R. v. Evans, 2013 BCSC 462

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Evans, 2013 BCSC 462 Date: 20130315 Docket: 154039-2 Registry: Victoria Regina v. Daniel John Evans Before: The Honourable Madam Justice Fisher Reasons for Judgment(Ruling on applicability of new self-defence provision s. 34) Counsel for the Crown: J. PattersonCounsel for the Accused: J. WattPlace and Date of Trial/Hearing: Victoria, B.C. March 12-13, 2013Place and Date of Judgment: Victoria, B.C. March 15, 2013 [1] On March 11, 2013, the Citizen’s Arrest and Self-defence Act, SC 2012, c. 9, which repeals ss. 34 to 42 of the Criminal Code,came into force.

These sections are replaced with a new s. 34, which deals with self-defence and defence of others and a new s. 35,which deals with defence of property. [2] The accused, Daniel Evans, is charged with aggravated assault in relation to an incident that took place on March 6, 2011, andhe relies on the defence of self-defence. His trial commenced on March 11, 2013, the same day the amendments came into force, and theevidence concluded the following day. At issue is whether the new legislation applies prospectively or retrospectively.

If it appliesretrospectively, the jury would have to be instructed in accordance with the new provisions in s. 34. [3] On March 13, 2013, I ruled that the new legislation applied prospectively only. These are my reasons. Legal principles [4] It has long been recognized that cases in which legislation has retrospective effect are exceptional. In R. v Dineley, 2012 SCC58, the Supreme Court of Canada considered the principles that apply. Deschamps J., for the majority, explained at paras. 10-11: [10] ...

More specifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to beundesirable. New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible todiscern a clear legislative intent that it is to apply retrospectively (Angus v. Sun Alliance Insurance Co., (SCC), [1988] 2S.C.R. 256, at pp. 266-67; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 57;Wildman v. The Queen, (SCC), [1984] 2 S.C.R. 311, at pp. 331-32).

However, new procedural legislation designed togovern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation ispresumed to apply immediately to both pending and future cases (Application under s. 83.28 of the Criminal Code (Re), at paras. 57 and62; Wildman, at p. 331). [11] Not all provisions dealing with procedure will have retrospective effect. Procedural provisions may, in their application, affectsubstantive rights. If they do, they are not purely procedural and do not apply immediately (P.-A. Côté, in collaboration with S. Beaulacand M.

Devinat, The

Interpretation of Legislation in Canada (4th ed. 2011), at p. 191).

Thus, the key task in determining the temporalapplication of the Amendments at issue in the instant case lies not in labelling the provisions “procedural” or “substantive”, but indiscerning whether they affect substantive rights. [5] She stated further, at para. 16, that the fact that new legislation has an effect on the content or existence of a defence is anindication that substantive rights are affected. [6] The legislative changes at issue in Dineley limits the evidence an accused can adduce to raise doubt about the reliability ofbreathalyzer test results obtained using an approved instrument.

The legislation prevents an accused from relying only on an expertopinion that the amount of alcohol consumed is inconsistent with the results; this was known as the “Carter defence”. The Court wasdivided 4:3 on whether these changes affected substantive rights, the majority concluding that they did.

[ 7 ] Deschamps J. held that these provisions are not merely procedural but affect the existence or content of a defence and are therefore subject to the presumption against retrospective application. At para. 18 she stated that the right of an accused to rely on a defence is a substantive right and new legislation has to be interpreted so as not to deprive the accused of a defence that would have been open to him at the time of the impugned act. [ 8 ] Cromwell J., writing the dissenting judgment, was of the view that the amendments were purely procedural and did not change the substantive content of a defence.

He held that the provisions limited the scope of admissible evidence which could be adduced in order to attempt to raise a reasonable doubt about one of the essential elements of the offence, referring to the Carter defence as really a particular type of evidence adduced to raise a reasonable doubt. The self-defence amendments [ 9 ] The new s. 34 provides as follows: 34.

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

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

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

c) the act committed is reasonable in the circumstances.

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

a) the nature of the force or threat; (

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

c) the person’s role in the incident; (

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

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

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. [ 10 ] There is nothing in the legislation which indicates a clear intent that it be applied retrospectively. [ 11 ] There is no question that these are substantive, not procedural amendments.

The question is whether these amendments truly affect the content of the defence of self-defence. Positions of defence and Crown [ 12 ] It is the position of the defence that these amendments must apply prospectively only, given that they are substantive. Mr. Watt submitted that while the new s. 34 compiles the principles of the previous ss. 34 , 35 and 37 into one, there are three newly stated elements as well as new features.

Given that the amendments have only come into force on the first day of this trial, it is not possible to assess whether they provide a broader or narrower benefit on an accused than the old provisions. [ 13 ] The Crown agrees that it is very difficult at this time to assess whether the amendments confer greater benefits on an accused. Mr. Patterson suggested that if they do, it may be that an accused should be able to obtain that benefit, using s. 11(

i) of the Charter as a guiding principle.

Section 11(

i) provides that any person charged with a criminal offence has the right ... if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. [ 14 ] However, he conceded that it is by no means certain that the same principle applies where a defence available to an accused has been varied between the time of the offence and the time of trial. Neither counsel was able to provide any authority on this point.

[ 15 ] Both counsel submitted that if the amendments are neutral or more restrictive, they must apply only prospectively. Analysis [ 16 ] I have doubt that the issue of the retrospective application of legislative amendments to a legal defence should turn on whether the amendments provide a greater or lesser benefit to an accused. As this case demonstrates, it will not necessarily be clear whether an old law or a new one is of greater or lesser benefit to an accused. I say this, however, without the benefit of full argument. [ 17 ] The main issue, in my view, is whether the amendments affect substantive rights.

I have concluded that the new self-defence provision in s. 34 has effected a substantive change to the content of the defence, and as such must be applied prospectively only. [ 18 ] There are now three core elements to the defence of self-defence: (1) a reasonable perception of force or a threat of force against a person; (2) a defensive purpose associated with the accused’s actions; and (3) the accused’s actions must be reasonable in the circumstances. [ 19 ] Additionally, a court is required to consider the relevant circumstances of the person, the other parties and the act, including a non-exhaustive list of factors, in determining whether an accused’s actions were reasonable in the circumstances.

The factors include some of the core requirements under the old self-defence sections. [ 20 ] The only sources available to me now to assess the intent of these amendments are the Canada Gazette and the “Bill C-26 (S.C. 2012 c. 9) Reforms to Self-Defence and Defence of Property: Technical Guide for Practitioners”, published by the Department of Justice in March 2013 (the Guide). [ 21 ] In the Canada Gazette (February 13, 2013) the stated intent of this new provision is “to simplify the provisions relating to the defences of property and persons.” The explanatory note says this: In relation to self defence and defence of property, there have been long-standing problems associated with the manner in which the law is drafted and expressed in the Criminal Code .

There are currently four sections describing the law of self-defence as it applies in different circumstances, and five sections describing the defence of property as it applies in different circumstances. While the outcome of cases is generally viewed as satisfactory, the law was articulated in a confusing and complicated manner. As a result of the complexity of the law, charges may have been laid in cases where they would not have been if the laws were more clearly understood. As well, the confusing nature of the law led to many appeals on errors in jury instructions.

The reform to self-defence and defence of property provisions addresses these problems by (

a) simplifying the defence of property by replacing it with five provisions ( sections 38 to 42 of the Criminal Code ) with a single defence that sets out the basic elements of the defence in a clear and simple manner; and (

b) simplifying self-defence provisions by replacing four provisions ( sections 34 to 37 of the Criminal Code ) with a single defence that sets out the basic elements of the defence in a clear and simple manner. The new law of self-defence will also contain a list of relevant factors to aid the court or jury in determining whether the actions taken were reasonable in the circumstances. [ 22 ] The Guide provides more detailed information.

Acknowledging that “[c]omprehensive law reform results in a transitional period of uncertainty,” its overall objective is ... to promote, for legal practitioners, a common understanding of the purpose and effect of the reforms and a common set of arguments as to their application and

interpretation, so as to produce meaningful and consistent jurisprudence as rapidly as possible, while avoiding both confusion and uncertainty. [ 23 ] To accomplish this, the Guide describes the legislative intent behind the amendments with references to • aspects of the new law that mirror the old defences and explanation of aspects that are different from the old laws; • key aspects of jurisprudence under the old law that are incorporated into the new law; and • relevant excerpts from parliamentary consideration of the new law. [ 24 ] It states further 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. Replacing numerous circumstance-specific defences with a single generally-applicable defence means that some of the former threshold requirements are no longer part of the defence as threshold requirements . However, the new laws still allow for consideration of elements which previously served to distinguish the different versions of the defences under the old law.

Specifically, certain defence requirements under the old law (which could have been determinative of whether the defence succeeded or failed) are converted into factors that are not determinative in any case, but which may be taken into account in assessing the core defence elements, where

relevant, on a case by case basis. For instance, under the old self-defence laws, different versions of the defence applied, depending on whether the attack was provoked by the accused or not, whether the accused had a reasonable apprehension of death or not, and where the accused started the confrontation, whether he or she retreated before using deadly force.

Under the new generally-applicable defence, these elements are no longer threshold requirements that must be met for the defence to succeed, but they may be relevant considerations to be taken into account depending on the facts of a given case. [Bold and italics in original, underline added.] [ 25 ] In my view, these legislative objectives demonstrate that there has been a substantive change to the content of the defence of self-defence. Some requirements that were determinative under the old sections are now factors that must be taken into account in assessing whether an accused’s actions were reasonable.

For example, an accused who used excessive force may have been able to rely on self-defence under the old s. 34(2) but now the nature and proportionality of an accused’s response to the use or threat of force is a factor to be considered in all cases.

Similarly, there was no duty to retreat under the old ss. 34 or 37 and now 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 is a factor as well. [ 26 ] Accordingly, in the absence of a clear legislative intent that the amendments are to apply retrospectively, it is my opinion that they must apply prospectively only. The jury was instructed under the old provisions that are applicable in this case. “B. Fisher, J.” The Honourable Madam Justice Fisher