This week’s top three summaries: R v Harris, 2023 ABCA 90: self #defence and 1st deg , R v Pirko, 2023 BCCA 120: #defence of another, and R v JS, 2023 MBKB 26: SOIRA #relief.
This week’s top two cases deal with self defence or defence of anther. If you want to dig deeper into this topic, I recommend the Emond title below dealing with law of Evidence. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
MODERN CRIMINAL EVIDENCE
By Matthew Gourlay, Brock Jones, Renee Pomerance, Glen Crisp & Jill D. Makepeace
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R v Harris, 2023 ABCA 90
[March 14, 2023] Failed Self Defence and Elements of First Degree Murder [Frederica Schutz, Michelle Crighton, Bernette Ho JJ.A.]
AUTHOR’S NOTE: Ultimately, this decision is about intellectual consistency. Judges are not permitted to make siloed factual decisions within issues in a trial. When they make fact findings on a failed defence (here: self-defence), they are stuck with those finding when they assess the balance of the Crown’s case (here: intent for first degree murder [ie. planning and deliberation]). Having found that the defendant intended only to injure the deceased with the first shot to the legs and he acted after being attacked by the deceased, the trial judge had to capture these factual findings within his analysis on first degree murder. He had to reconcile how the elements of planning and deliberation were met where the accused did not instigate the violent exchange and had carried the firearm for his personal safety due to earlier threats by the deceased. The trial judge here recast the facts in his intent analysis. This is the reason the Court of Appeal set aside his trial judgement and sent the matter back for a new trial.
I. Introduction
[1] The appellant, Nicholas Harris, appeals his conviction for first degree murder in the shooting death of John Rock outside a pub in Grande Prairie: R v Harris, 2019 ABQB 456 (the “Decision”). At trial, the appellant admitted his actions caused the death of Mr Rock but maintained he acted in self-defence.
[2] While the trial judge found that there was an air of reality to self-defence and the first two elements of the defence under s 34(1) of the Criminal Code had been proven, he determined that the appellant’s act in shooting Mr Rock twice was not reasonable in the circumstances as required by s 34(1)(c). The trial judge accepted that both the appellant and Mr Rock were high-level drug traffickers and that the appellant, who owed Mr Rock a significant amount of money, had recently been threatened by Mr Rock with violence, causing the appellant to carry a handgun out of concern for his safety. The trial judge further found that the appellant had been called out of the pub by Mr Rock to fight and it was Mr Rock who threw the first two punches before the appellant responded to the attack by firing his handgun.
[3] In convicting the appellant, the trial judge found that the appellant had gone to the pub to confront Mr Rock and to tell him he would not be backing down. The trial judge disbelieved the appellant’s testimony that a male had exited an Avalanche truck and threatened him when he left the pub right before the shooting took place, nor did he believe the appellant had seen Mr Rock reach towards his hoodie pocket for a gun. The trial judge went on to find that the appellant had “planned to use the handgun he carried to shoot Mr. Rock if their dispute rose to a level where in his mind, he thought it appropriate”, thus constituting first degree murder….
[7] For the reasons following, we agree that this matter must be returned for a retrial. In so finding, it is only necessary to deal with the trial judge’s failure to consider his own findings on self-defence when assessing intent and no more will be said on the reasonableness of the appellant’s actions or the fresh evidence application.
III. Decision of the trial judge
[18] The trial judge set out the three elements of the test for self-defence in s 34(1) of the Criminal Code:
- reasonable belief by an accused of force or threat of force being used against him or another;
- the accused acted with defensive purpose in response to that force or threat; and
- the responsive act was reasonable in the circumstances.
He found an air of reality to the defence, and that the first two elements had been proven.
[19] More specifically, the trial judge determined the appellant had a reasonable belief that Mr Rock was attacking him, consistent with the video evidence of Mr Rock punching the appellant outside the pub, and that the appellant did not launch a pre-emptive strike but, rather, responded to protect himself. At paras 100 to 103 of the Decision, the trial judge wrote:
. . . I agree with the defence that Mr. Harris acted for the purpose of defending himself.
Mr. Harris did not launch a pre-emptive strike. Mr. Rock launched his attack on Mr. Harris with his fists. Mr. Harris knew he had to respond with force to protect himself or possibly suffer at a minimum a beating.
…
At this stage, Mr. Harris responded to Mr. Rock’s attack because in his mind he feared a beating at the hands of Mr. Rock. . . .
[20] The trial judge explicitly accepted the appellant’s evidence that he carried the handgun because he feared for his safety in response to earlier threats made by Mr Rock: Decision at para 122. He also accepted that Mr Rock had no hesitation possessing handguns and advised the appellant to wear a bulletproof vest the next time they met: Decision at para 124. The appellant knew Mr Rock had used violence against Mr Stanley and had no reason to expect anything less for himself at the hands of Mr Rock: Decision at para 127.
[21] The trial judge concluded though that self-defence failed on the third element of the test; namely, the appellant’s act in shooting Mr Rock twice was not reasonable in the circumstances. He held that the appellant had gone to the pub that night to confront Mr Rock and tell him that he would not be backing down. He disbelieved the appellant’s evidence that when he left the pub knowing Mr Rock was waiting for him, he saw a male exit an Avalanche truck and threaten him and that he saw Rambo (Mr Brokowski) drive out of the parking lot instead of backing him up. While the trial judge accepted that Mr Rock was the aggressor and attacked Mr Harris, he found the evidence did not support the appellant’s assertion that Mr Rock reached towards his hoodie pocket for a gun. Rather, he held that Mr Rock was landing blows without resistance from the appellant and “[n]othing in the evidence supports any reason for Mr. Rock to increase the level of violence beyond a fist fight. Mr. Rock stood much taller and outweighed Mr. Harris by a significant amount. Nothing supports any reason for him to think it necessary to use a weapon against Mr. Harris”: Decision at para 182.
[23] At paras 194-6 of the Decision, the trial judge then considered proportionality and whether other means were available to the appellant, finding that given his criminal lifestyle, the appellant could not call the police.
As I have found that Mr. Rock did not reach for his left pocket as if to reach for a handgun and no one from a green Avalanche tried to take him away, the nature of Mr. Harris’s reaction is all out of proportion to the threat of Mr. Rock’s force. . . As regards proportionality, he failed to meet the standard of a reasonable law abiding citizen, as opposed to a reasonable drug trafficker.
[24] The trial judge went on to find that the appellant had the necessary intent for first degree murder. Without returning to his findings on the first two elements of self-defence, he held the appellant had fired a handgun at close range at the chest of Mr Rock and had previously planned not only to carry the handgun but “to use [it] to specifically shoot Mr. Rock. Apart from that, he would shoot any other person Mr. Harris might consider intended to do him harm or kill him”. “… Mr. Harris had carefully thought this out. Indeed, he went to Grande Prairie on September 30, just four days into his release, with another handgun . . . [he] knew Mr. Rock was looking for him. He planned to use the handgun he carried to shoot Mr. Rock if the dispute rose to level where in his mind, he thought it appropriate”: Decision at paras 243-5.
VI. Analysis
[31] As the Supreme Court of Canada recently made clear in Khill at para 126, “a life sentence for murder does not automatically flow from the Crown defeating an accused’s claim of self- defence.” Rather, a trier of fact must then consider whether the accused “acted with the requisite level of intent to murder rather than manslaughter. . . [and] must consider the cumulative effect of all the relevant evidence to decide if the requisite level of fault has been established beyond a reasonable doubt (R. v. Flores, 2011 ONCA 155, 274 O.A.C. 314, at paras 73-75; R. v. Levy, 2016 NSCA 45, 374 N.S.R. (2d) 251, at para. 148).”
[32] In this case, having determined that the appellant’s defensive act was unreasonable, the trial judge properly went on to consider whether the appellant had the intent to murder. He did not, however, consider his earlier findings on the first two elements of self-defence or the cumulative effect of those findings in determining whether the appellant had the requisite intent.
[33] The mens rea for first degree murder not only required proof that the appellant “mean[t] to cause [Mr Rock’s] death, or… mean[t] to cause [Mr Rock] bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not”. It also required proof the killing itself was “planned and deliberate”: ss 229, 231 of the Criminal Code.
[34] The trial judge’s findings that the appellant not only believed he was being threatened and attacked by Mr Rock (the “catalyst” in Khill, s 34(1)(a)), but acted in response to that threat and attack by Mr Rock in order to defend himself (the “motive” in Khill, 34(1)(b)), was relevant to the assessment of this elevated intent. It remained indisputable that the appellant did not exit the pub shooting the handgun in his possession but rather, reacted only after being punched in the face by Mr Rock. As already noted, in assessing self-defence, the trial judge found that the appellant did not launch a pre-emptive strike. He acted for the purpose of defending himself or suffer a beating at the hands of Mr. Rock.
[35] The trial judge did not consider these findings relating to self-defence in assessing the appellant’s intent. Rather, he recast the same facts into findings of planning and deliberation by the appellant to kill Mr Rock, contradicting his earlier assessment of the evidence.
[36] … At paras 219-222 of the Decision:
. . . On the first shot, I find that Mr. Harris intended to shoot at the legs of Mr. Rock.
.. .
Although the bullet could have caused a more serious injury, the reasonable inference I make with respect to the first shot is that Mr. Harris fired at Mr. Rock’s legs to injure him. In his mind, this would stop any further attack from Mr. Rock.
Therefore, at this time Mr. Harris’s actions show neither that he meant to kill Mr. Rock nor cause him bodily harm that he knew might cause the death of Mr. Rock. [Emphasis added]
[37] While this was a finding available on the record and was otherwise consistent with his earlier determinations that the appellant acted to defend himself against the force used by Mr Rock, the trial judge went on to hold that the second shot fired by the appellant met the intent for a planned and deliberate murder. The trial judge did not return to or assess his earlier findings on self-defence in making this finding, nor did he consider his finding that the first shot was fired with the intent solely to injure.
[38] Herein lies the error. The trial judge failed to properly consider the evidence of self-defence beyond the parameters of the defence itself and importantly, in determining whether the appellant had the requisite intent: see for example, R v Robinson, [1996] 1 SCR 683 at para 58, 133 DLR (4th) 42. This compartmentalization of the evidence by the trial judge is illustrated where the same facts that formed the basis for his self-defence findings were reinterpreted as planning and deliberation by the appellant to commit first degree murder. At paras 243-8 of the Decision:
Mr. Harris knew Mr. Rock was looking for him. He planned to use the handgun he carried to shoot Mr. Rock if their dispute rose to a level where in his mind he thought it appropriate.
That circumstances arose on September 30/October 1, 2014 which placed Mr. Harris in a position where he could not reason with Mr. Rock or appeal to their past friendship makes no difference. Mr. Harris did not seek out Mr. Rock at the Canadian Brewhouse to kill him, nevertheless he planned and considered shooting Mr. Rock weeks before that encounter. When faced with circumstances of a confrontation with Mr. Rock for which Mr. Harris had planned and considered, he executed his plan and shot Mr. Rock dead. …
[39] In our view, these facts simply cannot be relied upon by the trial judge as proof the appellant acted in self-defence (and with an intent solely to injure on the first shot), and as proof the appellant “planned and deliberately murdered” Mr Rock.
[40] … While it may not invariably follow that an act taken in self-defence can never result in a finding of intent to commit first degree murder, the trial judge was required to consider his findings on self-defence in assessing whether the appellant had the intent to murder in this case. He failed to do so.
[41] More specifically, in our view, the trial judge did not properly instruct himself with respect to what has become known as the “rolled up charge”, which “requires the trier of fact to consider the cumulative effect of the evidence. Where the evidence relating to certain defences such as provocation, intoxication, and mental disorder falls short of establishing the stand-alone defence, the cumulative effect of the evidence is still considered in deciding whether the accused formed the requisite intent”: R v Newborn, 2020 ABCA 120 at para 72, 390 CCC (3d) 86. The same can be said when the evidence falls short of establishing that an accused’s proven act of self-defence was reasonable in the circumstances: Khill at para 121.
[42] As stated in R v Fraser (2001), 159 CCC (3d) 540 at para 25, 151 OAC 137 [Fraser] in the context of a jury charge:
. . . Ordinarily, evidence that has a bearing on the issue of intent will already have been raised by way of a justification defence such as self-defence, or there may be evidence of provocation directed towards the accused. See e.g. Robinson, supra; Schell, supra; R. v. Allegretti, [1994] O.J. No. 172 (C.A.); R. v. Clow (1985), 44 C.R. (3d) 228 (Ont. C.A.); R. v. Bob (1990), 78 C.R. (3d) 102, 40 O.A.C. 184 (C.A.); R. v. Nealy (1986), 30 C.C.C. (3d) 460, 17 O.A.C. 164 (C.A.); R. v. Desveaux (1986), 26 C.C.C. (3d) 88, 13 O.A.C. 1 (C.A.). While the jury may have rejected each individual defence, they may still have a reasonable doubt about the accused’s intent to commit murder having regard to the cumulative effect of the evidence as a whole. The purpose of a rolled-up charge is to prevent the jury from compartmentalizing the evidence and to draw to the jury’s attention those pieces of evidence that have a bearing on intent so that they may assess its cumulative effect. The cumulative effect of the evidence bearing on intent may result in the verdict being one of manslaughter as opposed to murder. [Emphasis added]
[44] … On any view of the record, the trial judge failed to assess whether the Crown had proven the requisite intent to murder on the whole of the evidence and factual findings.
[45] In addition, the trial judge failed to consider whether the cumulative effect of the evidence might be more in keeping with the intent for second degree murder or manslaughter: Fraser at para 25.…
VII. Disposition
[46] The appeal is allowed, and the matter is returned for retrial.
R v Pirko, 2023 BCCA 120
[March 14, 2023] Defence of Another – Instructions [Reasons by Fitch J.A. with Bauman and Voith JJ.A. concurring]
AUTHOR’S NOTE: Positing an alternative view of the facts not argued by any of the parties to a case with the jury in the charge is rife with difficulties. One of them is a need for very careful instruction. The case appeared to turn in the trial judge’s mind on whether the two individuals who had a fight had a consensual fight. While there could be some significance to this, what was actually important to the defence of another provision’s application was what the accused thought was happening between the other two. It is his purpose in intervening that was important to the application of the defence. Whether the fight was factually consensual or not as between the two fighting parties is a small piece of that puzzle. The focus has to remain on the point of intervention by the accused throughout – what occurs before is important to the degree they knew that it occurred and the context that it gave to their later actions.
I. Introduction and Overview
[2] Pirko caused Ausman’s death when he intervened in a fist fight between Ausman and his good friend, Elrich Dyck (“Dyck”). He did so by striking Ausman at least twice in the head with a hammer. One of the blows fractured Ausman’s skull. Ausman was immediately incapacitated and rendered unconscious. His death was caused by blunt force trauma to the head.
[3] Pirko, who testified at trial, claimed that when he intervened in the fight he was acting in the protection or defence of Dyck (referred to herein as the “primary defence”). Section 34(1) of the Criminal Code, R.S.C. 1985, c. C-46 [Code] provides that a person is not guilty of an offence if they believe on reasonable grounds that force is being used or threatened against another person, the act that constitutes the offence is committed for the purpose of defending that other person, and the act committed is reasonable in the circumstances. If the jury rejected this defence, the appellant relied on his intoxication to seed a reasonable doubt about whether, when he struck Ausman with the hammer, he acted with the requisite intent for murder.
IV. Analysis of the Grounds
General Principles Applicable to the Case at Bar
[66] In all cases, the responsibility for the correctness of the instructions rests with the judge and the judge alone: R. v. Khill, 2021 SCC 37 at para. 144. No one would suggest that failure to object to a fatally defective charge precludes appellate intervention. As noted in R. v. Barton, 2019 SCC 33 at para. 48, failure to object “does not waive the public interest in a verdict untainted by materially deficient jury instructions.”
[67] At the same time, trial counsel’s failure to object to the charge may say something, perhaps even something significant, about its overall accuracy and the seriousness of the alleged misdirection: R. v. Jacquard, [1997] 1 S.C.R. 314 at paras. 35–38, 1997 CanLII 374; R. v. Daley, 2007 SCC 53 at para. 58; Goforth at para. 39. This is more likely to be the case when the impugned instruction has been vetted with trial counsel and specifically endorsed: Barton at para. 49, citing with approval R. v. Patel, 2017 ONCA 702 at para. 82. Appellate courts must also be mindful of the fact that a failure to make timely objection may, in some circumstances, reflect a strategic weighing by defence counsel of the disadvantages inherent in delivering a charge along the lines said only on appeal to have been required: R. v. Calnen, 2019 SCC 6 at paras. 41, 67.
[68] In the case at bar, defence counsel took no issue with any aspect of the final instructions. The failure to do so, and the weight to be assigned to this consideration, must be understood on an issue-by-issue basis and in the context of the trial as a whole.…
… Put differently, and as a general rule, no significance can fairly be assigned to the failure of counsel to make futile, pro forma objections to the charge on issues that have already been decided against them: R. v. Barreira, 2020 ONCA 218 at
para. 38.
3. Confusing Instructions
[69] …It is well-settled that a jury charge may be “so unnecessarily confusing that it constitute[s] an error of law”: R. v. Hebert, [1996] 2 S.C.R. 272 at para. 8, 1996 CanLII 202; Barton at para. 246. I will return to this issue in addressing the sufficiency of the charge on Pirko’s primary defence.
Ground #2: The Instructions on Defence of Another
[97] The Crown conceded in its closing address that Ausman and Dyck engaged in a consensual fist fight, and that Pirko intervened when Dyck called for his assistance.
The Instruction on Section 34(1)(a): The Application or Threatened Application of Force Against Another Person
[106] As neither the Crown nor the defence relied on the alternative factual scenarios identified by the judge in the pre-charge conferences, the first occasion on which the jury heard that it was open to them to come to some conclusion other than that Ausman and Dyck engaged in a consensual fist fight was when final instructions were given.
[114] As I see it, much of the difficulty arising from the instructions given in relation to the appellant’s primary defence, including those pertaining most particularly to ss. 34(1)(b) and (c), stemmed from the judge’s decision to position resolution of whether Ausman and Dyck consented to a fist fight as something of a hinge on which the case turned.
[116] Given the importance the judge attached to the question of whether the fight was consensual, the jury may have understood that the defence would necessarily fail if Ausman agreed to a verbal, but not a physical encounter; in other words, if Ausman did not consent to the fight with Dyck, Pirko could not have believed on reasonable grounds that force was being used against Dyck when he intervened. But it did not necessarily follow that the defence would founder on s. 34(1)(a) if Dyck instigated the fight with an initially unwilling partner in Ausman. The jury could have found that Dyck, while intoxicated and in a volatile mood, started punching Ausman when he crossed the road and that Ausman, while not consenting to a physical fight, defended himself and eventually gained the upper hand. In this scenario, Pirko could still claim that he believed on reasonable grounds Ausman was applying force to Dyck when he intervened.
[117] Respectfully, I am of the view that the jury was not clearly instructed, here or elsewhere in the charge, on the significance of a finding about whether the fight was consensual. Further, the instruction the jury did receive may have led them down a reasoning path that was potentially prejudicial to Pirko with respect to the application of s. 34(1)(a).
The Instruction on Section 34(1)(b): Act(s) Undertaken for a Protective Purpose
[120] The judge instructed the jury that the defence set out in s. 34 of the Code only applies if Pirko intervened as he did for the purpose of protecting or defending Dyck from the use or threat of use of force by Ausman. In considering this element of the defence, the jury was instructed to consider why Pirko committed the act. They were instructed that if they were satisfied beyond a reasonable doubt Pirko’s acts were committed for a purpose other than defending or protecting Dyck, the defence did not apply.
[121] The judge attempted to explain the application of this element of the defence if the jury found that the fight between Ausman and Dyck was consensual, and on alternative factual scenarios. The relevant portion of the instruction given on
s. 34(1)(b) is set out below:
If you conclude that Mr. Ausman and Mr. Dyck were engaged in a consensual fight, that conclusion provides context for assessment of this aspect of the defence of defence or protection of another but it is not alone determinative. Obviously, it would be quite different — it is quite different than if Mr. Ausman was using force or attacking Mr. Dyck and Mr. Dyck was not engaging with Mr. Ausman. Similarly, it is quite different if Mr. Dyck was attacking Mr. Ausman and Mr. Ausman was not engaging with Mr. Dyck.
[Emphasis added.]
[122] The appellant argues that these instructions are confusing. I agree with aspects of his submission on this issue.
[124] In any event, the judge appears in this portion of the charge to be addressing three different factual scenarios preceding Pirko’s intervention: (1) a consensual fight between Ausman and Dyck; (2) an attack by Ausman on Dyck who did not consent to or participate in the fight; and (3) an attack by Dyck on Ausman who did not consent to or participate in the fight. In the first and second scenarios, Pirko’s intervention would likely be found to have been motivated by a protective purpose. In the third scenario, the only purpose Pirko could possibly have by intervening in the fight would be to “pile on”. In this scenario, there could be no defensive or protective purpose and the defence would necessarily fail. But again, none of this was spelled out for the jury.
[125] Apart from the failure of the judge to assist the jury in applying the elements of the appellant’s primary defence to the alternative factual scenarios raised in the charge, there are at least two other problems with this instruction.
[126] First, the jury was instructed that, in contrast to the consensual fight scenario, it would “obviously… be quite different” if Ausman was attacking Dyck, and Dyck was not engaging with Ausman. Absent further explanation, I do not think it would have been clear to the jury how the two scenarios would “obviously be quite different” in terms of the application of this element of the defence. The differences are not obvious to me. Indeed, Crown counsel conceded in oral argument before us that, in terms of the application of s. 34(1)(b), there is no relevant difference between these two scenarios. Both are consistent with Pirko’s position that he intervened for the purpose of protecting Dyck.
[127] … Having introduced the possibility of factual scenarios other than that Pirko intervened in a consensual fight between Ausman and Dyck, it is my view that the judge was obliged to assist the jury in understanding how to apply this element of the defence based on the factual findings he considered to be open to them. Respectfully, the charge was confusing and deficient in this respect.
[128] Second, leaving open to the jury the third scenario—a scenario in which Pirko “piled on” to assist Dyck in attacking Ausman who did not consent to or participate in the fight—did invite speculation on the part of the jury. The only evidence before the jury was that Pirko intervened after he was implored by Dyck to come to his aid. Although Dyck may have caused more injuries to Ausman than he was prepared to admit, there was no direct evidence that Pirko joined Dyck in an attack on an unwilling participant, and no circumstantial evidence from which such an inference could fairly be drawn. Respectfully, the instruction was unfairly prejudicial to Pirko.
[129] The judge proceeded to instruct the jury on the requirement embedded in s. 34(1)(b) that Pirko’s acts be undertaken for the purpose of defending Dyck from Ausman’s use of force:
This question is a question of what Mr. Pirko’s purpose was. An — an individual’s purpose in applying force in response to the aggression of another could be defensive or offensive, it could be for the purpose of defending or protecting Mr. Dyck, or it could be for a different purpose.…
[131] In my respectful view, the underlined portion of the charge could have had the unintentional effect of conveying to the jury that an offensive act taken in the defence or protection of another could not be taken for a defensive purpose. The nub of the problem arises from: (1) the false dichotomy suggested by the juxtaposition of the words “offensive” and “defensive”; and (2) the alignment of an “offensive” response with an act taken other than for a protective purpose. I think it self-evident that force of an offensive nature may sometimes be required to neutralize the infliction or threat of infliction of harm on another. Characterizing the force used by an accused as “offensive” does not necessarily mean that it was not used for a defensive purpose. [PJM Emphasis]
[133] The actions of Pirko were decidedly offensive. The false dichotomy used by the judge to explain the reach of this element of the defence could only have worked to Pirko’s prejudice on the evidence in this case.
[134] While no objection was taken to this aspect of the charge, the failure to do so is not determinative. In my view, the instruction on this point was misleading and potentially prejudicial. The impact of the error on the fairness of the trial can only be assessed at the end of the day after consideration of the other errors alleged.
The Instruction on Section 34(1)(c): The Reasonableness of the Force in the Circumstances
Section 34(2)(a): Nature of the Force
[137] … He then gave these instructions:
I have alluded to this earlier in my instructions in my discussion of Mr. Pirko’s purpose when I discussed your potential conclusions on whether there was a consensual fight between Mr. Ausman and Mr. Dyck.
Further and independent of whether the critical events began as a consensual fight, how did the critical events progress? Both Mr. Pirko and Mr. Dyck testified that Mr. Ausman gained the upper hand and was repeatedly hitting Mr. Dyck in the face or head with his fists.
Again, you also have the photographs of Mr. Ausman as well as the autopsy evidence in the report and testimony of Dr. Doyle. I have reviewed that evidence earlier in my instructions. You should consider the evidence of Mr. Dyck and Mr. Pirko, having in mind the whole of the evidence including the autopsy evidence.
The nature, degree, and type of force used or threatened is very relevant to determining whether Mr. Pirko’s conduct in response was reasonable. It is the nature of the force used by Mr. Ausman, not the consequences or resulting injuries that should be considered in assessing the reasonableness of Mr. Pirko’s act. What this means is that even where the consequence is death you must not consider that in assessing the reasonableness of the force used by Mr. Pirko.
[Emphasis added.]
[138] The appellant argues that the judge erred in these instructions by: (1) raising, once again, the issue of whether Ausman and Dyck engaged in a consensual fight without explaining to the jury how resolution of this issue informed whether his acts were reasonable in the circumstances; (2) emphasizing the injuries sustained by Ausman in circumstances where the inquiry under s. 34(2)(a) is directed at a different question—the nature of the force used by Ausman; …
[139] In my view, the first two complaints have merit.
[140] If, by returning to the question of whether the fight between Ausman and Dyck was consensual, the judge was again inviting the jury to consider alternative factual scenarios, including one in which Dyck was attacking Ausman who was not engaged in the fight when Pirko intervened, the jury needed to understand this….
[141] I also find troubling the judge’s repeated references in this portion of his charge to the autopsy report and evidence of Dr. Doyle about the extensive injuries suffered by Ausman. Ausman’s injuries do not speak to the nature of the force used by him or threatened to be used by him as against Dyck. In my view, these instructions, at least when given without qualification or explanation, could only distract the jury from the question they were required to consider under s. 34(2)(a).
Section 34(2)(b): Imminence and Other Available Means to Respond to the Use of Force
[147] The entirety of the judge’s instructions on this factor are set out below:
Again, it is for you to assess whether Mr. Ausman was actually the aggressor and what if any force he used. If his use of force was imminent, were there other means than the use of a hammer available to Mr. Pirko?
If you conclude that there was a consensual fight then there was — there really was little Mr. Pirko could have done to respond to it before it started. If however that is not your conclusion you must assess this factor in light of that conclusion.
Imminence is only one of the factors to be considered in determining whether Mr. Pirko’s act was reasonable.
[Emphasis added.]
[148] The appellant says the above-noted instruction further undermined the clarity of the charge given on the defence of another. Again, I find merit in the appellant’s position on this issue.
[149] In my respectful view, the jury did not need to determine whether Ausman was the aggressor to properly address this issue, nor did the issue turn on whether the fight was consensual. [Emphasis by PJM]
[150] The jury may have concluded that Dyck was the initial aggressor, but that Ausman participated in the fight and gained the upper hand. Alternatively, the jury may have concluded that there was no initial aggressor and that both Ausman and Dyck immediately agreed to a fist fight. Resolution of this issue would not meaningfully impact the question of whether, when Pirko intervened and used the hammer, Ausman’s application of force against Dyck was imminent.
[151] For similar reasons, 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 did not turn, as the judge suggested, on whether the jury found the fight between Ausman and Dyck to be consensual. The jury may have understood (and accepted) Dyck’s evidence as being that he did not consent to fight Ausman or, alternatively, that he withdrew his consent in the course of their engagement. A finding that the fight was consensual, or at least started as such, would provide little assistance to the jury in determining whether Ausman’s use of force was imminent when Pirko intervened.
[152] In addition, I am concerned that the judge’s instruction on s. 34(2)(b)—to consider whether Ausman was the aggressor and whether the fight began as a consensual one—risked focusing the attention of the jury on the wrong point in time. While s. 34(2)(c) invites consideration of the accused’s role in the incident from a broad temporal frame of reference, the factors addressed in s. 34(2)(b) focus on “alternatives the accused could have pursued instead of the act underlying the offence, such as retreat or less harmful measures, relative to the imminence of the threat” (emphasis added): Khill at para. 82. It seems to me that the instruction should have focused on the alternatives available to Pirko at the time he intervened in the altercation, thereby focusing the jury on that specific moment in time. But, in the absence of concerted submissions on this point, I would prefer not to resolve this issue on appeal.
[154] In my view, the instruction on the application of s. 34(2)(b) further undermined the clarity of the charge as a whole.
Ground #4: The Charge on After-the-Fact Conduct
[171] The Crown sought an instruction relating certain of Pirko’s seemingly goal- directed, post-incident behaviours (returning to the scene to retrieve his iPod, changing his clothes after the incident, and disposing of the hammer) to the two defences in play—the protection or defence of another, and intoxication.
[172] The Crown submitted it was open to the jury to infer from Pirko’s after-the-fact efforts to conceal his involvement in the incident an awareness on his part that he had committed a culpable act and had not acted in the defence or protection of Dyck: see R. v. Rodgerson, 2015 SCC 38 at paras. 20, 27; R. v. Peavoy, [1997] O.J. No. 2788 at para. 34 (C.A.), 1997 CanLII 3028.
[181] … The jury was told they could consider Pirko’s after-the-fact conduct as circumstantial evidence that he committed the crime of manslaughter. The instruction is unusually placed. It appears at the end of the charge in the context of instructions given on intoxication and proof of the intent for murder. These instructions are well removed from those given on whether what Pirko did when he intervened constituted an unlawful act giving rise to a culpable homicide. Notwithstanding the placement of this instruction, I am satisfied the jury would have understood from the charge as a whole that to convict Pirko of manslaughter, they would have to reject his primary defence that striking Ausman with the hammer was a non-culpable act taken in the protection or defence of Dyck, and conclude that what Pirko did was an unlawful act.
[182] The difficulty in this case is that the jury was not provided with any assistance on the use they could make of Pirko’s after-the-fact conduct or the inferences they could properly draw from it in determining whether what he did amounted to the commission of an unlawful act. The jury was simply told the evidence was relevant to proof of the offence of manslaughter.
[184] I also think it likely that had the instruction the judge appears to have had in mind in the pre-charge conferences been fleshed out in the charge that was ultimately delivered—that Pirko’s post-incident acts of concealment could be considered as circumstantial evidence of guilt on the included offence of manslaughter—it would not have redounded to his benefit.
[185] Nevertheless, I consider that the judge had a duty to present the evidence, and the available inferences flowing from it, to the jury in a comprehensible form: Calnen at paras. 115–117. The instruction, had it been fleshed out, would also have cautioned the jury about leaping to the conclusion that Pirko’s after-the-fact conduct could be used as circumstantial evidence that his actions were culpable when alternative explanations were likely available, including that he panicked after disabling Ausman: Calnen at para. 117; R. v. White, [1998] 2 S.C.R. 72 at para. 22, 1998 CanLII 789; R. v. White, 2011 SCC 13 at paras. 23–24, 55. Unfortunately, neither the use the jury could make of this evidence in determining whether Pirko’s acts were culpable nor the risks of misinterpretation or misuse inherent in relying on evidence of this kind was explained to the jury. In my respectful view, the trial judge’s failure to provide the jury with the assistance it needed to properly deal with this evidence further undermined the clarity of the charge.
Ground #6: The Charge on Use of the Appellant’s Criminal Record
[205] In my view, it was an error in law for the judge not to instruct the jury on the prohibited uses of Pirko’s criminal record in the final charge. As explained in WMCJI, Final 23-C “Previous Convictions of Accused Witness (Impeachment/Credibility Only)” at 299, “Notes on Use”, “[b]y a positive statement of permitted use and a negative statement of prohibited use, the instruction confines its subject-matter, [an accused’s] prior convictions, within clearly defined limits.”
[206] The unobjectionable mid-trial instruction did not relieve the judge of his obligation to correctly and fully instruct the jury in his final charge. While the administration of criminal justice places great faith in the ability of juries to understand and follow limiting instructions, it is unreasonable to suppose that in this lengthy and complex trial, the jury had in front of mind the oral, mid-trial limiting instruction on this issue when it commenced its deliberations.
[223] In my respectful view, the cumulative effect of these errors resulted in an unsatisfactory trial.
[225] The Crown did not submit, in its factum or in oral argument, that the proviso could properly be applied in this case to cure serious errors of the type I have identified.
[231] For the foregoing reasons, I would allow the appeal, set aside the conviction, and direct a new trial.
R v JS, 2023 MBKB 26
[February 7, 2023] Relief from SOIRA reporting obligations [McKelvey J.]
AUTHOR’S NOTE: There now appears to be a well-defined process for applying for relief from SOIRA reporting obligations for individuals who are facing significant life changes that cause such reporting to be grossly disproportionate. Herein Justice McKelvey provides a roadmap that includes the Supreme Court’s consideration of the purpose of these provisions in Ndhlovu.
BACKGROUND
[1] J.S. was sentenced on January 6, 2010, for a 2001 sexual assault (s. 271 of the Criminal Code of Canada, R.S.C., 1985, c. C-46). The sentence imposed was three years’ incarceration with ancillary orders which included the taking of DNA, a s. 109 10-year weapons prohibition and, pursuant to the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”), a 20-year sex offender registration requirement. J.S. has and must continue reporting, along with other SOIRA obligations for a 20 year period pursuant to s. 490.013(2)(b) of the Criminal Code.
[2] As a consequence of over 10 years having passed since the order was made, an application to terminate the SOIRA obligations can be undertaken (s. 490.015(1)(b)). J.S., now a frail 51 year old, seeks to terminate his SOIRA order under s. 490.016 of the Criminal Code on the grounds of a grossly disproportionate impact upon him….
…Section 490.016(1) of the Criminal Code states:
The court shall make a termination order if it is satisfied that the person has established that the impact on them of continuing an order or an obligation, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.
The onus on J.S. to satisfy the requirements for SOIRA order termination is on a balance of probabilities. He has, to date, strictly complied with the SOIRA reporting requirements and other obligations.
THE EVIDENCE
[3] J.S. resides in a First Nations community with his wife and makes the annual SOIRA report to a RCMP detachment located 40 kilometers from his home. In order to undertake the reporting requirements, a 30 minute drive is necessary, for which J.S. requires a ride. He is unable to drive because of health issues and there is no means of public transportation available to him. He has found that requirement to be challenging, as his wife works full-time. She must take time off work to drive him to the detachment or, alternatively, he must secure a ride from others in the community, which is not easily done. He also attested to having health conditions, which include high blood pressure, diabetes, low back pain, and Kennedy’s disease. The latter condition has caused the deterioration of his leg muscles and, consequently, any physical exertion is difficult and fatiguing, as well as limiting to his mobility. The expectation is that his condition, as a result of Kennedy’s disease, will progressively worsen and he will ultimately be confined to a wheelchair. At present, J.S. utilizes a walker as a mobility aid. At this hearing, he had to be physically assisted into the witness box. As a consequence of these issues, J.S. has contended that fulfilling his reporting obligations is grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of sexual crimes achieved through information registration….
[4] J.S. described the reporting at the RCMP detachment as being very frustrating, as they “harass him” by requiring him to sit for 1.0-1.5 hours waiting to provide his information. Sitting is physically difficult for extended periods and, again, either his wife or an alternate driver from the community is required to wait for that period of time. The RCMP have attended to his home in order to make a SOIRA check and have stopped him on the highway, which he also views as harassing conduct.
[5] J.S. testified that finances are an issue and, consequently, food items such as milk or coffee must be sacrificed when he requires a ride to the RCMP detachment. The travel cost is approximately 30 dollars for gas. At the present time, he is able to travel to a larger centre to grocery shop and goes to medical appointments in a nearby community.
[7] The defence submits that there is no benefit to keeping J.S. on the registry as he, in all likelihood, does not pose a risk. His physical condition is worsening. The impact of keeping him on the registry is contended to be grossly disproportionate to the public interest in protecting society through the reporting requirements.
[9] …The Supreme Court of Canada in R. v. Ndhlovu, 2022 SCC 38, described the operation and purpose of SOIRA from the time of its inception as being to:
[2] … help police investigate crimes of a sexual nature by creating a national sex offender registry. At the time, a sex offender would only be placed on the registry if the Crown prosecutor first chose to apply to the court for an order requiring the offender to comply with SOIRA. Moreover, the legislation gave sentencing judges the discretion to exclude offenders from the registry if the effects of the order on their privacy or liberty interests were grossly disproportionate to the public interest in protecting society.
As indicated, a sentencing judge’s discretion to impose a SOIRA…
…However, the Supreme Court of Canada in Ndhlovu declared that ss. 490.012 and 490.013(2.1) of the Criminal Code infringes s. 7 of the Charter and are of no force or effect under s. 52(1) of the Constitution Act, 1982…
The mandatory lifetime registration requirement (s. 490.013(2.1)) was eliminated on the basis that not all offenders are at an increased risk of reoffending:
[8] Because the mandatory registration of those offenders who are not at an increased risk of reoffending does not assist police, it is inconsistent with the principle of fundamental justice against overbreadth. Mandatory and lifetime registration overshoot the mark: subjecting sex offenders who do not have an increased risk of reoffending to obligatory reporting requirements is not connected to Parliament’s purpose of capturing information that assists police prevent and investigate sex offences. Requiring lifetime registration also goes too far and denies the rights of some individuals in a way that bears no relation to Parliament’s objective.
Section 490.012 required that all offenders convicted of a designated sexual offence comply with SOIRA for the applicable period specified in s. 490.013. Ndhlovu suspended the declaration of invalidity of s. 490.012 for one year to facilitate the remedying of the legislation by Parliament.
[10] There have been a number of cases which have considered the termination of SOIRA orders, including: R. v. Nassereddine, 2016 ABPC 266 (CanLII); R. v. D.D., 2020 BCCA 169 (CanLII); R. v. Fleury, 2018 SKQB 95 (CanLII); R. v. P.K., 2022 MBQB 107 (CanLII). In the Nassereddine and P.K. decisions, the order was terminated. These are simply a sampling of the many cases that are now coming before the courts for a consideration of whether an order should be terminated with consideration afforded to the context of the facts, the purposes of a SOIRA order, the circumstances of the offender, and the applicable law.
[13] The case law has endeavoured to grapple with what is required by the “grossly disproportionate” standard. It is not enough to find that an individual’s personal circumstances outweigh the public interest in sex offender’s information reporting. Instead, the impact on the offender must be grossly disproportionate to the public interest of maintaining that person on the Sex Offender Registry. It is a stringent standard where the offender is required to show that the public interest is substantially outweighed by the offender’s privacy and security interests.
[14] Justice Saunders, speaking for the British Columbia Court of Appeal in D.D., set out the following principles with respect to terminating SOIRA obligations:
[19] S.S.C., Redhead, and Debidin address sections other than termination under s. 490.027(1) of a registration already in place. Nonetheless, they provide guidance on the scheme of securing sex offender information and we may draw the following principles from them:
- the question is whether the impact of the registration requirements on the offender’s current and prospective circumstances is grossly disproportionate;
- the burden is on the applicant to establish that the test of gross disproportionality, provided in s. 490.027, is met;
- the standard of grossly disproportionate is a high standard which requires the offender to establish more than merely disproportionate impact and more than a “simple imbalance of individual impact over public interest”;
- the risk of recidivism is not determinative of a termination application;
- there is no presumption of impact arising from the length of the reporting obligation alone; and
- in determining whether termination is appropriate, the nature of the offence, the risk to offend, the offender’s criminal record, and other matters personal to the circumstances should be taken into account.
[20] To this list we may add the judge’s observation at para. 38 made after his review of the jurisprudence that “[n]ormal inconvenience to an offender’s privacy or liberty interests are not sufficient to warrant making an order”.
[15] Justice Watt, in the Debidin decision, considered the requirements of the “grossly disproportionate” standard as follows:
[61] To rebut the presumption of a SOIRA order by establishing the exception under s. 490.012(4), the offender must establish more than a simple imbalance between the impact of an order on him or her and the public interest described in the subsection. A simple preponderance of individual impact over public interest is not sufficient to rebut the presumptive effect of s. 490.012(1). It is only where the balance reveals that the individual impact is grossly disproportionate to the public interest that the presumption of s. 490.012(1) is rebutted.
[62] In everyday speech, “grossly” means plainly, obviously, excessively, to a startling degree, flagrantly or glaringly. The term “disproportionate” means simply out of or lacking proportion.
[63] The phrase “grossly disproportionate” is familiar in connection with claims of infringement of the guarantee against cruel and unusual treatment or punishment in s. 12 of the Canadian Charter of Rights and Freedoms. Those authorities teach that “grossly disproportionate” is a very stringent and demanding standard, one not easily satisfied, something rare and unique: R. v. Goltz, 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485, [1991] S.C.J. No. 90, at p. 502 S.C.R.; R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, [1987] S.C.J. No. 36, at p. 1072 S.C.R.
[64] The phrase “grossly disproportionate” also appears in the exception s. 487.051(2) makes to presumptive DNA orders for certain primary designated offences. DNA orders follow conviction of primary designated offences unless the offender establishes that the impact of the order on the offender’s privacy and personal security would be “grossly disproportionate” to the defined public interest. To establish the exception and thus gain exemption from the presumptive order, an offender must show that the public interest is clearly and substantially outweighed by the offender’s privacy and security interests: R. v. C. (R.), 2005 SCC 61 (CanLII), [2005] 3 S.C.R. 99, [2005] S.C.J. No. 62, at para. 31.
[16] Unquestionably, SOIRA obligations impact all those who are required to report. Further, consideration must be afforded to the behaviour and reporting compliance of an offender over the time period that has passed since conviction and sentencing. Additionally, any unique and individual characteristics of an offender should be evaluated, such as a disability. The disability factor was considered in the M.(E.T.) decision where an exemption was sought on the grounds that the respondent suffered from mobility difficulties and lived 40 kilometers from the closest RCMP detachment for reporting purposes….
…The M.(E.T.) decision can be distinguished as the extent of disability in that case was not stipulated, and, more particularly, different considerations are applicable when an offender has complied with the order for over 10 years than at the time of its imposition.
[17] …As was held in Ndhlovu:
[135] In this case, we must weigh those potential and theoretical benefits against the impact on registrants. The impact on anyone who is subject to the reporting requirements of a SOIRA order is considerable. To reiterate, SOIRA’s reporting requirements are not routine: the scope of the personal information registered, the frequency at which offenders are required to update their information and, above all, the threat of imprisonment make the conditions onerous. Additionally, these effects are more acute when considering their effects on marginalized populations, such as people experiencing homelessness. Considering these deleterious impacts, the sparse evidence on the provisions’ benefits and the fact that the registration of approximately 10 percent of offenders who have the lowest recidivism risk does not serve the provisions’ purpose, we conclude the Crown did not meet its burden at this stage either. As result, the Crown has not shown that ss.490.012 and 490.013(2.1) are saved under s. 1 of the Charter.
ANALYSIS
[18] The Ndhlovu decision is a formal recognition by the Supreme Court of Canada that SOIRA registration generates significant infringements on a person’s liberty interests and is onerous in nature. This is particularly so when there is found to be little risk of reoffending….
[19] J.S. submits that the SOIRA obligations adversely impact his financial, privacy and liberty interests, and are grossly disproportionate to the public interest of maintaining him on the registry. There is no question that the circumstances surrounding his offending sexual assault conduct, which involved violating a passed out victim, was serious and egregious in nature. His other criminal convictions are not concerning in these circumstances. Further, he has been compliant with his SOIRA reporting requirements.
[20] …However, at the time of Justice Keyser’s order, J.S. was not suffering from health issues that significantly influence the impact of the order on him. Does the fact that J.S. must engage in a 30-minute, 40 kilometer drive for which he requires a ride, with its financial consequences, along with his physical disabilities, now result in his SOIRA order reporting requirements being grossly disproportionate to the public interest? The impact of the Ndhlovu decision must also be considered in the determination of this matter.
[21] Clearly, the drive to the detachment and his personal disabilities make J.S.’s reporting more onerous than was initially the case. The likely progression of the Kennedy’s disease will impact his mobility to a more significant extent as time passes….
[22] I have considered the nature of the serious offence in this case which occurred over 20 years ago. Further, the recidivism risk, while not determinative of a termination application, is low in these circumstances. J.S. has a relatively minor criminal record beyond the sexual assault conviction, which must be taken into account, along with his financial, privacy, travelling, and mobility issues. A likely progression of the Kennedy’s disease results in a need to consider J.S.’s future mobility limitations, including being confined to a wheelchair. This is particularly relevant as a second termination application cannot occur for a five year period (s. 490.015(5)). At that point, J.S. would be within two years of satisfying the 20 year order.
[24] In J.S.’s case, an ongoing obligation to report overshoots the purpose of the provision. Further, it is likely that the police could locate J.S. if they were required to do so. A risk assessment is one routinely made by sentencing judges that does not always require expert evidence. In the circumstances before the court, I am satisfied that J.S. poses little risk of recidivism after evaluating the evidence.
[25] I am satisfied that J.S. has established that continuing his SOIRA obligations would be grossly disproportionate to the public interest in society’s protection. He has not been re-involved in any sexual misconduct and has complied with all reporting requirements. J.S. has also attested as to the impact of the SOIRA conditions on him financially and on his privacy interests, along with the mental stress of having to report and the fact that he is required to wait 1.0- 1.5 hours to do so. These factors, along with his declining mobility, are paramount considerations in this decision, accompanied by the ramifications of the Ndhlovu decision.
CONCLUSION
[26] I am satisfied by the evidence in this case, the case law, and the submissions of counsel, that the impact of continuing the SOIRA obligations on J.S. is grossly disproportionate to the public interest in protecting society. J.S. has satisfied the burden of proof upon him. As a result, J.S. is relieved of his SOIRA obligations (s. 490.027).
[27] As a result of this decision, a copy of my reasons will be sent to the Commissioner of the RCMP and to the Attorney General of Manitoba, as required by s. 490.016(3) of the Code.
MODERN CRIMINAL EVIDENCE
By Matthew Gourlay, Brock Jones, Renee Pomerance, Glen Crisp & Jill D. Makepeace
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