2015 QCCA 2109, 2015 QCCA 2109

Green c. R. 2015 QCCA 2109 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005601-149 (500-01-062830-119) DATE: December 16, 2015 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. MARK SCHRAGER, J.A. ROBERT M. MAINVILLE, J.A. JAMAL GREEN APPELLANT - Accused v.

HER MAJESTY THE QUEEN RESPONDENT - Prosecutor JUDGMENT [ 1 ] Upon the appeal of a verdict reached on February 5, 2014, by the Court of Quebec, District of Montreal (judge Nathalie Fafard), by which the appellant was found guilty of the following offence: On or about October 9, 2011, in Montréal, district of Montréal, in committing an assault on Richard HÉTU, did wound, maim, disfigure, committing thereby the indictable offence provided by

section 268 of the Criminal Code . [ 2 ] For the reasons of the Honourable Robert M. Mainville, J.A., to which subscribe the Honourable François Pelletier, J.A. and the Honourable Mark Schrager, J.A., the Court: [ 3 ] ALLOWS the appeal. [ 4 ] SETS ASIDE the verdict. [ 5 ] ORDERS a new trial. FRANÇOIS PELLETIER, J.A. MARK SCHRAGER, J.A. ROBERT M. MAINVILLE, J.A.

Me Jonathan Gordon Boro, Polnicky, Lighter For the Appellant Me Dennis Galiatsatos Director of Criminal and Penal Prosecutions of Quebec For the Respondent Date of hearing: November 24, 2015 REASONS OF MAINVILLE, J.A. [ 6 ] On February 5, 2014, after a two-day trial in the Court of Quebec, District of Montreal, before judge Nathalie Fafard, the

[ 6 ] On February 5, 2014, after a two-day trial in the Court of Quebec, District of Montreal, before judge Nathalie Fafard, the appellant was found guilty of the following offence: On or about October 9, 2011, in Montréal, district of Montréal, in committing an assault on Richard HÉTU, did wound, maim, disfigure, committing thereby the indictable offence provided by

section 268 of the Criminal Code . [ 7 ] This verdict was appealed on March 4, 2014. [ 8 ] The appellant was subsequently sentenced on March 10, 2014, to a 20 month term of imprisonment and to probation for a period of two years. On April 15, 2014, this Court granted his interim release pending the outcome of this appeal. The context of the appeal [ 9 ] The appellant is an American citizen. At the time of the incident, he was living with his then fiancée in a large apartment block situated at 1819 de Maisonneuve Blvd West in downtown Montreal. The victim, Mr.

Richard Hétu, was employed as the superintendent of the building and resided in one of its apartments. The victim’s work consisted of general building maintenance and executing small repairs within the apartments. [ 10 ] On October 9, 2011, the victim was on his day off from work, purchasing groceries, when he received a telephone call from the tenant of apartment 1209 situated directly below apartment 1409 (there is no 13 th floor in this building) complaining of loud music emanating from the apartment above. Since we are dealing with diverging narrations of the events which followed, I reproduce the

summary of the victim’s and appellant’s testimony directly related to the incident as reported by the trial judge in her reasons. [ 11 ] The trial judge provides the following

summary of the victim’s testimony: The ninth (9 th ) of October, two thousand and eleven (2011), was his day off. At the end of the afternoon, while he was at the grocery store, he received a call from the apartment 1209 tenant complaining about the loud music in apartment 1409. He accepted to talk to the resident of 1409 as soon as he comes back. Approximately an hour later, he went to 1409. A man, the accused, slightly opened the door and the victim asked him in French to turn down the music. It was not the first time the victim was giving a warning to the accused about the noise.

So he put his foot in the threshold to avoid the door shut like the other times. The accused started yelling in English and slammed the door on the victim’s foot, hurting him. The victim responded by pushing back the door, so did the accused. At one point, the door split and went out its hinges. As the door broke, the accused became enraged and got out the apartment in the corridor with his fists up. The victim told the accused not to touch him or he would have problems with the police.

As the victim turned back and walked towards the elevator, he felt a blow on the left side of his head and fell on the floor unconscious. A few seconds later, the victim woke up bleeding in front of apartment 1404, near the emergency exit, six (6) feet away from apartment 1409. He looked around and decided to take the stairs to go back to his apartment because he was afraid. Once safe inside, he tried to call the police, but wasn’t able to see his phone when suddenly the phone rang. He answered, and his friend Christiane was on the line.

He asked her to call the police because something serious just happened to him. He put a towel on his left eye and waited for the police to come. Shortly after, two (2) police officers arrived on the premises and called an ambulance. Before leaving, the victim looked at his face in the mirror and saw the black bulb popping out his left socket. That night, in Royal Victoria Hospital, the victim had a first surgery and many medical tests. From this time, he has undergone four (4) surgeries and lost left eyesight. [ 12 ] The trial judge provides the following

summary of the appellant's testimony: In defence, on his side, the accused explained that on the ninth (9th) of October, two thousand and eleven (2011), around six p.m. (18 : 00), the maintenance guy, the victim Hétu, knocked at the door. At the time, he was alone in the apartment playing a video game on PlayStation and was planning to meet his girlfriend later on. He was not listening music that night, because his DJ set was broken. As a matter of fact, he produces the repairing bill in evidence.

The accused has seen the victim twice before he came to fix things and sometimes in the elevator, but it was the first time he came to warn him about any complaint. He also recalls one (1) incident when the power was shut down. He believes the victim was responsible for that. Besides, they do not have any problematical background or history. The accused opened the door widely and the victim started screaming in French that the lady downstairs was complaining about the music, and that he would have to leave the place right now.

The accused tried to close the door, but they pushed it back and forth, then the door came out of its frame and fell on him. At this time, the victim broke his way inside and attacked him. The accused gave one (1) hit to the victim’s left eye in order to defend himself. The victim got dazed, lost his foot and fell, leaning on the door frame. A few seconds later, the victim stood up and ran off to the elevator.

Following the accused, the only reason why he responded was because he was attacked. The situation would have been completelydifferent if the victim had simply broke the door and left. The accused panicked and tried to call his girlfriend at work, but didn’t reach her. So he called his sister-in-law and asked her to come tobe sure the place is safe, knowing he could be arrested. Finally, he called the police to report a breaking and entering.

He met the policeofficers in the lobby and followed them back to his apartment where he was arrested. [13] The reasons of the trial judge [14] At trial, self-defence and defence of property were raised by the appellant. The trial judge recognized that there was an “air ofreality” to these defences. [15] The trial judge first addressed self-defence. She began her analysis by determining if she believed the evidence of the appellantthat force was used against him.

She found the testimony of the appellant to be “confused”, noted some contradictions in his testimony,and concluded that it “is out of common sense to believe that the accused was attacked the way he explained it”. As a result, the trialjudge did not believe the appellant’s testimony that he had been attacked by the victim. [16] This concluded the trial judge’s analysis of self-defence, since in her view “[f]urther analysis […] is not necessary because self-defence does not apply”. [17] The trial judge then proceeded to analyse defence of property.

She found that the appellant had reasonable grounds to believe hewas in peaceable possession of the apartment and that the victim was about to enter or was entering the apartment. However, sheconcluded that it was possible for the appellant to ward off the victim by pushing him aside rather than punching him hard since the“accused had a very great physical advantage on the victim regarding their age, their size and their capabilities”.

This led her to concludethat the appellant’s response was “completely disproportionate” and “not reasonable”. [18] The trial judge thus set aside both defences raised by the appellant, and she found him guilty as charged.

Analysis [19] In appeal, the appellant relies on his contention that the Crown did not prove beyond a reasonable doubt that he had not acted inself-defence. [20] Once it has been determined, as in this case, that self-defence has an “air of reality”, the burden of establishing the defence doesnot rest upon the accused; rather the Crown bears the burden of proving beyond a reasonable doubt that the requisite elements of self-defence have not been satisfied and that consequently the defence does not apply.[1] [21] The concept of reasonable doubt is inextricably linked to the presumption of innocence, it is of fundamental importance to ourcriminal justice system and it is a cornerstone of a fair trial.[2] The content of that concept has been extensively canvassed.[3] [22] Where witness credibility is the central issue in determining if the Crown discharged its burden to prove that the requisiteelements of self-defence have not been satisfied, then R. v.

W. (D.) is of assistance.[4] In that case, the victim reported an assault and theaccused testified that it never happened. In an oft quoted dictum, Cory J. set out the proper approach to the burden of proof in suchcircumstances:[5] In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. Thetrial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trialjudge is required to instruct the jury that they must acquit the accused in two situations.

First, if they believe the accused. Second, ifthey do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in thecontext of the evidence as a whole. See R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved inR. v. Morin, [ (SCC), [1988] 2 S.C.R. 345], at p. 357. Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge.

A trialjudge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [23] In this case, the trial judge disbelieved the appellant’s testimony that he had been attacked by the victim, and concluded fromthis that self-defence did not apply. [24] The appellant submits that in proceeding in the way she did, the trial judge misapplied the burden of proof for self-defence byshifting the burden from the Crown to the defence.

He adds that the trial judge failed to properly consider the requisite steps set outunder R. v. W. (D.) and that her reasons do not sufficiently articulate the manner in which credibility concerns regarding self-defencewere resolved. [25] The trial judge explained as follows why she did not believe the appellant’s testimony that the victim had charged towards him: The version of the accused is clear: after the door broke, the victim attacked him and he responded to defend himself. Consequently, theCourt must analyze the defence based on

Section 34 first.

In

Section 34, the accused must show he had reasonable grounds to believe that force was used against him and committed the act that constitutes the offence for the purpose of defending himself. If so, the Judge must decide whether the act committed was reasonable in the circumstances. At the first step, do I believe the evidence of the accused claiming that force was used against him? The accused knew the victim as the janitor of the building because he came twice to do some repair in the apartment. He saw him time to time in the building and they had small talk.

However, in his declaration to police officer the day in question, he said an unknown man speaking French broke in his apartment. He said he was involved in a fight, but never said the other person was injured, thinking he would not press charges. According to the accused, he never received any noise complaint, had no animosity or any problematic history with the victim. In those circumstances, it is very surprising and unusual that the victim showed up to his apartment, yelling at him, trying to break in and attacking him for a noise complaint an hour ago.

The accused insists his DJ set broke a few weeks before the incident, so it was impossible to listen loud music. He produces a bill from the DJ set repair from the twenty-first (21st) of August, two thousand and thirteen (2013), almost two (2) years after the incidents and fifteen (15) days before the trial. This is not relevant. I do not have to decide if the music was playing loud or not. This only explained why the victim showed up at apartment 1409, not more than that. The accused stated he was not upset about the door broken, because he’s not the owner of the place.

According to him, the situation would have been completely different if the victim had only broken in without attacking him. He would have never touched him and everything would have been fine. That’s highly speculative. In fact, he responded with a punch to the victim, and this is the evidence I have to consider and evaluate. The accused is confused in his testimony. He said the victim jumped on him with his fists up in a position to fight. Then he changed his mind saying he did not have his fists up. Concerning the injury suffered by the victim, at first he saw the eye of the victim and he started to panic.

Then, he said the victim was not seriously injured and, finally, he said that he had a simple cut over the eyelid. We know that a few minutes later, the police called an ambulance right away because of the seriousness of the injury. Following the accused, they were inside the apartment when the hit… when he hit the victim, but to the police officers, he stated the fight took place in the corridor. After the punch, the victim got dazed and leaned against the door frame before leaving by the elevator. Unfortunately, the blood was found in the emergency exist, not in the elevator.

He then called 9-1-1 twice for breaking and entering without mentioning somebody was hurt. In fact, he knew he could be arrested. The accused is a stocky young twenty-four (24) years old man, comparing to the victim who is a tiny fifty-eight (58) years old man. Following the word of the accused, the victim did not represent a threat at all. This is out of common sense to believe the accused was attacked the way he explained it. For all those reasons, I do not believe the accused was attacked. Therefore, further analysis of

Section 34 is not necessary because self- defence does not apply. [ 26 ] It is well settled that an appeal court must defer to the conclusions of a trial judge with respect to a finding of credibility unless a palpable or overriding error can be shown. [6] As noted by McLachlin C.J. in R. v.

R.E.M. , [7] assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization, and while it is useful for a judge to attempt to set out the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to articulate. [ 27 ] However, and this is the crux of the appellant’s argument with respect to the credibility issue, as Charron J. noted in R. v.

Dinardo , [8] a case that turned on credibility: […] the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. [ 28 ] This ties-in with the appellant’s submission that the trial judge failed to consider the additional step indicated in R. v.

W. (D.) , i.e. failed to consider whether she was left in reasonable doubt by the appellant’s evidence in the context of the evidence as a whole, even if she did not believe him. [ 29 ] Trial judges need not mechanically recite the R. v. W. (D.) test or cite its phraseology when analysing the evidence before them. What matters in relating the credibility of witnesses to the rule of reasonable doubt is whether or not the reasons, read as a whole, make it clear that the trial judge was not under any misapprehension as to the correct standard of proof and respected the essence of the R. v.

W. (D.) steps. [9] [ 30 ] In this case, it is clear from her reasons that the trial judge proceeded to the first step of the R. v. W. (D.) test, specifically stating that “[a]t the first step, do I believe the evidence of the accused that force was used against him?”. However, once she concluded that she disbelieved that the “accused was attacked the way he explained it”, this was the end of her analysis. Yet, under R. v.

W. (D.) , even if she did not believe the appellant’s evidence, the trial judge was required to ask herself if she still had a reasonable doubt as to his guilt after considering the appellant’s evidence in the context of the evidence as a whole.

[ 31 ] The Crown submits that the reasons of the trial judge should be understood as implicitly addressing the R. v. W. (D.) steps simultaneously through an amalgamated analysis. Though I recognize that the approach set out in R. v.

W. (D.) is not sacrosanct and that trial judges often deliver oral judgments that are limited to the essential points, they must nevertheless give reasons that the parties can understand and that permit appellate review. [10] [ 32 ] The trial judge had a duty in this case to scrutinize the evidence produced by the Crown so as to ensure that it was sufficiently credible and reliable to prove the guilt of the appellant beyond a reasonable doubt. Indeed, proper application of R. v.

W. (D.) includes a step involving moving beyond the appellant’s evidence to that of the prosecution, assessing it in its own right in relation to all the evidence on the criteria of coherency, reliability and credibility. [11] [ 33 ] Once she had negatively assessed the appellant’s testimony, the trial judge omitted any reference to the subsequent steps of R. v.

W.(D.) and appeared to move in short order from that credibility assessment to the rejection of self-defence and a determination of guilt, without any intervening analysis of the Crown’s evidence so as to determine whether the appellant’s guilt had been proved beyond a reasonable doubt.

In this case, aside from the appellant’s testimony, there was other evidence on the issue of self-defence for the trial judge to consider before concluding that the Crown had made its case beyond a reasonable doubt. [ 34 ] Indeed, one key issue relating to self-defence was whether the victim had been struck by the appellant from behind while he was retreating down the corridor of the 14 th floor of the building, or whether the victim was facing the appellant when he was struck.

This is relevant to the question of whether the appellant reasonably perceived that the victim was assaulting him after the door of the apartment had been knocked off its hinges. [ 35 ] The injuries suffered by the victim are to the left side of his face. In cross-examination, the appellant testified that he had hit the victim with his right hand, and this was not challenged by the Crown.

The injuries suffered are therefore consistent with the victim facing the appellant or standing sideways to the appellant when he was hit. [ 36 ] The trial judge did not consider nor explain how injuries were incurred in a manner apparently inconsistent with the victim’s back to the appellant. She was required to do so.

Indeed, if there was reasonable doubt as to whether the victim was facing the appellant when he was hit, there could be reasonable doubt with respect to the constitutive elements of self-defence. [ 37 ] This is a situation where the victim used force to impede the appellant from closing the apartment door. The force used by the victim was of such extent that the apartment’s entrance door was ripped off its hinges.

If the victim was facing the appellant rather than retreating, could there not be reasonable grounds to believe that the victim was assaulting him and that he needed to defend himself or at least reasonable doubt raised by such consideration? Could the subsequent action of the appellant to strike the victim as he did then be deemed reasonable in the circumstances? [ 38 ] The trial judge did not consider these questions. A discrete exercise was required involving a consideration by the trial judge of the prosecution’s evidence and of the prosecution’s burden of proof.

The absence of indication in the reasons that this exercise was properly performed by the trial judge renders the verdict wrong as a matter of law. The appropriate remedy is to order a new trial. [ 39 ] This conclusion raises the additional issue of whether the new or old provisions of the Criminal Code respecting self-defence should apply at a new trial. [ 40 ] In the court below, the appellant proceeded to trial on the basis that the old provisions applied.

However, during argument, the judge informed the appellant and the Crown that she intended to proceed on the basis that the new provisions of sections 34 and 35 of the Criminal Code - as amended in 2012 by the Citizen’s Arrest and Self-defence Act [12] - applied, even though the incident occurred prior to their coming into force. The appellant and the Crown thereafter made their oral submissions on that basis. [ 41 ] The appellant does not raise this issue as a ground of appeal. Rather, in this Court, the appellant submits that the new

section 34 of the Criminal Code has a retrospective application because the provisions relating to self-defence in the new

section bear substantial resemblance to the former provisions. [ 42 ] The Crown submits that the issue is not essential to the disposition of the appeal. However, in oral argument the Crown recognized that should a new trial be ordered, then the issue should be addressed by this Court. [ 43 ] I agree with the Crown that resolving the issue of whether the new or old provisions of the Criminal Code relating to self- defence apply is not essential or particularly useful for the disposition of this appeal. However, since this issue is bound to arise at a new trial, it will be addressed. [ 44 ] The question of the prospective or retrospective application of the provisions of the new

section 34 of the Criminal Code relating to self-defence has been the subject of much judicial controversy in trial courts. [ 45 ] Some judgments hold that the new legislation should be given retrospective and immediate effect and be applied to pending trials even in cases where the facts underlying the defence occurred prior to the coming into force of the amendments; the reasoning in many of those decisions is that the amendments merely clarified and simplified the previous provisions, which had long been subject to judicial and academic criticism. [13] [ 46 ] Others conclude that the amendments impact upon the scope of self-defence and therefore have prospective effect only.

For instance, some previous requirements have now become factors used to assess the reasonableness of the actions of an accused person. Conceivably, the old and new provisions would yield different results in an identical fact pattern.

Consequently, an accused person must be subject to the legal provisions applicable at the time the facts underlying the defence occurred. [14] [ 47 ] One school holds that though the old and new provisions are substantively different, both should be considered in a case where the events occurred prior to the coming into force of the new provisions, and the accused person should benefit from whichever is more advantageous to his or her defence depending on the circumstances. [15]

[ 48 ] Two Canadian appellate courts have to date considered the question: the British Columbia Court of Appeal in R. v. Evans [16] and the Ontario Court of Appeal in R. v. Bengy . [17] Both hold that the new provisions of the Criminal Code relating to self-defence are to be given prospective effect only and not be applied to pending cases where the underlying facts relating to the defence pre-date the coming into force of the provisions. [ 49 ] I agree that the new

section 34 of the Criminal Code has prospective application and that consequently it does not apply in this case, which is governed by the provisions relating to self-defence applicable at the time the incident involving the appellant took place. My reasons for so concluding are substantially the same as those offered by Hourigan J.A. of the Ontario Court of Appeal in R. v. Bengy and Frankel J. of the British Columbia Court of Appeal in R. v. Evans , which I both adopt. [ 50 ] In a nutshell, the provisions of the new

section 34 of the Criminal Code have effected substantive changes to the law of self- defence rather than mere procedural changes, and they are not simply declaratory of the law as contained in the former provisions.

As a result, the presumption against the retrospective application of these provisions applies as Parliament has not explicitly or implicitly indicated that the new provisions should apply retrospectively. [ 51 ] Though the presumption against retrospective application may be rebutted by evidence of a “clear legislative intent that [the statute] is to apply retrospectively” [18] , there is no such clear legislative intent here. Parliament can be assumed to understand the impact of not dealing with the issue of retrospective application in the legislation it passes.

Absent clear legislative intent or a constitutional imperative, courts have no residual discretion to apply legislation retrospectively in order to accord with a subjective view of optimal fairness. [ 52 ] In conclusion, I would allow the appeal, set aside the verdict and order a new trial. ROBERT M. MAINVILLE, J.A.