



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bengy,
    2015 ONCA 397

DATE: 20150608

DOCKET: C57571

Strathy C.J.O., Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kimron Bengy

Appellant

Richard Litkowski, for the appellant

Michael Bernstein and Robert Gattrell, for the
    respondent

Heard:  December 1, 2 and 3, 2014

On appeal from the conviction entered by Justice Maureen D.
    Forestell of the Superior Court of Justice, dated April 28, 2012, sitting with
    a jury.

Hourigan J.A.:

INTRODUCTION

[1]

Kimron Bengy was convicted of second degree murder for his role in the
    stabbing death of Brandon Ramdeen during a fight in a parking lot. Mr. Bengy appeals
    his conviction on four grounds:

(i)

He should be entitled to the retrospective benefit of the new
    self-defence provisions in the
Criminal Code
;

(ii)

The trial judge erred in refusing to leave the defence of provocation
    with the jury;

(iii)

The trial judge erred in failing to instruct the jury to apply the
    principles from
R. v. W.(D
.),
[1991] 1 S.C.R. 742
,
when
    considering self-defence; and

(iv)

The trial judge erred in failing to instruct the jury to apply the
    principles of
W.(D
.)
when considering prior exculpatory
    statements made by the appellant.

[2]

Mr. Bengys appeal is one of four that were heard together, in which the
    appellants advanced a similar argument regarding the retrospectivity of the new
    self-defence provisions.

[3]

For the reasons that follow, I would dismiss the appeal. In my view, the
    trial judge properly charged the jury with respect to Mr. Bengy. I am also of
    the view that the new self-defence provisions do not apply retrospectively to
    offences that pre-dated their coming into force.

BACKGROUND FACTS

[4]

The events at issue occurred following a cruise that departed from Toronto
    Harbour on the evening of June 20, 2009. As the cruise boat returned to the
    harbour in the early hours of June 21, 2009, a confrontation occurred between two
    passengers, Leon Alexander and Andy James. Mr. Alexander was removed from the
    boat and confronted Mr. James again in the parking lot. A physical altercation involving
    a number of individuals ensued. While it is not clear what role each
    participant played in the fight, Edwin Modeste, Anski Julien, Edmund Benjamin
    and the appellant were are all in the vicinity of the fight, during which Mr.
    James was stabbed. He later died from his injuries.

[5]

Soon after the fight, a group of Mr. Jamess friends, including Dexter
    Regis, Collins George and Brandon Ramdeen, angrily confronted Mr. Modeste. Mr. Regis
    was carrying a baseball bat and asked Mr. Modeste why he stabbed Mr. James. Mr.
    Modeste replied that he did not stab Mr. James.

[6]

Mr. Ramdeen then approached Mr. Modeste, who had been joined by some
    friends, including Mr. Julien, Mr. Benjamin and the appellant. Another physical
    fight ensued, during which the appellant fatally stabbed Mr. Ramdeen.

[7]

Mr. Julien testified that soon after the second fight, the appellant told
    him that he stabbed the man coming at Mr. Modeste in an effort to protect Mr. Modeste.
    Later the same day, the appellant attended a police station and discussed his
    involvement in the incident with Detective Sergeant Carmine Palermo. According
    to Sergeant Palermo, the appellant told him that he saw a man with a baseball
    bat push Mr. Modeste and step back to swing at him, while a second man punched
    Mr. Modeste in the back of the head. When the appellant asked the two men what
    was going on, they rushed at him and the knife he was holding in his hand
    stuck the second guy and he fell to the ground.

[8]

The appellant was charged with two counts of second degree murder for
    the deaths of Mr. James and Mr. Ramdeen. Mr. Modeste was charged with
    manslaughter for the death of Mr. Ramdeen. After a joint trial in 2012, at
    which neither accused testified, the jury acquitted the appellant of murder in
    the death of Mr. James, but convicted him of second degree murder in the death
    of Mr. Ramdeen. Mr. Modeste was convicted of manslaughter.

POSITIONS OF THE PARTIES

[9]

In 2013, after the trial in this action, the provisions in the
Criminal
    Code
, R.S.C. 1985, c.C-46,
regarding self-defence were amended. The appellant submits the new self-defence
    provisions, which he believes are more beneficial to his case, should be
    applied retrospectively.

[10]

The
    appellant also submits there was an air of reality to the provocation defence
    and thus the trial judge erred in refusing to leave it with the jury. In the
    appellants view, the totality of the evidence left open a reasonable inference
    that the appellant lost self-control. Further, the appellant submits the trial
    judge wrongly decided the defence theory of provocation was incompatible with
    its primary theory of self-defence.

[11]

In
    addition, the appellant submits the trial judge erred in failing to instruct
    the jury to apply the principles from
W.(D
.)
when considering
    self-defence. He submits the trial judges attempts to navigate the former
    self-defence provisions, with
W.(D
.)
instructions interwoven,
    resulted in a confusing and inadequate instruction. The trial judge failed to
    follow the approach to explaining credibility assessments in the context of
    self-defence set out by Moldaver J.A. in
R. v. Reid
(2003),
65 O.R. (3d) 723
(C.A.), which the appellant submits was required in
    this case.

[12]

Finally,
    the appellant submits the trial judge erred in failing to instruct the jury to
    apply the principles of
W.(D
.)
when considering prior
    exculpatory statements made by the appellant. The trial judge instructed the
    jury to consider these statements and, in particular, whether they believed the
    appellant made them. However, according to the appellant, the trial judge
    failed to explain to the jury that the statements could raise a reasonable
    doubt even if they were not believed.

[13]

The
    Crown argues the new self-defence provisions have prospective application only.
    It also asserts that regardless of whether the new self-defence provisions
    apply retrospectively, the appellant was not prejudiced by the application of
    the old provisions at his trial.

[14]

With
    respect to provocation, the Crown submits the trial judge correctly declined to
    leave this defence with the jury. In the Crowns view, there was no direct
    evidence the appellant lost self-control, as the appellant did not testify and his
    out-of-court statements did not support this element of the defence, nor was there
    any circumstantial evidence capable of supporting the necessary inferences. Therefore,
    the Crown submits the trial judge properly excluded provocation because it
    failed to meet the air of reality test, not because it is incompatible with
    self-defence, as suggested by the appellant.

[15]

The
    Crown also submits there was no error in the manner in which the trial judge
    instructed the jury to apply the principles from
W.(D
.)
when considering
    self-defence. The trial judge was not required to provide the exact instruction
    proposed by Moldaver J.A. in
Reid
.
Rather, her instruction must
    be considered in the context of the charge as a whole. The trial judge fully
    and adequately explained reasonable doubt with regard to self-defence,
    mentioning it numerous times throughout the charge.

[16]

Finally,
    the Crown submits the trial judge did not err in her instruction regarding the
    appellants exculpatory statements. In the Crowns view, the trial judges
    charge made clear to the jury that exculpatory evidence that is neither
    accepted nor rejected may still be considered in the context of the rest of the
    evidence when assessing reasonable doubt. The Crown adds that the charge was
    the product of a detailed consultation process involving all counsel and the
    jury was provided with a decision-tree and a written copy of the charge, which reminded
    them of the burden of proof beyond a reasonable doubt that was always on the
    Crown.

RETROSPECTIVITY OF SELF-DEFENCE PROVISIONS

[17]

This
    appeal was argued together with
R. v. Modeste
(C55821),
R. v. OConnell
(C57277)
    and
R. v. Rogers
(C51859). All of these cases raise the issue of the
    retrospectivity of the
Citizens Arrest and Self-defence Act
, S.C. 2012, c. 9.
In
Modeste
,

Rogers
and the present case, the appellants argue for retrospective
    application of the new self-defence provisions to offences and trials that
    occurred before the provisions came into force. In
OConnell
, by
    contrast, the appellant argued for retrospective application of the provisions
    to an offence that pre-dated the new provisions, but a trial that occurred
    after they came into force.

[18]

As
    will be discussed below, the temporal situation in
OConnell

has
    been the subject of significant debate in lower courts, while the situation in
Modeste
,
Rogers

and the present case has received less consideration. The
    positions of the appellants in all four cases raise a common question of
    statutory interpretation with respect to the retrospectivity of the new
    self-defence provisions. Accordingly, the same analysis applies in both
    situations.

[19]

In
    my analysis of this issue, I will first consider the former self-defence
    provisions and their judicial criticism. Next, I will review the new provisions
    and the debate in the case law in the lower courts regarding the issue of
    retrospectivity. I will then outline and follow what, in my view, is the
    correct analytical framework for a determination of the issue. This framework
    raises the following questions:

(i)

What is the nature of the presumption against retrospectivity and what
    is its policy rationale?

(ii)

Is the
Citizens Arrest and Self-defence Act
a substantive change to the law or merely a
    procedural change?

(iii)

Is there an exception to the presumption against retrospectivity in
    circumstances where the amended statute is beneficial to the accused?

(iv)

If the presumption against retrospectivity applies, how can it be
    rebutted?

[20]

For the reasons that follow, I conclude that the
Citizens
    Arrest and Self-defence Act
should
    only be applied prospectively
.

The Former Self-Defence Provisions

[21]

Prior
    to March 11, 2013, self-defence was set out in ss. 34 to 37 of the
Criminal
    Code
as follows:

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.

(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.


35. Every one who has without justification assaulted
    another but did not commence the assault with intent to cause death or grievous
    bodily harm, or has without justification provoked an assault on himself by
    another, may justify the use of force subsequent to the assault if

(
a
) he uses the force

(i) under reasonable apprehension of
    death or grievous bodily harm from the violence of the person whom he has
    assaulted or provoked, and

(ii) in the belief, on reasonable
    grounds, that it is necessary in order to preserve himself from death or
    grievous bodily harm;

(
b
) he did not, at any time
    before the necessity of preserving himself from death or grievous bodily harm
    arose, endeavour to cause death or grievous bodily harm; and

(
c
) he declined further conflict
    and quitted or retreated from it as far as it was feasible to do so before the
    necessity of preserving himself from death or grievous bodily harm arose.

36. Provocation includes, for the purposes of sections 34
    and 35, provocation by blows, words or gestures.

37. (1) Every one is justified in using force to
    defend himself or any one under his protection from assault, if he uses no more
    force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in this section shall be deemed to justify the
    wilful infliction of any hurt or mischief that is excessive, having regard to
    the nature of the assault that the force used was intended to prevent.

[22]

These
    provisions shared common underlying themes and principles, but differed in
    their technical prerequisites. As a result, depending on the circumstances of a
    case, one, some or all of ss. 34(1), 34(2), 35, and 37 could apply. This has
    resulted in recurring debates over the scope of the defence under each
    provision, often in the context of deciding the provisions on which to charge a
    jury.

[23]

The
    overlap of the provisions placed trial judges in an unenviable dilemma.
    Instructing the jury on multiple provisions would complicate and protract the
    charge and risk producing confusion and distraction over the technical
    prerequisites of the different provisions. Alternatively, instructing the jury
    on only a single provision risked an appeal on the basis that the defence was
    too narrowly restricted.

[24]

The
    provisions were subject to ongoing judicial criticism. Indeed, as MacDonnell J.
    observed in
R. v. Pandurevic
, 2013 ONSC 2978, 298 C.C.C. (3d) 504, at
    para. 10:

The incoherence of the manner in which ss. 34 to 37 of the
Criminal
    Code

articulated the defence of self-defence has been the subject
    of uniformly withering criticism from law reformers, academics and all levels
    of the Canadian judiciary for more than 30 years.

[25]

In
R. v. McIntosh
, [1995] 1 S.C.R. 686, at para. 16, Lamer C.J.
    commented:

I would observe that ss. 34 and 35 of the
Criminal Code
are highly technical, excessively detailed provisions deserving of much
    criticism. These provisions overlap, and are internally inconsistent in certain
    respects. Moreover, their relationship to s. 37 (as discussed below) is
    unclear. It is to be expected that trial judges may encounter difficulties in
    explaining the provisions to a jury, and that jurors may find them confusing.
    The case at bar demonstrates this. During counsel's objections to his charge on
    ss. 34 and 35, the trial judge commented, "Well, it seems to me these
    sections of the
Criminal Code
are unbelievably confusing." I
    agree with this observation.

[26]

Similarly,
    in
R. v. Pintar
(1996), 30 O.R. (3d) 483 (C.A.), at p. 492, Moldaver
    J.A. stated:

It is no secret that many trial judges consider their
    instructions on the law of self-defence to be little more than a source of
    bewilderment and confusion to the jury. Regardless of their efforts to be
    clear, trial judges often report glazed eyes and blank stares on the faces of
    the jury in the course of their instructions on self-defence. Disheartening as
    this may be, most judges tend to believe that juries are extremely adept at
    assessing legitimate cases of self-defence and are therefore likely to come to
    the right result in spite of the confusion created by the charge. While this
    may be true, it provides little comfort to an accused who has been convicted in
    the face of legal instruction so complex and confusing that it may well have
    diverted the jury's attention away from the real basis upon which the claim to
    self-defence rests.

The New Self-Defence Provisions

[27]

Bill
    C-26 was drafted to overhaul the self-defence statutory regime by enacting a
    single unified section. It received Royal Assent on June 28, 2012. On March 11,
    2013, the
Citizens Arrest and Self-defence Act
came into force,
    repealing the former ss. 34 to 37 of the
Criminal Code

and
    replacing them with a new s. 34 self-defence provision:

34. (1) A person is not guilty of an offence if

(
a
) they believe on reasonable grounds that
    force is being used against them or another person or that a threat of force is
    being made against them or another person;

(
b
) the act that constitutes the offence is
    committed for the purpose of defending or protecting themselves or the other
    person from that use or threat of force; and

(
c
) the act committed is reasonable in the
    circumstances.

(2) In determining whether the act committed is reasonable
    in the circumstances, the court shall consider the relevant circumstances of
    the person, the other parties and the act, including, but not limited to, the
    following factors:

(
a
) the nature of the force or threat;

(
b
) the extent to which the use of force was
    imminent and whether there were other means available to respond to the
    potential use of force;

(
c
) the persons role in the incident;

(
d
) whether any party to the incident used or
    threatened to use a weapon;

(
e)
the size, age, gender and physical
    capabilities of the parties to the incident;

(
f
) the nature, duration and history of any
    relationship between the parties to the incident, including any prior use or
    threat of force and the nature of that force or threat;

(
f.1
) any history of interaction or
    communication between the parties to the incident;

(
g
) the nature and proportionality of the
    persons response to the use or threat of force; and

(
h
) whether the act committed was in response
    to a use or threat of force that the person knew was lawful.

(3) Subsection (1) does not apply if the force is used or
    threatened by another person for the purpose of doing something that they are
    required or authorized by law to do in the administration or enforcement of the
    law, unless the person who commits the act that constitutes the offence
    believes on reasonable grounds that the other person is acting unlawfully.

[28]

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

(i)

Reasonable belief

(34(1)(a))
:
the accused must reasonably
    believe

that force or threat of force is being used against him or
    someone else;


(ii)

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

(iii)

Reasonable response

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


[29]

When
    the first two prerequisites are met, the success of the defence will hinge on
    the question of the reasonableness of the responsive act. To inform this
    inquiry, s. 34(2) provides a non-exhaustive list of relevant considerations.
    None are requirements. The relevance of any factor, enumerated or not, will be
    a matter for the trier of fact to determine.

[30]

When
    the new provisions came into force, the Department of Justice released a
    Technical Guide for Practitioners commenting on the changes brought about by
    the amendments, which notes the following:

·

Parliaments primary intent was to simplify the legislative text
    that sets out the defences;

·

The amendment is not meant to substantively alter the fundamental
    principles of self-defence;

·

The provision converts rigid mandatory conditions of the former
    provisions into factors that remain relevant and may be considered on a
    case-by-case basis; and

·

To assist with the analysis of the reasonableness of actions
    taken in self-defence, the provision codifies relevant factors in a
    non-exhaustive list to guide judges and juries.

[31]

There
    are no transition provisions in the legislation and nothing in it or the
    Technical Guide indicates any intention on the part of Parliament that the
    provisions apply retrospectively.

Conflict in the Lower Courts

[32]

There
    has been significant disagreement in lower courts about the temporal application
    of the new self-defence provisions. Some courts have held that the amendments apply
    retrospectively to any trial that post-dates their coming into force date, even
    if the offence occurred before that date (e.g.
R. v. Saunders
, 2014
    ONSC 4670;

Pandurevic;

R. v. Parker
,
2013 ONCJ 195). Other courts have held

that

the amendments are prospective and only available if the
    offence post-dates their coming into force (
e.g
.

R. v. Williams
, 2013 BCSC 1774;

R. v. Wang
, 2013 ONCJ
    220;
R. v. Carriere
, 2013 ABQB 645).

[33]

A
    leading example of a retrospective application finding is the decision of
    Paciocco J. in

Parker
,
at para 5:

There is, in my view, no public interest in convicting someone
    of an act that is considered and declared by Parliament by the time of trial to
    have social approval and not to be wrong, even if that declaration occurred
    after the event in question. It is important to remember that the principles
    against retroactivity that have long applied in criminal cases are related to
    the Rule of Law. They were intended to protect individuals from abusive state
    powers... Since defences are used in criminal cases to prevent deprivations of
    liberty, the foundational rationale for non-retroactivity is in my view
    undermined when it comes to new defences. To put things more simply, it would
    defeat the objectives of the presumption against retroactivity to apply it to
    new defences in criminal cases and it would result in actions, considered
    justifiable and legal at the time of trial, to be condemned and punished by
    conviction. The
Charter
, of course, is silent on this issue, but it
    does provide in section 11(i) that accused persons receive the benefit of
    subsequently enacted, more generous sentencing regimes. Although this provision
    does not address changes in defences, the values it reflects are
    indistinguishable from the principle I am describing; accused persons should
    receive the benefit of the law in place at the time of their alleged offence,
    as well as the benefit of new substantive provisions in effect at the time of
    their trials that protect their liberty interests. In my view, there is no
    realistic basis for presuming in such cases that Parliament must have intended
    to apply those rules only in the future. Instead, Parliament can and should be
    taken to intend that when a new defence is created, accused persons yet to be
    tried for previous alleged offences should have access to that defence where it
    operates more generously for them than the prior law.

[34]

MacDonnell
    J. adopted a similar view in
Pandurevic
,
at paras. 23-25:

[T]he purpose of the legislation  points firmly toward an
    intention that upon the coming into force of the amendments, judges and juries
    would immediately begin to assess claims of self-defence under the amended
    provisions regardless of whether the allegedly defensive acts occurred before
    or after March 11, 2013. That is, it points toward a retrospective application
    of the amendments.

To hold otherwise would put the remedial goals of the
    legislation on hold, and would leave the evils that the legislation was
    intended to cure to linger, perhaps for years, continuing to damage the repute
    of the administration of justice. It would leave the criminal trial courts with
    two versions of self-defence, one of which has been almost universally labelled
    as unsatisfactory. Further, it would leave those whose claim to self-defence
    involved conduct preceding March 11, 2013 but whose trials occurred after that
    date in the anomalous position of being unable to claim the benefit of
    amendments designed not to alter the essential nature of their defence but to
    clarify and to foster more reliable assessments of it.

[35]

An
    example of the view favouring prospective application is captured in
Wang
.
    In that case, it was the accused who argued the new self-defence provisions
    should not apply retrospectively, as the old provisions were more beneficial to
    his defence. Pringle J. agreed, reasoning at para. 21:

Mr. Wang believed that he acted in self-defence at the time of
    the incident  and he was deemed to know what the code of conduct was for
    self-defence under the law at the time. To change the rules now would
    affect the substance of his defence. Therefore, I agree with the defence
    that he should be able to rely on the law as it was at the time he acted.

[36]

The
    slightly different retrospective application proposed by the appellant in this
    appeal, namely, the application of the new self-defence provisions to cases in
    which both the offence and the trial pre-date the legislations coming into
    force, has not been the subject of such extensive judicial debate. Rather, it has
    been considered only once in
R. v. Heydari
, 2014 ONSC 2350. In this
    case, Campbell J. considered the intention of Parliament and the need for
    finality in concluding that the new self-defence provisions do not apply
    retrospectively to cases where both the alleged offence and the trial of the
    accused took place prior to the coming into force of the new legislation.

[37]

To
    date only one other appellate court has fully considered the retrospectivity of
    the
Citizen's Arrest
and
Self-defence
    Act
. In
R. v. Evans
, 2015 BCCA 46, the British Columbia Court
    of Appeal held that the new self-defence provisions do
not apply retrospectively.
The Court of Appeal rejected the approach
    in
Pandurevic
, and instead concluded that the presumption against
    retrospectivity had not been rebutted.

[38]

Overall,
    the case law is inconsistent and there appears to be some confusion with
    respect to the retrospectivity of the new self-defence provisions. Like the
    B.C. Court of Appeal in
Evans
, the following analysis resolves this issue
    in favour of a purely prospective application of the new self-defence
    provisions, such that they cannot be said to apply retrospectively to offences
    that pre-date their coming into force, regardless of the date of trial.

Analytical Framework

[39]

The
    method for determining the retrospectivity of a statute is well-established in
    the case law. It starts from an understanding of the nature of the presumption
    against retrospectivity and its policy rationale. From there, the question
    becomes whether the legislation is caught by the presumption or if there is
    some exception that renders the presumption inapplicable. If the presumption
    applies, the final issue is whether it has been rebutted.

What is the nature of the
    presumption against retrospectivity and what is its policy rationale?

[40]

The
    leading and most recent authority on the presumption against retrospectivity is
    the Supreme Court decision in
R. v. Dineley
,
2012 SCC 58, [2012]
    3 S.C.R. 272. In
Dineley
, the court was divided four to three over
    whether Parliaments repeal of the 
Carter
defence in the drinking
    and driving context was applicable to  and therefore removed the defence from
     defendants who were tried post-amendment, but allegedly committed offences
    pre-amendment. The court was unanimous on the governing principle, expressed by
    the majority at para. 10 (and adopted by the dissent at paras. 45-47):

New legislation that affects substantive rights will be
    presumed to have only prospective effect unless it is possible to discern a
    clear legislative intent that it is to apply retrospectively. However, new procedural
    legislation designed to govern only the manner in which rights are asserted or
    enforced does not affect the substance of those rights. Such legislation is
    presumed to apply immediately to both pending and future cases.

[41]

Applying
    this principle, the court was divided over whether the amendment was properly
    characterized as affecting substantive or procedural rights. The majority
    concluded the amendment affected substantive rights and therefore applied
    strictly prospectively. Accordingly, the former
Carter

defence
    was available to those persons alleged to have committed offences prior to the
    amendment, even if their trials took place after the amendment. Conversely, the
    minority concluded the amendment was procedural and therefore retrospectively
    removed the defence from all persons tried after it came into force.

[42]

Deschamps
    J., writing for the majority, at para. 10., explained the principle that
    animates the presumption against retrospectivity: Because of the need for
    certainty as to the legal consequences that attach to past facts and conduct,
    courts have long recognized that the cases in which legislation has
    retrospective effect must be exceptional.

[43]

In
Carriere
,
Wakeling J. referred
    to the policy rationale behind the presumption, at para. 57, as described in
Sullivan
    on the Construction of Statutes
, 5th ed. (Markham: LexisNexis, 2008):

Perhaps the most fundamental tenet of the rule
    of law is that those who are governed by the law must have knowledge of its
    rules before acting; otherwise, any compliance with the law on their part is
    purely accidental. Citizens must have knowledge of the law before acting so
    that they can adjust their conduct to avoid undesirable consequences and secure
    desirable ones. To ensure adequate notice, the rules enacted by the legislature
    must be published and adequately publicized  ideally before commencement but
    at the latest upon commencement. Citizens cannot comply with, rely on or take
    advantage of law unless they know what it is before deciding how they will
    behave.

[44]

With
    these principles in mind, I turn now to a consideration of whether the
    presumption applies in the present case and, if so, whether it has been
    rebutted in the case of the
Citizens Arrest and Self-defence Act
.

Is the Citizens Arrest and Self-defence Act a
    substantive change to the law of self-defence or merely procedural?

[45]

As
    noted above, the presumption against retrospectivity does not apply to statutes
    that are procedural in nature. The distinction between substantive change and
    procedural change is sometimes difficult to ascertain. Indeed, in

Dineley
,
the court was closely split on this
    issue. The majority held, at para. 16, The fact that new legislation has an
    effect on the content or existence of a defence, as opposed to affecting only
    the manner in which it is presented, is an indication that substantive rights
    are affected.

[46]

The
    new unified three-element framework in the
Citizens Arrest and
    Self-defence Act
may not have changed the scope of what is relevant to the
    defence. However, it changed the nature of what is relevant. Mandatory
    requirements were converted into discretionary factors (e.g. proportionality, provocation,
    the quantum of force used and the quantum of force apprehended). The substantive
    significance of this change manifests in the air of reality test during jury
    trials. The former threshold requirements that once governed whether the defence
    was left with the jury are now, instead, relevant considerations for the jury in
    determining the defences ultimate success.

[47]

In
    some cases, the new self-defence provisions are more generous and in other
    cases they are more restrictive. The more generous elements of the new
    provisions include:

·

The conversion of mandatory prerequisites into discretionary
    considerations, which means more claims will be put before juries;

·

The allowance of defence of other persons not necessarily under
    [the accuseds] protection, as required under the former s. 37;

·

The elimination of a strict limitation on when fatal defensive
    force can be used, which previously required an apprehension of death or
    grievous bodily harm; and

·

The expansion of acts of self-defence from use of force to any
    act (e.g. stealing a car or breaking into a house).

[48]

There
    are also less generous elements of the new provisions. Most significantly, they
    require that certain pro-conviction factors be considered in every claim of
    self-defence, such as whether other means of response were available to the
    accused, the nature and proportionality of the accuseds response, and the
    accuseds role in the incident (i.e. provocation). Such considerations were not
    always relevant under the old regime. For instance, the former s. 34(2) had no
    proportionality requirement and arguably justified excessive force if the
    accused was under a reasonable apprehension of death. The former provisions
    also did not require consideration of alternative means of response, which made
    it possible for self-defence to be based on stand your ground righteousness.

[49]

The
    varying impacts of the defence are recognized in the case law, including cases
    that have found the amendments to be retrospective (
e.g
.

Pandurevic
,

at para
.

37
)
and to be prospective only (
e.g
.
Carriere
,
at para. 92).

[50]

In
    my view, these differences demonstrate the amendments are substantive rather
    than a mere procedural change to the law of self-defence. They impact the
    content and existence of the defence, as opposed to affecting only the manner
    in which it is presented. As the B.C. Court of Appeal recognized in
Evans
,
    at para. 30, depending on the circumstances of the case, the changes may expand
    or restrict the availability of the defence. Indeed, if the changes were not
    substantive, one would wonder why the appellants seek their benefit.

Is there an exception to the presumption against
    retrospectivity in circumstances where the statute is beneficial to the accused?

[51]

The
    appellants argue that the presumption against retrospectivity does not apply
    when an amendment confers a benefit to accused persons. They cite the Supreme
    Courts decision in
Brosseau v. Alberta Securities Commission
, [1989]
    1 S.C.R. 301, in which
L'Heureux-Dubé J.
stated, at p. 318, The so-called presumption against retrospectivity applies
    only to prejudicial statutes. It does not apply to those which confer a
    benefit.

[52]

In
    my view, the appellants reliance on this statement is misplaced. First, the
    statement was
obiter
, as the statute in question in that case was
    categorized neither as beneficial nor as prejudicial, but as falling within a
    third category of statutes that impose a penalty in order to protect the public,
    rather than to impose further punishment. It was this third category of
    statutory provisions that was held to be exempt from the presumption against
    retrospectivity in
Brosseau
. The self-defence provisions cannot be
    said to fall into this category.

[53]

Further,
    LHeureux-Dubé J. explicitly distinguished between the aspect of
    retrospectivity the court was addressing in
Brosseau
and the aspect at
    issue in this case, at p. 317:


The basic rule of statutory interpretation,
    that laws should not be construed so as to have retrospective effect, was
    reiterated in the recent decision of this Court in

Angus
    v. Sun Alliance Insurance Co
.
, [1988] 2 S.C.R. 256. That case, however, dealt with the question
    of the retrospective effect of procedural versus substantive
    provisions. The present case presents a different facet of the problem of
    retrospectivity.

[54]

Based
    on this distinction, the present case is like
Angus
and, therefore,
    cannot be decided simply on the basis of
Brosseau
.

[55]

Second,
    no other Supreme Court decision has distinguished between beneficial and
    prejudicial statutes based on the comments in
Brosseau

or
    otherwise. Not only is there no reference in
Dineley
that the presumption
    against retrospectivity is restricted to prejudicial statutes, as will be
    discussed below, the focus on the effect of a statute to determine its
    retrospectivity is contrary to the analysis mandated by the Supreme Court in

Dineley
.

[56]

In
    any event, the
Citizens Arrest and Self-defence Act
changes the law
    of self-defence in a manner that is prejudicial to some accused and beneficial to
    others, depending on their particular circumstances. Therefore, a distinction
    between prejudicial and beneficial statutes is of no assistance in conducting
    an analysis of the retrospectivity of this statute.

If the presumption
    applies, how can it be rebutted?

[57]

Like
    all presumptions, the presumption against retrospectivity is rebuttable. It may
    be rebutted where it is possible to discern a clear legislative intent that the
    statute in issue is to apply retrospectively. However, there is nothing in the

Citizens Arrest and Self-defence Act
that indicates any such
    intent.

[58]

The
    appellants instead rely on the broad analysis undertaken by the court in
Pandurevic
.
    In that case, MacDonnell J. stated, at para. 42, that the determination of
    Parliaments intent requires a consideration of all of the circumstances,
    including: the nature of the mischief the legislation was meant to address; the
    manner in which the legislation addresses it; the extent to which substantive
    rights would be adversely affected by retrospective application; and the
    consequences of a purely prospective application. MacDonnell J. then concluded,
    at paras. 23 and 25, that Parliaments aim was to update the self-defence
    provisions, which had become an embarrassment to the rule of law and, that in
    these circumstances, a retrospective application is necessary because [t]o
    hold otherwise would put the remedial goals of the legislation on hold.

[59]

I
    do not agree with this analysis. The presumption against retrospectivity must
    be rebutted by evidence of a clear legislative intent that [the statute] is to
    apply retrospectively:
Dineley
, at para 10. There is nothing in the record
    that explicitly demonstrates such intent. At its highest, there is evidence
    that Parliament recognized the need to clarify the law of self-defence. From
    this, we are asked to draw an inference that Parliament must have intended that
    the change take effect retrospectively.

[60]

This,
    of course, begs the question: If the need for immediate reform of the law were
    so pressing, why would Parliament not explicitly make the law retrospective?
    Moreover, virtually any piece of legislation could be categorized as addressing
    a pressing issue or an important legislative change in some respect, but that
    does not equate with a legislative intent to make its application
    retrospective. As the B.C. Court of Appeal noted in
Evans
, at para.
    33, [T]he fact that legislation is remedial does not, by necessary
    implication, mean that is intended to apply retrospectively.

[61]

In
    addition, there is nothing offensive about applying criminal law in accordance
    with law in place at the time of the alleged criminal acts; certainty and
    predictability in criminal law builds public support for the administration of
    justice:
Carriere
,
at
    para. 66;
Evans
, at para. 34.

[62]

The
    analysis propounded by the appellants is also premised on seeking the answer to
    the wrong question. As Wakeling J. said in
Carriere
,
at para. 62, T
he
    important question is whether Parliament intended the new self-defence rule to
    apply retroactively, not whether a person relying on self-defence fares better
    under the old or new rules.

[63]

Focusing
    on the impact of the legislation is not the analysis mandated by the Supreme
    Court in
Dineley
.
Such an approach leads to the very
    uncertainty that the presumption against retrospectivity is designed to eliminate.
    By focusing on the impact of the legislation, we are drawn into a quagmire of attempting
    to ascertain the effect of the legislation on individual cases. However, this is
    not always a straightforward exercise, as the
Citizens Arrest and Self-Defence
    Act

demonstrates. In some cases, the new law is beneficial to the
    accused, but in other instances it is not. For example, in
Wang
,
it was the accused who argued that the
    legislation should not have retrospective effect because he had a better defence
    under the old provisions.

[64]

Further,
    focusing on the effects of the legislation instead of the intention of
    Parliament raises other problems. For example, can an accused in the situation
    of Mr. Wang lose the benefit of the defence he had under the existing
    self-defence provisions? If so, is the loss of the defence impermissible under
    s. 11(g) of the
Canadian
Charter of Rights and Freedoms

as an
ex post facto

law?
    MacDonnell J. recognized, at para. 26, that this category of defendants may
    exist, but appeared willing to ignore their substantive rights because, in the
    case before him, the new legislation benefitted the accused.

[65]

Presumably,
    the only way that the new law could be retrospective without violating s. 11(g)
    of the
Charter
would be to apply it retrospectively for some
    defendants but not others, depending on which application would be more
    beneficial based on the nature of the specific case. In cases with multiple
    defendants, this could lead to the very real possibility that both the old and
    new self-defence provisions would be applicable. Indeed, as is illustrated in
R.
    v. Simmons
,
2013 ABQB 303,
    558 A.R. 384, it is also possible that a single defendant will take the
    position that part of his defence would benefit from the new law, while another
    part would be adversely affected. Would the trial judge then charge on both the
    old and new provisions? At that juncture, the notions of predictability and
    certainty that underlie the presumption against retrospectivity would be eliminated.
    Moreover, such a practice would run contrary to the legislative objective of
    simplifying and clarifying the law of self-defence.

[66]

The
    courts task, as mandated by the Supreme Court in
Dineley
, is limited
    to ascertaining whether there is clear evidence of a Parliamentary intent that
    the legislation be given retrospective effect. Absent clear legislative intent,
    courts have no residual discretion to rewrite the law to accord with a subjective
    view of optimal fairness.

[67]

The
    presumption against retrospectivity is a long-standing doctrine. Parliament can
    be assumed to understand the impact of not explicitly dealing with the issue of
    retrospectivity in the legislation it passes. As there is nothing in the
Citizens
    Arrest and Self-defence Act
suggesting a contrary intention, the
    presumption has not been rebutted and therefore applies.

[68]

Finally,
    I reject the argument advanced by the appellant that because he had an appeal
    outstanding at the time the new legislation came into force, he was still in
    the system and ought to benefit from any potential retrospectivity of the new
    self-defence provisions.

[69]

The
    appellant relies on
R. v. Wigman
, [1987] 1 S.C.R. 246, in which the
    Supreme Court held that accused persons who had outstanding appeals were still
    in the system and thereby entitled to benefit from a change in the
    jurisprudence that required a heightened
mens rea

for attempted
    murder. The appellant asserts the same should hold true for beneficial
    legislative changes.

[70]

As
    stated above, in my view, the
Citizens Arrest and Self-defence Act
is
    to be interpreted prospectively only. Further, the in the system doctrine has
    no application to legislative changes to the law, as distinguished from judicial
    changes to the law:
R. v. Rollocks

(1994), 19 O.R. (3d) 448
    (C.A.), at pp. 454-55;
R. v. Luke

(1994), 17 O.R. (3d) 51, at
    pp. 129-130;
Heydari
, at paras. 22, 25. A judicial change or re-interpretation
    signifies that the former interpretation was incorrect. Therefore, if someone
    was convicted under the former incorrect approach and is still in the system, he
    or she should be entitled to benefit from the correction. By contrast,
    legislative amendment does not cast doubt on the correctness of a prior law, so
    there is no risk of someone being convicted through an incorrect interpretation
    of the law. Rather, convictions occur through a proper application of the law
    as it existed at the time of the relevant offence:
Evans
, at para. 26.

[71]

Therefore,
    I conclude that the
Citizens Arrest and Self-defence Act
does not apply retrospectively to offences that
    occurred prior to its coming into force.

PROVOCATION

[72]

The
    appellant submits the trial judge erred in finding there was no air of reality
    to the defence of provocation and in failing to leave that defence with the
    jury.

[73]

The
    Supreme Court recently enumerated the elements of provocation in
R. v.
    Cairney
, 2013 SCC 55,

[2013] 3 S.C.R. 420, at paras. 33-34, quoting
    from
R. v. Tran
, 2010 SCC 58, [2010] 3
    S.C.R. 350
:

First, there is a two-fold objective element:
     (1) there must be a wrongful act or insult; and (2) the wrongful act or
    insult must be sufficient to deprive an ordinary person of the power of
    self-control:
Tran
, at para. 25.

Second, there is a two-fold subjective
    element:  (1) the accused must have acted in response to the provocation; and
    (2) on the sudden before there was time for his or her passion to cool:
Tran
, at para. 36.

[74]

With
    regard to the air of reality test, a trial judge has a dual duty: She must put defences
    that pass the test to the jury and, equally importantly, she must keep from the
    jury defences
for which there is no real factual basis or
    evidentiary foundation
and that would invite unreasonable verdicts. The
    trial judge must
ask not just whether there is evidence in
    some general sense, but whether there is evidence that is
reasonably
    capable of supporting an acquittal
. This requires an
    assessment of whether the evidence relied on is reasonably capable of
    supporting the inferences required for the defence to succeed (emphasis added):
R. v. Cinous
, 2002 SCC 29, [2002] 2 S.C.R. 3,
    at para. 83.

[75]

In the present case, the trial judge was
    tasked with determining the reasonableness of the defence of provocation in the
    context of the potential findings of fact and inferences available to the jury.
    After making reference to
Cinous
, the trial
    judge concluded that there was no air of reality to the defence:

Provocation requires some evidence of a
    wrongful act or insult capable of causing a reasonable person to lose
    self-control. The evidence from Mr. Bengys statements that he was rushed by
    the men is some evidence of a wrongful act. However, provocation also requires
    evidence of a subjective loss of control. There is no evidence of a subjective
    loss of control. On the contrary, the only evidence of Mr. Bengys reaction to
    the attack comes from his statements that he purposefully entered the fight to
    defend Edwin Modeste, was rushed, and defended himself with the knife that he
    had out for that purpose.

There is, in my review, no evidence that would
    support a finding of a subjective loss of control. There is as a result no air
    of reality to provocation in this case, and it will not be left with the jury.

[76]

The
    appellant argues that the evidence gave rise to a reasonable inference that he
    lost self-control. In particular, he refers to: his statements to Mr. Julien
    and Sergeant Palermo; the suddenness of the attack by Mr. Regis and Mr. Ramdeen;
    the brevity of the encounter; the inherent anger required to use a knife in the
    manner that the appellant did; the description by other witnesses of the attack
    by Mr. Regis and Mr. Ramdeen, particularly the taunting described by Mr. Julien;
    the absence of motive; and his relative youth.

[77]

The
    appellant further submits that by relying on his prior statements to find there
    was no evidence of a subjective loss of control, the trial judge wrongly
    decided the defence theory of provocation was incompatible with its primary
    theory of self-defence.

[78]

The
    defence of provocation can have an air of reality even if the accused has
    denied losing self-control. The trial judge is required to look to other
    objective evidence that may be indicative of the accused losing control in
    order to determine if there is any air of reality to the defence:
R. v.
    Gill
, 2009 ONCA 124, 241 C.C.C. (3d) 1, at para. 22;
R. v. Angelis
,
    2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 33.

[79]

In
    considering this evidence, the trial judge must focus on whether
it is reasonably capable of supporting the inferences required for
    the defence to succeed
. This is a low threshold. The issue is whether
    the trial judge in this case erred in her assessment. I conclude that she did
    not.

[80]

During
    the course of the pre-charge conference, the trial judge asked the appellants
    trial counsel repeatedly about the evidence that might give an air of reality
    to a subjective loss of control. Counsel was not able to articulate an
    evidentiary basis that gave an air of reality to the defence and the appellant
    has not done so on appeal.

[81]

I
    agree with the submission of the Crown that the factors relied on by the
    appellant do not separately or cumulatively leave open a reasonable possibility
    that the appellant lost control. First, the appellants statements to Mr.
    Julien and Sergeant Palermo support only self-defence, not provocation.

[82]

Second,
the suddenness or brevity of a confrontation is
    relevant to a consideration of whether the appellant acted "on the
    sudden", but is not indicative, in the circumstances of the present case,
    of a loss of self-control
.

[83]

Third,
    Mr. Julien testified the taunting he described occurred after the fight during
    which Mr. Ramdeen was stabbed. Thus, the taunting cannot constitute evidence of
    the appellant losing self-control before he stabbed Mr. Ramdeen.

[84]

Finally,
    it is unclear to me how the facts that the accused used a knife, was younger
    than the other people involved in the confrontation, and had no motive for the
    stabbing equates to a loss of control or meaningfully informs the analysis in
    this regard.

[85]

To
    charge a jury on the basis of these facts would be entirely speculative and
    inconsistent with the trial judges duty to keep from the jury defences
for which there is no real evidentiary foundation
.

[86]

I
    also reject the appellants submission that the trial judge wrongly decided the
    defence theory of provocation was incompatible with its primary theory of
    self-defence. This case is distinguishable from
R. v. Gauthier
, 2013
    SCC 32, [2013] 2 S.C.R. 403, in which the trial judge ruled that even though
    two defences had an air of reality, only one would be sent to the jury because
    the two defences were incompatible. In the present case, the trial judge did
    not find that the defences were incompatible. Rather, she simply noted that the
    appellants statements were supportive of his claim of self-defence and not
    supportive of his provocation defence.

[87]

Therefore,
    I conclude that the trial judge did not err in declining to leave the defence
    of provocation with the jury.

W.(D.)
INSTRUCTION AND SELF-DEFENCE

[88]

The
    appellant submits the trial judge's instruction regarding self-defence and the
    principles from
W.(D.)
was confusing and inadequate. It is the
    appellants position that an instruction similar to the one proposed by
    Moldaver J.A. in
Reid
was required.

[89]

In
Reid
, the trial judge instructed the jury that if they believed the
    evidence of the accused, they may acquit the accused. Similarly, the trial
    judge instructed the jury that even if they did not believe the accuseds
    testimony but it raised a reasonable doubt, they may also acquit the accused.

[90]

Moldaver
    J.A.s concern was the use of the permissive word may. In the present case,
    the trial judge did not make that error. Rather, she properly instructed the
    jury that in considering the first two branches in
W.(D.)
,
if a
    reasonable doubt is raised, they must acquit.

[91]

It
    should also be noted that in
Reid
, the court did not find reversible
    error. Rather, it found that the charge, read as a whole, made clear to the
    jury that if they believed or had a reasonable doubt about whether the accused
    acted in self-defence, they must acquit. It was in this context that Moldaver
    J.A. proposed a revised
W.(D.)
instruction in cases involving
    self-defence. The proposed instruction was not meant to be mandatory and our
    courts have not interpreted it to be so in the more than 10 years since
Reid
.

[92]

The
    focus of appellate review of jury charges is whether the trial judge adequately
    explained the law to the jury. No doubt some explanations are better crafted
    than others, but perfection is not the test. Appellate courts recognize the
    delicate balancing that must go into a charge. Too much detail may confuse the
    jury, while too little explanation may result in an inadequate instruction. For
    this reason, the proper approach of the appellate court is to undertake a functional
    and contextual review of the charge, read as whole:
R. v. Araya
, 2015
    SCC 11, [2015] S.C.J. No. 11, at para. 40. There is no required
W.(D.)
formula that must be slavishly followed:
R. v. B.D
.
, 2011 ONCA
    51, 266 C.C.C. (3d) 197, at para. 103.

[93]

The
    issue is whether the trial judge clearly explained to the jury the role
    self-defence played in their reasonable doubt analysis and not whether she used
    a particular formula to convey the message. In my view, the charge properly
    instructed the jury on the interplay between the
W.(D.)
principles and
    self-defence.

[94]

The
    trial judge made reference to the exculpatory statements that the appellant
    acted in self-defence and in defence of Mr. Modeste, and then told the jury
    that if they accepted that evidence, they must acquit. The trial judge went on
    to instruct the jury that:

Even if you do not accept it, if the exculpatory portion of the
    witnesses evidence, alone or taken in combination with the rest of the
    evidence, leaves you with a reasonable doubt, you must acquit.

[95]

The
    trial judge also instructed the jury that there was no burden on the appellant
    to establish self-defence and that the Crown must prove beyond a reasonable
    doubt the defence did not apply.

[96]

These
    instructions were clear and I am of the view that reasonable doubt, both
    generally and with respect to self-defence, was fully and adequately explained.
    To quote Moldaver J.A. in
Reid
, at para. 73, I am satisfied that the
    jury would not have been misled into thinking that they could convict even
    though they otherwise believed or had a reasonable doubt that the appellant was
    acting in lawful self-defence at the time of the killing.

[97]

Accordingly,
    I would not give effect to this ground of appeal.

W.(D.)
INSTRUCTION AND EXCULPATORY
    STATEMENTS

[98]

The
    appellant submits the trial judge erred in failing to explain the proper
    approach to exculpatory statements to the jury. In particular, the appellant
    argues the instructions were inadequate because the trial judge focused on
    whether the statements were made, rather than whether they could raise a
    reasonable doubt even if they were not believed.

[99]

In
    support of this submission, the appellant relies on the decision of this court
    in
R. v. Bucik
, 2011 ONCA 546, 274 C.C.C. (3d) 421. In that case, a
    new trial was ordered because the trial judge did not explain to the jury how
    they could use exculpatory statements. Doherty J.A., writing for the court,
    stated, at para. 32, that the jury should have been told that the exculpatory
    portion of the statement had potential value to the defence even if it was not
    believed as long as it was not rejected by them as untrue.

[100]

In the present
    case, the trial judge instructed the jury, [Y]ou must consider all parts of
    the statements that might help Mr. Bengy unless you are satisfied that he did
    not make them. I agree with the submission of the Crown that this instruction
    is arguably more favourable to the appellant than the instruction in
Bucik
because, unless the jury rejected the very existence of the statements, they
    had to consider them in applying the reasonable doubt standard. By contrast, in
Bucik
, the prescribed instruction was that unless the jury found the
    statement to be untrue, it could be used to support the appellants
    defence.

[101]

In my view, any
    concern about whether the jury understood the proper use of exculpatory statements
    is eliminated by the trial judges
W.(D.)
instruction, found three
    pages later in the transcript, after the section dealing with out-of-court
    statements. In that section, the trial judge made specific reference to the exculpatory
    evidence and wove that evidence into her
W.(D.)
analysis. In
    describing the second step of the analysis, she stated [E]ven if you do not
    accept it, if the exculpatory portion of the witnesses evidence, alone or
    taken in combination with the rest of the evidence, leaves you with a
    reasonable doubt, you must acquit.

[102]

I am satisfied
    that the jury was properly instructed on the interplay between the exculpatory statements
    and the reasonable doubt analysis. I would therefore dismiss this ground of
    appeal.

DISPOSITION

[103]

For the reasons
    above, I would dismiss the appeal.

Released: June 8, 2015 GS                                 C.W.
    Hourigan J.A.

I
    agree G.R. Strathy C.J.O.

I
    agree M. Tulloch J.A.


