New & Notable: Restrospective Application of new Self-Defence

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Pandurevic was charged with first degree murder; Pandurevic sought to claim that he had acted in self-defence. The homicide took place in 2010 and Pandurevic’s trial commenced on April 8, 2013.

At the time of the offence the self-defence provisions found at sections 34-37 of the Criminal Code governed. On March 11, 2013 however, the Citizen’s Arrest and Self-Defence Act [hereafter the Act] came into force.  This new legislation repealed the old self-defence provisions and replaced them with a ‘new’ s.34 which is intended to apply in all instances where self-defence is raised.

Prior to the commencement of his trial Pandurevic brought an application for ‘directions from the court’ on whether the Act applied retrospectively. The Crown opposed the application.

MacDonell J found that despite the presumption that such changes in the law apply prospectively, this Act applies retrospectively: 2013 ONSC 2978.

First, MacDonell J noted that both the opinion of the judiciary and the academicians  was aptly captured by, then professor now, Justice Paciocco who referred to ss.34-37 as “the most confusing tangle of sections known to law” [at para 16].

The Parliamentary response to this criticism culminated in the enactment of  the Act which the Minister of Justice lauded as:

a simple, easy-to-apply rule for each defence. For decades criminal practitioners, the Canadian Bar Association, the Supreme Court of Canada, academics, and many others have criticized the law of self-defence primarily, but also the law of defence of property, as being written in an unnecessarily complex and confusing way. The complexity of the law is not without serious consequence. It can lead to charging decisions that fail to take into account the merits of the defences in particular situations. It can confuse juries, and it can give rise to unnecessary grounds of appeal, which cost the justice system valuable time and resources. The law should be clear and clearly understood by the public, the police, prosecutors, and the court. Bill C-26 meets those objectives. It makes the act more specific and simplifies it without sacrificing existing legal protections [para 18].

Second, MacDonell J referred to the “Technical Guide for Practitioners” [hereafter the Guide] published by the Department of Justice at the time the Act came into force.  The Guide states, inter alia, that:

the new defences extract from the old provisions the common core elements of each defence, and codify those core elements in a single simple framework that is capable of assessing a defence claim in any situation. The new laws give effect to the defences' underlying principles in a more transparent way; they will facilitate jury instructions and allow decision-makers to come to conclusions more easily and simply.

[...]

The intent of the new law is to simplify the legislative text itself, in order to facilitate the application of the fundamental principles of self-defence without substantively altering those principles [para 22].

MacDonell J thus concluded that:

When the provisions of the Citizen's Arrest and Self-defence Act are considered in the context of the circumstances leading up to and surrounding its enactment, it is plain that Parliament's aim was not to alter the essential nature of the defence of self-defence. The intention, rather, was to put an end to a situation that was an embarrassment to the rule of law. Parliament sought to substitute clarity and common sense for the incoherence, confusion and occasional absurdity that virtually every informed observer associated with the former statutory scheme, and to rid the administration of justice of the scandalous spectre of juries making decisions not because of the legal instructions they received but notwithstanding them.

When the purpose of the legislation is characterized in this way, it points firmly toward an intention that upon the coming into force of the amendments, judges and juries would immediately begin to assess claims of self-defence under the amended provisions regardless of whether the allegedly defensive acts occurred before or after March 11, 2013. That is, it points toward a retrospective application of the amendments [paras 23-24].

And that:

(...) to apply the amendments prospectively only would frustrate the remedial aims of the legislation by leaving in place for several more years the significant mischief that Parliament manifestly meant to eradicate [para 43].

LT

New & Notable: Biting the Hand that Feeds - Animal Abuse and Self-Defence

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On March 14th, 2013, Vernon Gladue killed his wife’s ten-pound shih-tzu— “Buttons”—by throwing her against a door frame, shooting it with a BB gun, and strangling it.  At issue was whether he had a “lawful excuse”, pursuant to section 445(1)(a) of the Criminal Code:

445. (1) Every one commits an offence who, wilfully and without lawful excuse,

(a) kills, maims, wounds, poisons or injures dogs, birds or animals that are not cattle and are kept for a lawful purpose…

Gladue, who had been drinking, had just got into a lengthy argument with his wife.  After about an hour, Gladue tried to kiss Buttons; who responded by biting Gladue’s upper lip, causing a minor bleeding.  The fatal attack ensued.

The next day, Gladue sent his wife some text messages, including: “... dog doesn't bite hand that feeds it an (sic) if it does its gone,” and “Dog bit me an (sic) lost ...” and “Because I've told you, any dog that bites its master am (sic) draws blood dies. You get it?”

The Court found that there was room for some physical response to being bitten: “Pulling the dog away and even dropping it would have been fully justifiable in the circumstances (even if it injured the dog)” [para. 87].  However, once Gladue’s actions were fuelled by anger and a clear intent to cause injury, his conduct went beyond any lawful excuse: 2014 ABPC 45.

Gladue also attempted to argue self-defence.  The Court, however, found that the self-defence provisions in the Criminal Code apply only to human assailants:

Speaking in non-legal terms, one may well be the victim of a dog's ‘assault’ and have to act in ‘self-defence’. That these terms may be utilized colloquially, however, does not mean that they take on the character or legal force of their Criminal Code counterparts [para. 102].

The Court found support in this interpretation from the cases of R. v. Greeley, [2001] N.J. No. 207 and R. v. Barr, [1982] A.J. No. 1021.

The Court also noted that the scope of “lawful excuse” extends even more broadly than “self-defence”.  For one example:

The owner of a pet dog who discovers that the dog suffers from a terminal illness would be justified in having the dog euthanized. Indeed, our society views that as a compassionate response to the dog's plight. The same cannot be said in the context of human beings, however. A parent who discovers that his child suffers from a terminal illness would not be justified in having the child euthanized. Our society would view that as murder.… The policy of our criminal law does not militate in favour of extending Criminal Code provisions relating to ‘Defence of Person’ to animals (or vice versa) for that reason [para. 105].

Similarly, a zookeeper would likely find a lawful excuse in shooting a grizzly bear that was approaching a human infant found within its enclosure.  Applied to humans in the “self-defence” context, the same conduct would likely not be permissible: consider a prison guard shooting an inmate that was approaching an infant found within his cell.

In further support of this dichotomy, the Court found that animals are “property”: the offence in question is found within Part XI of the Code, titled “Wilful and Forbidden Acts in Respect of Certain Property”.

Within the context of the Criminal Code, this separation makes good sense for several reasons.  As remarked by the Court: “I resist the temptation to consider how the defence of self-defence would apply to this case if it were legally available. Did Gladue assault or even sexually assault Buttons by his unwanted kiss?”

JD

New & Notable: Affirming the Castle Doctrine

Cedric Forde killed Clive McNabb.  He stabbed him.  At trial he admitted he had done so.  The question that was left for consideration by the jury, however, was whether he was justified in doing so.  Forde alleged that he acted in self-defence when McNabb came at him on his property with a knife.  In charging the jury on the claim of self-defence the trial judge noted that the jury should consider "the availability of other options for Cedric Forde to extricate him from the confrontation with Clive McNabb" [para 30]. 

Forde was convicted and appealed.  On appeal he argued that the trial judge erred in charging the jury that retreat was a relevant consideration.  The Ontario Court of Appeal agreed: R v Forde, 2011 ONCA 592.

McNabb was the former spouse of Forde's common law partner.  Both were also involved in drugs.  On the date of killing McNabb had attended at Forde's place; he apparently had done so as he understood that Joe Grasso was there - Grasso owed McNabb some money for a drug debt.

Ultimately McNabb ended up in Forde's bedroom and an argument ensued between he and Allamby (the common law partner of Forde).  Forde then entered the bedroom and an argument ensued between them.  McNabb came at Forde with a knife and Forde retrieved a knife from the closet and stabbed McNabb once.

Forde was convicted of manslaughter by a jury.  He appealed.

On appeal the central issue was whether retreat was a relevant consideration under section 34(2).  After a review of English, American and Canadian authorities the court offered the following conclusion:

Having regard to these authorities, I reject the Crown's position that while retreat from one’s own home is not a necessary element to claiming self-defence, it may nonetheless be a factor for the jury to consider. By giving an instruction along the lines the Crown suggests, the danger would always remain that the jury would all too quickly leap from the factor of retreat to the inference that there is no entitlement to self-defence. As the case law referred to above establishes, a jury is not entitled to consider whether an accused could have retreated from his or her own home in the face of an attack (or threatened attack) by an assailant in assessing the elements of self-defence under s. 34(2).  [Emphasis added].

 

DG Mack