, is an unlawful assault.

[41]

As to the first point, assuming that there exists an ambiguity as found
    by the trial judge, her resolution of that ambiguity does not help in
    determining whether assault means unlawful assault. That is, finding that the
    victims response to either an initial assault or initial provocation must be
    an assault leaves unanswered the primary question before us, namely, whether
    assault in s. 35 must be read as unlawful assault.

[42]

Thus the trial judges reading of assault as unlawful assault rests
    solely on her opinion that an assault is by definition unlawful. If that view
    is accepted, it logically follows that assault will be read as unlawful
    assault both where assault explicitly appears in s. 35 and where, as found
    by the trial judge, it is implicit.

[43]

Assault is defined in s. 265(1) of the
Code
. The sections
    that follow this definition create offences involving various forms of assault.
    Not all actions that come within the definition of assault will, however, be
    found to be unlawful or criminal in nature. As explained by Professor Don
    Stuart in his book
Canadian Criminal Law: A Treatise
,

6th ed.
(Toronto: Carswell, 2011) at p. 485:

Our focus here is on those
    instances in which an accused is exonerated following an apparently criminal
    act because there are circumstances which justify or excuse (legalize) her
    conduct. For example, one who repels an attacker with force may rely on the
    defence of self-defence even though she committed the
actus reus
of
    assault with the necessary
mens rea
.

In other words, the presence of both the
actus
    reus
and
mens rea
of assault does not, perforce, mean that the
    act is unlawful.

[44]

Terms used in a statute draw their meaning in part from the context in
    which they are used. In s. 34, Parliament saw fit to specify that self-defence
    under that section would be available only to an accused who was responding to
    an
unlawful
assault. The absence of the qualifier in s. 35 suggests
    that a different interpretation was intended.

[45]

As a result, I disagree with the trial judges conclusion and the
    Crowns submission that the assault referred to in s. 35 is by definition
    unlawful. The case law supports my conclusion. Whether an unlawfulness requirement
    should be read into s. 35 has recently been commented on, albeit in
obiter
,
    by Sharpe J.A. in
R. v. S.M.,
2012 ONCA 255, at para. 31, as follows:

The Crown urges us to interpret s.
    35 as applying only where the accused acts in response to an
unlawful
assault
    by the victim. In other words, according to the Crown, s. 35 should be
    interpreted to include the same qualification as s. 34(2) and render
    self-defence unavailable where the victims response was lawful. I note that
    there is conflicting authority on this proposition. Compare
R. v. Mohamed
,
    [2009] O.J. No. 398 (S.C), holding that s. 35 applies only where the victims
    response was unlawful with
R. v. Merson
(1983), 4 C.C.C. (3d) 251
    (B.C.C.A.), Taggart J.A., holding the contrary. I note as well that the refusal
    to read words into s. 34(2) in
McIntosh
makes this a difficult
    argument for the Crown. As it is my view that this appeal can be resolved
    without deciding that issue, I will assume, without deciding, that s. 35
    requires only an assault and not an unlawful assault. [Emphasis in original.]

[46]

In
R. v. McIntosh
, [1995] 1 S.C.R. 686, the Crown made similar
    submissions with respect to s. 34(2). In that case the Crown argued that, in
    order to read s. 34(2) harmoniously with s. 34(1) and s. 35, the words not
    having provoked such assault should be read into s. 34(2). Lamer C.J. rejected
    this submission and, at para. 29, explained:

It is a principle of statutory
    interpretation that where two interpretations of a provision which affects the
    liberty of a subject are available, one of which is more favourable to an
    accused, then the court should adopt this favourable interpretation. By the
    same reasoning, where such a provision is, on its face, favourable to an
    accused, then I do not think that a court should engage in the interpretive
    process advocated by the Crown for the sole purpose of narrowing the provision
    and making it less favourable to the accused.

[47]

In my view the same reasoning applies to the present case. The
    requirement in s. 34(2) that the assault be unlawful simply does not appear
    in s. 35 and ought not to be read into it. As observed by Pierre-André Côté in
    his book
The Interpretation of Legislation in Canada
,
4th ed. (Toronto: Carswell 2011) at pp.
    293-94:

Since the judges task is to
    interpret the statute, not to create it, as a general rule, interpretation
    should not add to the terms of the law. Legislation is deemed to be well
    drafted, and to express completely what the legislature wanted to say

[48]

Finally, the Crown argues that it would unreasonably broaden the scope
    of s. 35 to hold that it can apply in cases where the victims assault was lawful,
    that is, that the victim was lawfully using force against the accused. The
    Crown maintains that this would, for instance, authorize the use of force in
    response to a lawful arrest. The Crowns concern appears to be shared by Professor
    Paciocco who states, at p. 52 of his article cited above, that [a]s a matter
    of principle, an accused person cannot justify the use of self-defence to
    prevent a lawful interference with his or her person. As indicated, were this
    to be permitted, the accused could, for example, use force justifiably to
    resist those who are lawfully arresting him.

[49]

I understand the concern raised by the Crown but do not agree that it
    provides a basis to restrict the interpretation of s. 35 in the manner
    suggested. At the outset, I note that s. 35 is not limited to cases where the
    accused kills or even seriously injures the victim. It also governs the use of
    lesser defensive force by a person to repel a victim who has been unjustifiably
    assaulted or provoked and responds violently. The trial judges
    interpretation would preclude the use of any defensive force to prevent being
    killed or seriously injured by a victim who reasonably, but mistakenly,
    apprehended that his or her life was threatened. As explained by the appellant,
    this would mean that a robber armed with a knife but having no intention of
    using it, when confronted with a gun-wielding victim who reasonably feared that
    the robber would use the knife, must submit to being shot rather than knocking
    the gun out of the victims hand. Such a requirement is inconsistent with the
    general principle of proportionality underlying the defence provisions of the
Code
as well as normal human instincts.

[50]

More important, s. 35 contains significant limits to its application.
    For the section to apply, the person invoking self-defence must have used
    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

There is also the additional requirement
    that the accused must have 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.

[51]

It is hard to imagine that a person could reasonably believe that it
    would be necessary in order to preserve himself from death or grievous bodily
    harm at the hands of an arresting officer, that he use force to resist the
    arrest, as opposed to simply surrendering. Moreover, the person invoking s. 35
    must have declined further conflict and quitted or retreated. At the point
    when the person declines further conflict, he can surely be arrested without fear
    of death or grievous bodily harm. If the police cause death or grievous bodily
    harm to a person declining further conflict, then they are likely not effecting
    a lawful arrest (barring, of course, tragic accidents or exceptional
    circumstances).

[52]

In conclusion, therefore, the trial judge ought to have left s. 35 with
    the jury and her failure to do so constitutes reversible error.

3)

Should the recent
    amendments to the self-defence provisions of the
Code
be applied retroactively
    to this case?

[53]

Given my conclusions on the previous issues, I do not consider it
    necessary to deal with the submissions on the potential retroactive application
    of the new self-defence provisions in the
Code
. The submissions to this court addressed the question whether the new
    provisions applied on appeal to a case that had already been tried while the
    old provisions were still in force. To the extent retroactivity is an issue on
    re-trial, the question will be whether the new provisions apply to a trial that
    takes place after the new provisions have come into force, but where the events
    and actions that form the basis of the charges occurred while the old
    provisions were still in force. The latter question was not argued before this
    court.

CONCLUSION

[54]

As a result, I would allow the appeal, set aside the conviction and
    order a new trial.

Paul Rouleau J.A.

I agree P. Lauwers
    J.A.

I agree K. van
    Rensburg J.A.

Released: June 05, 2014


