R. v. MacKenzie, 2012 NBCA 29

COURT OF APPEAL OF NEW BRUNSWICK 165-10-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - CRYSTAL DAWN MacKENZIE RESPONDENT CRYSTAL DAWN MacKENZIE INTIMÉE R. v. MacKenzie, 2012 NBCA 29 R. c.

MacKenzie, 2012 NBCA 29 CORAM: The Honourable Justice Deschênes The Honourable Justice Richard The Honourable Justice Quigg CORAM : L’honorable juge Deschênes L’honorable juge Richard L’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: November 23, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 23 novembre 2010 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: October 20, 2011 Appel entendu : Le 20 octobre 2011 Judgment rendered: March 22, 2012 Jugement rendu : Le 22 mars 2012 Reasons for judgment by: The Honourable Justice Deschênes Motifs de jugement : L’honorable juge Deschênes

Concurred in by: The Honourable Justice Richard The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge Richard L’honorable juge Quigg Counsel at hearing: For the appellant: Jill M. Knee For the respondent: Margaret Gallagher Avocats à l’audience : Pour l’appelante : Jill M. Knee Pour l’intimée : Margaret Gallagher THE COURT The verdict of acquittal is set aside and a new trial is ordered. LA COUR Annule le verdict d’acquittement et ordonne la tenue d’un nouveau procès. The judgment of the Court was delivered by DESCHÊNES J.A. I.

Introduction [ 1 ] The respondent, Crystal Dawn MacKenzie, was acquitted of second degree murder on the person of Andrew Thomas by a jury. This appeal underscores the importance of providing the jury with the necessary tools to undertake its adjudicative mandate and the need to avoid instructing jurors on defences for which there is no evidential foundation. II. The Facts Related to the Incident [ 2 ] Although the facts as found by the jury are usually difficult to ascertain, it is not the case in this matter.

In fact, for the purposes of this appeal, most, if not all, of what follows was common ground. [ 3 ] The respondent had been sharing an apartment at 1 Alma Street in Saint John, N.B. with Andrew Thomas for four years. Three children resided with them. Mr. Thomas was the father of the two youngest. The couple’s relationship was sometimes stormy, typically resulting in verbal and physical abuse of the respondent, particularly when Mr. Thomas consumed excessive amounts of hard liquor.

The police were called on a few occasions when the respondent sustained physical injuries. [ 4 ] On the evening of March 14, 2010, the couple had already been drinking when they decided to attend a local bar, after securing babysitters for the children. The drinking continued at the bar until 2:00 a.m., when they left on foot in the company of a neighbor, Albert Munn. All three were intoxicated. Mr. Thomas walked alone using another route leading to their apartment. He reached his destination before the respondent and Mr. Munn arrived.

[ 5 ] Upon their arrival, the respondent and Mr. Munn found Mr. Thomas sitting at the bottom of the stairwell leading up to their apartment. Mr. Munn tried unsuccessfully to get him to stand. The respondent tried as well, but Mr. Thomas kept pulling her down playfully. During this episode, he ripped her shirt and hurt her neck. The respondent became upset and started slapping him about the head. She then left to attend the apartment of her friend, Mary Leavitt, next door at 3 Alma Street. Ms. Leavitt resided there with her 18 year old son Jeremy, her 17 year old daughter Jenny-Lee, and Mr.

Munn, as well as two of her other children. The respondent woke Ms. Leavitt up to borrow a shirt. She then left, still very upset, picking up a broom on the way out, intent on confronting Mr. Thomas with it. [ 6 ] In the meantime, Mr. Thomas had left the stairwell, accompanied by Mr. Munn, and had unsuccessfully sought refuge for the night just across from Alma Street on Waterloo Street, at a place occupied by Vance Lafford. The respondent, armed with a broom, crossed Alma Street, where she encountered Mr. Thomas and Mr. Munn. She began swinging the broom, striking and causing minor injuries to Mr.

Munn, who stood between the couple. Mr. Thomas took the broom away from the respondent and broke it under her chin. He then grabbed her in a chokehold and dragged her across Alma Street, throwing her to the ground, where she hit her head on the pavement. Understandably, the respondent became even more upset, but Mr. Munn was successful in separating the couple. At that point, Ms. Leavitt and her daughter, as well as Mr. Munn, were out on Alma Street. The noise from the brawl had awakened several neighbours, who observed the scene from their apartments.

The respondent cried out that she had had enough, having endured that type of abuse over the past four years, and would kill Mr. Thomas. She then started up the two flights of stairs leading to Ms. Leavitt’s apartment, followed by Ms. Leavitt, who was desperately trying to calm her down. Ms. Leavitt described the respondent as being very upset, repeatedly stating that she would no longer put up with Mr. Thomas’ abuse. After the respondent reached the kitchen area, she grabbed a large kitchen knife and again told Ms. Leavitt that she had had enough of this abuse and was going to put an end to it by killing Mr.

Thomas. Despite Ms. Leavitt’s efforts to calm the respondent, she returned to the street, armed with the knife. Witnesses testified that the respondent was separated from Mr. Thomas for two to five minutes before she came back down with the knife, but there was some evidence suggesting a shorter period of time. [ 7 ] As the respondent exited Ms. Leavitt’s apartment and returned to the street, one of the spectators cried out that the respondent had a knife. In addition, witnesses close to the action (Ms. Leavitt, Mr.

Munn, Jeremy Leavitt and other witnesses situated across Alma Street) saw the respondent exiting the apartment with the knife in hand. Mr. Thomas was close by and as she confronted him with the knife, he grabbed her by the neck and threatened to kill her. She then stabbed him in the shoulder. All of this took place in a matter of seconds. Mr. Thomas collapsed and shortly thereafter died as a result of loss of blood and a punctured lung, which had resulted from the stabbing. [ 8 ] All the witnesses who saw the incident, except one, described it as a “stabbing”.

The respondent, as well as her counsel at trial, also described it as a stabbing incident, and nowhere in her testimony did the respondent indicate that the stabbing resulted from an accident during a struggle. She did testify that she never meant to kill Mr. Thomas and only intended to inflict minor injuries. When asked to explain why she stabbed Mr. Thomas, the respondent testified she did not want Mr. Thomas in her apartment that night. Her reason for doing so was to spare the children from the spectacle of another fight.

She repeated constantly that she was highly intoxicated and did not recollect much of what took place after she left the bar, except getting thrown to the ground, getting the knife and stabbing Mr. Thomas in the shoulder. [ 9 ] Mr. Lafford, from his vantage point inside his apartment across from Alma Street, saw the couple struggle and fall to the ground as soon as Ms. MacKenzie came out of Ms. Leavitt’s apartment. He never saw the knife, nor did he see any motion to stab Mr. Thomas.

I mention this testimony at this point, because it prompted the trial judge to put the defence of “pure” accidental death to the jury, which could have allowed the jury to acquit the respondent of both second degree murder and manslaughter. III. The Position of Both Parties Before the Jury [ 10 ] The Crown took the position that the respondent intended to cause bodily harm to Mr. Thomas that she knew was likely to cause death and was reckless as to whether he died or not, thereby committing second degree murder pursuant to s. 229 ( a ) (ii) of the Criminal Code .

The Crown submitted the respondent was not intoxicated to such an extent as to affect her capacity to have a murderous intent and that she had many options other than stabbing Mr. Thomas that night. The Crown maintained self-defence was not available to the respondent. [ 11 ] The respondent’s position before the jury is somewhat difficult to discern.

The emphasis on the respondent’s state of mind as reflected by her level of intoxication, coupled with the physical abuse to which she had just been subjected, seemed to indicate that the defences of intoxication and provocation were being invoked by the respondent in an attempt to convince the jury that the act was manslaughter, rather than second degree murder. The respondent argued she never intended to kill Mr. Thomas, but only intended to inflict minor injuries to the shoulder area to scare him.

In short, the respondent’s main position at trial was that what had occurred that night was an unlawful act causing death, which resulted in a culpable homicide, but not one with murderous intent.

[ 12 ] The respondent also appeared to be seeking an acquittal on the basis of the “battered woman syndrome” defence, pointing out the stormy relationship with the deceased over a four year period, during which the respondent was abused physically and emotionally. The thrust of defence counsel’s argument was that the respondent was terrified of this situation and of this man and defended herself the only way she knew how at the time. At no time was the defence of “pure” accidental death justifying an acquittal raised, nor was that notion pursued by the defence during the trial. IV. The Grounds of Appeal [ 13 ] The appellant set out four grounds of appeal:

a) Failure to properly instruct the jury on the offence of second degree murder;

b) Failure to properly instruct the jury on the issue of self-defence;

c) Allowing the jury to consider the defence of pure accident and the defence under s. 40 of the Criminal Code (defence of a dwelling house); and

d) Failure to properly instruct the jury on the definition of culpable homicide. V. Analysis and Decision [ 14 ] To begin, I would set out a few important principles applicable to this appeal: i) Section 676(1) (

a) of the Criminal Code provides that the Crown may appeal a verdict of acquittal from a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone; ii) The decision by a trial judge to put a particular defence to a jury on the basis it has an air of reality is a question of law reviewable on appeal on a standard of correctness ( see R. v.

Tran , 2010 SCC 58 , [2010] 3 S.C.R. 350 at para. 40 ); iii) In determining whether there is an air of reality to a defence, the trial judge must ask himself or herself “whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true.” This kind of evidence must exist with respect to each component of the defence , otherwise the defence is not available to an accused ( see R. v. Cinous , 2002 SCC 29 , [2002] 2 S.C.R. 3 at paras. 92 and 95 and R. v.

O’Brien , 2003 NBCA 28 , 257 N.B.R. (2d) 243 at paras. 113-114 ); iv) A trial judge leaving a defence to a jury for which there is no evidential foundation, or providing erroneous instructions to the jury commits an error of law that will result in a new trial, provided the Crown satisfies the appellate court “that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”. However, the Crown is not required to persuade the appellate court “that the verdict would necessarily have been different” ( see R. v.

Graveline , 2006 SCC 16 , [2006] 1 S.C.R. 609 at para. 14 and R. v. Duguay , 2007 NBCA 65 , 320 N.B.R. (2d) 104 at paras. 26-27 );

v) An evidential foundation to a defence cannot be said to exist “where its only constituent elements are of a tenuous, trifling, insignificant or manifestly unsubstantive nature: there must be evidence in the record upon which a properly instructed jury, acting judicially, could entertain a reasonable doubt as to the defence that has been raised.” ( R. v. Fontaine , 2004 SCC 27 , [2004] 1 S.C.R. 702 at para. 56 ).

VI. Application of These Principles to This Appeal [ 15 ] The first ground of appeal does not engage the principles enunciated above. The Crown argues the trial judge erred in law in his initial instructions to the jury on the definition of second degree murder. When he first discussed the concept of second degree murder, the trial judge did in fact fail to mention the alternate route of liability for second degree murder; namely that the accused could also be found guilty of second degree murder without having the specific intent to kill, if she meant to cause Mr.

Thomas bodily harm and was reckless as to whether death ensued or not. That error, however, was corrected when the trial judge, later in his instructions, read the provisions of s. 229 ( a )(

i) and (ii) the Criminal Code and stated: Well the critical concept there is there has to be an intention, a meaning to cause death or meaning to cause bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not. That raises this problem about the stab in the shoulder. Has the evidence proved beyond a reasonable doubt that Ms.

MacKenzie meant to cause his death or does the evidence prove beyond a reasonable doubt that she meant to cause him bodily harm that she knew was likely to cause his death and is reckless whether death ensues or not. [Trial transcript, vol. 6, pp. 77-78] [ 16 ] In my view, these comments make it clear to the jury that they had a second avenue to arrive at a conviction for second degree murder. The trial judge also referred to the alternate route of liability for second degree murder in his later response to the jury’s questions. I find no merit in this ground of appeal. VII.

The Alleged Errors in the Trial Judge’s Instructions Relating to Self-Defence, Defence of a Dwelling House and Accidental Death [ 17 ] The thrust of the appellant’s submission is that the trial judge erred in law in his instructions to the jury on the defence of self-defence, and in allowing the jury to consider acquittal on the basis of accidental death or on the basis that the respondent used the necessary force to defend her dwelling house. In my respectful view, all of these contentions have merit. A. The Instructions on Self-Defence Based Upon R. v.

Lavallee [ 18 ] After providing the jury with a general outline of what he intended to cover in his instructions (namely the notions of murder, manslaughter, accidental death, intoxication, provocation, self-defence and defence of one’s dwelling house), the trial judge proceeded to discuss in more detail, the defences of self-defence and defence of a dwelling house by reading the provisions of sections 34 , 35 and 40 of the Criminal Code .

He continued his instructions as follows: […] there is some evidence suggesting she was at the door with the knife to scare him away or hurt him so he would go away to keep him out of the house with – where the three kids, were asleep and where she was afraid of his further violence. Well those general words they’re – they’re not as helpful as what the Supreme Court has tried to clarify with regard to situations that – involving death and domestic violence.

The – in the Lavallee case, the Supreme Court made the point and I mentioned this to you on Tuesday that in a case like this and during deliberations they – for the jury quote, the question the jury must ask itself, this is with regard to the self-defence problem or issue, is whether given the history, circumstances and perceptions of the accused, Ms. MacKenzie, it was her belief that she could not preserve herself from being killed by Mr. Thomas except by killing him first.

Reasonable, was – was that view reasonable if – if she was – if she was – found herself in a situation of intentionally or killing him or unintentionally hurting him with – or with or hurting him without the intention of killing him. Was – was that reasonable self-defence? Let me give another example of somebody trying to repel a – a – somebody who wants to come into their house to keep them out of the house might push them away and have the person then fall, bang their head on the street and die from the head injury.

It – they may have been intentionally trying to keep them away with the push to defend their home. They’ve had no intention of killing them. The person could still be dead. If that – if that situation happens then the person who pushed away, if they were acting in self-defence or defence of their home would – if – would be acting in a way that’s legally justified. If they weren’t acting properly in – in a justified way in defending themselves or their home without there having been an intention to kill the person, it would be a wrongful act leading to his death or manslaughter.

I mention that to try to provide some colour and depth to the subtleties of the law and the – the complications of the facts of this case. . So, in considering the – what was happening at 2:15 that morning, when she went down with the knife, she says, in effect, she was trying to scare him away or hurt him so he – he would not come up to her place. She says she had trouble with him kicking the door in and there’s evidence of him having broken doors in in the past. If, when she’d got downstairs with the knife, he was on his way up Waterloo Street, on his way somewhere else, that would have been the end of it.

The evidence is that Mr. Munn was trying to walk him around a bit, keep him – keep him going and – and – and that they were – but they were still right outside the door and this is within a short period of

time of her having tried to go after him with the broom and him getting the broom or getting a stronger grip on the broom than her and breaking it on her throat against the building then her head being crashed against or smashed against or hit against somehow the ground or curb or sidewalk.

So, at the point, that night a second before the knife in her hand went into his shoulder, we have evidence that he was trying to strangle her, whatever the jury makes of that and, as I mentioned, from the words of the Supreme Court, the question the jury must ask itself is whether given the history, circumstances and perceptions of the accused, Ms. MacKenzie, her belief that she could preserve herself from being killed by Mr. Thomas – that she could not preserve herself from being killed by him except by killing him first was reasonable or was it reasonable?

But if you have a reasonable doubt about whether or not the Crown has proven beyond a reasonable doubt that – that this was a non-justified action on her part, that it wasn’t self-defence, that it wasn’t defence of a dwelling home, it’s your duty to give the benefit of the doubt to the accused. [Trial transcript, vol. 6, pp. 72-76] [ 19 ] After dealing with the legal concepts relating to manslaughter and provocation, the trial judge remarked on the issue of self-defence and defence of a dwelling house: In considering the whole self-defence issue, remember it’s that – the question the jury must ask itself is whether given the history, circumstances and perceptions of the accused, Ms.

MacKenzie, her belief that she could not preserve herself from being killed by Mr. Thomas except by killing him first was reasonable – was that reasonable? You’ve got to consider that. There’s also defence of dwelling house here, argument, and was the – and that’s an aspect of self-defence in her defence of the dwelling.

She is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling house without lawful authority and that’s an issue that has to be kept in mind [...]. [Trial transcript, vol. 6, p. 81] [ 20 ] After a few hours of deliberation s , the jury asked to hear the evidence of a particular witness and to be instructed again on the legal concepts of manslaughter and self-defence.

After dealing with the manslaughter issue, and following another reading of sections 34 , 35 and 40 of the Criminal Code , the trial judge instructed them as follows on self-defence and defence of one’s dwelling house: Here’s this – an indication or a suggestion in the evidence that one of the reasons she was going down, first with a broom and then with the – with the knife was to keep him out of the house, keep him away from the kids in that – in his drunken condition and although ordinarily it – it’s an assault and an offence and wrong, legally and – and – to threaten anybody with a knife to – at your doorstep to try to to – if you are in possession of your house.

There is a justification in using such force as is necessary including, I – I suppose the jury could infer brandishing a knife to stay out, stay away, go somewhere else, leave me alone, to preserve and defend your house. Now there are other wrinkles here about that including that, you know, he’d been living there too and he probably thought of it as his house too and that makes it more complicated especially when he’s just been choke holding her and dragging her around and breaking a broom under her throat.

Those are – those – these issues about self-defence have been summarized in these words I’ve read to you from the Supreme Court of Canada case that the question the jury must ask itself – this was in a case involving a – a – a – the death in a domestic situation. The question the jury must ask itself is whether given the history of circumstances and perceptions of the accused, Ms. MacKenzie, her belief that she could not preserve herself from being killed by Ms. – by Mr. Thomas except by killing him first was reasonable. The – was it reasonable given the history, circumstances and perceptions of Ms.

MacKenzie that she could not preserve herself from being killed by Mr. Thomas except by killing him first. Then – you’ve heard – the evidence and – about the all – the previous issues of violence and the – and just briefly before this she had had her head banged on a – a curb, a broom broken under her chin and there’s some subtleties in the timing as to how they met outside the doorstep, whether – just what – what exactly is proven beyond a reasonable doubt to the satisfaction of the jury and what exactly happened then.

I should have – I suppose I’ll elaborate here that the – that those words could not preserve himself from being killed except by killing him first. You know, that’s an echo of the final part of the self-defence

section that the person believes on reasonable grounds that he cannot otherwise preserve himself from death or grievous bodily harm.

That raises concerns about the other options she had at that time, you know, with the – her – her options and – you know, were discussed with her and they would have included just calling the police, going to the neighbours, calling family members but on the other hand she had this problem of him having kicked in doors, come after her different times past and – (Pause) THE COURT: - as the Supreme Court put it the question the jury must ask itself is whether given the history, circumstances and perceptions of the accused, Ms. MacKenzie, it was her belief that she could not preserve herself from being killed by Mr.

Thomas except by killing him first. Was that reasonable? That gets into this whole – puts that issue all together.

[Trial transcript, vol. 6, pp. 127-130] [21] As is readily apparent in reading the judge’s instructions on the issue of self-defence, he relied entirely upon areading of sections 34 and 35 of the Criminal Code and an excerpt from R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852,[1990] S.C.J. No. 36 (QL), which, in turn, dealt with s. 34(2) of the Code. In my respectful view, the jury was simply not provided withthe type of instructions necessary to “understand the case before them and […] fulfill their adjudicative mandate”, as Drapeau C.J.N.B.stated in O’Brien, at para. 26.

To allow the jury to retire and consider whether or not to acquit an accused based upon these instructionsdealing with the “battered woman syndrome” and Lavallee has, in my view, the potential to undermine the significance of that type ofdefence and to foster disrespect for our constitutionally protected jury system. [22] Ironically, the Crown in this appeal chose to challenge the verdict of acquittal by relying on errors in theinstructions to the jury on self-defence, rather than to argue that such a defence should not have been put to the jury in the first place onthe basis there was no air of reality to it.

On the other hand, although counsel for the respondent (who was not counsel at trial) arguedstrenuously and competently that the verdict of acquittal ought to be maintained and the appeal dismissed, she readily conceded that thiswas not a proper case for a defence based upon the “battered woman syndrome” and Lavallee. I shall dispose of this ground of appeal asformulated by the Crown. [23]

Section 34 of the Criminal Code provides: 34.

(1) Every one who is unlawfully assaultedwithout having provoked the assault isjustified in repelling force by force if theforce he uses is not intended to cause death orgrievous bodily harm and is no more than isnecessary to enable him to defend himself.

(2) Every one who is unlawfully assaultedand who causes death or grievous bodilyharm in repelling the assault is justified if (

a) he causes it under reasonableapprehension of death or grievous bodilyharm from the violence with which theassault was originally made or with which theassailant pursues his purposes; and (

b) he believes, on reasonable grounds, thathe cannot otherwise preserve himself fromdeath or grievous bodily harm. 34.

(1) Toute personne illégalement attaquéesans provocation de sa part est fondée àemployer la force qui est nécessaire pourrepousser l’attaque si, en ce faisant, elle n’apas l’intention de causer la mort ni des lésionscorporelles graves. Mesure de la justification

(2) Quiconque est illégalement attaqué etcause la mort ou une lésion corporelle graveen repoussant l’attaque est justifié si :

a) d’une part, il la cause parce qu’il a desmotifs raisonnables pour appréhender que lamort ou quelque lésion corporelle grave nerésulte de la violence avec laquelle l’attaque aen premier lieu été faite, ou avec laquellel’assaillant poursuit son dessein;

b) d’autre part, il croit, pour des motifsraisonnables, qu’il ne peut pas autrement sesoustraire à la mort ou à des lésionscorporelles graves. [24] The components of self-defence under s. 34(1) require that the accused was unlawfully assaulted, did notprovoke the assault, did not intend to kill or cause serious injury to the assailant nor use more force than necessary to defend herself orhimself against the assailant (see David Watt, Ontario Specimen Jury Instructions (Criminal), (Toronto: Thomson Carswell, 2003) at1062 and Canadian Judicial Council, Model Jury Instructions in Criminal Matters, (Ottawa: Canadian Judicial Council, 2004)). [25] Bearing in mind the factual background in this case, it is clear that the respondent could not avail herself ofthat defence and, as a result, s. 34(1) of the Code should not have been read to the jury.

Indeed, it is fairly obvious that Mr. Thomas wasresponding to an attack by Ms. MacKenzie with a large kitchen knife. In that context, to look upon his act of grabbing her by the throat asbeing an unlawful assault is a tenuous proposition, to say the least. In any event, even if one were to look upon his response as anunlawful assault upon Ms. MacKenzie, it does not make much sense to conclude that the assault was not provoked by Ms. MacKenzie’s

attack upon him with a knife. There is clearly no air of reality to a defence of self-defence on the basis of s. 34(1) and the trial judgeproviding this

section could only serve to confuse the jury. [26] Under s. 34(2), the defence of self-defence may still be successful despite having been provoked by the personinvoking the defence. But again, the person invoking the defence must have been unlawfully assaulted. It seems to me the propositionthat Mr. Thomas’ response to Ms. MacKenzie’s attack with the knife was an unlawful assault is one that is manifestly unsubstantiated bythe evidence. The other components of self-defence under s. 34(2) are that: (

a) the accused used force against the assailant because shereasonably feared that the assailant would kill or seriously injure her; and (

b) the accused used force against the assailant because shereasonably believed that she could not otherwise save herself from being killed or seriously injured by the assailant (see OntarioSpecimen Jury Instructions at 1069, Model Jury Instructions in Criminal Matters and R. v. Pétel, (SCC), [1994] 1S.C.R. 3, [1994] S.C.J. No. 1, at para. 19 (QL)). [27] There is nothing in Ms. MacKenzie’s statement to the police, to neighbours or in her testimony at trial tosuggest that she apprehended death or grievous injuries at the hand of Mr. Thomas, or that she believed she had to kill him to saveherself.

On the contrary, the evidence strongly suggests that what she feared was having to continue living with Mr. Thomas in anabusive situation that she could no longer tolerate. [28] In that context, my view is that the defence of self-defence under s. 34(2) lacked an air of reality and the juryshould not have been invited to consider it. But the Crown did not argue the case on that basis.

The jury was in fact called upon toconsider self-defence but, in my view, in a format that does not cover all of the important components of s. 34(2). [29] This was a case where the defenses of intoxication, provocation, accident, self-defence and defence of one’sdwelling house had been called into play by the trial judge. The judge did tell the jury on several occasions that they were entitled toacquit Ms. MacKenzie if they felt that, given the history, circumstances and her perceptions, her belief that she could not preserve herselffrom being killed by Mr. Thomas except by killing him was reasonable.

However, in that context, this type of general invitation to a juryto acquit without going through all the components of self-defence under s. 34(2) and relating the pertinent evidence to such componentsdoes not allow the jurors to fulfill their adjudicative mandate and constitutes a serious error of law. [30] There are, of course, circumstances where a person is justified in killing another to save his or her life, as wasthe case in Lavallee. However, there are important limits to the use of the “battered woman syndrome” defence. On this point, I wouldadopt the words of caution used in R. v.

Craig, 2011 ONCA 142, [2011] O.J. No. 893 (QL): We agree with the trial judge that not every killing by an abused person in response to prolonged abuse is justified under the self-defenceprovisions of the Criminal Code: R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852 at pp. 890-91. Self-defence is a justificationfor what would otherwise be culpable homicide, based on the necessity of self preservation. It is a recognition that in the circumstancesdescribed in the various self-defence provisions of the Criminal Code society accepts that a person is justified in killing another to saveone's self.

A person who kills another to escape from a miserable life of subservience to that person does not act in self-defence absentreasonably perceived threats of significant physical harm and reasonably held beliefs that the killing is necessary to preserve one's selffrom significant physical harm or death. The elements of self-defence in s. 34(2) as described in Pétel have both a subjective and objective component. For example, an accusedmust actually apprehend the risk of death or grievous bodily harm. This is a subjective inquiry into the mind of the accused at therelevant time.

That apprehension, however, must be reasonable in the circumstances as perceived by the accused. This is an objectiveinquiry that serves to limit the defence to circumstances where the accused's conduct would be seen as normatively justified: Cinous, atparas. 92-97; R. v. Currie (2002), (ON CA), 166 C.C.C. (3d) 190 at para. 54 (Ont. C.A.); R. v. Pilon (2009), 2009ONCA 248 , 243 C.C.C. (3d) 109 at paras. 72-75 (Ont.

C.A.) [paras. 35-36] [31] Here, an excerpt taken from a paragraph in Lavallee took centre stage in a case that was argued mainly on thebasis of the defence of self-defence by a woman who was involved in a stormy and abusive relationship over a four year period. In fact,the trial judge used the excerpt on at least three occasions as the key question for the jury to address.

The excerpt, however, is only asmall portion of what paragraph 59 of Lavallee contains and certainly does not encapsulate the necessary information that should beconveyed to a jury to enable it to live up to its adjudicative mandate when dealing with the defence of self-defence under s. 34(2) of theCode. No one should be surprised that the jury came back and asked to receive additional instructions on the issue of self-defence. [32] Paragraph 59 in Lavallee reads as follows:

If, after hearing the evidence (including the expert testimony), the jury is satisfied that the accused had a reasonable apprehension of death or grievous bodily harm and felt incapable of escape, it must ask itself what the "reasonable person" would do in such a situation. The situation of the battered woman as described by Dr. Shane strikes me as somewhat analogous to that of a hostage.

If the captor tells her that he will kill her in three days time, is it potentially reasonable for her to seize an opportunity presented on the first day to kill the captor or must she wait until he makes the attempt on the third day? I think the question the jury must ask itself is whether, given the history, circumstances and perceptions of the appellant, her belief that she could not preserve herself from being killed by Rust that night except by killing him first was reasonable.

To the extent that expert evidence can assist the jury in making that determination, I would find such testimony to be both relevant and necessary. [ 33 ] In my view, it is a critical error in law, in a case like this one, to invite the jury, as a stand-alone proposition, to render a verdict of acquittal if it felt that the respondent’s belief that she had to kill or seriously maim Mr.

Thomas to preserve her own life was reasonable, given the history, circumstances and her perceptions. [ 34 ] The components of that defence should be explained to the jury and, as a general rule, the relevant evidence with respect to each component should be brought to the jury’s attention at some point in time (see R. v. Eatmon , 2005 NBCA 27 , 281 N.B.R. (2d) 360 at paras. 42-45 ). These components are that the respondent killed Mr.

Thomas to repel an unlawful assault (or what she reasonably perceived to be an unlawful assault), that she reasonably believed that she would be killed or suffer serious bodily harm as a result of that assault and that she could not otherwise preserve herself from death or serious bodily harm other than by acting as she did (see Ontario Specimen Jury Instructions and Model Jury Instructions in Criminal Matters ). [ 35 ] In this case, the “lawfulness” or “unlawfulness” of Mr. Thomas’s response to the respondent’s attack upon him with a kitchen knife was obviously the first issue to be resolved by the jury.

This important component of the defence under s. 34(2) was not mentioned by the trial judge. Was the respondent repelling an “unlawful” assault by Mr. Thomas? If she was not, self-defence under s. 34(2) is not available to her, despite the fact the other components of the defence might be fulfilled. In that context, it was imperative that the jury be made to understand what constitutes an unlawful assault and be guided as to what evidence could be considered in determining the lawfulness or unlawfulness of Mr. Thomas’ response to the respondent’s attack with a knife. [ 36 ] Of course, Mr.

Thomas had undoubtedly unlawfully assaulted the respondent when he used excessive force in repelling her assault with the broom earlier. If the jury somehow concluded the respondent’s response to that unlawful assault was to fetch a knife from her friend’s residence, it would then have to deal with the other components of the defence, namely whether the respondent was in fact using the knife to repel such unlawful assault, bearing in mind the time lapse between the assault by Mr. Thomas and the fatal blow, as well as the respondent’s declaration of her intent to kill Mr. Thomas.

Another question the jury would have to address is whether the respondent reasonably feared for her life in these circumstances, having removed herself from the situation in the street, entering a friend’s apartment, taking a knife from the kitchen and returning to the street.

To sustain a self-defence plea, the jury must find that the respondent could not save herself from death or serious injury other than acting as she did, bearing in mind the various options that might have been at her disposal. [ 37 ] The trial judge also had an obligation to deal with the reasonableness of the respondent’s belief that she was facing death or serious injury and her belief that she had to stab Mr. Thomas in order to save herself from death or serious injury. This obligation would also apply in dealing with the respondent’s response to Mr.

Thomas’ application of force to her throat when the stabbing took place. The jury must be made to understand, among other things, that this aspect of the defence has a subjective as well as an objective component. In other words, they would certainly have to be informed that the respondent would have to have reasonable grounds to fear for her life, not only from her perspective, but also from the viewpoint of an ordinary person in the same circumstances. [ 38 ] In my respectful view, the above two failures (to discuss the lawfulness or unlawfulness of Mr.

Thomas’ response to the respondent’s attack with the knife and to explain to the jury the subjective and objective component of the reasonableness of her beliefs) in this case are two critical errors of law. I have no hesitation in saying that either one of these two errors, in the words of Fish J. in Graveline , “might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”. [ 39 ] That being so, it is not strictly necessary to deal with the other grounds of appeal.

There is no need to address the ground of appeal regarding the instruction on defence of a dwelling house, given my findings on the self-defence instructions generally. However, I shall briefly address the Crown’s contention that the defence of accidental death should not have been put to the jury. As I mentioned, my view is that this contention has merit. VIII. Accidental Death

[ 40 ] The trial judge mentioned accidental death that could result in an outright acquittal when he referred to the evidence of a witness who testified to the effect that, when the scuffle took place with the respondent holding the knife, the witness had not seen any stabbing motion as the two combatants fell to the ground. In my view, this evidence does not provide the evidential foundation for the defence of accident and should not have been put to the jury. The testimony of the respondent herself was inconsistent with an “accidental” stabbing.

Although she maintained she never intended to kill or seriously injure Mr. Thomas, the respondent never testified, nor did her counsel at trial contend, that the stabbing was accidental in the sense that she never intended to stab Mr. Thomas. Clearly, the fetching of the knife to confront Mr. Thomas in this case was an unlawful act and the use of the knife, albeit for the sole purpose of inflicting a minor or insignificant injury to Mr. Thomas, does not afford a defence of pure accident justifying an outright acquittal.

The evidence considered by the trial judge as the foundation for such a defence was tenuous, insignificant and of a manifestly unsubstantial nature. [ 41 ] It is clear the evidence relied upon by the respondent was that of accidental conduct regarding the lack of intent to kill or to cause serious bodily harm to Mr. Thomas. However, the judge confused this lack of intent with the defence of pure accident. The trial judge should have clarified that, while the respondent might not have intended to kill the victim and the fatality was unintended and accidental, this would only reduce murder to manslaughter.

It would not allow for an outright acquittal. There was no evidential foundation to prompt instructions on the defence of pure accident, and the inclusion of such instructions in the judge’s charge only served to confuse the jury. In my view, this error is significant and undoubtedly would have had an impact on the verdict of acquittal. IX. Disposition [ 42 ] I would allow the appeal, set aside the verdict of acquittal and order a new trial. ____________________________________ ALEXANDRE DESCHÊNES, J.A. WE CONCUR: _____________________________________ J.C.

MARC RICHARD, J.A. ______________________________________ KATHLEEN A. QUIGG, J.A.