



WARNING

THIS IS AN APPEAL UNDER THE

a.

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section,
    no person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

(2)
    Subsection (1) does not apply

(a) in a case where the information
    relates to a young person who has received an adult sentence;

(b) in a case where the information
    relates to a young person who has received a youth sentence for a violent
    offence and the youth justice court has ordered a lifting of the publication
    ban under subsection 75(2); and

(c) in a case where the publication of
    the information is made in the course of the administration of justice, if it
    is not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in
    subsection (1) may, after he or she attains the age of eighteen years, publish
    or cause to be published information that would identify him or her as having
    been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985, provided that he or she is not in
    custody pursuant to either Act at the time of the publication.

111(1)          Subject to this section,
    no person shall publish the name of a child or young person, or any other
    information related to a child or a young person, if it would identify the
    child or young person as having been a victim of, or as having appeared as a
    witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138(1)          Every person who
    contravenes subsection 110(1) (identity of offender not to be published),
    111(1) (identity of victim or witness not to be published), 118(1) (no access
    to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or
    section 129 (no subsequent disclosure) of this Act, or subsection 38(1)
    (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no
    subsequent disclosure by school) or (1.15) (information to be kept separate),
    45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised Statutes of Canada,
    1985,

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

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




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.S., 2019 ONCA 832

DATE: 20191022

DOCKET: C60414

Huscroft, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.S.

Appellant

Gary Grill and Leo Salloum, for the appellant

Christopher Webb, for the respondent

Heard: September 23, 2019

On appeal from the convictions entered by Justice Maureen
    D. Forestell of the Superior Court of Justice on March 24, 2014 with reasons
    reported at 2014 ONSC 1996.

Nordheimer J.A.:

A.

Overview

[1]

R.S., a young person as defined by the
Youth Criminal Justice Act
,
    S.C. 2002, c. 1, was convicted on March 24, 2014, after a judge-alone trial, of
    manslaughter, aggravated assault, careless use of a firearm and possession of a
    firearm without a licence or registration. He appeals from the convictions of
    manslaughter, aggravated assault and careless use of a firearm. He does not
    appeal from the conviction for the firearm possession offence.

[2]

For the reasons that follow, I conclude that the trial judge erred in
    her analysis of self-defence in a manner that rendered her verdicts
    unreasonable ones. Accordingly, I would allow the appeal and enter acquittals
    on those charges.

B.

The background facts

[3]

The appellant was attacked by five men in the lobby of an apartment
    building in which he lived. The apartment building is located in the Jane and
    Woolner neighbourhood of Toronto. A gang, known as the Gators, operates in this
    neighbourhood. At least two of the five attackers were members of this gang
    although the appellant was unaware of this at the time.

[4]

On April 12, 2012, around 9:49 p.m., the appellant left his apartment to
    meet a friend. He had a gun in his pocket. The appellant had a gun because he
    had been shot at on two prior occasions. Indeed, on the second occasion,
    someone called his name before shooting at him from a car. As a consequence of
    these events, the appellant feared for his life. Following the second shooting,
    which occurred about two months prior to the attack here, the appellant purchased
    a gun and thereafter carried it with him for protection.

[5]

The appellant took the elevator down from his apartment and eventually
    exited his building. He was out of the building for about 14 minutes. During
    this time, the attackers were captured on surveillance video, initially in the
    lobby of the appellants building and then congregating in the lobby of the
    apartment building directly opposite.

[6]

A short time after the appellant re-entered the lobby of his apartment
    building, the attackers left the adjacent apartment building and entered the
    lobby of the appellants apartment building. One of the attackers had a
    baseball bat. The appellant opened the door to the lobby of his apartment
    building for the lead attacker, oblivious as to what was about to happen.

[7]

After the appellant opened the lobby door, he turned and walked towards
    the elevators. His back was to the other men. The attacker with the baseball
    bat (the deceased) hit the appellant in the back of the head. The appellant
    fell to his knees and the gun fell out of his pocket.

[8]

The appellant picked up the gun. He fired four shots. As the shots were
    fired, the attackers were running out of the building. One attacker ran north
    down a hallway. Three of the attackers ran out the lobby door. The fifth
    attacker was already outside the lobby. The deceased was hit in the back by a
    bullet and fatally injured, although he nonetheless managed to escape the
    building and run across the street. Another attacker was grazed and injured. As
    found by the trial judge, the shots were fired within, at most, five seconds.

C.

The issue

[9]

An accused person who believes on reasonable grounds that force is being
    used against him may do something that otherwise would be an offence but be
    acting lawfully, and thus not be guilty of any crime, provided that what he
    does is for the purpose of defending or protecting himself from that use of
    force and the actions he takes are reasonable in the circumstances as the
    accused person knew or honestly believed them to be.
[1]
That is the definition of self-defence. The central issue at trial in this case
    was whether the appellant acted in self-defence.

[10]

The
    appellant contended that he had fired his gun in order to protect himself
    against what he perceived would be the continuation of the initial attack.
    Three of the attackers gave evidence for the prosecution. The evidence of one
    other attacker was read in from the preliminary hearing. The appellant gave
    evidence in his own defence.

[11]

On
    March 24, 2014, the trial judge convicted the appellant of the offences I
    mentioned above. In that regard, I should mention that the appellant had been
    charged with second-degree murder. The trial judge convicted the appellant of
    manslaughter because she was not satisfied, beyond a reasonable doubt, that the
    appellant had the requisite intent to cause bodily harm that he knew was likely
    to cause death. It was for this same reason that the trial judge convicted the
    appellant of aggravated assault and not of attempted murder.

[12]

In
    convicting the appellant of these offences, the trial judge rejected the
    appellants claim of self-defence. She concluded that the appellants act of
    firing the gun was not objectively reasonable, principally because she found
    that the appellant fired the gun at a time when he knew that the attackers were
    retreating.

D.

Analysis

[13]

In
    my view, the trial judge erred in her conclusion regarding self-defence in two
    respects. First, she made a finding of fact that was not supported by the evidence
    with the consequence that her verdict is an unreasonable one. Second, she erred
    in her application of the objective requirement for self-defence by failing to
    take into account all of the circumstances surrounding the shooting. The second
    error may have been driven, in large part, by the first. Nevertheless, I will
    deal with the errors separately. I begin, though, with a brief reference to the
    applicable law.

(1)

The Applicable Law

[14]

The
    trial judge erroneously applied the new self-defence provisions in deciding
    this case. In doing so, she did not have the benefit of this courts decision
    in
R. v. Bengy
, 2015 ONCA 397, 325 C.C.C. (3d) 22, which ruled that
    the new self-defence provisions were not retrospective. However, the parties
    are agreed that this error does not have any impact on the result because the
    analysis is effectively the same in this case under either the new or the old
    self-defence provisions. In these reasons, I will refer to the old provision
    that was, in fact, applicable to this case, namely,
Criminal Code
,
    R.S.C. 1985, C-46,

s. 34(2), as amended by S.C. 1992, c. 1, s. 60(F), which
    reads:

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.

[15]

There
    are three constituent elements of self-defence under this section. They are set
    out in
R. v. Pétel
, [1994] 1 S.C.R. 3, at p. 12:

1.

the existence of an unlawful assault;

2.

a reasonable apprehension of a risk of death or grievous bodily harm;
    and

3.

a reasonable belief that it is not possible to preserve oneself from
    harm except by killing the adversary.

[16]

There
    is both a subjective and an objective component to each of these elements:
R.
    v. Cinous
, 2002 SCC 29, [2002] 2 S.C.R. 3 at para. 94.

[17]

There
    is no issue in this case that the subjective component was made out for each of
    the three elements. There also does not appear to be any dispute that the objective
    component was made out for the first and second elements. It is the objective
    component for the third requirement that is in issue.

(2)

Unreasonable Verdict

[18]

The
    trial judge rejected self-defence on the basis that the appellants action in
    firing his gun was unreasonable because he fired his gun at the retreating
    figures (para. 147). She also concluded that the appellant fired the gun at
    the people he saw running away. He did not fire blindly or randomly (para.
    106).

[19]

The
    trial judge based her conclusions on what she recounted as the appellants
    evidence. Specifically, the trial judge said, at para. 146:

I have found that at the point that [the appellant] turned and
    fired, no one was closing in on him. All of the individuals who had commenced
    the attack were running away. [The appellant] knew that they were running away.
He testified to that effect
. He no longer faced an
    imminent threat of force. [Emphasis added.]

[20]

Having
    reviewed the appellants evidence, I am satisfied that the trial judge
    misunderstood what the appellant said.  As I demonstrate below, the appellant
    did not say that, when he fired the shots, he knew that the attackers were
    running away, nor can this conclusion be reconciled with the other evidence.

[21]

The
    trial judges conclusions are therefore unreliable, especially on the issue of
    the reasonableness of the appellants actions in the context of a defence of
    self-defence. In this case, her critical factual error makes the verdict an
    unreasonable one.

[22]

The
    basis for finding a verdict to be unreasonable is set out in
R. v. R.P.,
2012 SCC 22, [2012] 1 S.C.R. 746, where Deschamps J. said, at para. 9:

The appellate court may also find a verdict unreasonable if the
    trial judge has drawn an inference or made a finding of fact essential to the
    verdict that (1) is plainly contradicted by the evidence relied on by the trial
    judge in support of that inference or finding, or (2) is shown to be
    incompatible with evidence that has not otherwise been contradicted or rejected
    by the trial judge. [Citations omitted.]

[23]

The
    finding that the appellant knew his attackers were running away when he began
    to shoot is essential to the verdict, but plainly contradicted by the
    appellants evidence, which the trial judge relied upon to support this
    finding.

[24]

There
    is no dispute that the appellant said that he saw the attackers running at some
    point, but where that point fell in the timeline surrounding the events is
    unclear. For example, in cross-examination, the appellant said:

Q. And Im going to suggest to you, sir, that they started to
    run away as soon as you got that gun in your hand.

A. I dont know. I cant tell you.

and further:

Q. You would agree with me, though, that you were shooting in
    the direction of the men as they ran away?

A. Yeah.

Q. And Im going to suggest to you that that can only happen if
    you were aiming at them?

A. No, as I was saying, I was on the floor, I turned around and
    start firing the direction they all ran off.

Q. And Im going to suggest to you, sir, that you fired more
    than once in the direction that [the deceased] was running.

A. I just told you, I picked the gun up and start firing right
    away.

[25]

The
    appellant was never asked directly whether he saw the attackers running before
    he fired the gun, or while he was firing, or after. Any fair reading of his
    evidence does not allow for any finding that he was aware that the attackers
    were retreating before he fired his gun. Indeed, the trial judges own finding
    that when he turned and fired, he saw guys running (para. 147) does not
    address this central issue of timing.

[26]

There
    is no doubt that, at a point in his evidence, the appellant did say that he saw
    that his attackers were running away. Indeed, he said that, when he saw that
    his attackers were running away, he stopped firing his gun. However, I repeat
    that he was never asked whether, when he did see the men running away, he was
    already firing the gun or whether he only then started to fire the gun.

[27]

Further,
    there is no finding by the trial judge regarding the sequence of the shots.
    Indeed, the trial judge expressly stated that she could not make that factual
    determination (para. 111). This was another critical factual gap in the
    evidence in this case. The appellant was struck from behind. He fell to his
    knees. He was facing the elevators which were on the east side of the lobby and
    his attackers were behind him. There was evidence of bullet strikes to the west,
    i.e., in the location of the attackers. There was also evidence of at least
    one, potentially two, bullet strikes to the north along the hallway where the
    one attacker had run.

[28]

Remarkably,
    in the context of this case, the appellant was never asked which direction he
    turned when he grabbed his gun, swung around, and started to fire. If he swung to
    his right, i.e. to the south, then to the west, and then to the north, he would
    have had a much more limited time to discern the actions of the majority of the
    attackers, all but one of whom (including the deceased) were then behind him.
    If the appellant turned to his left, fired the first shot to the north, where
    one of the attackers ran to escape, and then fired the subsequent shots to the
    west, there was a greater opportunity for the appellant to discern the actions
    of the bulk of the attackers since they would have been further into their
    escape.

[29]

In
    my view, the sequence of the shots was critical to any determination of the
    appellants ability to discern the actions of his attackers, and thus the risk
    of harm that he was facing, which was, in turn, essential to any finding as to
    the objective reasonableness of his actions.

[30]

There
    is a further problem with there being no factual finding on this point. Assuming
    that there was a reasonable opportunity for the appellant to discern the
    actions of the attackers as he fired the shots, some of the shots may have been
    fired at a time when the appellant reasonably feared that he could not preserve
    his life, while later shots may not have been so justified.
[2]
If this was so, and it was one of the earlier shots that struck the deceased,
    the appellant would be entitled to the defence of self-defence.

[31]

This
    possibility clearly arises on the evidence since it appears to be undisputed
    that the appellant was still on his knees swinging the gun around as he fired.
    Not only does the physical evidence establish that, both the appellant and one
    of the attackers say that is what happened. Indeed, the one attacker described
    the appellants actions in the following terms:

Q. Okay. And you would agree with me that, from your
    recollection, hes spinning and firing at the same time?

A. Yes.

The trial judge also accepts that the appellant was still
    on his knees when he fired the shots (para. 103).

[32]

The
    only way that the trial judge avoids the problems that these absent factual
    findings present, is by finding that the appellant knew that the attackers were
    running away before he fired the first shot. The difficulty with that
    conclusion, as I have explained, is that it has no foundation in the evidence. There
    is simply no basis on the evidence for any conclusion that, prior to firing the
    first shot, the appellant was aware that his attackers were running away. He
    does not say that nor is there any other evidence that would support such a
    finding. The trial judges opposite conclusion constitutes a palpable and
    overriding error.

(3)

The Objective Component

[33]

I
    also believe that, in reaching her conclusion on self-defence, the trial judge
    failed to give proper consideration to the actual circumstances in which the
    events transpired. The appellant had his back to his attackers. Without any
    warning, he was hit in the back of the head with a baseball bat with sufficient
    force that he fell to his knees, during which time his gun fell out onto the
    floor. As the appellant responded to the blow to his head, he grabbed the gun,
    swung around and fired in the direction of his attackers.
[3]
As found by the trial judge, and as seen on the video surveillance, the time
    between the attack and the shots being fired was less than five seconds.

[34]

The
    trial judge concluded, at para. 147:

The option chosen by [the appellant] of firing at the
    retreating men was grossly disproportionate to the threat that he faced at the
    point that he fired the gun.

[35]

With
    respect, given how the events unfolded in this case, I believe that the trial
    judge tested the actions of the appellant against a standard that is much too
    high for the proper application of self-defence. The trial judge required the
    appellant, in less than five seconds, to process what had happened, evaluate
    the potential threat, and essentially react in a reflective and measured
    fashion. The reasonableness of that standard must be contrasted with the
    reality of the situation which was:

·

The appellant had already been struck with force on the back of
    his head with a baseball bat. Indeed, he believed he had been shot.

·

He had reason to believe these men would continue to attack him,
    and possibly kill him.

·

He had been shot at twice before, so he reasonably believed his
    life was in danger. The trial judge accepted that was the case.

·

The appellant was alone against five men who had engaged in a
    group attack on him, at least one of whom was armed with a baseball bat.
[4]

·

The appellant was inside the lobby of the building and the
    buildings closest exit was behind him where his attackers were located.

[36]

In
    considering the context in which these events occurred, the trial judge
    referred to a basic principle regarding self-defence: we do not expect persons,
    who are attacked, to weigh their response to the attack to a nicety. Yet, as I
    shall explain, I believe that is what the trial judge required the appellant to
    do in this case.

[37]

I
    have already set out the evidence of the appellant as to what happened. I have
    also set out the confirmatory evidence, on the same point, of one of the
    attackers. The trial judge, while having some issues with this witnesss
    evidence, did not reject his evidence on this point. Nevertheless, the trial
    judge did not consider this evidence in her objective analysis.

[38]

Further,
    all of this must be considered against the reality that four shots were fired
    within, at most, five seconds. To hold that the appellant was required, in
    those seconds, to turn his mind to these unfolding events and make a rational and
    detached decision whether he reasonably needed to fire his gun  and, if so,
    how many times  in order to prevent any further attack, and thus preserve his
    life, is, with respect, to place an unreasonable burden on the appellant. It
    effectively requires him to weigh to a nicety the degree of his response. The
    unreasonableness of that burden is compounded by the trial judges implicit
    criticism of the appellants actions that he did not fire the shots in the air
    or in the ground (para. 147).

[39]

I
    reiterate that there was no finding regarding the sequence of the shots. There
    is also no evidence as to which, of the four shots, struck and killed the
    deceased. There is therefore the very real potential for the force used by the
    appellant to have been reasonable at the commencement of the shots, but to have
    become unreasonable before the shots concluded, as the appellant developed the
    awareness of the actual state of affairs regarding the actions of his
    attackers. However, no factual findings were ever made on this point either.

[40]

It
    is difficult to see how a proper analysis of the objective reasonableness of
    the appellants actions could be made in the absence of those factual findings.

[41]

In
    the end result, given the evidentiary record, the prosecution failed in its
    obligation to prove, beyond a reasonable doubt, that the appellant did not act
    in self-defence. The trial judge erred in concluding otherwise. She reached
    that conclusion based on a fundamental factual error regarding the appellants
    evidence and on a misapplication of the objective requirements for
    reasonableness in the self-defence context. Her conclusion that self-defence
    was disproved, beyond a reasonable doubt, is an unreasonable one.

(4)

Fresh Evidence

[42]

The
    appellant sought to adduce fresh evidence regarding his mental state at the
    time of the shooting. As a result of information obtained during the sentencing
    process, it was learned that the appellant operates at a reduced mental level
    for his age. In some respects, he operates at the level of a ten-year-old. The
    appellant sought to adduce this fresh evidence as relevant to the objective
    evaluation of the reasonableness of his actions. While the respondent conceded
    that the admissibility and due diligence requirements for the admission of
    fresh evidence were met, it opposed the admission of the fresh evidence on the
    basis that it was not sufficiently cogent.

[43]

Given
    the conclusions that I have reached regarding the trial judges conclusions on
    self-defence, it is unnecessary for me to resolve the fresh evidence
    application.

(5)

Remedy

[44]

The
    issue then arises as to what remedy is appropriate in this case. The
Criminal
    Code
gives this court the power, in these circumstances, to direct that a
    verdict of acquittal be entered or order a new trial: s. 686(2).

[45]

The
    proper result in this case is for acquittals to be entered on the charges of second-degree
    murder, attempted murder, and careless use of a firearm. I reach that
    conclusion based on my view that the verdicts are unreasonable as they are not properly
    supported by the evidence adduced at trial. Further, this is not a case where
    there was an evidentiary error that could be corrected at a new trial. In other
    words, it is not a case where evidence was improperly admitted or excluded. The
    respondent laid out the case that it asked the appellant to meet. If there is
    other evidence that the respondent might have adduced but chose not to, it
    ought not to be able to correct that tactical decision through a new trial.

[46]

The
    Supreme Court of Canada has noted that [w]here a conviction is set aside on
    the ground that the verdict is unsupported by evidence, the court of appeal,
    absent legal errors in respect of the admissibility of evidence, will usually
    enter an acquittal:
R. v. Pittiman
, 2006 SCC 9, [2006] 1 S.C.R. 381,
    at para. 14. As Doherty J.A. noted in
R. v. Harvey
, 57 O.R. (3d) 296
    (C.A.) at para. 30, affd 2002 SCC 80, [2002] 4 S.C.R. 311:

Usually, if the Court of Appeal allows a conviction appeal on
    the ground that the verdict is unreasonable it will enter an acquittal. An
    acquittal is the appropriate order because it would be unfair to order a new
    trial and give the Crown a second opportunity to present a case on which a
    reasonable trier of fact could convict.

[47]

I
    will add that I am reinforced in my view that acquittals are the appropriate
    result by the reality that the events in question occurred seven years ago. It
    is not in the interests of justice, in the circumstances to which I have just
    referred, to require, not only the appellant, but also all of the other persons
    who were involved in these matters, to once again relive these events through
    another trial. On this point, I also consider it a relevant consideration that the
    appellant was a young person at the time that these events took place.

[48]

Accordingly,
    I would enter acquittals on the charges.

E.

Conclusion

[49]

The
    appeal is allowed and acquittals are entered on the charges of second-degree
    murder, attempted murder, and careless use of a firearm.

Released: GH October 22, 2019


I.V.B. Nordheimer J.A.

I agree.
Grant Huscroft J.A.
I agree.
David M. Paciocco J.A.





[1]
See David Watt,
Watts Manual of Criminal Jury Instructions
, 2nd ed.
    (Toronto: Carswell, 2015) (Final 74B  Self Defence (General Instruction))



[2]

The trial judge appears to have imposed this obligation on
    the appellant but, as I explain in the following section, I conclude that, in
    doing so, the trial judge imposed an unreasonable burden on the appellant.



[3]

The appellant said that he thought that he had, in fact, been
    shot and that he was attempting to remain conscious after the blow.



[4]

The evidence showed that one of the other attackers was armed
    with a knife and another attacker likely had a weapon the nature of which is
    not stated.


