R. v. Ryan, 2011 NLCA 9

Date: 20110113 Docket: 06/117 R. v. Ryan, Citation: 2011 NLCA 9 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : WILLIAM JOHN RYAN APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Barry, White and Harrington, JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division, 200501T8187 Appeal Heard: October 12, 2010 Judgment Rendered: January 13, 2011 Reasons for Judgment by Harrington, J.A. Concurred in by Barry and White, JJ.A. Counsel for the Appellant: Erin Breen Counsel for the Respondent: Elaine Reid Harrington, J.A.:

[1] This appeal arises from the convictions of the appellant on two counts of aggravated assault, contrary to s. 268(1) of theCriminal Code. The focus of the appeal is on whether the appellant’s plea of self-defence in the context of s. 34(2) of the CriminalCode was properly considered by the trial judge and whether the trial judge gave sufficient reasons for rejecting the plea. The appellantseeks a new trial. BACKGROUND [2] The convictions of the appellant arose out of an altercation on May 15, 2004 in the nightclub district located on George Streetin downtown St. John’s.

The trial judge gave a vivid description of the venue and the events that gave rise to the charges: [2] George Street is a magnet for party goers in the city of St. John’s. The street lays claim to having a higher concentration of barsper square foot than any other city in Canada. In fact, George Street, at party time, is not so much a street, but more so a common areasurrounded by bars because when operative, George Street, as such, is closed to traffic.

It was in this environment that William Ryanand his friend, Kevin Roberts found themselves on the early morning of May 15th. [3] On May 14th both Ryan and Roberts were in trouble with the authorities being unlawfully at large. Both had warrants out fortheir arrest. Both Ryan and Roberts had a history of criminal activity with lengthy records going back to their youth. Nevertheless, theyboth decided to party on George Street that evening and before going there had several drinks at Roberts’ apartment.

Before leaving theyboth took small utility knives from the kitchen for “their protection.” Ryan maintains that the crowd that he hung out with weredangerous and he needed protection. Roberts says that his recent stay in prison had made him somewhat paranoid and he felt morecomfortable with a knife for his protection. [4] Arriving at George Street, they attended several of the bars and consumed beer in what they described as normal quantities.

Atapproximately 2:00 a.m. on May 15th, they both found themselves in front of the Club Octane, which is where the events leading up tothe charges were to occur. [5] Kevin Roberts says that when he was going downtown to George Street he had, “in the back of his mind,” the idea to confront abouncer by the name of Danny Stansbury who, he understood, was having a sexual relationship with a girlfriend of one of his friends. Mr. Roberts said that he did not go to George Street specifically to confront Mr. Stansbury, but had it in the “back of his mind” just incase he ran into somebody by that name.

While standing in front of Club Octane, Roberts said he knew it was the place where Stansburyworked and he asked one of the bouncers to ask Stansbury to come out. Stansbury says that he encountered Roberts on the street but hedid not specifically come out to meet with him. Interesting enough, Stansbury says that a verbal confrontation occurred between the twoof them but he does not remember the tenor of the conversation. Both Roberts and Stansbury, and other witnesses, describe a loudconfrontation which was mostly verbal but, according to some, also consisted of some shoving.

It was at this time that Ryan entered thefray and the events leading to the altercation commenced. [3] The trial by judge alone was a lengthy one at which Mr. Ryan testified in his own defence. The witnesses at trial alsoincluded: (

i) several bouncers who worked at the nightclub where Daniel Stansbury and Stephen Knight, an off-duty police officer, werestabbed by the appellant, (ii) persons connected with the appellant, (iii) Stansbury and Knight, and (iv) on-duty policemen involved inthe appellant’s arrest. The defence contended that the stabbing of both Stansbury and Knight were acts of self-defence arising from thefact that the appellant had been unlawfully assaulted in the alleyway leading to Club Octane by Stansbury with whom he had had a priorverbal altercation.

His counsel contended that these circumstances placed his client in peril of grievous bodily harm justifying thestabbing of both men, particularly Knight. DECISION OF THE TRIAL JUDGE [4] Following a concise

summary of the testimony of each of the key witnesses for the prosecution and defence, the trial judgeprovided the following synopsis: [11] In essence, we have different versions from the bouncers and Club employees, and from Ryan and his friends. The bouncers talk ofa verbal confrontation involving pushing and shoving and possibly a punch thrown, whereas the version from Ryan and his friendssuggest a serious confrontation with the bouncers assaulting Ryan, necessitating him to use a weapon in self-defence in order to escape. Their versions are not the same but have certain similarities.

Roberts says immediately four or five guys jumped Ryan. Newell sawRyan being pushed by the men and one of them punching him. Ron Snow says Stansbury punched Ryan and immediately three or fourjumped on him and put Ryan on the ground. Snow said he tried to pull the men off during the confrontation, but at no time did he see aknife. Ryan says he was shoved and punched by Danny Stansbury. Next, others grabbed him and punched him while he was trying toget away. He said it was at that time that he then pulled his knife and then fell down with a person grabbing him from behind.

Similarbut very different versions of the event. [5] The trial judge found that all elements of the offences had been established subject to the assessment of the merits of the pleaof self-defence. He noted in his oral decision that this area of the criminal law is a “minefield for judges when instructing a jury” andreferred to the comments of Lamer C.J. in R. v. McIntosh, (SCC), [1995] 1 S.C.R. 686, who pointed out that theprovisions of ss. 34, 35 and 37 of the Criminal Code “often overlap and, indeed the relationship between ss. 34, 35 and 37 is somewhatunclear”.

The trial judge distinguished jury cases from those with judge alone where the judge “… can make his own decision on thefacts and thus apply the appropriate section”. [6] The trial judge then stated: I intend to address s. 34(1) but my comments and findings would apply to all three sections.

My reason for using s. 34(1) is that if I wereinstructing a jury I would find that the circumstances, as put forward by the defence, only have an “air of reality” which would enable ajudge to leave the defence under s. 34(1) with the jury. [Emphasis added.] The trial judge did not explain why consideration of s. 34(2) was unnecessary.

[7] The trial judge referred to the comments of Cory J. in R. v. Osolin, (SCC), [1993] 4 S.C.R. 595, at p. 682: The term “air of reality” simply means that the trial judge must determine if the evidence put forward is such that, if believed, areasonable jury properly charged could have acquitted. If the evidence meets that test then the defence must be put to the jury.

This isno more than an example of the basic division of tasks between judge and jury. [8] Although his analysis was unnecessarily complicated by reference to the air of reality analysis (which properly is requiredonly in deciding upon jury instructions), the trial judge adequately explained his reasons for rejecting the self-defence plea and hisexplanation is applicable to s. 34(2) as well as s. 34(1). [9] Prior to dealing with the four elements of s. 34(1), the trial judge stated: I find that the evidence given by the accused, as to what transpired, before me as a judge alone, is one that should be addressed.

In otherwords, I am stating that the assertion of self-defence is one that needs to be determined by the trier of fact, with particular emphasis oncredibility regarding the subjective elements of the defence. (emphasis added) [10] The trial judge found that there was sufficient evidence to require the court to address the essential elements of self-defence andfurther recognized “… that the onus is on the Crown to prove that the defence cannot succeed”. [11] In the course of his decision the trial judge accepted that the intent of the appellant and his companion when they took knivesfrom their apartment was to have them in their possession for their “protection”. [12] He also justified his analysis in the context of s. 34(1) by finding that the accused had been unlawfully assaulted by thebouncer, Stansbury, without provocation, during a verbal confrontation which had been initiated by Kevin Roberts with Stansbury.

Thetrial judge further found that the accused had inflicted grievous bodily harm on Stansbury and Knight based on the medical evidencepresented at trial.

The trial judge ruled that the Crown had proven beyond a reasonable doubt that Ryan had sufficient mental capacityto form the intent to cause grievous bodily harm and then proceeded to deal with the issues of whether in fact the accused had thesubjective intent to inflict grievous bodily harm and used more force than was necessary. [13] Relying principally on the evidence of Knight, his wife, his wife’s friend and bouncer Trevor Bennett, the trial judge came tothe following conclusions: [25] In

summary, I find that what occurred on that morning, was that there was shoving and punching by Stansbury, in the presenceof the other bouncers, who, undoubtedly would have been somewhat intimidating to the accused. I find that immediately after theshoving and punching by Stansbury, Ryan stabbed him in the lower stomach and it was then that he started to wield the knife to ward offthe others, including Steve Knight. The timing of the events as described, and the observations of the witnesses, support this fact.

I amsatisfied that the Crown has proved beyond a reasonable doubt that the accused intended the natural consequences of his actions when hetook out the knife. Common sense dictates, and the evidence corroborates, that the accused intended to inflict harm on those who werethere. [26] As regards the fourth ingredient [of s. 34(1)], the real issue is whether the force used by Ryan was excessive in relation to thetype of assault or harm it was intended to prevent.

I recognize, and it has been confirmed in law, that a person does not usually have timefor calm deliberation in the face of an assault, but in terms of what was transpiring on that night, on a busy street in front of numerouspeople, I find that the use of a knife, and the harm inflicted, was excessive in relation to the type of assault that was occurring. I amsatisfied that the Crown has proven beyond a reasonable doubt that self-defence does not apply because the accused intended to harmDaniel Stansbury and the force used was excessive. As to the charge involving Cst.

Steve Knight, I find that the prosecution has notproved beyond a reasonable doubt that the accused knew that Steve Knight was a police officer. I recognize that Knight, in hisstatement, has said that he identified himself, but in the confusion, the noise, and all the circumstances, I accept the fact that Ryan did notknow the real identification.

That being the case, it is fair to conclude that Ryan was free to assume that Knight was another person hewished to ward off, but as in the case of Stansbury, I am satisfied that he intended to inflict grievous bodily harm and that the force usedunder the circumstances was excessive. Regarding the charge involving Knight, I have used the same analysis as with Stansbury. Convictions are entered on Counts 1 and 2. (emphasis added) APPLICABLE LAW [14] The relevant sections of the Criminal Code are ss. 34, 35 and 37: 34.

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

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

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

b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. 35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievousbodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assaultif

(

a) he uses the force (

i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked,and (ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm; (

b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause deathor grievous bodily harm; and (

c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himselffrom death or grievous bodily harm arose. ….. 37.

(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force thanis necessary to prevent the assault or the repetition of it.

(2) Nothing in this

section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard tothe nature of the assault that the force used was intended to prevent. THE ISSUE [15] The issue in this case is whether the trial judge erred by failing to consider self-defence under s. 34(2) or by failing to giveadequate reasons as to why the self-defence plea could not succeed. LAW AND ANALYSIS [16] In R. v. Pétel, (SCC), [1994] 1 S.C.R. 3, the Court identified the three elements of a plea of self-defenceunder s. 34(2) as: (

a) the occurrence of an unlawful assault; (

b) a reasonable apprehension of risk of death or grievous bodily harm; and (

c) a reasonable belief that it is not possible to preserve oneself from harm except by killing or causing grievous bodily harm to anadversary. [17] For a self-defence plea to be successful, the trier-of-fact must be left with a reasonable doubt as to the existence of all theelements of the defence: R. v. Hebert, (SCC), [1996] 2 S.C.R. 272. If the Crown proves beyond a reasonable doubtthat any one of the above three elements is lacking, self-defence is not available to an accused: R. v. Cinous, 2002 SCC 29 ,[2002] 2 S.C.R. 3.

In Cinous the Court held that the second and third elements have a subjective and an objective component; theaccused’s perception of the situation is subjective but the accused’s belief must be objectively reasonable on the basis of the situation thathe perceives. An objective analysis is required to ensure the criminal law encourages reasonable and responsible behaviour: R. v.Thibert, (SCC), [1996] 1 S.C.R. 37, at p. 46. [18] In the case on appeal, the trial judge found that the appellant had been unlawfully assaulted by Stansbury.

Thus the first of thethree elements set out in Pétel to support a plea of self-defence was established. [19] Although the trial judge restricted his express analysis to s. 34(1), his conclusion that the appellant intended to cause Stansburyand Knight grievous bodily harm and that the force used under the circumstances was excessive also precludes a successful plea of self-defence under s. 34(2). [20] The trial judge focused initially on the circumstances of the assault of Stansbury.

He found the stabbing of Stansburyimmediately followed a pushing and shoving episode between the two men and Stansbury’s punching of the appellant. Based on thetrial judge’s reasonable findings of fact, the appellant could not have had a reasonable apprehension of death or grievous bodily harm atthat point.

Nor could he have had a reasonable belief that he could not otherwise preserve himself from death or grievous bodily harmexcept by stabbing Stansbury multiple times. [21] The appellant had asserted that the stabbing of Knight took place after he was “jumped” by four or five club bouncers alongwith Knight immediately following the stabbing of Stansbury. This is a crucial aspect of the defence theory. In this regard, the trialjudge acknowledged at para. 19 of his reasons that he would have to consider whether “Ryan had reason to believe that Knight was partof the group that could cause him harm”.

He assessed the evidence by accepting that the appellant believed that Knight was simplyanother person attacking him and was not a police officer. However, he found that there was no credible evidence that four or moreindividuals consisting of club bouncers and Knight had “jumped” the appellant and began beating him after the Stansbury assault.

Onthese reasonable findings of fact, the appellant could not have had an apprehension of death or grievous bodily harm or reasonablegrounds to believe he had no reasonable alternative but to stab Knight to preserve himself from such harm. [22] The trial judge accepted Knight’s testimony that immediately following his attempt to restrain the appellant from behind afterthe appellant had fallen, the appellant wielded the knife “like a madman”.

He immediately made multiple stabbing motions towardKnight who suffered a wound to his arm and a deep wound in his back which was later discovered to have been in close proximity tovital organs. [23] The appellant’s mindset is reflected in his testimony as to why he did not flee the scene after he was pushed and punched byStansbury, then resisted the physical restraint by Knight and later tried to elude the uniformed police officers who arrived at the scene.

The appellant admitted he was unlawfully at large at the time of the stabbings. His testimony confirmed he subjectively considered onlythe option of inflicting physical harm rather than other reasonable options to avoid any risk of grievous bodily harm to himself. [24] When responding to a specific question from his counsel as to whether there was any other way in which he could haveescaped from the alleyway outside the night club, the appellant first responded in the negative.

However, he added “… oh there sure is away with me goin’ to the hospital and then after the hospital goin’ to jail, that’s the only way which seems like it pretty much worked outthat way anyways”.

The appellant clearly acknowledged his conduct was influenced by the fact he was facing a return to custody. [25] The trial judge found that the evidence given by the appellant and the other defence witnesses was not credible in suggestingthat a serious confrontation occurred with the bouncers after the Stansbury stabbing which required that he use a weapon in self-defencein order to escape and avoid grievous bodily harm.

The trial judge expressly rejected the suggestion by the appellant and the remainingdefence witnesses that four or five of the bouncers had “jumped” the appellant and “started beating him up”. [26] Given that he was at large from the authorities, the appellant tried to escape after stabbing Stansbury. When restrained byKnight (who was not recognized as a police officer) the appellant stabbed him more than once in order to pursue his escape.

He wasinitially successful but was later arrested on an adjacent street. [27] In Cinous, Justice Binnie in his concurring reasons stated at paras. 129-130: The respondent says he did not consider going to the police, although he was outside the car and in a position to flee the scene. He said“I never called the police in my life”. Even if the police unexpectedly got there before a shoot-out, they would ask for some informationin return for protection. “That’s how it works”, he said. Accordingly, there was evidence that subjectively, as a self-styled criminal, hefelt his only options were to kill or be killed.

He wishes the jury to judge the reasonableness of his conduct by the rules of his criminalsubculture, which is the antithesis of public order. A trial judge should be very slow to take a defence away from a jury. We all agree on that. Here, however, the only way the defencecould succeed is if the jury climbed into the skin of the respondent and accepted as reasonable a sociopathic view of appropriate disputeresolution. … (emphasis added) [28] The rules of the criminal subculture were reflected in the appellant’s evidence on direct examination as to why he alwayscarried a knife: For my protection.

I carry the knife because I guess the circle of people that I’ve been in, right they, they use weapons it’s not that I useweapons it’s just that I use it to in case I ever got attacked with someone with a weapon.

I’ve been in – and I have to say it now but in[Renous]. [Renous] is a maximum security prison, I mean while I was there there must have been at least a dozen stabbings and oneperson murdered there, right, and people always had a shank in arms reach, right, not that they were plannin’ on usin’ it but to protectthemselves. (See Trial Transcript, p. 49) In my opinion, the same “rules of his criminal subculture” were also reflected in the appellant’s behaviour on the evening in question. [29] The defence submits that the trial judge was wrong when he found to be unreasonable the appellant’s belief that there was noway to preserve himself from grievous bodily harm other than to stab Knight.

I do not accept this submission. [30] Even though Stansbury was found to be the aggressor by punching the appellant, nothing else of a physical nature occurredbefore the appellant took out his knife and stabbed Stansbury several times. Immediately thereafter, the appellant, recognizing that anarrest would be forthcoming, began aggressively waving his knife while pursuing an escape. This led to the stabbing of Knight. [31] Ordinarily, the appellant could have walked away from the original encounter with Stansbury and laid an assault charge.

However, that action would have resulted in his arrest and return to incarceration. He tried to escape and when restrained by Knightresorted to stabbing. The trial judge correctly concluded that the appellant had no reasonable grounds to believe this was his onlyrecourse to preserve himself from death or grievous bodily harm. [32] It is clear from the factual findings of the trial judge that the evidence was not reasonably capable of supporting the inferencesrequired to acquit the appellant.

He could not have been under a reasonable apprehension of risk of death or grievous bodily harm andcould not have held a reasonable belief that it was not possible to preserve himself from such harm except by stabbing Knight. Therefore, the Crown has proven beyond a reasonable doubt that the plea of self-defence cannot be successful under either s. 34(1) or s.34(2). [33] Charron J. in R. v.

Beaudry, 2007 SCC 5 , [2007] 1 S.C.R. 190, for the majority, commented at para. 62 on thestandard of review affecting appeals based on unreasonable verdicts as follows: I readily appreciate that the deference owed to a trial court’s findings of fact must not become a pretext for an appellate court to evade itsresponsibility to set aside an unreasonable verdict. This is why no finding of fact is entirely exempt from appellate court scrutiny. Nonetheless, as this Court has consistently said, the integrity of our judicial system requires that the trial judge’s privileged position inassessing the facts be respected.

It should also be borne in mind that the question whether a verdict is unreasonable is not the same asthe question whether a different verdict would have been reasonable had the evidence presented at trial been interpreted differently. … Further, when discussing the duty of the appellate court to uphold a trial decision unless a palpable error leading to a wrong result hasbeen made, she wrote at para. 63:

In my view, the need to adhere to this fundamental principle is even more acute when, as in the instant case, what is in issue is the trialjudge’s assessment of the credibility of the witnesses. That is why in R. v. Burke, (SCC), [1996] 1 S.C.R. 474, SopinkaJ. stated that the appellate courts’ power of review must be exercised sparingly when the verdict rests on a question of credibility (paras.5-6).

He added that instances where a trial court’s assessment of credibility cannot be supported on any reasonable view of the evidencewere “rare” (para. 7). … [34] While it would have been preferable if the trial judge had expressly performed a s. 34(2) analysis, his reasons in thecircumstances were sufficient. In R. v. R.E.M., 2008 SCC 51 , [2008] 3 S.C.R. 3 the Supreme Court made clear that the extentof detail required in a decision varies with the circumstances of the case.

The Court held that extensive recitation of the evidence is notrequired if the reasons demonstrate that the trial judge seized the substance of the matter. [35] I am satisfied there was ample analysis by the trial judge of the evidence from this lengthy trial that was relevant to the issue ofcredibility and sufficient reasons were given in the oral decision for acceptance of the evidence of the Crown’s witnesses and rejection ofthe evidence of all of the defence witnesses. [36] Justice Binnie wrote in R. v.

Sheppard, 2002 SCC 26 , [2002] 1 S.C.R. 869 at para. 55: The trial judge is not held to some abstract standard of perfection. It is neither expected nor required that the trial judge’s reasonsprovide the equivalent of a jury instruction. [37] The trial judge dealt with the evidentiary contradictions appropriately and provided sufficient reasons for rejecting theappellant’s plea of self-defence. I am also satisfied that the evidence at trial supports the convictions of the appellant on both counts 1and 2 and if necessary would uphold the convictions pursuant to s. 686(1)(b)(iii) of the Criminal Code.

DISPOSITION [38] For these reasons, the appeal is dismissed. ______________________ M.F. Harrington, J.A. I concur: ______________________ L.B. Barry, J.A. I concur: _______________________ C.W. White, J.A.