This week’s top three summaries: R v AW, 2024 ONCA 564: #voice ID, R v Jeremschuk, 2024 ABCA 268: #angry self defence, and R v Roche-Garcia, 2024 BCCA 298: s.715.1 embedded #hearsay
R v AW, 2024 ONCA 564
[July 17, 2024] Voice Identification [Reasons by L. Madsen J.A. with M.L Benotto J.A. and L. Favreau concurring]
AUTHOR’S NOTE: In this case, the conviction at trial was based solely on voice identification evidence, underscoring the critical need for precise and thorough jury instructions on this matter. Voice identification can be even more unreliable than visual identification due to various factors that may affect the accuracy of recognition, such as the quality of the audio, the conditions under which the voice was heard, and the familiarity of the listener with the speaker’s voice.
OVERVIEW
[1] On March 5, 2022, following a six-day trial, the appellant was convicted by a jury of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C- 46. The sexual assault took place in or around 1983 and was reported approximately 37 years later, in 2020. The complainant did not see her assailant but testified that she knew him from high school and recognized his voice during the assault.
[3] Identity was the central issue in this trial involving significantly historical allegations. The appellant submitted, and his evidence was, that he did not attend the event following which the assault took place, had never been alone with the complainant, and did not commit the assault. While the complainant was certain that the voice she heard during the assault was that of the appellant, this was steadfastly denied. In the circumstances, as is detailed below, both an eye-witness caution and a complete and specific voice identification caution were required to be put to the jury. They were not.
[4] For the following reasons, I would allow the appeal.
IDENTIFICATION AS THE CENTRAL ISSUE IN THIS TRIAL
[23] Identification was the central issue in this trial. The complainant was certain that she was assaulted by the appellant whom she knew from high school and spoke to at the dance; while the appellant was adamant that he was not at the dance and had never been alone with her. This raised questions about whether the appellant was, in fact, the man she said was the DJ at the dance and the man whose voice she said she recognized during the assault.
[24] While the appellant raises distinct issues regarding the need for both an eyewitness identification warning and a complete voice identification caution, in this case the issues are interrelated. There were significant frailties in the complainant’s evidence and discrepancies between the evidence of the complainant and the appellant on the issue of identity generally. The trial judge was required to carefully warn the jury, from the perspective of both eye-witness and voice identification evidence, about the risks of identification evidence generally and the many frailties in the evidence of identity in this case.
[25] However, the jury charge contained no eye-witness identification caution, and only a limited, general voice identification caution. This amounted to non-direction and misdirection. The jury was not provided with the legal tools required to accurately decide the case. This is discussed further, below.
EYE-WITNESS IDENTIFICATION
[26] The dangers of eye-witness identification are well established, as is the imperative to caution juries accordingly. This is because eye-witness identification evidence can be difficult to assess and triers of fact may place undue reliance on such testimony when compared to other types of evidence: R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234, at para. 29. Trial judges “must convey to the jury the judicial experience that eye-witness evidence poses serious dangers”: R. v. Lewis, 2018 ONCA 351, at para. 18; R. v. Graham, 2023 ONCA 273, at para. 11.
[27] Where identity is an issue, the jury must be instructed to consider the frailties of eye-witness identification and to scrutinize the witness’ description of the assailant: R. v. Vassel, 2018 ONCA 721, 365 C.C.C. (3d) 45, at para. 184. Considerations include whether the suspect was known to the witness; the circumstances of contact during the offence; and whether the sighting was in circumstances of stress. Any distinctive characteristics of the suspect may be important: R. v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at paras. 12-17. The specific dangers arising on the evidence in the particular case must be highlighted for the jury: Lewis, at para. 18.
[28] Relatedly, the charge must caution the jury that an in-dock identification is to be given little, if any weight: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 47-53. As Laskin J.A. stated in R. v. Biddle, 2018 ONCA 520, 141 O.R. (3d) 401, at para. 32:
The dangers linked to eyewitness identification evidence increase exponentially when it comes to in-dock identifications. In these circumstances, the identification witness has a person presented to them, a person who the police obviously believe committed the offence. Given the suggestive nature of in-dock identifications, they are renowned for being of little to no value as reliable identification evidence. [Citations omitted].
[29] Recognition evidence, a subset of eye-witness evidence where the parties are known to one another, is subject to the same frailties and juries must be cautioned accordingly: M.B., at paras. 33-34; R. v. Chafe 2019 ONCA 113, 145 O.R. (3d) 783, at paras. 30-32; R. v. Mohamed, 2023 ONCA 104, 423 C.C.C. (3d) 308, at para. 83; R. v. Gordon, 2022 ONCA 799, at para. 41, leave to appeal refused, [2023] S.C.C.A. No. 136. The jury may be “quick to assume that, because the witness knows the person, the identification must be correct”: Chafe, at para. 29. In Chafe, this Court confirmed, at paras. 29-30, that recognition evidence is not “different” from identification evidence and that the same level of assessment of the evidence must apply:
Even though the witness knows the person identified, the time to observe, the circumstances of the observation, and the conflicting evidence constitute factors which the trier of fact must grapple with in order to determine reliability. The usual dangers of eyewitness identification exist in a case of alleged recognition. [Citations omitted.]
[30] Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters, 2015) provides detailed examples of the many considerations that may be put to the jury regarding eye-witness identification, in the context of a review of the specific evidence in the trial. These include, for example: the reliability of the witness’ memory; whether the witness knew the person before seeing them; how good the lighting was; how far apart the parties were; how long after the events the witness gave the first description; and whether the witness described any particular features of the accused.
[37] There was no discussion in the pre-charge conference of any possibility that the complainant incorrectly identified the appellant as the DJ at the dance. Nor was there any discussion about the need to warn the jury regarding the lack of probative value of the in-dock identification, having been made almost 40 years after the assault, or the fact that the in-dock identification could at least as easily be based on their time in the high school band together as on the appellant having been the DJ at the dance. Indeed, the underlying assumption that the appellant was the DJ at the dance appeared to persist, with the main issue being whether the complainant correctly identified the assailant’s voice during the assault, not whether the appellant was there at all and could have been misidentified.
[38] As stated, the issue not having been discussed at the pre-charge conference other than with reference to voice identification, no eye-witness caution was included in the jury charge.
[40] The Crown asserts on appeal that a specific eye-witness identification instruction was unnecessary. The Crown argues that this was neither a “true” eyewitness identification nor a recognition case because the complainant “knew” the appellant and they had spoken – per the complainant’s testimony – during the dance. Thus, the Crown asserts, the “typical markers of unreliability associated with eye-witness identification or recognition evidence were not present.”
[41] I disagree. An eye-witness identification caution was essential, given the appellant’s position that he had been misidentified and that he was not at the dance at all. As Chafe instructs, that the appellant and complainant “knew” each other is not an answer, given that the inherent dangers of recognition evidence mirror those of eye-witness identification more generally: Chafe, at para. 29. [Emphasis by PJM]
[42] While, on the complainant’s evidence, she and the appellant spoke over the course of the dance and the basis of her recognition of him that evening was not fleeting, the apparent recognition ought to have been considered in the context of the circumstances of the dance, the conflicting evidence of the appellant, the almost 40 years since the assault allegedly took place, and the gaps in the complainant’s memory of many aspects of the evening: Chafe, at para. 30. In my view, the in-dock identification would have amplified the effect of this error.
[44] The jury should have been reminded, for example, that there was no evidence given of any distinctive characteristics of the appellant in 1983, no evidence about lighting, or the ability to see clearly at the dance, and that there were significant gaps in the complainant’s memory of that evening that could bear on whether she had correctly identified him or whether she may have been misremembering the evening given the lengthy passage of time: Jack, at para. 16; R. v. Virgo, 2016 ONCA 792, at para. 17; R. v. Nikolovski, [1996] 3 S.C.R. 1197, at para. 19. The jury should have been cautioned that the complainant’s certainty that the appellant was the DJ did not mean she could not have been mistaken.
[45] The failure to include an eye-witness identification caution in the jury charge was a non-direction amounting to an error of law.
VOICE IDENTIFICATION
[46] Voice identification evidence is even more fraught with dangers than eyewitness identification and must be treated with extreme caution: R. v. Dodd, 2015 ONCA 286, 322 C.C.C. (3d) 429, at para. 79; R. v. Clouthier, 2012 ONCA 636, at para. 19; R. v. Quidley, 2008 ONCA 501, 232 C.C.C. (3d) 255, at para. 36. Where the Crown relies on voice identification evidence, the trial judge must give careful direction to the jury, warning of mistakes that can be made. Juries should be reminded that witness confidence in the voice identification does not substantially correlate to the accuracy of identification: R. v. Pinch, 2011 ONSC 5484, at para. 75; see also R. v. Masters, 2014 ONCA 556, 313 C.C.C. (3d) 275, at para. 47. [Emphasis by PJM]
[47] The complainant’s evidence was that while she did not see the assailant, she recognized his voice during the attack and the voice was that of the appellant whom she knew from high school and with whom she had spoken throughout the evening. While the assailant spoke very few words, she simply “knew” it was the voice of the appellant based on their earlier interactions. She could not describe the voice in any way, testifying that it had “been too many years”.
[48] The appellant’s evidence was that he was not there, and by implication, that the voice she heard during the assault was not his.
[49] The trial judge was alive to the importance of a detailed voice identification caution that should be related to the evidence in the case. In the pre-trial conference, he discussed the need to adapt the model eye-witness caution to direct the jury to consider factors such as: evidence about the quality of the complainant’s hearing; the reliability of her testimony; whether the complainant had known the assailant prior to recognizing his voice; whether there was anything which hindered the complainant’s hearing; and how far apart the parties were physically. The trial judge noted the relevance of reminding the jury of the complainant’s inability to describe her assailant’s voice in any way. The trial judge stated, “I am going to incorporate some of these factors because I think they are relevant.” Regrettably, despite this discussion, most of those specific cautions were not included in the charge.
[51] The charge did little, however, to relate the general caution to the specific evidence in the case. The trial judge reminded the jury that the complainant was in and out of consciousness during the sexual assault, and referred to earlier portions of his charge which highlighted the passage of time and the gaps in her memory. The trial judge did not relate the caution to other evidence in the trial.
[52] The appellant’s position is that the failure to caution the jury regarding specific frailties of the voice identification evidence in relation to the specific evidence in the case, was a misdirection amounting to an error of law. The appellant asserts that the error is amplified by the absence of the eye-witness caution.
[54] While there are cases in which a voice identification caution has been held not to be required, this will be a case-by-case determination having regard to the balance of the evidence in the case: R. v. Deol, 2017 ONCA 221, 352 C.C.C. (3d) 343, at paras. 10-12; R. v. Badgerow, 2019 ONCA 374, 146 O.R. (3d) 35, paras. 54-62. In this case, where the complainant did not see the assailant and voice identification was the only source of identification, utmost caution, through the specific and detailed approach contemplated by the trial judge in the pre-trial conference, was required. [Emphasis by PJM]
[55] Specifically, in addition to the general caution provided with respect to voice identification, the trial judge was required to draw a careful linkage between the challenges inherent in voice identification evidence generally and the specific evidence in this case: Pinch, at para. 76; R. v. Neverson, 2020 QCCS 253, at para. 171, aff’d, 2024 QCCA 519; R. v. Badgerow, 2008 ONCA 605, 237 C.C.C. (3d) 107, at para. 9, leave to appeal refused, [2008] S.C.C.A. No. 483. The jury ought to have been reminded, for example, that:
a) That there was no evidence of the quality of the complainant’s hearing in 1983 or of how far apart they were when the complainant says she and the appellant were speaking at the dance;
b) That on the complainant’s evidence, the assailant spoke very few words during the assault;
c) That among the few words spoken during the assault, the assailant said he was a cop, but it was undisputed that the appellant was not a police officer at the time of the offence;
d) That the complainant was unable, in any way, to describe the assailant’s voice. She could not speak to its pitch, character or whether her assailant had an accent. She simply stated that she “knew” it was him from speaking to him throughout the evening and from knowing each other in high school;
e) That the evidence was that the complainant and appellant were not friends and not close. It was therefore an open question whether they interacted enough that the complainant would be familiar with his voice after they had both left high school;
f) The evidence was that there was music playing at the dance and the complainant acknowledged that she “couldn’t hear too well”;
g) The complainant made the identification in fleeting moments of consciousness in a highly stressful context and testified that when she awoke, she did not feel fully alert or awake; and
h) That the complainant’s certainty that it was the appellant’s voice she heard did not mean that she could not be mistaken or that her identification of him was accurate.
[56] The voice identification caution in the jury charge was inadequate in the circumstances of this case and amounts to an error of law. This error, as with the failure to include an eye-witness identification caution, cannot be saved by considering the instructions as a whole, as the Crown argues.
[58] The absence of any eye-witness caution combined with an incomplete voice identification caution, where the frailties in identification evidence were profound, result in a reasonable possibility that the verdict would have been different had the errors not been made. For these reasons, the curative proviso cannot apply: R. v. R.V., 2019 SCC 41, [2019] 3 S.C.R. 237, at para. 85; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34.
R v Jeremschuk, 2024 ABCA 268
[August 14, 2024] Self-Defence and Anger [Majority Reasons by Feehan and de Wit JJ.A. with Slatter J.A. dissenting]
AUTHOR’S NOTE: In cases involving self-defence, it’s crucial to recognize that human emotions, such as anger and frustration, can be present without necessarily negating a claim of self-defence. The law does not require accused individuals to maintain a stoic demeanor when responding to an aggressive application of force against them. Instead, the focus remains on whether there is a reasonable doubt that the accused was acting with the purpose of self-defence, even if emotional responses like anger were part of the equation.
Key Points on Emotions and Self-Defence:
- Emotional Responses in Self-Defence:
- Natural Human Reaction: It’s natural for a person to feel and express emotions such as anger when faced with an aggressive situation. The law acknowledges that an individual’s emotional state does not necessarily negate their right to self-defence, as long as their actions can still be justified within that context.
- Purpose of Self-Defence: The critical question in self-defence cases is whether the accused’s actions were motivated by the need to protect themselves. Emotions like anger can coexist with a legitimate purpose of self-defence.
- Crown’s Strategy in Cross-Examination:
- Challenging the Purpose: In this case, the Crown attempted to undermine the self-defence claim by highlighting the accused’s anger during cross-examination. The Crown argued that anger, rather than self-defence, was the true motivation behind the accused’s application of force.
- Requirement for Conviction: For a conviction to be lawful, the trial judge would need to determine that the accused’s anger was the sole or predominant reason for the use of force, excluding any legitimate purpose of self-defence. Simply being angry does not suffice as a basis for conviction if there is reasonable doubt that self-defence was also a motivating factor.
- Legal Principles on Mixed Motives:
- Coexisting Motives: The law allows for the possibility that a person may have multiple motivations when using force, including both anger and self-defence. What matters is whether self-defence was one of the reasons, even if not the only one.
- Burden of Proof: The Crown bears the burden of proving beyond a reasonable doubt that the accused was not acting in self-defence. If there is any reasonable doubt that the accused’s actions were motivated by a need for self-protection, they are entitled to an acquittal, regardless of any anger they may have felt.
Conclusion:
The presence of anger or frustration does not inherently disqualify an accused from claiming self-defence. As long as there is a reasonable doubt that the accused was acting out of a legitimate need to protect themselves, their emotional state should not be the sole basis for a conviction. Courts must carefully consider the full context and motivations behind the use of force, ensuring that self-defence claims are not unfairly dismissed due to natural human reactions.
Introduction
[1] Aaron Jeremschuk, the appellant, was convicted of aggravated assault contrary to section 268 of the Criminal Code. The altercation involved grabbing, wrestling, and punching between the parties and lasted for approximately 30 seconds. The trial judge rejected the appellant’s claim of self-defence, by finding that the force used by him was not for self-defence, but to punish the complainant. The trial judge also found that the force used by the appellant was not reasonable.
[2] The complainant, Robert Jakubec, at the appellant’s request, helped the appellant hang a boxing heavy bag in the appellant’s garage. After the heavy bag was hung, there was a conversation and the appellant thanked the complainant for his help.
[3]….When the appellant asked, “I’ve heard you talk about me, and you know, the neighbours next door, like why would you do that?”, the complainant “got really, really defensive, kind of got really pissed, got in my face, face went red, and he’s like, “I can say whatever the hell I want”. The appellant testified the complainant swore at him and said, “I think I called him a name, I think I called him a ‘bitch boy’ or something like that”.
[4] This resulted in the complainant initiating physical contact by grabbing the appellant by the shirt, getting in the appellant’s face and wagging his finger in his face. The appellant responded by stating, “What the hell are you doing? Like get the hell out of here. Like you were talking about me, like what the heck is going on?”.
[5] The complainant did not let go of the appellant’s shirt and they wrestled. As the complainant did not have a shirt on, the appellant grabbed him by the shoulder and flipped him onto the ground. The complainant continued to hold onto the appellant’s shirt when he was on the ground and tore the shirt. The appellant was standing over the complainant, but the complainant would not let go of the shirt, and therefore the appellant pulled the complainant’s hand off his shirt. The appellant then backed away. The appellant testified, “After I — after I got him to the ground and got him to let go of my shirt, I backed away, he stood up” (TT 59/35-36).
[6] When the complainant stood up, he and the appellant were standing face-to-face. The complainant then punched the appellant in his right eye causing a noticeable black eye. The appellant responded by punching the complainant in the face four to five times in rapid succession, which took approximately three seconds. This resulted in the complainant stumbling backwards, but he was not knocked to the ground. The physical contact lasted approximately 20 seconds in total.
[7] They continued to yell at each other; the appellant followed the complainant out of his garage and told the complainant to leave his property by the back gate.
[8] The complainant suffered a displaced fracture of his collarbone because of being thrown to the ground.
Standards of Review
[10] “When a verdict is reached by a judge sitting alone, there are two bases on which a court of appeal may be justified in intervening because the verdict is unreasonable: (1) where the verdict cannot be supported by the evidence; or (2) where the verdict is vitiated by illogical or irrational reasoning”: R v Brunelle, 2022 SCC 5 at para 7, citing R v Beaudry, 2007 SCC 5, R v Sinclair, 2011 SCC 40.
[11] The Supreme Court of Canada summarized the applicable principles in R v P(R), 2012 SCC 22 at paragraphs 9-10:
To decide whether a verdict is unreasonable, an appellate court must, as this Court held inR v Yebes, 1987 CanLII 17 (SCC), [1987] 2 SCR 168, and R v Biniaris, 2000 SCC 15, [2000] 1 SCR 381, at para. 36, determine whether the verdict is one that a properly instructed jury or a judge could reasonably have rendered. 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 (R v Sinclair, 2011 SCC 40, [2011] 3 SCR 3, at paras. 4, 16 and 19‑21; R v Beaudry, 2007 SCC 5, [2007] 1 SCR 190).
Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence” (R v Burke, [1996] 1 SCR 474, at para. 7).
[12] This Court also described appellate assessment for an unreasonable verdict in R v Flagler, 2022 ABCA 396 at paragraph 46, “Assessment of an ‘unreasonable verdict’ argument considers whether: (a) the evidence as a whole is such that a reasonable jury, properly instructed and acting judicially, could have reached the verdict; or (b) fact findings on material matters of a decisive character are clearly wrong; or (c) whether the reasoning process used by the judge to get from the evidence to the verdict makes sense: R v Blea, 2012 ABCA 41 at paras 39-40, 66 Alta LR (5th) 163”.
[13] As the Supreme Court of Canada recently explained in R v Hodgson, 2024 SCC 25, there are situations where a trial judge’s shortcomings in assessing the evidence constitute an error of law (para 34). Citing R v JMH, 2011 SCC 45, the court in Hodgson identified four such non-exhaustive situations:
1. Making a finding of fact for which there is no evidence – however, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purposes of this rule;
2. The legal effect of findings of fact or of undisputed facts;
3. An assessment of the evidence based on a wrong legal principle;
4. A failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence.
Analysis
Credibility
[14] It needs to be noted at the outset that unlike most self-defence cases, this was not a credibility case. The trial judge accepted the evidence of the appellant without qualification. The complainant testified at trial but the trial judge found he was not credible….
[16] In contrast, in the case at bar, the trial judge, having rejected the complainant’s evidence, was left with only the appellant’s evidence, which she accepted as credible. Still, she found that two of the three elements of self-defence were not present. That conclusion is unsupported by the evidence.
Self-defence
[18] Section 34(1) of the Criminal Code sets out the three requirements for self-defence:
Defence — use or threat of force 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.
[19] In R v Khill, 2021 SCC 37, the Supreme Court of Canada labeled the requirements in section 34(1)(a-c) as the catalyst, the motive, and the response. The approach to self-defence in Khill was recently reconfirmed in Hodgson. The evidence accepted by the trial judge supports a finding that all three requirements were present in this case.
The Catalyst
[20] For section 34(1)(a), the catalyst, there is no issue that force was used by the complainant against the appellant. The complainant initiated the physical contact by grabbing the appellant’s shirt. He initiated physical contact a second time when after being thrown on the ground, the complainant rose and punched the appellant in the face. Both parties agree that the catalyst was present in this case.
The Motive
[21] Section 34(1)(b), as explained in Khill, is a subjective inquiry of the state of mind of the accused….
In Hodgson, the Supreme Court stated, “[F]or this second element, a failure to consider the accused’s personal purpose, a subjective inquiry which goes to the root of self-defence, would have been an error of law”: at para 75 (emphasis in original).
[22] The only evidence of the appellant’s subjective motive for responding to the complainant’s use of force was that he was acting to defend himself.
[23] During examination in chief, the appellant did not testify as to his mental state or the reasons for his use of force. However, in cross-examination he stated (TT 61/29-62/5):
Q Okay. So these four to five punches that you throw, in this direction, are they with a closed fist?
A Yes.
Q Are they to his face?
A Yes.
Q Are you angry?
A A little bit.
A I wasn’t happy that the whole situation had happened, I wasn’t happy about him admitting that he — he had been talking about us and that he had grabbed me, none of that was necessary.
Q Okay. And so because it wasn’t necessary I take it you took advantage of the situation to correct it.
A I defended myself.
[24] The only direct evidence was given by the appellant that he acted in self-defence. The Crown suggested to him, in cross-examination, that he took advantage of the situation to correct that the complainant had been talking negatively about him, but he responded that he was acting in self-defence. There was no further cross-examination on this issue and no other evidence regarding the motive for his actions.
[25] The appellant admitted he was a bit angry but there was no evidence that he used force other than for self-defence. He further testified (at TT 63/19 -37):
A When I punched him, he had had his fists — he punched me in the face and then I hit him, it was like two — three seconds.
Q Okay. But during those four to five punches, am I right that he is just standing there and you are punching his face four to five times?
A No.
Q Okay.
A He had his fists up because he punched me, and I hit him. It was — there was – there was no like — it was like three or four seconds. I don’t know what he was doing. I hit him because he hit me.
Q Okay. But I — and I’m sorry I’m just going to ask you again then. During this, when you were punching him four or five times, he was just standing there allowing you to punch him?
A I don’t think he was expecting to be hit four times.
Q Okay. But to be clear, you were angry when you were hitting him?
A I was about as angry as he was.
[26] The appellant’s evidence that he was angry was not evidence he acted for a purpose other than self-defence. [Emphasis by PJM]
[27] In “The New Defence Against Force” (2014) 18 Can Crim L Rev 269, David M. Paciocco (as he then was) discussed section 34(1)(b) and confirmed that the use of force out of anger, frustration or retaliation is not a proper motive. He further explained at 284:
To be clear, this precondition is met even where the accused acts for mixed purposes, including anger or frustration, so long as there is a reasonable doubt about whether he was also acting for the purpose of self-defence throughout the act sought to be defended. The law does not expect those who are attacked unlawfully to be without emotion.
[28] That there may be purposes, as well as self-defence, for the actions of an accused was also recognized in R v Zsombor, 2023 BCCA 37 at paragraph 29:
I accept that an accused’s purposes may be layered, in that they may act for a defensive purpose in addition to another purpose. However, for the defence of selfdefence to succeed, the accused must have acted for a defensive or protective purpose, regardless of what other purposes may have co-existed. . . .
[30] When physical force is used against an individual, they can defend themselves by responding so that the physical force does not continue or to deter the assailant from using further physical force. Very few people would not respond with a certain amount of anger after being struck or held by another against their will. An accused cannot strike or continue to strike a person after the threat of an assault is gone because they continue to be angry. However, being angry does not preclude an individual from using force to stop an attack or deter a further attack.
[33] The trial judge in her reasons did not refer to any evidence to support her conclusion that the appellant was not acting in self-defence. In oral argument on appeal, the Crown could not point to any evidence from the appellant where he stated that his actions in using force were for any purpose other than self-defence. It is incongruent for the trial judge to state that she accepts the appellant’s evidence and then reject the critical statement that he was acting in self-defence without any explanation.
[34] The trial judge could only have relied on circumstantial evidence for her conclusion that the appellant did not act to defend himself. Inferences must be reasonably and logically drawn from facts established by the evidence or they become conjecture or speculation: R v Kruk, 2024 SCC 7 at para 150. Inferring guilt from circumstantial evidence requires that the inference be the only reasonable inference that can be drawn from the underlying facts and that there are no other reasonable possibilities inconsistent with guilt. See, R v Villaroman, 2016 SCC 33, at paras 30, 37. The trial judge in this case would have to have considered circumstantial evidence to overcome the direct evidence of the appellant that he acted in self-defence, which was not contradicted.
[35] However, there was no circumstantial evidence that could lead to an inference that the appellant used force towards the complainant for reasons other than for self-defence or that self-defence was not at least one of the reasons.
[36] This error alone supports a conclusion that the verdict was unreasonable because the trial judge relied on circumstantial evidence which failed to support beyond a reasonable doubt that subjectively the respondent had acted out of motive that was not for the purpose of defending himself.
[39] We have read the reasons of my colleague in dissent. We differ on how we characterize the facts of this case and whether the evidence could support the trial judge’s conclusions. For that reason, we have set out in detail the evidence of the appellant and emphasize that his evidence was accepted by the trial judge, and she never limited or rejected any of the appellant’s testimony.
[40] As a result, we conclude that this case meets the standard for appellate intervention as the trial judge drew a conclusion unsupported by the evidence. The direct evidence of the appellant was that he acted in self-defence and there was no circumstantial evidence to contradict his direct evidence. The trial judge accepted the appellant’s evidence and did not point to any facts that contradicted his evidence that he acted to defend himself. There was no evidence upon which the Crown could prove beyond a reasonable doubt that the appellant did not act in self-defence.
[41] However, that does not end the analysis as there was also evidence which supported the conclusion that the appellant satisfied the requirements for section 34(1)(c), the response.
The Response.
[42] The third element of self-defence requires that the acts used by the accused are reasonable in the circumstances. A reasonableness standard requires that the actions of the accused are in accordance with community norms. An accused will be expected to conduct themselves as a reasonable person would in the circumstances. This strikes an appropriate balance between the security of the person who acts and the security of the person who is acted upon: Khill at para 62.
[43]…As the court in Khill explained, section 34 sets out a modified objective standard which takes into consideration the personal circumstances and experiences of the accused. This assessment should reflect the perspective of a reasonable person with some of the accused’s qualities and experiences. However, a trier of fact should not simply slip into the mind of the accused: Khill paras 64-67. As Hodgson further explained, whether an act of self-defence was reasonable in the circumstances calls for “an assessment of the overall reasonableness of the accused’s conduct according to the statutory factors” at para 76.
[51] In this case, the appellant is not arguing there was a palpable or overriding error regarding the trial judge’s findings of fact. The trial judge accepted the evidence of the appellant and rejected the evidence of the complainant. However, the trial judge erred when she improperly weighed or balanced factors, failed to consider relevant factors and erroneously considered irrelevant factors in concluding that the appellant’s response was not reasonable.
[52] First, in considering the nature of the force (section 34(2)(a)), as discussed above, the trial judge stated the accused “goaded” the complainant into an argument. The definition of goaded is to “provoke or annoy someone so as to stimulate some action or reaction”. Therefore, for this to be a relevant consideration, the appellant would have needed to goad the complainant into a physical altercation. The trial judge stated, “[The accused’s] concern was always to punish the complainant for talking about him and that is what he talked about before the altercation and that is what he said after the altercation.” (TT 88/30-35)
[53] Not only was there an absence of evidence to support that conclusion, but the appellant’s evidence was that he was surprised by the complainant’s action. The trial judge asked the appellant what he was feeling when the complainant grabbed his shirt. The appellant answered (at TT 69/2, 6-7):
A What is going on? Like why did this escalate so quickly? . . . I just didn’t understand why it happened, why it was happening.
Goading cannot be logically inferred from this evidence.
[54] Having concluded that the appellant goaded the complaint, when considering section 34(2)(c), the person’s role in the incident, the trial judge also held, “it was the accused who started the incident” referring to the comments made by the appellant that he had heard the complainant was talking negatively about him to the neighbors. Again, there needed to be goading into a physical altercation. However, there was no evidence that the appellant wished for this to become a physical altercation. Not only was there no evidence of this, the appellant testified that after he had been grabbed by the complainant and before he flipped the complainant to the ground, he told him, “Get the hell out of here, like what the hell are you doing?” (TT 59/4).
[55] As there was no evidence to support the appellant goading the complainant into a physical altercation, the conclusion that the appellant started the incident was also unsupported. If anything, the evidence supports the opposite conclusion, that the complainant initiated the physical incident. To conclude that the accused started the incident is unreasonable and not a logical result of the evidence.
[57] The trial judge further concluded, “There was never any concern about the force used”. This is not a relevant factor to consider when determining whether an accused was acting in self-defence. As demonstrated in Knott, an accused need not be scared to rely on self-defence. In this case, there was no evidence whether the appellant was concerned about the force used against him or whether he was scared. He was not questioned about this by his counsel or the Crown. A person who is trained to defend themselves may not be in fear if they are attacked, but that does not mean that they cannot defend themselves.
[58] The trial judge considered the “extent to which the use of force was imminent and whether there were other means available to respond to the use of force” (section 34(2)(b)) and concluded, “not only did this very fit accused have other means at his disposal, simply removing the complainant’s arm, he never gave any thought to the harm his actions could cause” (at TT 89/1- 4).
[59] This conclusion was contrary to the evidence that the appellant removed the complainant’s hand from his shirt but this did not cause the complainant to stop using force.
[60] The Supreme Court in Khill explained that “the fact finder ‘shall’ consider all factors set out in paragraphs (a) to (h) of s. 34(2) that are relevant in the circumstances of the case” at para 68, but in this case, the trial judge overlooked or failed to fully analyse the sequence of events. The evidence of the appellant has been set out in detail above. The complainant first initiated contact with the appellant when he grabbed the appellant’s shirt and would not let go. They wrestled and the appellant told him to, “get the hell out of here”, but the complainant would not let go of the appellant’s shirt. Because the complainant was not wearing a shirt, the appellant grabbed the complainant’s shoulder and threw him to the ground, then removed the complainant’s hand from his shirt and moved away.
[61] The medical evidence was that the complainant’s collarbone injury occurred when the complainant was thrown to the ground. The force used by the appellant when he threw the complainant to the ground could not have been excessive as it did not deter the complainant from holding onto the appellant’s shirt, then standing up and punching the appellant in the face…
[63] The trial judge considered section 34(2)(e), the size, age, gender and physical capabilities of the parties to the incident and stated, “It would be difficult to have two parties with greater differences in age, fitness, weight and height”. The complainant was 59 years of age, 5’5” tall, and weighed 140 pounds, while the appellant was 6 feet tall, 200 pounds, and 39 years of age.
[64] These differing characteristics may be of importance in certain circumstances, especially where there is only a threat of force or the physical actions of the complainant are significantly less than the force used by the accused. In the circumstances of this case, notwithstanding the differences in age and size, it was the complainant who initiated the physical contact by grabbing the appellant’s shirt. According to the evidence accepted by the trial judge, the parties wrestled, the appellant threw the complainant to the floor, and then removed the complainant’s hand from his shirt. The appellant then stepped back; however, this clearly was not sufficient force to deter the complainant, notwithstanding his older age and smaller size, because he stood up and punched the appellant in the eye. The appellant then responded by throwing four to five punches within three to four seconds. This force did not knock the complainant down and only resulted in minor bruises and lacerations to the complainant’s face.
[68] Moreover, the question of “peril” had little to do with the principle put forward by the defence. The full paragraph from Robinson at paragraph 28 reads:
A tolerant approach also needs to be taken to the issue of “nature and proportionality” given that the person defending himself or herself (or another person) is acting in the heat of the moment and cannot be expected to “weigh to a nicety” the exact measure of necessary defensive action or the consequences of such action: R v Kong, 2005 ABCA 255 at paras 208-210, per Wittmann JA, dissenting, endorsed in 2006 SCC 40, [2006] 2 SCR 347. The law recognizes that people who perceive themselves to be in a position of peril do not have time for full reflection and that errors of judgment will be made. In considering the reasonableness of the accused’s conduct, it is important to consider the entire situation, paying sufficient attention to the factual context and the whole of evidence: R v Evans, 2015 BCCA 46; and Johnson ABQB at para 231.
The trial judge failed to consider this principle of law referenced in self-defence cases for almost 100 years. It is best stated in the case of R v Baxter (1975), 27 CCC (2d) 96 at 111 (CA), where Justice Martin stated:
Moreover, in deciding whether the force used by the accused was more than was necessary in self-defence under both s. 34(1) and (2), the jury must bear in mind that a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety, the exact measure of necessary defensive action.
The Supreme Court of Canada most recently phrased this principle in Hodgson stating, “A person in a threatening situation need not carefully assess the threat and thoughtfully determine the appropriate response” at para 78. See also: R v Ogal, [1928] 23 Alta LR 511 (CA), [1928] 3 DLR 676, R v Antley, [1964] 1 OR 545 (CA), [1964] 2 CCC 142, R v Kandola (1993), 27 BCAC 226.
[70] The case law is clear that the amount of force used to repel an attack need not be precisely calculated. In the heat of an altercation, the exact measure of a defensive action may be difficult to ascertain. This is especially so in the circumstances of this case, where the complainant continued to use force against the appellant even after he was thrown to the ground by the younger and stronger appellant. An accused may be mistaken about the nature and extent of force necessary for self-defence but the mistake as to the amount of force may still be reasonable in the circumstances. See R v Kong`, 2005 ABCA 255 at paras 208-209; dissent affirmed by SCC, 2006 SCC 40.
[71] The appellant’s response was not unreasonable as he need not weigh to a nicety the amount of force he used to repel the complainant. The appellant threw a combination of punches, four to five in two to three seconds, that did not knock the complainant down or cause him any serious injury. Defending oneself did not require that the responding actions of the appellant be exactly the same force as used by the complainant. It is unreasonable to hold him to a standard of using lesser force.
[73] In applying the law on the reasonableness of the appellant’s actions in self-defence as set out in section 34(2), the trial judge erred by concluding that the appellant “goaded” the complainant and started the confrontation when there was no evidentiary support for that determination, by considering the irrelevant factor that the appellant was not scared, by ignoring the evidence that the appellant removed the complainant’s hand from his shirt, thus concluding, contrary to the evidence, that the appellant made no effort to respond by other means, and by failing to consider the principle that the response to force need not be weighed to a nicety. As a result, the trial judge’s assessment of the reasonableness of the appellant’s actions was itself unreasonable. This unreasonable assessment combined with her conclusion that the appellant was not acting in self-defence were errors that resulted in an unreasonable verdict.
Conclusion
[74] The appeal is allowed. The conviction for aggravated assault is set aside and an acquittal is entered.
R v Roche-Garcia, 2024 BCCA 298
[August 19, 2024] s.715.1 Video-Recorded Evidence and Embedded Hearsay [Reasons by Fitch J.A. with Horsman and Skolrood JJ.A. concurring]
AUTHOR’S NOTE: In criminal trials, judges play a crucial gatekeeping role in determining the admissibility of hearsay evidence, even when defence counsel does not object during the proceedings. This responsibility was highlighted in a case where an alleged dying declaration was introduced into evidence without the necessary procedural safeguards.
