HER MAJESTY THE QUEEN - v. –, 2019 NBPC 10

FILE 34269101 Citation #2019NBPC10 IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF MONCTON BETWEEN: HER MAJESTY THE QUEEN - and – MITCHELL JORDAN CAISSIE DECISION BEFORE: The Honourable Judge Ronald LeBlanc AT: Moncton, New Brunswick DATE OF DECISION: June 11, 2019 CHARGES: s.268(2) CC, s.268(2) CC APPEARANCES: Sylvie Godin-Blanchard, on behalf of the Attorney General of

New Brunswick Robert Rideout, on behalf of the Defendant [1] Mr. Mitchell Caissie is charged with two counts of aggravated assault on the person of Julian Milliea. The prosecution advancesthese as alternative counts and consequently seeks a conviction on only one of the two. The allegations are aggravated assault bywounding and by endangering life, both counts under section 268(2) of the Criminal Code. The accused states he acted in self-defenceand seeks an acquittal on both counts.

He also raises as a defence that the prosecution has failed to prove objective foreseeability ofbodily harm arising from the application of the force used in this case. [2] Section 268(1) of the Criminal Code provides that everyone commits an aggravated assault who wounds, maims, disfigures orendangers the life of the complainant. [3] In this case, the complainant suffered a blow to the side of his head. Arising from that application of force, he fell to the ground,unconscious. His head struck the pavement. He remained unconscious for several seconds then attempted to stand up.

When he got uphe lost his balance, falling backwards once again striking his head on the pavement. There was a breaking of the skin in the locationwhere his head struck the pavement. He was subsequently transported to the hospital where he had emergency surgery performed by Dr.Dhany Charest, a neurosurgeon. Dr. Charest testified that Julian Milliea suffered an epidural hematoma to the back part of his skull nearthe brain stem. The consequences for non-treatment of this condition could be very serious, including severe neurological injury anddeath.

In order to remove the blood clot from the affected area, the surgeon had to make an incision at the back of the skull, exposing it. Then he had to drill into the skull, remove part of the skull, drain the blood and re-attach the bone. [4] In my opinion, the prosecution has proven beyond a reasonable doubt both that Mr. Milliea suffered a wound, and that his lifewas endangered, both arising from the single blow to the side of Mr. Milliea’s head. The mens rea of these offences is objectiveforesight of bodily harm: R v Godin (SCC), [1994] 2 S.C.R. 484 (S.C.C.).

The Crown is not required to prove that theaccused intended to wound, maim, disfigure or endanger life.

The offence is made out where the accused endangers the life of thecomplainant, or wounds the complainant, by intentionally applying force to him without that person’s consent in situations where there isobjective foresight of bodily harm arising from the application of force: R v Cuerrier (SCC), [1998] 2 S.C.R. 371(S.C.C.) [5] I will now expose the facts leading up to the blow to the head and consider the defence advanced in this case, that is, that theaccused acted in self-defence. [6] The complainant Julian Milliea, an aboriginal from Elsipogtog First Nation, was 19 years old on August 1, 2018.

He was firedfrom Rossano’s restaurant in Moncton, picked up his cheque and decided to go drinking while he was in the area. He had $160.00 incash, had no plans and decided to stick around the city for awhile. He attended an activity at City Hall, went to the TD Bank, went to adispensary where he purchased an 8 Ball pipe which he later sold, then went to Wize Guyz Pub where he consumed alcohol to the pointof intoxication. He admitted he got drunk while at that pub. [7] The accused, Mitchell Caissie, an electrician by trade, was at Wize Guyz Pub also. He attended that pub regularly.

He enjoyedwatching the games on the screens at that location, particularly basketball games. He was a Toronto Raptors fan and wore one of theirjerseys that day in the club. He was there with his friends Eric and Jordan. [8] Two videos have been admitted into evidence: Exhibit C-4 which is a video of events that occurred inside Wize Guyz Pub, andExhibit C-3, which is a video depicting events outside that same pub, on Robinson Street in Moncton. These videos are very faithfulrepresentations of the events depicted in them and form the most reliable evidence presented at trial, in my estimation. Neither hasaudio.

C-3 was recorded by a camera taken from a distance, unfortunately, so shows the events only in the upper left-hand corner of thescreen. The events can be seen, but the distance between the camera and the location of the incidents on Robinson Street is such as toprevent a close-up picture, such as the one that showed events inside the bar. That distance prevents the viewer from getting well-defined, distinct imagery of the incidents but notwithstanding, shows the people present, the actions taken and the results of thoseactions. Mr.

Milliea is easily recognizable on this video by the yellow cap he wore on his head and Mr. Caissie by the #10 Raptors

jersey he was wearing. [ 9 ] Mr. Caissie testified that Mr. Milliea was being obnoxious and belligerent to him and to other patrons inside the bar. I accept that as a fact. Mr. Milliea had approached Mr. Caissie inside the bar and spoke to him in a belligerent manner, prompting Mr. Caissie to attempt to ignore him. In fact, in order to avoid him, he and his friends relocated from one end of the bar to another. In addition, Exhibit C-4 clearly shows Mr. Milliea arguing vehemently with a male patron sitting at the bar. Mr. Caissie witnessed this as he was near this confrontation.

In fact, he intervened, placing himself between the male patron and Mr. Milliea and talking mostly to the unknown male patron, trying, successfully it seems, to calm the situation down. It should be noted that the video shows that this was more than a mere verbal confrontation: the words exchanged between the male and Mr. Milliea, by the animated gestures shown on camera, must have been intense and certainly uttered in anger. Mr. Caissie added that following that verbal confrontation, Mr. Milliea started to drink faster and faster and he noticed that at one point, Mr.

Milliea looked aggressively at that male patron. It was not long afterwards that Mr. Milliea was ejected from the pub by the waitress. She had taken his pitcher of beer from him and told him to leave. On his way out, Mr. Milliea was yelling, cursing and swearing. Mr. Caissie remained in the bar talking to his friends and acquaintances, watching basketball, fiddling with his cell phone and finishing up his drink. He left the bar approximately six minutes after Mr. Milliea had left. He testified that he believed 20 to 25 minutes had elapsed between the time Mr. Milliea was ejected and the time he left.

Clearly, by reference to the videos, the actual time was closer to 6 minutes. I do not consider this to negatively impact Mr. Caissie’s reliability as a witness. It carries little consequence in my opinion. [ 10 ] The defence has suggested that Mr. Milliea would have been in a very foul mood after being ejected from the bar.

I agree for the following reasons: (1) he had just been fired from his job; (2) he was the victim of a drug deal that didn’t work out - he had given $60.00 to someone in the bar to supply drugs to him - this person took his money and disappeared; (3) he had a significant verbal confrontation with the male patron inside the pub; and (4) he was ejected from the bar by the waitress. [ 11 ] In that foul mood, Mr. Milliea decided to wait outside Wize Guyz Pub until Mr. Caissie came out. For approximately six minutes or so he is seen on the video C-3 just outside the door to the pub.

The video shows him talking to various people who appear to be smoking, sitting down on a cement divider and just standing around. At one point six males can be seen around Mr. Milliea, who testified he knew none of them. [ 12 ] At approximately 5:15:30, the time depicted on the video C-3, Mr. Caissie is seen talking to Mr. Milliea. At approximately 5:17:40 on the video, Mr. Caissie is seen hitting the right side of Mr. Milliea’s head with his left hand. Mr. Caissie says it was a slap. The Crown suggests it was a punch, or a hard hit with the bottom of his hand. I will address this issue later.

For the moment, the important thing to note is that there was approximately a two-minute conversation between them prior to that blow to the head. [ 13 ] Dr. Charest, on viewing Exhibit C-3 in court, testified that Mr. Milliea appeared to be unconscious going down after the strike. He also testified that the head striking the ground after that blow was consistent with the injuries he subsequently saw at the hospital. It was not the blow to the side of the head that caused the hematoma, it was the striking of the head on the ground following the blow. Dr.

Charest testified that surgery was required to correct the injury resulting from the fall onto the pavement. I accept that testimony and conclude that the blow by Mitchell Caissie to the side of Mr. Milliea’s head caused Mr. Milliea to fall onto pavement, with his head striking pavement resulting in injury to the back of Mr. Milliea’s head. [ 14 ] Mr. Caissie approached the unconscious body of Mr. Milliea on the street, then left the area. He walked to his friend’s car which was parked not far away, in a parking lot which can be seen on the video. [ 15 ] A few seconds after he fell, Mr.

Milliea got back up but was unable to hold his balance. He stumbled backwards and fell a second time onto his back on the pavement on Robinson Street. Once again, the back of his head struck the pavement. Mr. Rideout suggested to Dr. Charest that both falls may have been as much a result of the consumption of intoxicating liquors as from the force used by Mr. Caissie. The surgeon suggested in reply that it made more sense that the fall was as a result of the blow to the head because the complainant appeared to lose consciousness resulting from the degree of force used. I agree. I would conclude that Mr.

Milliea’s level of intoxication was not a significant factor to his falling down on both occasions. After the force was applied to his head he fell down immediately, like a dead weight. I conclude that the blow, and only the blow, to the head caused the act of falling. In support of this conclusion I refer to the video, C-3 which shows that for some six minutes or so prior to the arrival of Mr. Caissie, Mr. Milliea is able to stand, walk about, talk to people and sit on a cement divider. There is no evidence whatsoever, as evidenced by the video C-3, that Mr.

Milliea’s level of intoxication, whatever it might have been, caused him to lose his balance or fall down. [ 16 ] I also find that although he was not struck a second time causing the second fall, this second fall was directly a result of Mr. Caissie’s blow to the head. Mr. Milliea had lost consciousness, got up and immediately fell down again, not because of alcohol consumption, but directly because of the blow to the side of his head, the fact he lost consciousness and the fact that he struck his head on the pavement just moments before.

I therefore reject any notion that alcohol may have been a contributing factor to the injury suffered by Mr. Milliea.

[17] I will now address the issue of self-defence. The Citizen’s Arrest and Self-Defence Act came into force in this country on March11, 2013, enacting a codified

section 34 dealing with self-defence. It basically replaced former sections 34(1), 34(2), 35 and 37 of theCriminal Code, awkwardly drafted self-defence provisions often criticized for being confusing and difficult to apply. [18] The New Brunswick Court of Appeal had occasion to address the legal requirements of the new provision in Cormier v R (2017),NBCA 10, starting at paragraph 40: [40] “Section 34(1) enumerates three criteria, all of which must be present for the defence to be available.

In other words, self-defenceis 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 subjectivestate of 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 rigid requirement in order forthe defence to succeed, but is a factor to be considered when assessing the reasonableness of an accused’s response; the other being thenature of the abusive relationship between the accused and the victim is also a factor when assessing the reasonableness of the accused’sactions. [42] The notion of “unlawful” assault as a requirement of the defence under the now repealed provisions is eliminated. Substituted isthe concept of a reasonable perception of force or threat of force.

In addition, the assessment of the reasonableness of the accused’sresponse to a threat has changed. The Supreme Court in R. v. Gunning, 2005 SCC 27 , [2005] 1 S.C.R. 627, had suggested thatreasonableness could be substituted for the concept of “no more force than necessary” (para. 22).

Whether an action is reasonable is nowassessed through the lens of the nine non-exhaustive factors set out in s. 34(2). [44] Justice David Paciocco, in a paper titled The New Defence Against Force (2014), 18 Canadian Criminal Law Review 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 inthe incident, including but not limited to provocation, is an evaluative factor that the decision-maker is free to use in all cases. Thismakes it entirely possible for an accused to be denied the defence because he was the author of his own misfortune even when theprevious provisions would not have allowed this to be considered.”

[ 19 ] In the circumstances of this case, for the defence to succeed, the accused must establish (1) that he subjectively believed that a threat of force was being made by Julian Milliea; this subjective belief must be held to be objectively reasonable; (2) that his subjective purpose in responding to the threat be to protect himself and for no other reason; and (3) that the act of striking a blow to Mr. Mililea’s head be objectively reasonable in the circumstances of the case, by application of the non-exhaustive list of enumerated factors in section 34(2) of the Criminal Code .

Self-defence is not available if the Crown proves beyond a reasonable doubt that one or more of these three criteria has not been met. ELEMENT # 1: THE REASONABLY PERCEIVED THREAT [ 20 ] Did the accused honestly and subjectively believe that a threat of force was being used against him by Julian Milliea, and if so, was this belief objectively reasonable? The reasonableness of an accused’s subjective belief is assessed on what is called a “modified objective” basis.

The judge must ask whether a hypothetical reasonable person, facing the same circumstances and endowed with the same relevant physical and biographical characteristics as the accused, would have perceived himself as being threatened or having force applied to them. [ 21 ] In this case, the accused’s subjective belief that force was threatened against him by Mr. Milliea was based on events that occurred in the Wize Guyz Pub, words of threat spoken by the complainant and the triggering gesture of fumbling in his pockets for a perceived weapon such as a knife.

I will summarize the elements of proof supporting this subjective belief. i. Mr. Caissie was approached inside the club by Mr. Milliea who was loud and obnoxious towards him. He felt the need to displace himself from one end of the bar to the other in order to put some separation between them; ii. Mr. Milliea was being obnoxious to other patrons inside the bar and had several verbal confrontations with them. He was drinking heavily and became intoxicated; iii. Mr. Caissie was witness to what he called an altercation between Mr. Milliea and a patron inside the club.

In fact, it was a verbal confrontation between the two that was escalating in tone. Mr. Caissie personally intervened and, by speaking principally to the patron, succeeded in calming them both down; iv. When Mr. Caissie left the bar, he was immediately confronted by Mr. Milliea. He rightly concluded that Mr. Milliea was waiting for him outside the bar; v. When Mr. Caissie was confronted outside the bar by Mr. Milliea, there were other adult males milling about nearby. Mr. Caissie did not know these individuals and did not know whether they were friends or acquaintances of Mr. Milliea; vi. Mr. Milliea accused Mr.

Caissie of being the reason he was ejected from the bar and asked him why. Mr. Milliea was confrontational, he was the aggressor and he positioned himself to about one foot from Mr. Caissie’s face; vii. Mr. Milliea threatened Mr. Caissie by stating that he had 20 people coming down from Elsipogtog and that they were on their way; viii. Mr. Caissie told him several times to walk away and to get away from him – he didn’t leave; ix. Mr. Milliea put his hands in his pockets and wiggled them in the pockets, causing Mr. Caissie to believe that he had a knife or other weapon; x. Mr.

Caissie was aware that there had been other incidents at bars in Moncton where knives were used and people were injured. A stabbing incident had happened at Wize Guyz pub just three days earlier. [ 22 ] I conclude, based on the foregoing, that Mr. Caissie had an honest, subjective belief that a threat of force was made by Mr. Milliea immediately prior to his application of force. The combination of these factors leads one to reasonably believe that Mr. Milliea was being combative, not only towards Mr. Caissie, but to others in the bar. He was loud, belligerent, antagonistic and in a hostile mood.

He immediately confronted Mr. Caissie when he exited the bar and went directly to his face making false accusations and issuing threats to have others attend to deal with him. He refused to leave notwithstanding several admonitions by Mr. Caissie. [ 23 ] Mr. Caissie is a much bigger man than is Julian Milliea. Mr. Caissie had every reason to be cautious about a smaller man confronting him in that fashion. To quote Mr. Caissie: “A smaller guy than me waiting outside for me, reaching into his pockets, it’s obvious that he must have a weapon.

Why would he be waiting outside for me?” [ 24 ] There is no evidence that Mr. Milliea had a weapon in his pocket. Mr. Caissie never saw a weapon in his pocket nor did he testify that he saw any bulge in the pocket that could be a weapon. However, under the totality of the circumstances in this case, I find that Mr. Caissie’s subjective belief that a threat of force was directed at him was honestly held and that on an objective review of the matter, that subjective belief was a reasonable one to have arrived at. I find that the triggering event of Mr. Milliea placing his hands in

his pockets rightfully and considerably elevated the degree of danger in the mind of Mr. Caissie. Going for a weapon is a reasonable andlogical conclusion for him to have arrived at in the circumstances: why else would an aggressive and threatening person place his handsin his pockets? That one event may not have sufficed to establish a reasonably held belief in a situation of danger, but following on theheels of all other elements mentioned, I conclude that the belief was a reasonable one to have made. ELEMENT # 2: DEFENSIVE PURPOSE [25] The prosecution has suggested that Mr. Caissie struck Mr.

Milliea for purposes other than self-defence. She suggests that he wasirate with Mr. Milliea and struck him out of anger or frustration. I respectfully disagree. Mr. Caissie’s act in striking Mr. Milliea wasunquestionably committed for the purpose of defending himself against a perceived threat of force emanating from Mr. Milliea. Heimmediately struck him that one blow in order to prevent violence directed at him and to allow him to get away. It was not, as suggestedby the prosecution, employed out of anger or frustration. Had that been the case, I fail to see why Mr.

Caissie would have waited a fulltwo minutes before striking Mr. Milliea, nor would he have told him several times to just leave and let him be. Mr. Milliea was theangry, upset party here, not Mr. Caissie. [26] The prosecution has also suggested that the assault was based on arguments arising from the fact the accused and thecomplainant supported different basketball teams, or that the assault was racially motivated. I reject both propositions, there being anabsence of evidence to support either one. ELEMENT # 3: REASONABLE DEFENSIVE ACT [27] In determining whether the act of striking one blow to the side of Mr.

Milliea’s head was or was not a reasonable act under thecircumstances, the court must consider the relevant circumstances of the accused, the relevant circumstances of the complainant, theviolent act itself, and include in its deliberations the influence all factors listed in section 34(2) of the Criminal Code may have had onthe matter. The court must conclude that the act was reasonable in the circumstances. [28] This element is most often the most contentious aspect of the defence. In fact, the prosecution alleges that the act in questionwas not a reasonable one to commit in this case.

The list of enumerated factors in section 34(2) is neither an exhaustive nor an exclusivelist. The court can consider any other relevant circumstance in arriving at its decision. The court must conduct a broad, multi-facetedassessment of the overall reasonableness of the accused’s defensive act. It is, of course, objectively assessed, also on a “modifiedobjective” standard.

Consequently, when determining whether an accused’s defensive act was reasonable, the hypothetical reasonableperson is one of the same age, gender and physical capabilities as the accused, imbued with the same relationship and history of priorinteractions with the person who threatened force against them. [29] It is important to recall that an accused’s defensive act is not to be judged with the benefit of hindsight. Threats often requirequick and decisive action, without having the benefit of time for careful thought. Context is important.

Canadian law has for a long timereflected a “tolerant approach to the objective measurement of proportionate force in genuine self-defence cases”: see R v Kandola(1993), (BC CA), 80 CCC (3d) 481 (B.C.C.A.) at para.23. It is also to be recalled that the reasonableness of adefensive act is to be determined by the nature of the act, not its outcome. A court should not infer that a defensive act was unreasonablebecause of the serious and unfortunate consequences flowing from the act. [30] In this case, the force used by Mr. Caissie consisted of a single blow to the head of Mr. Mililea. Mr.

Caissie testified that it was aslap, not a punch. I reject that evidence. If what is meant by a slap is a blow using the fingers and palm of the hand to the side of theface, that, in my opinion, is not what Mr. Caissie used to strike Mr. Milliea. Recall first that the Crown is not required to prove that Mr.Caissie struck Mr. Milliea with a fist. What type of blow was struck is not required to be proven beyond a reasonable doubt as it is not anessential element of the offence. The type of blow need only be proven on a balance of probabilities. I find, on balance, that Mr. Caissiestruck a blow to the side of Mr.

Milliea’s head with either a fist or the bottom, solid part of his hand. Regardless, it would have been ahard blow as Mr. Milliea immediately lost consciousness. He was unconscious before his head hit the pavement and I am of the opinionthat a mere slap would not have had this impact. In addition, the use of force employed in this particular case is predicated upon Mr.Caissie’s assertion that he was fearful for his life. He would not, outside a bar, have merely slapped the person in such circumstances.

Acting in self-defence would imply that his reaction would be to disarm or disable, which would not likely have been effective by a mereslap to the face. The video does not support one version or the other, the distance being too far to delineate the action. In any event, myfinding is that the blow to Mr. Milliea was either a punch or a solid blow using the bottom part of the hand, with sufficient force used torender the person unconscious. [31] The force used was to protect against the perceived imminent use of a weapon. Although there is no evidence Mr.

Millieaactually had a weapon in his pocket, I find that Mr. Caissie’s personal and honestly held belief that he had one was reasonable. Logically, the more imminent a threat, the fewer options one has to retreat from that threat or respond to it. Imminence implies lack oftime to carefully ponder other options. Mr. Caissie did not use force against Mr. Milliea until such time as the latter had placed his handsin his pockets. They were together for about two minutes prior to that assault, a period during which Mr. Caissie did not use force, but

attempted to convince Mr. Milliea to leave. The placing of the hands in the pockets was the triggering event giving rise to the fear of being assaulted by a weapon. Unfortunately, once again, the video C-3 does not give a clear picture of the hands being placed in the pockets. Furthermore, Mr. Caissie is positioned between Mr. Milliea and the camera filming the events, blocking a view of the placing of the hands in the pockets. I find, however, that Mr. Milliea did in fact place his hands in his pockets. The time that elapsed prior to the defensive assault gives substance to that fact. Mr.

Caissie testified that he felt that he could not turn his back on Mr. Milliea for fear of being stabbed. He could not just walk away as suggested by the prosecution, out of fear of being assaulted with a weapon. These are reasonably held beliefs, in my opinion. I find that the reaction by Mr. Caissie was in response to the immediate and imminent threat of the use of a weapon by Mr. Milliea. [ 32 ] It is trite law that an accused is not required to wait until force is actually applied against them before they can legally respond by their defensive act.

An accused, by the same token, is not entitled to take the law into their own hands and use force where other reasonable means are present to respond to the potential use of that force. The imminence of the threat plays an important, although not critical role in such determinations. In this case, I believe the threat to use force was imminent and arose when Mr. Milliea placed his hands in his pockets. Mr. Caissie did not respond physically until that happened. [ 33 ] No weapon was in fact used; no person present showed a weapon or stated that he had one. Mr.

Caissie, however, did honestly and reasonably believe that Mr. Milliea had one for the reasons previously stated. [ 34 ] Both parties to the event are male, Mr. Caissie being more physically imposing than was Mr. Milliea. Physical strength, however, plays a lesser role when one is confronted with a weapon. [ 35 ] The only relationship between the parties lies with the prior confrontations inside and outside the bar. Mr. Caissie did not know Mr. Milliea prior to that day. Mr. Caissie had reason to believe that Mr. Milliea was confrontational, aggressive, intoxicated and in a foul mood. Mr.

Milliea immediately confronted him as he exited the bar, having waited approximately six minutes for him outside. He came up close to his face, accusing him of being the reason he was ejected from the bar. He threatened that he had people coming from Elsipogtog to deal with him and he placed his hands in his pockets. Mr. Caissie honestly and reasonably felt threatened and responded to that perceived threat using proportional force. He struck him once, on the side of the head, with a hard blow. He did not strike him a second time. He immediately left the area.

I find that the blow struck was proportionate to the threat of force perceived and was not excessive. [ 36 ] Having concluded my review of the factors listed in section 34(2) of the Criminal Code and having considered the relevant circumstances of the accused and of Mr. Milliea and of the act committed, I find, on an objective review of the totality of the evidence, that the blow to the side of Mr. Milliea’s head was reasonable in the circumstances and consequently committed in legitimate self- defence. The prosecution has consequently failed to prove that Mr.

Caissie did not act in self-defence in this matter. [ 37 ] I want to make a brief comment on the prosecution’s allegations that Mr. Caissie had other reasonable means to extricate himself from the situation, that is that he simply could have gone to his car completely avoiding the situation altogether. Basically, the prosecution alleges that Mr. Caissie could have retreated from the incident and failed to do so. Sub- section 34(2) of the Criminal Code does not, by its terms or by necessary implication, oblige a self-defence claimant to retreat. It contains no mention of it.

The ability to retreat, in my opinion, is not a condition for a successful plea of self-defence. It is, however, relevant in determining whether the accused had a reasonable apprehension of death or grievous bodily harm from the victim’s assaultive conduct and it is also relevant in determining whether the accused had a reasonable belief that it was not otherwise possible to save himself from death or grievous bodily harm except by killing or seriously harming the victim: see R. v. Cain , 2011 ONCA 298 (Can LII), 278 C.C.C (3d) 228 , at para. 9 . [ 38 ] In this case, when Mr. Milliea came up close to Mr.

Caissie’s face and confronted him, Mr. Caissie had no obligation to run away. He did not immediately fear that he would be stabbed. His fear crystallized as the confrontation escalated, ending with the belief that Mr. Milliea was reaching in his pockets for a weapon. It would have been an unreasonable response for Mr. Caissie to turn away from Mr. Milliea once he formed the belief that he was armed. [ 39 ] As a result of the conclusion that Mr.

Caissie acted in self-defence, it is unnecessary for me to address the issue of objective foreseeability of bodily harm arising from the application of the force used in this case. [ 40 ] I find the accused not guilty of the offences charged.

Dated at Moncton, New Brunswick, this 11 th day of June, 2019. ________________________ Ronald LeBlanc Provincial Court Judge