2012 QCCA 243, 2012 QCCA 243

Unofficial English Translation Couture c. R. 2012 QCCA 243 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002567-100 (200-01-139285-096) DATE: February 6, 2012 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. BENOÎT MORIN, J.A. WILLIAM COUTURE APPELLANT - Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on September 30, 2010, by the Court of Quebec, Criminal and Penal Division, District of Quebec (the Honourable Judge Anne-Marie Jacques), which convicted him of assault causing bodily harm (s. 267(

b) Cr. C. ) and obstruction of justice (s. 139(2) Cr. C. ). Alternatively, he also appeals from the sentencing judgment. [ 2 ] Let us first consider the conviction. [ 3 ] The events relating to the charge of assault occurred in Lévis, on the outside patio of a bar, on March 29, 2009, around 2:00 a.m. The appellant hit Mr. J. G. [the complainant], a work colleague, in the face, while holding a beer glass. The assault is admitted.

He argues self-defence. [ 4 ] On the charge of obstruction, the appellant is criticized for having offered money to the complainant and having uttered threats against him to get him to drop the charges. [ 5 ] Let us first consider the charge of assault causing bodily harm . [ 6 ] The trial judge pointed out that the only four people who could [translation] "tell us what happened in the seconds leading up to the hit are": the appellant, the complainant, Michaël Lemelin [Lemelin] and Jean-Simon Roy [Roy]. [ 7 ] The judge did not accept the complainant's version respecting his comings and goings on the night of the events, but accepted, amongst other things, that at two o'clock in the morning [translation] "when he went outside, he was speaking loudly and looking for his friend Lemelin" since his version was corroborated.

In light of the events took place on the patio of the bar, [1] she relied on the versions related by other witnesses because of the inconsistencies between the appellant's testimony and the rest of the evidence. [ 8 ] The judge did not believe the appellant's assertion that he was alone with the complainant and someone by the name of Yannick, who had thrown the complainant out of the bar some time earlier, when the altercation occurred. She found that there were people nearby.

Also, she did not believe the appellant [translation] "when he says that J. [2] took out a knife and was jumping up and down, and then rushed him". This assertion was confirmed by neither Lemelin nor Roy, which shook the appellant's credibility. The judge went on to say that the appellant had little to no credibility. [9] But the judge also stated that it was dark, that [translation] "it all unfolded very quickly", and that the complainant was aggressive and certainly not sober.

Overall, she found that the appellant's testimony raised a reasonable doubt, thereby giving rise to self- defence. [10] The judge then decided that subsection 34(2) Cr. C. applied. She explained that to justify the use of force, the appellant had to raise a doubt regarding three elements: (1) the existence of an unlawful assault; (2) the reasonable apprehension of a risk of death or grievous bodily harm; (3) the [translation] "reasonable, subjective and objective belief that he could not escape or avoid the danger other than by grievously injuring his opponent or assailant".

[11] The judge then accepted "in part" the appellant's version and found that the appellant had raised a doubt on the two first elements. The crux of her decision is based on the following reasoning: [translation] Where we run into problems is with the third criterion: subjectively, Mr. Couture could not think that he would not be able to avoid Mr. G.'s assault and that the only way of escaping would be to inflict grievous bodily harm, which he did in fact inflict, and this belief was not, in my opinion, objectively reasonable. Why? Because the evidence does not demonstrate that Mr.

G. jumped on the accused, knife in hand . Mr. Couture was not alone with the victim down an alley, you know, he was surrounded, well surrounded in fact. He had other alternatives and he should have known that by hitting the victim while holding a glass in his hand he would cause him grievous bodily harm. The facts that I accept – and let us not forget that Mr. Roy, who as I mentioned earlier, did not see either... Mr. Lemelin and Mr.

Roy did not see this movement described by the accused; he was the only one, in this whole thing, with all the reservations that I mentioned with respect to the presence of a knife, he was the only one to say that the accused jumped on him . Therefore, I do not accept these facts, and those that I do accept do not give rise to self-defence. Consequently, Mr. Couture is convicted on the first count. [Emphasis added] [12] With respect to the charge of obstruction , the judge noted that the versions were partly contradictory.

Three telephone calls were made by the appellant to the complainant, who lives with his mother. The judge did not believe the appellant, gave her reasons therefor, and concluded that he had offered [translation] "money to settle the case" and made threats. His testimony did not raise a reasonable doubt. * * * [13] On the first count, the appellant argues that the trial judge should have evaluated his defence based on self-defence by applying subsection 34(1), not subsection 34(2) Cr. C.

He also argues that the judge erred by characterizing the charge as "assault causing grievous bodily harm", without which error a defence based on 34(2) would not have been considered.

Finally, he raised [translation] "a doubt" with respect to the four elements that give rise to a defence based on subsection 34(1). [14] The appellant adds that, in the judge's view, the first two criteria were met: he used force without intending to cause grievous bodily harm and with the sole purpose of avoiding an assault, acting by reflex and he did not [translation] "exercise excessive force to repulse the assault". [15] If subsection 34(2) Cr. C. applies, the appellant maintains that the judge committed a palpable and overriding error in her assessment of the evidence. He adds, referring to paragraph 34(2)(

b) Cr.C. , that he [translation] "could not avoid ... grievous bodily harm by means other than those he used". [16] On the second charge, he alleges that the verdict is unreasonable because the judge erroneously found that the appellant's testimony was not credible. [17] The respondent answered that if subsection 34(1) Cr. C. applies, the appellant cannot be acquitted since the force used was more than what was necessary. The curative proviso of subparagraph 686(1)( b )(iii) Cr. C. would then apply, and the appeal should be dismissed. [18] Moreover, the judge could apply subsection 34(2) Cr.

C. because she rightly found that the injuries inflicted were consistent with grievous bodily harm. The respondent further argues that the appellant could have avoided bodily harm [translation] "by means other than hitting the victim with his glass". [19] If this Court allows the appeal, the respondent asks that a new trial be ordered. [20] On the second count, the respondent argues that the appellant has not shown a palpable and overriding error in the assessment of the evidence and that the verdict is not unreasonable. * * * [21] Let us consider the charge for assault causing bodily harm.

Section 34 Cr. C. sets out the following: 34.

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (

a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (

b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

[Emphasis added] [22] Pursuant to subsection 34(1) Cr. C., four elements are required to argue self-defence: • The appellant was unlawfully assaulted; • The appellant did not provoke the assault; • The force used by the appellant was no more than what was necessary to enable him to defend himself; • The force used by the appellant was not intended to cause death or grievous bodily harm. [23] As Cory J., writing for the Supreme Court in R. v. Hebert, points out: [23] ... Section 34(1) provides a particular defence to an assault occasioning serious bodily harm. However the defence can only beutilized if all the conditions set out in the

section have been met. See for example R. v. Kandola (BC CA), (1993), 80C.C.C. (3d) 481 (B.C.C.A.). The jury must indeed be satisfied that every element of the defence has been met. That is to say for thedefence to be successful the jury must be left with a reasonable doubt as to the existence of all the elements of the defence. ... ... [25] ... The Crown is not required to prove beyond a reasonable doubt that the appellant’s conduct fails on every element of thedefence.

It suffices if the Crown can prove beyond a reasonable doubt that any one of the four elements set out above was notestablished.[3] [24] It is therefore up to the Crown to prove beyond a reasonable doubt that the self-defence does not apply.[4] Manning, Mewettand Sankoff have the following to say on the matter: … Once a defence is properly before the court, in that the accused has demonstrated that it possesses an "air of reality", the burden ofdisproving it beyond a reasonable doubt falls to the Crown. This is equally true of self-defence.

As Evans J.A. noted in Lieberman: On the issue of self-defence, there is no burden on the accused; once he has raised it the jury must be instructed that that issue must beresolved in favour of the accused unless the prosecution satisfies the jury beyond a reasonable doubt that a finding of self-defence cannotbe supported on the evidence.[5] [Citations omitted.] [25] And a little further on: … In order for self-defence to be left with the trier of fact, there must be evidence capable of supporting every element of the defenceupon which a properly instructed jury could acquit, in that they could be left with a reasonable doubt.[6] [Citations omitted.] [26] The fourth element of this defence is often determinative.

If the accused intended to cause grievous bodily harm in repelling theassault, then subsection 34(2) Cr. C. must be applied instead. That provision sets out stricter requirements "to make clear that such aforce should not be used except in extreme situations".[7] [27] In the case of subsection 34(2) Cr.

C., the following elements must be established: • The appellant was unlawfully assaulted; • The appellant had a reasonable apprehension of death or grievous bodily harm from the violence with which the assault wasoriginally made; • The appellant believed, on reasonable grounds, that he could not otherwise preserve himself from death or grievous bodily harm. [28] In Pétel, Lamer J., writing for the majority, states: It can be seen from the wording of s. 34(2) of the Code that there are three constituent elements of self-defence, when as here the victimhas died: (1) the existence of an unlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3) areasonable belief that it is not possible to preserve oneself from harm except by killing the adversary.

In all three cases the jury must seek to determine how the accused perceived the relevant facts and whether that perception wasreasonable. Accordingly, this is an objective determination. ... .[8] [Emphasis added] [29] We add that [translation] "use of excessive force by the accused does not set aside self-defence under subsection 34(2) Cr.

C.;the law does not require that the force used be proportionate to the assault from which the accused is preserving himself".[9] Withrespect to the third element, Manning, Mewett & Sankoff note: Section 34(2) requires an honest and reasonable belief that no other action is possible to avoid being the recipient of at least grievousbodily harm. As is the case with section 34(1), this necessitates a consideration of available alternatives and the possibility of retreat,even though retreat is not always required. This assessment involves both a subjective and objective inquiry, as « the jury must seek to

determine how the accused perceived the relevant facts and whether that perception was reasonable. [10] (Citations omitted) [30] The trial judge did not elaborate on the scope of subsection 34(1) Cr. C. and did not rule on its application in this case. The respondent suggested that the judge apply the second paragraph from the outset rather than the first paragraph because it considered the bodily harm to be grievous. This is not clear. The judge did not address this question, but she did mention that the appellant [translation] "should have known that he would cause him [11] grievous bodily harm".

One thing is certain, the defence under subsection 34(2) can be raised only when the accused causes death or grievous bodily harm to the victim. [31] Let us examine the trial judge's reasoning on the subject of subsection 34(2), which could be considered in this case. [32] Accepting part of the appellant's testimony, the judge found that he met the two first requirements set out in the provision.

She did not exclude the possibility that the appellant might have reasonably believed that he was the victim of an unlawful assault and that he could reasonably apprehend that he would sustain grievous bodily harm from the assault.

With respect to the third requirement, however, the judge ruled that the appellant could not reasonably believe that [translation] "the only way to preserve himself from harm was to inflict grievous bodily harm on him”. [12] She grounded this determination in two elements: the complainant did not jump on the appellant with knife in hand, and the appellant was not alone and he had other alternatives. [33] With respect, this is an error justifying the intervention of the Court. [34] The evidence related by the judge establishes the following circumstances: It was two in the morning, the individuals were in the outside landing of the bar; the complainant was thrown out of the bar by a certain Yannick, and the appellant also exited at that moment; the appellant intervened and convinced the complainant and Yannick to calm down when tensions were high; the complainant was drunk, [13] arrogant, aggressive and challenging, he was speaking loudly; there were several people on the landing; the appellant had a loud exchange with the complainant, telling him to stop and leave, without provoking him; the complainant took out a knife [14] and pointed it at the appellant, the appellant was justified in believing that he was being unlawfully assaulted and could reasonably apprehend grievous bodily harm; it was dark and it all unfolded very quickly. [35] The appellant adds that after he interposed himself between the complainant and Yannick, the complainant stepped away but came back shortly thereafter and [translation] "continued ... to want to start fights with the... the individual that in ... in question".

He described the events leading up to the assault as follows: [translation] Q. And you, what did you do at that moment? A. Well, I played the babysitter, once again, like I was saying, I...I stepped in between them and that’s it, I ... I told him: "Calm down! Calm down!" I was talking to both of them at the same time, I was telling both of them to calm down. Q. Yes. A. But neither one of them wanted ... looked like he wanted to calm down. Q. All right. A.

So, the ... things got heated, they were heating up, they were yelling, yelling, and then well that's it, they were arguing and then at one point I said: "Now – I really yelled – you are going to calm down!" and then and that's when J. shoved me ... Q. O.K. A. ... then ... Q. How did he shove you? A. Well, he shoved me in the chest, you know, at one point ... Q. With what ... A. ... then ... Q. ... did he shove you? A. Huh? Well, with his hands, he shoved me. Q. With his hands to your chest? A. Yes. Q. O.K. And then, what happened then? A.

Then, I told him to... to... to go away, I said: "Go ... go ... leave here, because, anyways, you can't go back into the bar, so there's no point in you staying and if you came here just to shove me or to fight the other guy, there's absolutely no point". And then, he said to me: "You, Couture, mind your own business". And that was when he pulled out a small penknife and he came toward me... . [36] The appellant, who still had his glass of beer in his hand, related: [translation] "wanting to defend myself, I hit ...J... who... I was still holding on to my glass ... in my hand, so, it broke in J's face”.

And later on, he stated: [translation] Q. And then, you... so, you, why did you hit J in the face... while you were holding a glass in your hand?

A. Well, it was like a ... it was a defensive reflex, because I was sure that I was going to get stabbed, so I wanted ... I wanted to hit to protect myself, because I felt cornered, like I had no other choice, so, wanting ... wanting to hit him, uh, because I am right-handed and my beer glass was in my right hand, it's ...the glass flew, er, not ... it wasn't thrown, but... Q. It was in your ... A. ... it went with my hand. [37] Finally, Jonathan Bossé, a young person who was on the premises during the unfortunate events of the night, added, on the subject of the outdoor landing of the bar: [translation] Q.

You were walking toward the patio? A. Well, more like the bar's front door, you know, it wasn't really a patio. It was a small stoop with two or three (2-3) steps and then the parking. Q. So, it wasn't a large patio, it was two to three (2-3) steps up to the door? A.

That's right. [38] Let us revisit the two elements accepted by the trial judge. [39] Even if we take for granted that the complainant did not [translation] "jump on the appellant with a knife in hand", the overall circumstances raise a reasonable doubt that the appellant could have reasonably believed that he could not avoid the danger by means other than hitting the victim as he did. [40] The danger was imminent and the complainant was violent, aggressive and armed. The appellant could reasonably apprehend grievous bodily harm. It was dark and it all unfolded very quickly.

Absolutely nothing in the overall evidence indicates that the appellant [translation] "had other alternatives", [15] such as retreating or confronting the aggressive person, who was drunk and armed. This is, with respect, pure speculation. [41] Moreover, the bar's landing offered limited space and there were several people standing there, proportionately limiting the appellant's room to manoeuvre and lending credence to his theory that he felt trapped or cornered. In this sense, the judge considered, wrongly, that it was to the appellant’s advantage that he was [translation] "well surrounded".

Finally, there is no sketch or evidence with any amount of detail to indicate the position of the main players and those around them on the landing that night. [42] All this should have convinced the trial judge that, at the very least, the appellant raised a reasonable doubt on all the elements of self-defence presented. The curative proviso does not apply in this case since it is not a case where the evidence against the accused is overwhelming or where the error of law is harmless. [16] [43] Consequently, the trial judge should have acquitted the appellant on the first count, which we can and will do.

It would be pointless to order a new trial. * * * [44] On the count of obstruction , the judge had to assess conflicting versions. The appellant spoke with the complainant three times on the phone. There is a dispute over the content of these conversations. The Crown faults the appellant for offering the complainant a sum of money during the second call and for threatening him during the third to prevent charges being laid against him. [45]

Section 139 Cr.C. sets out the following: 139. ...

(2) Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed , (

a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence; ... [Emphasis added.] [46] A threat against a victim can prevent any proceedings from taking place and thus pervert the course of justice. The expression "the course of justice" includes the investigation giving rise to judicial or quasi-judicial prosecution. [17] [47] In this case, the appellant criticizes the judge for having believed the testimony of the complainant rather than his own, which was [translation] "clear".

He particularly targets the criticism she levelled at him for failing to try to reach the complainant's mother after the third call to explain to her his version of the facts, which would have been unthinkable under the circumstances.

[48] The appellant also faults the judge for finding that the complaint made to police officers after the third call supported the complainant's version according to which he received threats on that occasion. In short, the judge dismissed the testimony of the appellant on [translation] "tenuous grounds". The verdict would be unreasonable. [49] These grounds do not hold water. [50] The judge did commit an error when she asserted that the appellant's principles vanished after the third call. [18] Shortly thereafter, the appellant was informed of the charges laid against him.

He could no longer communicate with the complainant or the complainant's mother. [51] Nevertheless, there was evidence supporting the judge’s finding that the appellant had, beyond a reasonable doubt, obstructed the course of justice. She was in a uniquely privileged position when it came to assessing the credibility of both the complainant and the appellant. [19] She did not believe the appellant. Moreover, the victim's call to police officers after the third telephone call, evidence that was contemporaneous with the events, supports the complainant's version.

The judge explained: [translation] First, sincerely, I do not want to denigrate Mr. [the victim], I am not even certain that it was an offence that, if money is offered to withdraw a complaint, he called the police, you know. I mean, don't pay attention to that, it is a comment, you know. But why did he call the police officers? He called the police officers because he got angry. Why did he get angry? Because he was threatened. That is why he called the police officers. There is no other explanation for the call to the police officers.

So, is the accused credible when he says that he never offered any money to settle the case, that he never made any threats? No. Do I have a reasonable doubt, on the question, when I analyze his... No, because I analyze his testimony and, from that testimony, it does not... You know, to deny it, it necessarily raises a doubt. That doubt, however, must be reasonable.

His version does not render his allegation reasonable. [52] Generally, there is no cause for intervention with respect to the judge's determinations regarding the credibility of the main players. * * * [53] The appellant was sentenced to 90 days of imprisonment overall, to be served intermittently, on Sundays from 9 a.m. to 4 p.m., with an obligation to perform 180 hours of community work within 9 months. [54] In light of the acquittal on the first count, there is cause to refer the case back to the court below for a determination of the appropriate sentence.

Thus, the motion for leave to appeal from the sentence is moot. FOR THESE REASONS, THE COURT: [55] ALLOWS the appeal in part; [56] SETS ASIDE the conviction on the first count; [57] ACQUITS the appellant on this count; [58] REFERS the file back before the Court of Quebec, Criminal and Penal Division, for the proper sentence to be imposed on the second count. FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. BENOÎT MORIN, J.A. Mtre Yves Savard SAVARD, PIGEON For the appellant Mtres Régis Boisvert and Daniel Bélanger Criminal and penal prosecutors For the respondent Date of hearing: January 19, 2012