r v. R., 2017 NBCA 10

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK FREDERICK MALCOLM CORMIER APPELLANT 45-15-CA FREDERICK MALCOLM CORMIER APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Cormier v. R., 2017 NBCA 10 Cormier c.

R., 2017 NBCA 10 CORAM: The Honourable Justice Larlee The Honourable Justice Richard The Honourable Justice Baird CORAM : l’honorable juge Larlee l’honorable juge Richard l’honorable juge Baird Appeal from a decision of the Court of Queen’sBench: May 6, 2015 Appel d’une décision de la Cour du Banc de laReine : le 6 mai 2015 History of case: Decision under appeal: 2015 NBQB 96 Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : 2015 NBQB 96 , 2015 NBBR 96 Procédures préliminaires ou accessoires : s.o.

Appeal heard: May 10, 2016 Judgment rendered: March 2, 2017 Appel entendu : le 10 mai 2016 Jugement rendu : le 2 mars 2017 Counsel at hearing: For the appellant: Margaret Gallagher, Q.C. For the respondent: Kathryn Gregory Avocats à l’audience : Pour l’appelant : Margaret Gallagher, c.r. Pour l’intimée : Kathryn Gregory THE COURT The appeal is allowed, the conviction is set aside, and a new trial is ordered. LA COUR Accueille l’appel, annule la déclaration de culpabilité et ordonne la tenue d’un nouveau procès.

The following is the judgment delivered by THE COURT [1] The appeal is allowed, the conviction is set aside, and a new trial is ordered. Reasons will follow. Version française de la décision rendue par

LA COUR [ 1 ] L’appel est accueilli, la déclaration de culpabilité est annulée et nous ordonnons la tenue d’un nouveau procès. Les motifs suivront. COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK FREDERICK MALCOLM CORMIER APPELLANT 45-15-CA FREDERICK MALCOLM CORMIER APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Cormier v. R., 2017 NBCA 10 Cormier c.

R., 2017 NBCA 10 CORAM: The Honourable Justice Larlee The Honourable Justice Richard The Honourable Justice Baird CORAM : l’honorable juge Larlee l’honorable juge Richard l’honorable juge Baird Appeal from a decision of the Court of Queen’s Bench: May 6, 2015 Appel d’une décision de la Cour du Banc de la Reine : le 6 mai 2015

History of case: Decision under appeal: 2015 NBQB 96 Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : 2015 NBQB 96 , 2015 NBBR 96 Procédures préliminaires ou accessoires : s.o.

Appeal heard: May 10, 2016 Judgment rendered: March 2, 2017 Reasons delivered: April 20, 2017 Reasons for judgment by: The Honourable Justice Richard and The Honourable Justice Baird Concurred in by: The Honourable Justice Larlee Appel entendu : le 10 mai 2016 Jugement rendu : le 2 mars 2017 Motifs déposés : le 20 avril 2017 Motifs de jugement : l’honorable juge Richard et l’honorable juge Baird Souscrivent aux motifs : l’honorable juge Larlee Counsel at hearing: For the appellant: Margaret Gallagher, Q.C. For the respondent: Kathryn Gregory Avocats à l’audience : Pour l’appelant : Margaret Gallagher, c.r.

Pour l’intimée : Kathryn Gregory

THE COURT The appeal is allowed, the verdict is set aside and a new trial ordered. LA COUR Accueille l’appel, annule la déclaration de culpabilité et ordonne la tenue d’un nouveau procès. The judgment of the Court was delivered by RICHARD AND BAIRD JJ.A. I. Introduction [1] On May 13, 2014, Spencer Eldridge repeatedly threatened to cause harm to Frederick Malcolm Cormier, culminating in a fatal confrontation during which Mr. Cormier stabbed Mr. Eldridge. The stabbing occurred as Mr. Eldridge and another man were allegedly about to unlawfully enter the apartment of Mr. Cormier’s father.

In a preemptive move, some of the occupants of the apartment armed themselves to go outside. Upon exiting through the street-level apartment doorway, Mr. Cormier immediately encountered Mr. Eldridge who was armed with a pipe. Feeling threatened, Mr. Cormier stabbed him. [ 2 ] Mr. Cormier was charged with second-degree murder. The principal issue at trial was whether the prosecution had proven beyond a reasonable doubt that Mr. Cormier did not act in self-defence when he stabbed Mr. Eldridge. Mr. Cormier was convicted. Implicit in the jury’s verdict is the rejection of Mr. Cormier’s submission he stabbed Mr.

Eldridge in self- defence. The trial judge sentenced Mr. Cormier to imprisonment for life without eligibility for parole for ten years. [ 3 ] Mr. Cormier appeals his conviction, alleging errors in the trial judge’s jury charge with respect to self- defence. He also submits the jury should have been instructed on s. 35 of the Criminal Code , which relates to defence of property. [ 4 ] On March 2, 2017, after much deliberation, Mr. Cormier’s appeal was allowed, his conviction was set aside and a new trial was ordered. At the time, we indicated that reasons for our decision would follow. These are those reasons. II.

Background A. The evidentiary record [ 5 ] The evidence adduced at trial did not clearly depict the series of events leading to Spencer Eldridge’s death. Some of the facts preceding the fatal stabbing are incontrovertible since they are found in text exchanges for which there is an undisputable record. However, other facts are far from clear since they must be determined from statements or testimony that were at times quite contradictory and particularly vague. [ 6 ] The evidentiary record reveals that, in September 2013, one Brittany Saunders began a romantic relationship

with Frederick Cormier that lasted until January 2014 and then resumed in May of that same year. In the intervening time, in March and April 2014, Ms. Saunders dated Spencer Eldridge. By May 2014, the relationship between Mr. Eldridge and Mr. Cormier was far from amicable. The evidence also points to another connection between the two men: Mr. Eldridge owed Mr. Cormier some money. The cryptic exchanges lead to the inference the debt might have been drug-related. [ 7 ] The record of the text messaging between Mr. Cormier and Mr. Eldridge reveals an exchange the morning of May 13, 2014, in which Mr.

Cormier was looking for the money he felt Mr. Eldridge owed him. Mr. Eldridge replied he did not have Mr. Cormier’s “money”. When this exchange occurred, Mr. Cormier was at Ms. Saunders’ place of residence, where he remained until about lunchtime. After Mr. Cormier left Ms. Saunders’ residence, Mr. Eldridge arrived. He spoke to Ms. Saunders and threatened to “put a hammer through Freddy’s [Mr. Cormier’s] head”. He was informed Mr. Cormier was no longer there. As Mr. Eldridge was about to leave, he saw Mr. Cormier returning on foot. A hostile exchange ensued between them, ending with Mr.

Eldridge leaving after a third party threatened to call the police. According to Mr. Cormier, during that altercation, Mr. Eldridge “swung a hammer at” him. [ 8 ] Mr. Cormier and Ms. Saunders then decided to go to Mr. Cormier’s father’s apartment located a few blocks away. [ 9 ] In mid-afternoon, Mr. Cormier sent Mr. Eldridge a threatening text, advising if he did not pay his debt, “someone will be by to pay [you] a visit then”. This was the beginning of a series of exchanges in which Mr. Eldridge challenged Mr. Cormier to fight. Mr. Cormier apologized to Mr.

Eldridge; however, beginning at approximately 4 PM, Mr. Eldridge sent Mr. Cormier a series of texts challenging him to either fight or to leave the west side of Saint John. The texts from Mr. Eldridge persisted until approximately 7:46 PM. This series of 38 texts remained unanswered. [ 10 ] Toward dusk, while smoking outside Mr. Cormier’s father’s apartment, Mr. Cormier and Ms. Saunders observed Mr. Eldridge and one Anthony Beckingham approaching on foot. Mr. Cormier and Ms. Saunders retreated inside and locked the door. A hostile exchange ensued through the street-level apartment window between Mr.

Beckingham and Mr. Cormier in an attempt to have Mr. Cormier come outside. As Messrs. Beckingham and Eldridge were about to leave, a “ting” sound was heard coming from the front of the building, “like something hitting the window”. [ 11 ] Between 9:36 PM and 9:52 PM, Mr. Cormier received eight more texts from Mr. Eldridge’s phone, telling him he had his chance to make things right and threatening to smash out every window in any place Mr. Cormier might be staying unless Mr. Cormier paid Mr. Eldridge at least $400. Note that earlier it was Mr. Cormier who wanted to collect a debt from Mr. Eldridge. Now Mr.

Eldridge claimed Mr. Cormier was responsible for a debt Ms. Saunders owed him. Ms. Saunders replied to this text, stating she would pay the $400 or perhaps even more on the first of the following month. There was a subsequent exchange of approximately 17 messages between Ms. Saunders and Mr. Eldridge, ending at 10:11 PM with Ms. Saunders asking Mr. Eldridge: “honestly, is this fight because of me”? [ 12 ] At some point in the evening, one Colin Scott received a text from Mr. Cormier, causing him to believe the latter was in some sort of distress. Mr. Scott made his way to Mr. Cormier Sr.’s apartment.

While he was there, Messrs. Eldridge and Beckingham returned, this time in a car. [ 13 ] The critical events following the return of Messrs. Eldridge and Beckingham to Mr. Cormier Sr.’s apartment are difficult to ascertain. Only three of those present testified at trial: Mr. Beckingham, Mr. Scott and Ms. Saunders. Their testimony was, to say the least, vague and often inconsistent. Mr. Cormier Sr., who had also been present, did not testify. The accused’s own version of the events is the most detailed of all accounts, but it is not under oath as it consists of statements Mr.

Cormier made to a police officer under persistent questioning in the aftermath of the incident. [ 14 ] Testifying at trial, Anthony Beckingham did not refer to a first visit at Mr. Cormier Sr.’s apartment. He explained that, during the evening of May 13, 2014, he was at his parents’ house in the company of Spencer Eldridge, whom he later drove to the west side of the City because “it was late and he was going home”. Mr. Beckingham claimed that, on arrival, Mr. Eldridge exited the vehicle. As Mr. Beckingham was about to leave, he heard someone scream. He turned and saw Mr.

Eldridge, bleeding, coming back towards the car, saying he had been stabbed. Mr. Beckingham testified that other people came toward his car, causing him to step on the accelerator and strike someone. Mr. Beckingham stated he then exited the vehicle and attempted to render assistance to Mr. Eldridge until emergency personnel arrived. Mr. Beckingham said he did not see Mr. Eldridge get stabbed and he was not able to identify any of the others who were present at the time. He was not cross-examined. [ 15 ] Mr. Beckingham’s testimony stood in contrast with that of Colin Scott . Mr. Scott was present when Messrs.

Eldridge and Beckingham arrived by car. He described being in the living room of the apartment when he “saw a car pull up out front”. According to Mr. Scott, he and the two Cormiers armed themselves and exited the apartment. He and Mr. Cormier were armed with knives and Mr. Cormier Sr. was holding a “pipe or something like that”. He claims he saw Messrs. Eldridge and Beckingham both exit the car and Mr. Eldridge armed with a pipe. According to Mr. Scott, Mr. Beckingham entered the vehicle and drove it forward striking Mr. Cormier Sr. It was at this point, Mr. Eldridge apparently got hurt. Mr.

Scott testified after the car struck Mr. Cormier Sr., he saw Mr. Eldridge “freaking out”, saying he was “dying”. He did not recall any other conversation throughout these events. Mr. Scott, admits he was “on drugs” that evening, in the form of “smoking pot, doing some pills […] perks”; however, he recalled picking up Mr. Cormier’s knife and throwing it, as well as his own knife, in the water off the Reversing Falls Bridge. The knives were never recovered. [ 16 ] Brittany Saunders testified at some point during the evening she was in the kitchen of Mr.

Cormier Sr.’s apartment when she saw bright lights flashing on the wall. She realized a vehicle was outside by the door and she saw a “car going back and forth”. Mr. Cormier and his father had already exited the apartment, and she could see them outside through the glass in the door. Ms. Saunders observed the car going “back and forth” and then strike Mr. Cormier Sr. throwing him off to the side onto the ground. She testified she then saw Mr. Cormier assisting his father and yelling for her to call 911. As she called, she was advised Mr. Eldridge was also “laying on the ground with people working on him”.

The emergency service informed her someone had already called. [ 17 ] The most detailed account of the events leading to Mr. Eldridge’s death is contained in unsworn statements Mr. Cormier made in the course of a police interview that lasted almost two hours. He was most reluctant to give the police an account of the events, invoking time and again his wish to remain silent; however, the police officer persisted and, in a series of answers to various questions, Mr. Cormier offered up his version of the events. A recording and a transcript of the interview were admitted into evidence at Mr.

Cormier’s trial at the behest of the prosecution. There are inconsistencies between some of Mr. Cormier’s own statements and as well as between his account and that of the other witnesses. What follows is perhaps the most defence-friendly

interpretation of Mr. Cormier’s statements. [ 18 ] According to Mr. Cormier, Messrs. Eldridge and Beckingham circled around his father’s place several times in their car before coming to the apartment and beating on the windows, causing him and Mr. Cormier Sr. to go outside to confront them. His father armed himself with a long silver pipe “to chase at them to get them away from the door”. According to Mr. Cormier, Messrs. Eldridge and Beckingham were banging on the windows and turning the doorknob attempting to enter by force. Beckingham and Eldridge said they were calling three or four more people to join them.

Mr. Cormier told the police officer everything happened quickly, which is why he did not think of calling 911. He stated he felt threatened, and he was scared, so he armed himself with one of his father’s hunting knives described as a “buck knife”. He claimed that, as he opened the door, he saw “a black pipe swinging at [his] face”. As Mr. Eldridge was swinging the pipe, Mr. Cormier stated he heard him say “he was going to beat my fucking head in [and] I’m kicking your skull in and I’m breaking your legs along with it”. Mr.

Cormier managed to move out of the way of the pipe, which was, at some point, thrown towards his father striking him in the head. At this point, Mr. Cormier struck out at his assailant with his knife and poked him “one or two” times. Mr. Cormier didn’t think he had stabbed Mr. Eldridge until he saw him stagger over to the car, try to get in and then collapse. Mr. Cormier then noticed Mr. Eldridge’s shirt turning red. Meanwhile, Mr. Cormier saw his father “get hit by the car”. He believed the car “backed over him and then [driven] over him and [the] tires [spinning him] out from underneath”.

He threw the knife away and “hollered at someone to call 911 and then [he] ran to the house because [he] didn’t think anybody called so” he called the emergency services number himself. He then attended to his father. [ 19 ] Surprisingly, Mr. Cormier claimed that only his father and Ms. Saunders were at the apartment with him that evening. He denied the presence of Mr. Scott. [ 20 ] A number of other witnesses testified to what happened in the aftermath of the stabbing. Several of these people rendered assistance to Mr. Eldridge and to Mr. Cormier Sr.

None could shed any light on the events that preceded their injuries. Two pipes were found at the scene of the stabbing. One of them, a plastic pipe with an end that had been closed by a melted-on plastic cap, may have been filled with batteries in order to give it some weight. The end had broken and the police found some batteries on the ground next to the broken cap. An autopsy revealed two puncture wounds to Mr. Eldridge’s chest area. One was approximately an inch or so in depth and was not the cause of death. The fatal wound penetrated more than three inches and pierced Mr.

Eldridge’s heart. [ 21 ] The defence did not call any witnesses to testify. B. The addresses of counsel [ 22 ] In her address to the jury, Crown counsel outlined the undisputed facts: Spencer Eldridge died between 10 and 11 PM on May 13, 2014, in front of the apartment building where Mr. Cormier’s father lived; he died as a result of a stab wound to the heart; the wound was inflicted by Mr. Cormier. According to prosecuting counsel, Mr. Cormier intended the natural consequences of his actions, which, therefore, meant he would have intended to kill, or to cause grievous injury to Mr. Eldridge.

Crown counsel argued Mr.

Cormier made the deliberate choice to confront Mr. Eldridge when he and Mr. Beckingham returned to Mr. Cormier Sr.’s apartment that night and that is why he texted Mr. Scott. She continued: … his father put gloves on, armed himself with a silver long pipe, that Frederick Cormier Jr. called his friend to help him, both arm themselves with a knife. This was not done on the spur of the moment. He had the stated intent on addressing this situation. They are not the actions of someone deprived of self-control. He is making choices.

There are no signs of struggle, no fight, no arguing, no injuries to the accused or on Mr. Cormier, Sr. He was behind a closed door. He chose to open that door. He was in front of him. He could have pulled away, go back into the residence at any time or he could have stayed inside like he did earlier that day. The evidence before you is clear that he was in front of him and that he stabbed him directly in the chest. Again, no indication of a fight. The victim was armed with a black pipe. The accused never got hit with it. It was thrown at his father and that he moved away when it happened.

The victim was no longer armed at this point. [Emphasis added in order to note that there appears to be no evidentiary foundation for this statement] [ 23 ] Crown counsel refuted any suggestion this was a case of self-defence by pointing to the fact Mr. Cormier did not have any injuries. She claimed “the accused employed deadly force to punish the victim because he tried to assault his father”. She argued Mr. Cormier’s application of force to the person of Mr. Eldridge was not reasonable in the circumstances. This is what she said to the jury: … I’ll address it as to the relevant factors.

We speak of the nature of the force or threat. There was no force used against the accused but a pipe was thrown at his father’s person. Threats. The ongoing texting to fight or according to the accused the threats made at the residence when he was behind a closed door. The extent to which the use of force is- was imminent and whether there was other means available to respond to the potential use of force. He left the confinement of his father’s residence. He opened the door, he swung and poked him, not once, but twice. No iminent force because of the barrier of the house. What other means abound? Stay inside?

Call the police? Do both? Now the person’s role in the sense, we know the victim at this point was tormenting the accused. We know that. Now the Court will ask you to address as well whether any party to the incident used or threatened to use a weapon. Well we can say all parties had weapons. The victim had a black pipe. The accused had a buck knife. Mr. Colin Scott had a knife. Mr. Senior had a long silver pipe. We suggest to you that a weapon used by the accused probably was the most dangerous.

The nature, duration or history and any relationship between the parties to the incident including any prior use of threat or force in nature of that force or threat, another element you have to consider. So there is two prior incidents on that date. We know there is a verbal altercation on Champlain Street at which point a bystander at this point runs to call the police and the victim leaves. We also- there’s a verbal altercation early in the evening when the victim and Anthony Beckingham show up. The accused stayed inside the residence and the victim leaves. Those incidents to us reveal a clear history.

First if you threaten to call the police people leave. If you stay inside your residence and don’t engage in anything, nothing bad will happen. Any history of interaction between these parties- yes we knew there was text messaging going on, something about money owed and then the girlfriend owing money and then I guess we could call it trash talking. Another element [the trial judge] will mention to you the nature and … personality of the person's response to use of threat, force and its nature. The proportionality. We suggest to you that the accused’s act was grossly disproportionate.

His response was not in defence. It was an attack by its nature. He was not swinging a knife causing cuts to the hands or arms or wounds. It was a straight stab. Straight in- stabbing someone with a knife entirely different than throwing a pipe at someone. Further, that person backed away, trying to get into his car. Not a response to a threat or force. This is seeking out physical contact. This person was going and seeking out with that knife.

You should be satisfied beyond a reasonable doubt that given the nature of the force used by the accused and the contact that was employed, the force used by him was unnecessary, disproportionate and unreasonable. Nothing before you could absolve him from his actions. The texting, the pipe throwing on his father’s person, their presence in front of the residence, nothing. Calling it – mentioning comment is and I’ll quote it. There is a barrier to self defence, the self defence argument.

And that barrier was the front door, which the accused chose to open. [Emphasis added] [ 24 ] Crown counsel also submitted this was not a case of provocation and invited the jury to return a verdict finding Mr. Cormier guilty of second degree murder. [ 25 ] For his part, defence counsel emphasized the presumption of innocence and the burden on the Crown to prove guilt beyond a reasonable doubt. He then focused, almost immediately, on self-defence, emphasizing the importance, in the circumstances, of the text messages in which Mr. Eldridge had clearly threatened Mr. Cormier.

He rhetorically asked what a normal person would think when “receiving these types of threats”. Add to that the fact Mr. Eldridge sought out Mr. Cormier on three occasions on the day in question, defence counsel argued, one could not otherwise but conclude that “it’s not unreasonable to expect” Mr. Cormier’s reaction, which was to take up arms and defend himself. Defence counsel submitted Mr. Cormier and his father had a right to defend their own property and argued the force they used was reasonable in the circumstances. Responding to Crown counsel’s argument that Mr.

Cormier should have stayed inside, defence counsel replied:

The Crown indicates that it’s Mr. Cormier’s duty to back off and [not] come out the door. I submit to you the duty or the obligation here should have been for Spencer Eldridge to back off. Why would anyone expect that the person whose property was being trespassed and he was being threatened why would anyone expect them to back off? [ 26 ] Defence counsel submitted there was no evidence Mr. Cormier ever intended to kill or even to wound Mr. Eldridge. This was a simple case of repelling force with force, that is self-defence, and he urged the jury to acquit Mr. Cormier. C.

The judge’s charge to the jury [ 27 ] During the pre-charge discussion, counsel for Mr. Cormier expressed concern with respect to Crown counsel’s submission. He stated: “I’m saying that the defence of property was […] not the main issue that I had here. It’s self-defence as far as I’m concerned but I want to make it clear, [Crown counsel] is saying […] he shouldn’t have opened the door, he shouldn’t have come out. But he has the right”. Later, he adds: “They have a right to go outside and defend their property.

However, I’m not saying that that’s what they were doing in this particular case because I’m not sure the evidence supports defence of property but it means that they didn’t – they don’t have to stay inside the house with the door locked. That’s the issue I have because I don’t think the law says that”. [ 28 ] The trial judge opted not to charge the jury on the defence set out in s. 35 of the Criminal Code : defence of property.

He chose instead to instruct the jury on self-defence and provocation. [ 29 ] The judge’s charge to the jury began with a review of the various principles applicable to a criminal law jury trial, including the duties of each juror and general criminal law principles such as the burden of proof, the standard of proof beyond a reasonable doubt and the assessment of evidence. No exception is taken to this part of the judge’s charge. Next, the judge turned to the elements of the charge, explaining that in order to convict, the prosecution must have proven beyond a reasonable doubt that: “1) Mr.

Cormier committed an unlawful act; 2) Mr. Cormier’s unlawful act caused Spencer Eldridge’s death; and 3) that Mr. Cormier had the intent required for murder”. [ 30 ] The judge explained that self-defence related to the question whether Mr. Cormier’s act in stabbing Mr. Eldridge was unlawful. He explained the defence as follows: Self defence requires that all of the following three conditions be present, all three. These conditions are: 1) that Mr. Cormier believed on reasonable grounds that force and/or threat of force was being used against him or against another person; 2) that Mr.

Cormier committed the act for the purpose of defending or protecting himself or another person from the use of force or threat; and 3rd) that Mr. Cormier’s act was reasonable in the circumstances. Mr. Cormier is not required to prove that he acted in self defence. The Crown must prove beyond a reasonable doubt that Mr. Cormier did not act in self defence. Since self defence requires that all of the conditions exist, if the Crown proves beyond a reasonable doubt that one of the conditions for self defence was absent or missing, self defence will not apply.

Unless the Crown proves beyond a reasonable doubt that at least one of those conditions does not exist you must acquit on second- degree murder. To decide whether the Crown has proved beyond a reasonable doubt that Mr. Cormier did not act in self defence you will have to consider three questions and it relates to the three conditions. 1) Has the Crown proved beyond a reasonable doubt that Mr. Cormier did not believe on reasonable grounds that force or the threat of force was being used against him or another person? 2) Has the Crown proved beyond a reasonable doubt that Mr.

Cormier did not commit the act for the purpose of defending or protecting himself from the use of threat or force? Or thirdly, has the Crown proved beyond a reasonable doubt that Mr. Cormier’s act was not reasonable in the circumstances? In determining whether Mr. Cormier’s act was reasonable in the circumstances you must consider the relevant circumstances of Mr.

Cormier, of the other people involved and the act itself including but not limited to the following factors: 1) the nature of the force or threat; 2) 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; 3) Mr.

Cormier’s role in the incident; 4) Whether any of the people involved used or threatened to use a weapon; 5) the size, age, gender and physical capabilities of those involved in the incident; 6) the nature, duration and history of any relationship among the people involved in the incident including any prior use or threat of force and the nature of that force or threat, any history of interaction or communication among the people involved in the incident- if I didn’t say that was number seven, that was number seven; and finally the nature and proportionality of Mr.

Cormier’s response to the use or threat of force. [ 31 ] The trial judge then proceeded to comprehensively review the evidence adduced at trial, following which he reminded the jury that his review of the evidence was “intended to respond to the assessment [the jury needed] to make with respect to self-defence”. He reiterated that unless the prosecution had discharged its burden with respect to at least one of the conditions of self- defence, Mr. Cormier was entitled to be acquitted. [ 32 ] If self-defence was rejected, the judge continued, the jury then had to determine whether it was satisfied

beyond a reasonable doubt that:

(1) Mr. Cormier’s unlawful act caused Mr. Eldridge’s death; and

(2) Mr. Cormier had the requisite intent for murder. The judge then addressed the defence of provocation, explaining to the jury that, unless the prosecution had shown one of the following four conditions was not met, what would otherwise be murder would constitute manslaughter: “ 1) There was a wrongful act or insult that was sufficient to deprive an ordinary person of the power of self-control; 2) When Mr. Cormier killed Spencer Eldridge he had lost the power of self-control as a result of the wrongful act or insult; 3) The wrongful act or insult was sudden; and 4) Mr.

Cormier’s act that caused Spencer Eldridge’s death was committed suddenly and before there was time for his passion to cool”. [ 33 ] The jury charge then turned to the respective positions of the prosecution and of the defence. Simply stated, the prosecution theorized the facts demonstrated the requisite elements of murder, while the defence maintained Mr. Cormier acted in self-defence. [ 34 ] Neither party objected to the judge’s charge. III. Grounds of Appeal [ 35 ] In his Notice of Appeal, Mr.

Cormier submitted the trial judge’s instruction to the jury contained errors concerning both self-defence and manslaughter. The ground relating to the judge’s instructions on manslaughter was not seriously pursued. In fact, in his written submission Mr. Cormier merely says a new trial should be ordered because the jury was not clearly told that manslaughter is a form of culpable homicide. This ground is without merit and is summarily dismissed. In a supplementary Notice of Appeal, Mr.

Cormier raised the trial judge’s failure to instruct the jury on the concept of “defence of property” as set out in s. 35 of the Criminal Code . [ 36 ] Before us, counsel for the Attorney General contended the trial judge’s jury instructions were not flawed and observed that Mr. Cormier had not specifically requested the trial judge to instruct the jury with respect to defence of property.

Alternatively, the Crown submitted that, if there was error, it did not affect the verdict, which could therefore be upheld by application of the curative provisions of the Criminal Code ( s. 686(1) (b)(iii)). [ 37 ] The appeal raises two questions of law: (1) was the jury properly instructed on self-defence; and (2) was there an air of reality to defence of property such that this defence should have been left with the jury. Both of these grounds are reviewable on a standard of correctness. [ 38 ] In our view, both of these questions must be answered “no”.

For the reasons set out below, we conclude the jury was not properly instructed on self-defence. Although we find that defence of property should have been explained to the jury as it could justify some of Mr. Cormier’s actions that night, that defence was not the basis upon which an acquittal could be possibly be justified. Thus, there was no air of reality to it. IV. Analysis A. Overview of the current law of self-defence and defence of property [ 39 ] On March 11, 2013, the Citizen’s Arrest and Self-Defence Act , S.C. 2012, c. 9, came into force.

The former ss. 34 to 42 of the Criminal Code were replaced with new self-defence provisions found in ss. 34 - 35 . The relevant provisions read as follows: Defence of Person Defence – use or threat of force Défense de la personne Défense – emploi ou menace d’emploi de la force

(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. Factors

(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; 34

(1) N’est pas coupable d’une infraction la personne qui, à la fois :

a) croit, pour des motifs raisonnables, que la force est employée contre elle ou une autre personne ou qu’on menace de l’employer contre elle ou une autre personne;

b) commet l’acte constituant l’infraction dans le but de se défendre ou de se protéger – ou de défendre ou de protéger une autre personne – contre l’emploi ou la menace d’emploi de la force;

c) agit de façon raisonnable dans les circonstances. Facteurs

(2) Pour décider si la personne a agi de façon raisonnable dans les circonstances, le tribunal tient compte des faits pertinents dans la situation personnelle de la personne et celle des autres parties, de même que des faits pertinents de l’acte, ce qui comprend notamment les facteurs suivants :

a) la nature de la force ou de la menace;

b) la mesure dans laquelle l’emploi de la force était imminent et l’existence d’autres moyens pour parer à son emploi éventuel;

c) le rôle joué par la personne lors de l’incident;

d) la question de savoir si les parties en cause ont utilisé ou menacé d’utiliser une arme;

e) la taille, l’âge, le sexe et les capacités physiques des parties en cause;

f) la nature, la durée et l’historique des rapports entre les parties en cause, notamment tout emploi ou toute menace d’emploi de la force avant l’incident, ainsi que la nature de cette force ou de cette menace;

(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. f.1) l’historique des interactions ou communications entre les parties en cause;

g) la nature et la proportionnalité de la réaction de la personne à l’emploi ou à la menace d’emploi de la force;

h) la question de savoir si la personne a agi en réaction à un emploi ou à une menace d’emploi de la force qu’elle savait légitime.

Defence of Property 35

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

a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property; (

b) they believe on reasonable grounds that another person (

i) is about to enter, is entering or has entered the property without being entitled by law to do so, (ii) is about to take the property, is doing so or has just done so, or (iii) is about to damage or destroy the property, or make it inoperative, or is doing so; (

c) the act that constitutes the offence is committed for the purpose of (

i) preventing the other person from entering the property, or removing that person from the property, or (ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and (

d) the act committed is reasonable in the circumstances. Défense des biens 35

(1) N’est pas coupable d’une infraction la personne qui, à la fois :

a) croit, pour des motifs raisonnables, qu’elle a la possession paisible d’un bien ou agit sous l’autorité d’une personne – ou prête légalement main-forte à une personne – dont elle croit, pour des motifs raisonnables, qu’elle a la possession paisible d’un bien;

b) croit, pour des motifs raisonnables, qu’une autre personne, selon le cas : (

i) sans en avoir légalement le droit, est sur le point ou est en train d’entrer dans ou sur ce bien ou y est entrée, (ii) est sur le point, est en train ou vient de le prendre, (iii) est sur le point ou est en train de l’endommager, de le détruire ou de le rendre inopérant;

c) commet l’acte constituant l’infraction dans le but, selon le cas : (

i) soit d’empêcher l’autre personne d’entrer dans ou sur le bien, soit de l’en expulser, (ii) soit d’empêcher l’autre personne de l’enlever, de l’endommager, de le détruire ou de le rendre inopérant, soit de le reprendre;

d) agit de façon raisonnable dans les circonstances.

(1) Self-defence [ 40 ] Section 34(1) enumerates three criteria, all of which must be present for the defence to be available. In other words, self-defence is not applicable if the prosecution proves beyond a reasonable doubt that one of these criteria has not been met. They are: 1) Reasonable belief : the accused must reasonably believe that force or threat of force is being used against him or someone else (the

subjective perception is objectively verified); 2) Defensive purpose: the subjective purpose for responding to the threat must be to protect oneself or others (this is a subjective stateof mind); and 3) Reasonable response: the act committed must be reasonable in the circumstances (this is objectively assessed). See R. v. Bengy, 2015 ONCA 397, [2015] O.J. No. 2958 (QL), at para. 28. [41] The amendment codifies two elements of self-defence flowing from the Supreme Court’s decision in R. v.Lavallee, (SCC), [1990] 1 S.C.R. 852, [1990] S.C.J.

No. 36 (QL); one being that imminence of the attack is not a rigidrequirement in order for the defence to succeed, but is a factor to be considered when assessing the reasonableness of an accused’sresponse; the other being the nature of the abusive relationship between the accused and the victim is also a factor when assessing thereasonableness of the accused’s actions. [42] The notion of “unlawful” assault as a requirement of the defence under the now repealed provisions iseliminated. Substituted is the concept of a reasonable perception of force or threat of force.

In addition, the assessment of thereasonableness of the accused’s response to a threat has changed. The Supreme Court in R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R.627, had suggested that reasonableness could be substituted for the concept of “no more force than necessary” (para. 22). Whether anaction is reasonable is now assessed through the lens of the nine non-exhaustive factors set out in s. 34(2). [43] Professor Kent Roach, in an

article titled A Preliminary Assessment of the New Self-Defence and Defence ofProperty Provisions 2012, 16 Canadian Criminal Law Review 275, comments on what he calls the “heart of the new self-defence anddefence of property” provisions; comments with which we agree. He states: The heart of the new self-defence and defence of property resides in section 34(1)(

c) and section 35(1)(

d) which respectively require thatacts in defence of self and others and property be “reasonable in the circumstances.” These requirements will be the critical and perhapsillusive issue in most cases. The new provisions, however, offer little guidance in determining this issue. In the case of self-defence, thenew section 34(2) simply instructs the trier of fact to consider nine enumerated but non-exhaustive factors. In the case of defence ofproperty, no legislative guidance is provided in determining what may be reasonable in the circumstances.

One is tempted to suggest thatthe new section 34(2) offers too much in terms of factors that must be considered in determining whether the act was reasonable whilesection 35 fails to offer any guidance at all. The result in both cases, however, is the same. The reasonableness of any particular act willbe seen as a prototypical question of judgment that is associated with jury determinations, whether or not the trial is one of those rareones that is conducted with a jury. In other words, any assessment of the new provisions must of necessity be preliminary.

The courtswill have to flesh out the meaning of reasonableness and its relation to the previous self-defence and defence of property provisions incases to come. [44] Justice David Paciocco, in a paper titled The New Defence Against Force (2014), 18 Canadian Criminal LawReview 269, comments on the new self-defence provision as follows: Without question, this new defence against force is not only simpler than the pre-existing law of self-defence and defence of another, butit is also more generous. This is so even though the three fixed factual prerequisites now found in

section 34 also existed for each of thenow defunct self-defence provisions. What makes it possible for the new provision to operate more generously in cases of self-defence isthe flexibility of its evaluative component.

The old law variously imposed rigid fixed preconditions to self-defence including the absenceof provocation, proportionality (commensurate force); necessity (required force); and even in some cases an attempt to quit or to flee.While decision-makers must consider similar factors under the new provisions, decision-makers now have discretion on the impact suchfactors will have, leaving them free to grant the defence in their absence, something not possible under the old law.

Even though the prospect has been called more theoretical than real, there are also times when self-defence and defence of another couldfail under the new provisions where they could have succeeded under the old. To take a simple example, some of the existing provisionspermitted excessive force, even if it was not commensurate with the assault being defended against. The current law imposes no suchlimits, permitting the decision-maker to convict because the force used in self-defence exceeds the force that was threatened.

Similarly,previous provisions used a narrow concept of provocation, permitted provocation to be considered in only some cases, and only then todetermine what factors could be considered. Provocation was not an evaluative factor in its own right. Now the role of the accused in theincident, including but not limited to provocation, is an evaluative factor that the decision-maker is free to use in all cases. This makes itentirely possible for an accused to be denied the defence because he was the author of his own misfortune even when the previousprovisions would not have allowed this to be considered.

[45] Early caselaw interpreting the amendment in question echoes the sentiment that the new self-defence provisionappears to be easier to apply than its predecessor. In R. v. Levy, 2016 NSCA 45, [2016] N.S.J. No. 211 (QL), Beveridge J.A. states: […] On its face, the defence is far simpler. One

section applies to all forms of self-defence. If there is an air of reality to self-defence, nooffence is committed unless the Crown disproves at least one of the following: 1) that the accused believed on reasonable grounds thatforce or a threat of force was being used or made against them or another person; 2) the accused’s acts were done for the purpose ofdefending or protecting themselves or another; 3) the act was reasonable in the circumstances.

For the latter element, the trier of fact isdirected to take into account the non-exclusive list of nine factors found in s. 34(2). […] [para. 107] [46] In a Technical Guide For Practitioners released by the Department of Justice titled Reforms to Self-Defence andDefence of Property: Technical Guide for Practitioners, Department of Justice, Canada, March 2013, the authors note that Parliament’sintention was to simplify the legislative text; however, the amendment is not meant to substantially alter the principles of self-defence.

Intruth, however, the new provisions have substantially altered the principles of self-defence. In R. v. Evans, 2015 BCCA 46, [2015] B.C.J.No. 189 (QL), Frankel J.A. concludes the new provisions mark a substantive change in the law resulting in a more generous applicationwhich could lead to more acquittals than under the old regime. We agree.

(2) Defence of property [47] As for the defence of property provisions, these appear to be very broad.

Section 35 applies to a wide range ofoffences and to any type of property. The provision establishes the types of interference with “peaceable possession” of property that cantrigger a defensive response. The defence is triggered upon a reasonably based belief of peaceable possession of property and of anotherperson’s specific actions regarding that property, i.e. either: (1) about to enter, entering or having entered to the property without lawfulentitlement; (2) about to take, taking or having just taken the property; or (3) about to damage or destroy or in the process of damaging ordestroying the property or making it inoperative. Upon the defence being triggered,

an act committed to prevent the triggering event isjustified provided it is “reasonable in the circumstances”. The defensive purpose requirement is to be assessed subjectively. On the otherhand, the reasonableness of the response is objectively assessed. However, unlike the enumeration of factors to aid assessing this in self-defence cases (s. 34(2)), s. 35 offers no legislative guidance. [48] The extent of reasonableness under s. 35 remains to be jurisprudentially determined.

Before the Citizen’sArrest and Self-Defence Act came into force, jurisprudence had clearly established that it was not reasonable to kill someone to prevent acrime directed only against property: R. v. Gee, (SCC), [1982] 2 S.C.R. 286, [1982] S.C.J. No. 69 (QL), per Dickson J. (as he then was) quoting Halsbury’s Laws of England (4th ed.), vol. 11, at p. 630. This had long been the law, as noted in Rossignol v. R.,2005 NBCA 11, [2005] N.B.J.

No. 36 (QL), dealing with the now repealed s. 41(1) of the Criminal Code, which allowed one inpeaceable possession of real property to use as much force as necessary to prevent or stop a trespass: It is settled law that s. 41 of the Criminal Code does not apply when the force used by the person in possession of the real property toremove a trespasser causes the trespasser’s death. Only the application of s. 34 could justify the use of such force: see R. v. Price (1835),7 Car. & P. 178,173 E.R. 78, R. v. Baxter (1975), (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.), R. v.

Scopelliti (1981), (ON CA), 34 O.R. (2d) 524 (C.A.), R. v. Clark (1983), 1983 ABCA 65 , 44 A.R. 141 (C.A.) and R. v. Bacon,[1999] Q.J. No. 19 (C.A.)(QL). [para. 12] [49] Professor Kent Roach, in his article, laments the fact that Parliament was silent on the issue of proportionalityin s. 35, although it made it a consideration in self-defence cases by listing it as one of the factors to be considered under s. 34(2). Recallthat “the nature and proportionality of the person’s response to the use or threat of force” is listed as a factor in s. 34(2)(g).

ProfessorRoach opines that “courts should read in such a proportionality requirement in the absence of clear legislation displacing the extensiveproportionality jurisprudence”. In the

summary portion of his article, Professor Roach notes that absence of proportionality as a criterionin s. 35 opens up the “disturbing possibility that intentional killing in the defence of property could result in an acquittal”. [50] Frankly, it is difficult to conceive how the killing of an individual solely to defend one’s property could everbe found to be a reasonable response in the circumstances. What usually occurs is that the force used to prevent interference with one’sproperty is resisted and the aggression of the trespasser turns the situation into one of self-defence. Professor Roach makes this point:

The old defence of property provisions provided that a trespasser who resisted an attempt to protect personal or real property would be deemed to have committed an assault. These complex provisions are not present in the new

section 35 . Nevertheless, this does not preclude frequent overlap between defence of property and self-defence provisions. For example, a person who is protecting property may also be able to claim self-defence if they have a reasonable belief that force or a threat of force is being used against them. [ 51 ] For the reasons laid out below, we believe the present case is one in which there was in fact an overlap between defence of property and self-defence.

In our view, it would have been open for the jury to conclude that what began as a defence of property situation quickly escalated into a defence of the person case. B. Application of the law to the present case [ 52 ] In our view , and with great respect, the judge’s instructions to the jury on the issue of self-defence contain two significant shortcomings. First, the judge erred in not giving the jury a correcting instruction in response to prosecution counsel’s argument that Mr.

Cormier opening the door to the apartment was a “barrier to self-defence” and in not explaining to the jury the possible interaction between the defence of property and self-defence provisions in the circumstances of this case. Second, the judge failed to assist the jury by linking the evidence to the various factors to be considered as they applied the law to the facts.

(1) The door as a “barrier to self-defence” [ 53 ] In her address to the jury, Crown counsel forcefully argued Mr. Cormier should have remained inside his father’s home. At first, Crown counsel argued Mr. Cormier opening the door was an element to be weighed as the jury assessed the factors enumerated in s. 34(2) in determining whether his actions were reasonable in the circumstances. Recall that s. 34(2)(b), which speaks of the imminence of the use of force, is but one of the many factors to be assessed in determining whether

an act committed to defend oneself from the use or threat of force is reasonable in the circumstances. However, Crown counsel then went further. She argued the front door actually constituted a “barrier to self-defence”, in effect stating that, once Mr. Cormier chose to open the door, self-defence was no longer available. [ 54 ] In our respectful view, Crown’s counsel’s proposition that self-defence was not available because Mr. Cormier chose to open the door is one that is incorrect in law. At the very least, Mr.

Cormier’s decision to open the door would simply be one of the various factors to consider in determining the reasonableness of his response to the threats against his person. At no time, however, does the opening of the door to confront the aggressor, of itself, constitute a “barrier to self-defence”. In our view, on a reasonable

interpretation of the evidence in this particular case, Mr. Cormier’s decision to open the door is irrelevant to the reasonableness of his response to the attack by Mr. Eldridge. We explain below. [ 55 ] Crown counsel’s argument at trial that Mr. Cormier should not have removed the barrier between himself and those who wanted to do him harm is analogous to those cases in which it has been argued that one has an obligation to retreat in the face of aggression. We therefore begin with a review of common law principles that govern those cases. Quite conveniently, Watt J.A. recently undertook the same review in R. v.

Sinclair , 2017 ONCA 38 , [2017] O.J. No. 239 (QL) . While he did so in the context of the self-defence provisions under the former s. 34(2) of the Criminal Code , some of the principles are nevertheless relevant to the present case.

Recall that, under the former s. 34(2) , self-defence was available in the face of an unlawful assault (by either the actual application of force or an attempt or threat, by act or gesture, to apply force), the reasonable apprehension of a risk of death or grievous bodily harm from the assault or its pursuit and a reasonable belief that is not possible to preserve oneself from harm except by killing or seriously injuring the attacker.

In Sinclair , prosecution counsel put to the jury that the accused had had ample opportunity to get away and the trial judge had, in his charge to the jury, addressed the question of retreat by telling the jury that “[w]hile there is no obligation on the defendant to retreat, the issue of retreat, whether a defendant could retreat, may be a relevant consideration in determining whether the defendant believed on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm”.

Watt J.A. reviewed the governing principles in terms we readily adopt: A brief reminder about the obligation to retreat and the significance of evidence of a failure to do so when self-defence is put forward as a justification for killing another will assist in the resolution of this ground of appeal.

First, former s. 34(2) does not, in express terms or by necessary implication, contain any reference to retreat. The subsection imposes no obligation on the self-defence claimant to retreat. In this respect, the former s. 34(2) differs from the former s. 35 : R. v. Cain , 2011 ONCA 298 , 278 C.C.C (3d) 228, at para. 9 ; R. v. Abdalla , 2006 BCCA 210 , 209 C.C.C. (3d) 172, at para. 25 ; Proulx , at para. 44. Former s. 34(2) does not differ from the common law where retreat before using force is not an independent and imperative condition of a successful plea of self-defence: R. v.

Howe (1958),100 C.L.R. 448 (H.C.A.), at pp. 462-63 . Second, the possibility of retreat is relevant to the second and third elements of the justification afforded by the former s. 34(2). In other words, the possibility of retreat is a relevant item of evidence for the jury to consider in deciding whether the accused: i. had a reasonable apprehension of death or grievous bodily harm from the victim’s assaultive conduct; and ii. had a reasonable belief that it was not otherwise possible to save him or herself from death or grievous bodily harm except by killing or seriously harming the victim.

See Cain , at para. 9 ; Proulx , at paras. 47-49. Third, the relevance of failure to retreat on these issues may disappear when an accused had no real opportunity to do so. The absence of any real opportunity to retreat may require an instruction that the accused’s failure to do so is not relevant to the jury’s assessment of the claim of self-defence: Abdalla , at para. 26 .

Fourth, where Crown counsel misstates the relevance of retreat, or failure to retreat, as for example by telling the jury that the accused is precluded from relying on self-defence because he had failed to retreat when the confrontation began, the trial judge would be required to give the jury a correcting instruction: Cain , at para. 11 ; Proulx , at para. 50; Abdalla , at para. 27 .

Finally, even where Crown counsel has not expressly misstated the relevance of retreat, a trial judge should consider whether a corrective instruction may be necessary to alleviate the risk that the jury may have understood the Crown to be making such an erroneous submission: Cain , at para. 11 ; Proulx , at para. 50. [paras. 84-89] [ 56 ] Sinclair was a case in which the accused shot the victim to death in front of a bus shelter. Additional principles apply when an incident occurs in one’s home. In R. v. Forde , 2011 ONCA 592 , [2011] O.J.

No. 4049 (QL) , LaForme J.A., for the Court, discusses retreat in this context. He notes it is well-established at common law that a person has “the right to defend him or herself in his or her own home without the duty to retreat from the home in face of an attack” (para. 38).

He explains that retreat in anticipation of an attack is a factor for the jury to consider in assessing the reasonableness of self-defence but, in the case of an attack while in one’s own home, not only is there no requirement to retreat, but “[r]ather, far from retreating, [an accused] would [also] have been entitled … to use such force as was necessary to remove the complainant therefrom” (para. 42, quoting from R. v. Antley [1963] O.J. No. 853 (C.A.) (QL) . LaForme J.A. also points to decisions of the British Columbia Court of Appeal, including R. v. Proulx , [1998] B.C.J.

No. 1708 (C.A.) (QL) , in which it was held that it is “a reversible error for the trial judge to fail to point out that the accused was not required to consider fleeing from his house” (para. 45). [ 57 ] The case law generally speaks of one not having to retreat from one’s own home . The rationale behind the principle that one does not have to retreat from one’s own home is that one is legally entitled to use force to remove an intruder. The Citizen’s Arrest and Self-Defence Act preserves this right for those in peaceable possession of property.

Not only that, it extends the same right to one who is lawfully assisting a person whom they believe on reasonable grounds is in peaceable possession of property. Thus, under s. 35 , not only could Mr. Cormier Sr. act to prevent Messrs. Eldridge and Beckingham from entering his property, but Mr. Cormier was legally entitled to assist him in doing so.

As was stated in Antley and repeated in Forde , rather than requiring retreat in those circumstances, the law allows a person to use such force as necessary to remove the intruder. [ 58 ] In Sinclair , Watt J.A. found “neither Crown counsel in her closing address, nor trial judge in his instructions to the jury [had] misstated the law about retreat”. The same cannot be said in the present case in respect to Mr. Cormier’s lawful entitlement to assist his father in the circumstances.

[ 59 ] In our view, the principles governing “retreat” outlined above have analogous application to the present case. Here, prosecution counsel did not technically suggest Mr. Cormier had an obligation to retreat from his father’s home. What counsel argued was that Mr. Cormier should have stayed inside the apartment and kept the door closed between himself and Mr. Eldridge. In some circumstances, that argument, if limited to addressing the factor to be considered under s. 34(2)(b), might be justified. However, the present circumstances do not justify that argument when one considers s. 35 of the Criminal Code .

Mr. Cormier was lawfully entitled to assist his father in preventing an intrusion into the latter’s apartment. [ 60 ] Moreover, and of critical importance, Crown counsel at trial went further than simply arguing Mr. Cormier’s failure to stay inside undermined his claim that his act vis-à-vis Mr. Eldridge was reasonable in the circumstances. Crown counsel actually argued Mr. Cormier’s failure to remain inside negated self-defence. Such a claim clearly constitutes a misstatement of the law.

As Watt J.A. points out in Sinclair , such a misstatement requires the trial judge to give a correcting instruction. [ 61 ] Recall that Professor Roach alluded to cases in which there might be an overlap between defence of property and self-defence. In our view, this is one of those cases. The evidence revealed that Mr. Eldridge had repeatedly threatened Mr. Cormier over the course of the day. Twice Mr. Cormier retreated. After the last of these, Mr. Eldridge sent Mr. Cormier more threatening texts following which Messrs. Eldridge and Beckingham returned to the Cormier residence.

Section 35 of the Criminal Code provides that one who believes they are in peaceable possession of property or who is assisting one who is in such possession and who believes on reasonable grounds that another person “is about to enter […] the property without being entitled by law to do so” or is about to damage the property is justified to act to prevent this if the act is reasonable in the circumstances. [ 62 ] Had the jurors been instructed on the application of s. 35 , there is no question that, on a reasonable

interpretation of the evidence, it would have been open for them to conclude that, when he armed himself with a knife and opened the door, Mr. Cormier did exactly what the law allows him to do under s. 35 : use reasonable force to prevent Messrs. Eldridge and Beckingham from entering or damaging the property under the peaceful possession of Mr. Cormier Sr. Had the jury made this finding, it would have been holding that, when Mr. Cormier armed himself and opened the door to prevent an intrusion into his father’s home, Mr. Cormier was properly acting in defence of property. Had the jury found that Mr.

Cormier was justified in doing what he did up to that point, how can it be said that the door was a barrier to self-defence? The need for self-defence arguably only arose when Mr. Cormier reasonably apprehended the threat of imminent bodily harm when he saw Mr. Eldridge, armed with a pipe, coming at him. It is only at that point that Mr. Cormier used his knife to stab Mr. Eldridge. [ 63 ] In our view, the jury should have been told that Mr. Cormier was lawfully entitled to repel Messrs. Eldridge and Beckingham from entering into or damaging Mr.

Cormier Sr.’s home, provided what he did to that end was reasonable in the circumstances. There was no evidence the actual stabbing was done in defending Mr. Cormier Sr.’s property, which explains why defence counsel did not ask the judge to leave defence of property with the jury as a self-standing defence against the charge. The evidence, in its most favourable

interpretation for Mr. Cormier, revealed that, when he struck out with the knife, it was to defend himself against Mr. Eldridge’s imminent attack. This is quite possibly a case in which what began as the defence of property quickly morphed into the defence of one’s person. In these circumstances, the door was certainly not a barrier to self-defence and the factor set out in s. 34(2)(

b) had no real application. [ 64 ] Of course, if the jury did not accept that Mr. Cormier was assisting his father in removing the intruders or preventing them from damaging his property, and if the jury found that all of Mr. Cormier’s actions were for other purposes, even if to defend himself because he felt threatened, then the imminence of the attack, and whether there were other means available to respond to it, would take on a greater importance in the determination of whether Mr. Cormier’s acts were reasonable in the circumstances.

However, even then, the door would not have constituted a “barrier” to self-defence, as the prosecution argued. Mr. Cormier opening the door would simply have been one factor for the jury to weigh in determining whether the stabbing of Mr. Eldridge was reasonable in the circumstances. [ 65 ] In our respectful view, Crown counsel at trial clearly misstated the relevance of the door – that is, the fact that Mr. Cormier could have chosen to remain inside the apartment instead of arming himself with a knife.

Had the jury been instructed on s. 35 and the possible interaction between defence of property and self-defence in the circumstances of this case, it might have found Mr. Cormier’s initially acted to protect his father’s property and that the stabbing was in response to an imminent threat of force as Mr. Eldridge advanced toward him armed with a pipe. Even if the jury held Mr. Cormier was, throughout the events, acting only to defend his person, his decision to open the door and to confront Mr. Eldridge would be but one factor to consider in assessing the reasonableness of Mr. Cormier’s actions.

The door would not constitute, of itself, a “barrier to self-defence”. [ 66 ] This is akin to the situation Watt J.A. referred to in Sinclair , when he stated: “where Crown counsel misstates the relevance of retreat, or failure to retreat, as for example by telling the jury that the accused is precluded from relying on self-defence because he had failed to retreat when the confrontation began, the trial judge would be required to give the jury a correcting instruction”.

In the present case, the trial judge was specifically asked to correct prosecution counsel’s misstatement that there was a “barrier to self- defence […] the front door”. In our view, the judge was required to give the jury a corrective instruction. Moreover, the trial judge

should in any event have instructed the jury on these matters regardless of Crown counsel’s statement. [67] Note we are not holding that s. 35 should have been left to the jury as a self-standing defence to the stabbing ofMr. Eldridge. There was no air of reality to defence of property being the justification for the stabbing. As we noted above, it would nothave been reasonable for Mr. Cormier to kill Mr. Eldridge solely to prevent his trespass into the apartment.

Section 35 was, however,relevant in order to properly explain to the jury how what might have begun as a lawful defence of property quickly morphed into asituation of self-defence. [68] In our view, the judge’s failure to give a correcting instruction to the jury and his failure to properly instruct thejury regarding the possible application of s. 35 to justify Mr. Cormier’s initial acts, constitute errors of law that cannot be remedied byapplying the curative proviso contained in s. 686(i)(b)(iii).

Self-defence was the central issue at trial and it was imperative the jury not beleft with the belief that by opening the door Mr. Cormier made self-defence inapplicable. Thus, on the basis of this ground alone, wewould set aside the verdict and order a new trial.

(2) Linking the evidence to the applicable legal principles [69] The responsibilities of a trial judge in a jury case, as stated in O’Brien v. R., 2003 NBCA 28, 257 N.B.R. (2d)243, per Drapeau C.J.N.B., include providing the jury with instructions that enable them to “understand the case before them and […]fulfil their adjudicative mandate” (para 26).

While we recognize that a judge’s charge to the jury is not to be assessed on a standard ofperfection and need not be the recitation of any particular formula, there is nevertheless one aspect of the judge’s charge to the jury in thepresent case that we consider to be defective. It consists of the judge’s failure to link any of the evidence to the live issues. [70] In R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, Bastarache J., for the majority of the Court, recalled, citingProulx J.A. in R. v.

Girard, [1996] J.Q. no 1528 (C.A.) (QL), that, while a trial judge is not obliged, in the charge to the jury, to set out indetail all of the evidence, what is essential “is setting out the position of the Crown and defence, the legal issues involved and theevidence that may be applied in resolving the legal issues and ultimately in determining the guilt or innocence of the accused” (para. 56).He pointed out that “[t]he extent to which the evidence must be reviewed ‘will depend on each particular case’” and that the “test is oneof fairness” (para. 57). He repeated the words of Scott C.J.M. in R. v.

Jack, (MB CA), [1993] M.J. No. 414 (C.A.)(QL), aff’d (SCC), [1994] 2 S.C.R. 310: “‘the task of the trial judge is to explain the critical evidence and the law andrelate them to the essential issues in plain, understandable language’ (para. 39)” (para. 57). [71] More recently, in R. v.

Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, Moldaver J. reiterated this principle,stating that “[i]n crafting the jury charge, a trial judge has a general duty to inform the jury of the relevant evidence, and to assist the juryin linking that evidence to the issues that it must consider in reaching a verdict” (para. 30). [72] Examples of the consequences of the failure to adhere to these directives can be found in R. v. McDonald, 2015ONCA 791, [2015] O.J. No. 6058 (QL) and R. v. Melvin, 2016 NSCA 52, [2016] N.S.J. No. 239 (QL), in which the courts allowed theappeals, set aside convictions and ordered new trials.

In McDonald, Pardu J.A. noted it was the judge’s obligation to relate “the evidenceto the law […] in a way that brought home to the jury the relationship between the law and the evidence by discussing, in concrete terms,potential scenarios available on the evidence” (para. 14). [73] In the present case, after laying out for the jury the elements of self-defence, the trial judge proceeded toreview the evidence. He summarized the testimonies of Ms. Saunders, Mr. Scott and Mr. Beckingham and highlighted a few of thefeatures of Mr. Cormier’s statement to the police.

While the judge informed the jury his review of the evidence was “intended to respondto the assessment [the jury needed] to make with respect to self-defence”, at no time did the judge link any of the evidence to the liveissues the jury had to determine in assessing the elements of self-defence. The judge did not offer to the jury in any terms, let aloneconcrete terms, any potential scenarios available on the evidence. Moreover, even if the jury rejected self-defence, in order to convictMr. Cormier of murder, it still had to be satisfied Mr. Cormier had the requisite intent to either cause Mr.

Eldridge’s death or to causehim bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not. On this point, the trial judgereferred to the testimony of the pathologist about what one would expect in inflicting a wound to the chest, but otherwise the judge didnot link any of the evidence to the issue of intent. For example, the judge did not point to Mr. Cormier’s statement that he was not evenaware he had actually stabbed Mr.

Eldridge until he saw the blood on his shirt. [74] While, in some cases, the judge’s failure to link the evidence to the live issues may not be fatal to the charge,we do not believe this to be one of those. This case raised several questions of mixed law and fact for determination by the jury and itrequired the judge to assist the jury in properly making these determinations. With respect, the judge’s charge to the jury was defective

in this regard. Again, we would not apply the curative proviso . In our view, it cannot be said that a jury properly instructed would have necessarily reached the same conclusion. V. Disposition [ 75 ] It is for these reasons we joined our colleague to allow the appeal, set aside the conviction and order a new trial. Version française de la décision de la Cour rendue par LES JUGES RICHARD ET BAIRD I.

Introduction [1] Le 13 mai 2014, Spencer Eldridge a à maintes reprises menacé Frederick Malcolm Cormier de lui causer des lésions corporelles, ce qui a finalement donné lieu à une confrontation fatale au cours de laquelle M. Cormier a poignardé M. Eldridge. L’agression à coups de couteau a eu lieu au moment où M. Eldridge et un autre homme étaient, a-t-on prétendu, sur le point d’entrer illégalement dans l’appartement du père de M. Cormier. Par mesure préventive, certains des occupants de l’appartement se sont armés pour se rendre à l’extérieur.

Comme il sortait par la porte de l’appartement sis au rez-de-chaussée, M. Cormier s’est immédiatement trouvé face à face avec M. Eldridge qui était armé d’un tuyau. Se sentant menacé, M. Cormier l’a poignardé. [2] M. Cormier a été accusé de meurtre au deuxième degré. La principale question à trancher au procès était celle de savoir si le poursuivant avait prouvé hors de tout doute raisonnable que M. Cormier n’avait pas agi en état de légitime défense lorsqu’il avait poignardé M. Eldridge. M. Cormier a été déclaré coupable. Il ressort implicitement du verdict du jury qu’il a rejeté la prétention de M.

Cormier selon laquelle il avait poignardé M. Eldridge en légitime défense. Le juge du procès a condamné M. Cormier à l’emprisonnement à perpétuité sans admissibilité à la libération conditionnelle pour une période de dix ans. [3] M. Cormier interjette appel de la déclaration de culpabilité prononcée contre lui et prétend que le juge du procès a commis des erreurs dans son exposé au jury sur la question de la légitime défense.

Il prétend également que le jury aurait dû recevoir des directives sur l’ art. 35 du Code criminel , lequel se rapporte à la défense des biens. [4] Le 2 mars 2017, à l’issue de longues délibérations, l’appel de M. Cormier a été accueilli, la déclaration de culpabilité prononcée à son endroit a été annulée et la tenue d’un nouveau procès a été ordonnée. À ce moment-là, nous avions indiqué que les motifs de notre décision suivraient. Voici donc ces motifs. II. Le contexte A.

La preuve produite [5] La preuve produite au procès ne donnait pas une image claire de la suite d’événements qui a mené au décès de Spencer Eldridge. Certains des faits qui ont précédé le coup de couteau fatal sont indéniables puisqu’ils sont exposés dans des messages textes dont il existe un relevé incontestable. Toutefois, d’autres faits sont loin d’être clairs puisqu’ils doivent être établis à partir de déclarations ou de témoignages qui étaient parfois fort contradictoires et particulièrement vagues.

[6] La preuve révèle qu’en septembre 2013, une certaine Brittany Saunders s’est engagée dans une relation amoureuse avec Frederick Cormier et que cette relation a duré jusqu’en janvier 2014 pour ensuite reprendre en mai de la même année. Dans l’intervalle, à savoir en mars et avril 2014, M me Saunders est sortie avec Spencer Eldridge. En mai 2014, les rapports entre M. Eldridge et M. Cormier étaient loin d’être amicaux. La preuve tend aussi à établir qu’il existait un autre lien entre les deux hommes : M. Eldridge devait de l’argent à M. Cormier.

Les échanges plutôt sibyllins nous amènent à inférer que la dette avait peut- être un rapport avec la drogue. [7] Le relevé des messages textes que se sont envoyés M. Cormier et M. Eldridge révèle un échange qui a eu lieu dans la matinée du 13 mai 2014 et dans lequel M. Cormier cherchait à obtenir de l’argent que, estimait-il, M. Eldridge lui devait. M. Eldridge a répondu qu’il n’avait pas [TRADUCTION] « l’argent » de M. Cormier. Lorsque cet échange a eu lieu, M. Cormier se trouvait au domicile de M me Saunders, endroit où il est resté jusque vers midi. Après que M.

Cormier eut quitté le domicile de M me Saunders, M. Eldridge est arrivé. Il a parlé à M me Saunders et a menacé [TRADUCTION] d’« enfoncer un marteau dans la tête de Freddy [M. Cormier] ». Il a été informé que M. Cormier n’était plus là. Comme M. Eldridge était sur le point de partir, il a vu M. Cormier qui revenait à pied. Un échange hostile s’en est ensuivi entre eux et il a pris fin lorsque M. Eldridge est parti après qu’un tiers eut menacé d’appeler la police. Selon M. Cormier, pendant cette altercation, M. Eldridge [TRADUCTION] « a brandi un marteau pour [le] frapper ». [8] M.

Cormier et M me Saunders ont ensuite décidé de se rendre à l’appartement du père de M. Cormier qui était situé quelques rues plus loin. [9] Au milieu de l’après-midi, M. Cormier a menacé M. Eldridge par message texte, lui disant que s’il ne payait pas sa dette, [TRADUCTION] « quelqu’un allait passer [lui] rendre visite ». Ce fut le début d’une suite d’échanges dans lesquels M. Eldridge a mis M. Cormier au défi de venir se battre. M. Cormier a présenté ses excuses à M. Eldridge; toutefois, à partir de 16 heures environ, M. Eldridge a envoyé à M.

Cormier une série de messages textes dans lesquels il le mettait au défi soit de se battre soit de quitter le secteur ouest de Saint John. M. Eldridge a continué d’envoyer des messages textes jusque vers 19 h 46. Cette série de trente-huit messages textes est restée sans réponse. [10] À la brunante, pendant qu’ils fumaient à l’extérieur de l’appartement du père de M. Cormier, M. Cormier et M me Saunders ont aperçu M. Eldridge et un dénommé Anthony Beckingham qui s’approchaient à pied. M. Cormier et M me Saunders se sont repliés à l’intérieur et ont fermé la porte à clef.

Il y a ensuite eu, par la fenêtre de l’appartement qui était sis au rez-de-chaussée, un échange hostile entre M. Cormier et M. Beckingham, lequel essayait de faire sortir M. Cormier. Comme MM. Beckingham et Eldridge étaient sur le point de s’en aller, un [TRADUCTION] « tintement » provenant de l’avant du bâtiment a été entendu, [TRADUCTION] « comme si quelque chose avait heurté la fenêtre ». [11] Entre 21 h 36 et 21 h 52, M. Cormier a reçu huit autres messages textes provenant du téléphone de M.

Eldridge; dans ces messages ce dernier lui disait que l’occasion lui avait été donnée de rectifier les choses et il le menaçait de casser chaque fenêtre de l’endroit où M. Cormier pouvait demeurer, quel que fût cet endroit, à moins qu’il ne paye au moins 400 $ à M. Eldridge. Il est à remarquer que plus tôt, c’est M. Cormier qui avait exigé de M. Eldridge qu’il lui rembourse une dette. Maintenant, M. Eldridge prétendait que M. Cormier était redevable d’une somme que M me Saunders lui devait.

M me Saunders a répondu à ce message texte et elle lui a dit qu’elle paierait les 400 $ ou peut-être même plus le premier du mois suivant. M me Saunders et M. Eldridge se sont ensuite échangé environ dix-sept messages, échange qui a pris fin à 22 h 11 lorsque M me Saunders a posé la question suivante à M. Eldridge : [TRADUCTION] « Franchement, est-ce que c’est moi la cause de cette querelle? » [12] À un certain moment pendant la soirée, un certain Colin Scott a reçu de M. Cormier un message texte qui l’a amené à croire que ce dernier était en quelque sorte en danger. M. Scott s’est rendu à l’appartement de M.

Cormier père. Pendant qu’il s’y trouvait, MM. Eldridge et Beckingham sont revenus, cette fois en voiture. [13] Les événements cruciaux qui ont suivi le retour de MM. Eldridge et Beckingham à l’appartement de M. Cormier père sont difficiles à établir. Seules trois des personnes présentes cette soirée-là ont témoigné au procès : M. Beckingham, M. Scott et M me Saunders. Leurs témoignages ont été, c’est le moins que l’on puisse dire, vagues et souvent incompatibles. M. Cormier père, qui était également présent cette soirée-là, n’a pas témoigné. La version des évé

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