R. v. Lewis, 2018 NLSC 191

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Lewis , 2018 NLSC 191 Date : September 27, 2018 Docket : 201701G7529 Her Majesty The Queen v. Jesse WILLIAM Lewis Before: Justice Alphonsus E. Faour Reasons for Judgment Given Orally Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: September 10, 12, 13, 14 and 19, 2018 Date of Oral Judgment: September 25, 2018

Summary: The Accused was charged on an Indictment arising from an incident on April 21, 2017 where a gun was discharged seriously injuring the victim. The Accused did not dispute that the incident occurred, but pleaded self-defence as justification. Of the eleven counts on the Indictment, five arose from the discharge of the gun. One count dealt with a driving offence, and the remaining five were breaches of court orders. The Accused admitted the driving offence, and the related breach of conditions. However, he argued that the circumstances gave rise to a justification of self-defence in respect of the other offences.

The Court found that the defence in

section 34 of the Code applied. The Crown failed to prove Counts 1 – 5 beyond a reasonable doubt. Acquittals were entered on these. Counts 6 – 11 were made out and convictions were entered. Appearances: Michael G. Murray Appearing on behalf of the Crown Mark J. Gruchy Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, 1991 CarswellOnt 1015; R. v. Forde, 2011 ONCA592; R. v. Cormier, 2017 NBCA 10; R. v. Cunha, 2016 ONCA 491 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 TEXT CONSIDERED: David Watt & Michelle Fuerst, The 2019 Annotated Tremeear’s Criminal Code (Toronto: ThomsonReuters, 2019) REASONS FOR JUDGMENT Faour, J.: INTRODUCTION [1] The Accused, Jesse Lewis, was charged with eleven offences arising from an incident at the town of Avondale,Newfoundland and Labrador where Bernard Mason was shot when a gun was discharged, causing a serious injury to his leg. TheIndictment alleged that the Accused: 1. On the 21st day of April 2017 at Avondale did wound, maim or disfigure Bernard Mason, contrary to s. 268(2) of the CriminalCode, R.S.C. 1985, c. C-46 (the “Code”); 2.

On the 21st day of April 2017 at Avondale did discharge a firearm with intent to wound, maim or disfigure Bernard Mason, contraryto s. 244(2) of the Code; 3. On the 21st day of April 2017 at Avondale did have a weapon in his possession for the purpose of committing an offence, contraryto s. 88(2) of the Code; 4. On the 21st day of April 2017 at Avondale did without lawful excuse, use or carry a firearm in a careless manner, contrary to s.86(1) of the Code; 5. On the 21st day of April 2017 at Avondale did without lawful excuse point a firearm at Bernard Mason, contrary to s. 87(2)(

b) ofthe Code;

6. On the 21 st day of April 2017 at Avondale did operate a motor vehicle while disqualified from so doing by reason of an Order under s. 259(2) of the Code , contrary to s. 259(4) (

b) of the Code ; 7. On the 21 st day of April 2017 at Avondale did fail to comply with a condition of a Recognizance that he not possess a firearm, contrary to s. 145(3) (

b) of the Code ; 8. On the 21 st day of April 2017 at Avondale did fail to comply with a condition of a Recognizance that he not operate a motor vehicle, contrary to s. 145(3) (

b) of the Code ; 9. On the 21 st day of April 2017 at Avondale did fail to comply with a condition of a Recognizance that he keep the peace and be of good behaviour, contrary to s. 145(3) (

b) of the Code ; 10. On the 21 st day of April 2017 at Avondale did fail to comply with a condition of a Recognizance that he not communicate with N.S., contrary to s. 145(3) (

b) of the Code ; 11. On the 21 st day of April 2017 at Avondale did fail to comply with a Probation Order issued on February 1 st 2016, contrary to s. 733.1(1) (

b) of the Code ; [ 2 ] The Crown, with consent of the Accused, submitted copies of three court orders. Placed into evidence were: 1) a Prohibition Order dated February 1, 2016, 2) a Probation Order dated February 1, 2016, and 3) a Recognizance dated April 19, 2017. [ 3 ] These documents were submitted to satisfy the requirements of counts 6 through 11. It would follow that if guilt was established on the any of the substantive counts 1 through 5, then the elements of the offences set out in counts 6 through 11 would also be established.

Background Facts [ 4 ] On April 21, 2017, Bernard Mason entered the home of Jesse Lewis. He was in quite a state, drunk, angry and making threats to harm Lewis and anyone who might get in his way. Present in the house were Jesse Lewis, Paul Conway, a young person, and Lewis’ former girlfriend (N.S.). The only individuals over 20 years of age were Bernard Mason, who was 32, and Paul Conway, who was in his late 30’s. Jesse Lewis was 18, N.S. was 17 and the youth was about 15. [ 5 ] Mason caused quite a scene in the kitchen of the Lewis home. He was trying to get at Lewis, and was blocked by N.S.

He responded by getting more angry, and banged his head against the kitchen cabinets, causing damage. When Lewis and the others left the kitchen and headed outside by another route, Mason tried to get past N.S., and finding his way blocked, tried to beat his way through the wall, damaging the gyprock in the process. [ 6 ] Lewis and the others found their way outside through the front door, facing the street. Lewis was carrying a gun – a sawed- off shotgun which he had kept for such an eventuality.

Mason pushed his way out the side door, and saw Lewis coming around the house, heading in the direction of N.S.’s car, which was parked next to the steps leading to the side door. Mason, still angry and out of control, lifted a garbage container over his head and threw it at Lewis. He missed his target, but then either fell or jumped down the stairs toward Lewis, who was just coming around to that side of the house. Mason ended up on the ground, next to Lewis, and while it is not clear exactly what happened next, it led to the discharge of the shotgun into Mason’s leg.

He suffered a serious injury to his leg, as evidenced by the photographs taken by the Police a short time after. [ 7 ] Lewis, together with N.S. and two other individuals, fled the scene in her vehicle. Lewis was driving. They drove for several hours, first in a westerly direction on the Trans Canada Highway as far as Terra Nova Park. They turned around and headed in an easterly direction towards St. John’s. At around Whitbourne the Police gave chase, and eventually stopped the vehicle by the use of a spiked belt placed on the highway.

The vehicle continued for a short distance on blown-out tires before it stopped and the Police arrested Lewis, along with the others in the car. [ 8 ] This is a superficial overview of the events that took place at Jesse Lewis’ home on April 21, 2017. There is much more to be considered, and I will examine the evidence below when considering the Accused’s assertion that self-defence was justification for the incident, and that he is not guilty of any offences arising from the injury to Mason.

It is not disputed by Lewis, that he owned the gun, that he had it in his hands, and that it discharged injuring Bernard Mason. It is also not disputed that he fled the scene in his girlfriend’s car, with the others. He has raised

section 34 of the Code as providing lawful justification for his actions that day. [ 9 ] The evidence on most of the actus reus elements of the six substantive offences was not seriously in dispute. The first

offence, aggravated assault contrary to section 268(2) of the Code , contains elements that require the Crown to prove that the conduct of the Accused caused bodily harm to the victim. In this case, the evidence was clear that Lewis held a gun that discharged and caused a serious injury to Mason’s leg. These actions were proven beyond a reasonable doubt by the evidence presented. However, a necessary element is mens rea , or the mental element, which requires the Crown to prove that the wound was caused intentionally by the Accused.

Since the Accused has raised self-defence, the Crown must prove beyond a reasonable doubt that this defence is not made out. I will deal with those elements below. [ 10 ] The second offence, discharging a firearm with intent to wound, contrary to section 244(2) of the Code , contains elements that require the Crown to prove that the firearm was discharged by the Accused and it was directed at Bernard Mason. I believe the Crown has proven these elements beyond a reasonable doubt.

Similar to the previous offence, the Accused has raised the issue of self-defence, and the Crown must disprove this element beyond a reasonable doubt. I will deal with this below. [ 11 ] The third offence, possessing a weapon for the purpose of committing an offence, contrary to section 88(2) of the Code , contains elements that require the Crown to prove possession with intent to commit an offence.

I believe the Crown has proven possession, but like the previous offences, the issue of intent depends on the defence raised. [ 12 ] The fourth offence, careless use of a firearm contrary to section 86(1) of the Code , contains elements which have been proven by the Crown. However, conviction also requires that the Crown prove beyond a reasonable doubt that the Accused had no lawful excuse for the use of the firearm. Again, this requires examination of the issue of self-defence. [ 13 ] The fifth offence, that of pointing a firearm at Bernard Mason, contrary to section 87(2) (

b) of the Code requires further examination. The first element, whether Jesse Lewis pointed a firearm at Bernard Mason is not supported by the evidence. I will examine this element, as well as the issue of whether there was lawful excuse for this act. This also engages the issue of self-defence. [ 14 ] The sixth offence was not directly related to the discharge of the gun and the injury to Mason. It is a charge of operating a motor vehicle while prohibited, contrary to section 259(4) (

b) of the Code . The Crown has submitted both viva voce testimony and video evidence which demonstrates beyond a reasonable doubt that Lewis was driving at the time. This shows that he was not in compliance with an Order made by the Provincial Court of Newfoundland and Labrador on February 1, 2016. That Order, submitted into evidence by consent, was in force at the relevant time. The Accused does not dispute this offence. [ 15 ] All of the other offences, as already noted, are breaches of various court orders.

Conviction on these will depend on conviction on any or all of the six substantive offences described above. The Evidence on the Offences [ 16 ] All of the events relevant to the offences took place at the home of Jesse Lewis. The house belonged to his father, and while his father did not occupy the house, Lewis lived there for several years prior to this incident. However, the circumstances leading to this altercation began many years before. [ 17 ] Bernard Mason is an Ironworker, who currently works at the hydro project at Muskrat Falls in Labrador.

Since the work is in a remote area, he is away from his home for extended periods of time. He says he has known Lewis since he was a child and that their relationship was fairly close. He described teaching him different things, almost as a mentor to this young boy, about 13 years his junior. In recent years, however, their relationship has become acrimonious, in no small way related to their relationships with women. [ 18 ] At the time of this incident, Lewis was seeing N.S. They were a couple. Mason also knew N.S. He testified that at one time he had a sexual relationship with her.

This appears to have been the catalyst for the animosity between Mason and Lewis. Lewis also disclosed in his testimony that some time before, he had sex with Mason’s then girlfriend. Those two sexual encounters appear to have provided the foundation for the current acrimony between them. [ 19 ] From both the Police witnesses and several other witnesses, it became apparent that apart from his problems with Lewis, Mason was seen as a tough guy in the community. Cst. John Galway of the Royal Canadian Mounted Police (the “RCMP”) testified that he was aware that Mason was known as being a “hard ticket”.

He was challenged on the fact that Mason was not charged with any offence, notwithstanding evidence of several possible criminal acts arising from this incident. He said he was unable to obtain statements from anyone, because no one wanted to give evidence against him. Even N.S., who was at the centre of the incident, downplayed his behaviour as she did not want him charged, according to Cst. Galway. [ 20 ] Mason himself agreed that he could “take care of himself” and agreed that people in the community would view him as tough. He thought it might be related to his size.

Mason is a big guy, weighing between 230 to 245 pounds. [ 21 ] N.S. told the Court that she was aware of his reputation. She recounted one incident where she understood that Mason had beat up someone. Lewis witnessed that incident, and testified to that effect a little later in the trial. N.S. testified that during the afternoon of the incident she had contact with Mason. She said she had a bad feeling about what was going to happen because he had been drinking, and she knew about his reputation for trouble. [ 22 ] Richard Terry testified. He is Lewis’ Uncle, and also works at Muskrat Falls.

He has known Mason for many years. When asked about Mason’s reputation in the community, he said that he is “viewed as a nuisance”, particularly when he drinks. He said that Mason would fight and disturb people often when drinking. He recounted one incident when he was at a bar one evening and Mason wanted to fight him about Lewis. He said he left the bar rather than fight. He said he had observed other acts of aggression by Mason. [ 23 ] He recounted an incident the day before the offences arose. He was at the Lewis house with Lewis and a couple of others.

There was a disturbance at the door and Lewis went to find out what was going on. It was Mason. Terry said that Mason wanted Lewis to come out and he tried to grab him. He said Mason was agitated and had been drinking. He said that Mason said he was going to break Lewis’ legs. He wanted to do some damage to him. Terry said he had to tell him three times to leave. The next day Terry was back working at Muskrat Falls, when he received a phone call about the shooting. He was surprised that he had only been gone one day

and now this happens. [ 24 ] Jesse Lewis testified on his own behalf. He confirmed that he has known Mason since his earliest memories. He said Mason used to babysit him. He spoke very positively about their relationship when he was young, under 10 years of age. He said Mason showed him how to drive a quad, an all-terrain vehicle. But after that he said Mason began using drugs, and things changed.

He admitted that he had sex one time with Mason’s girlfriend, and then said Mason did the same while N.S. was his (Lewis’) girlfriend. [ 25 ] He testified that Mason began to get aggressive with him when he was in junior high school. He said Mason drank a lot, and hit him one time when he had braces on his teeth. Lewis agreed that he himself was a “hard ticket”. He said that Mason would take him to a bar, leave him in the car while he (Mason) went in, and would leave him with cigarettes. [ 26 ] He said there were many aggressive incidents in recent years.

He said Mason often threatened to kill him, and he witnessed one incident where Mason was trying to break the leg of another individual who already had an injured leg. He said he was upset because he was uncertain if Mason was going to kill that individual. When asked about Mason’s reputation in the community, Lewis echoed the testimony of others. He spoke of aggressive incidents, particularly when Mason was drinking.

He said that often other people would leave a bar if Mason entered, because of the expectation of trouble. [ 27 ] I should note that these incidents were related in Lewis’ testimony, and most were without significant detail. I cannot take this evidence as evidence about the incidents. However, where they are consistent with the testimony of others, it serves to provide a picture of Mason as having a reputation as an aggressive individual, particularly when he has been drinking.

It is also evidence of Lewis’ mental state when confronted with an aggressive Mason on the day of the incident. [ 28 ] Lewis also testified that because of the past incidents, he feared Mason. He said he will normally run away when Mason becomes aggressive, and said it has happened countless times. He confirmed the incident the day before the offences took place as described by Terry. He also said he was afraid because he heard Mason threaten him harm, and he said “Bern does what he says he will do”. [ 29 ] He said that fear led him to get the gun.

He said that he never intended to hurt anyone, but thought having the gun might help if Mason came around. He described being “petrified of Bern”. He said life was ok while Mason was working at Muskrat Falls. But when he would come home on his days off, it made him afraid, and because they lived in houses that were close to each other, he would make sure he was not at his home when Mason was at home. [ 30 ] On the day of this incident Lewis was at his home during the afternoon. N.S. said she was driving towards Lewis’ house and passed the Oasis Pub in the town of Colliers, Newfoundland and Labrador.

She said Mason must have seen her, because he called her on her cell phone. She testified that he sounded like he had been drinking and told him he should not be drinking and driving. She ended that call and called Lewis to tell him she was on her way to his house, when she noticed a large pickup truck following her with the lights flashing. She was still connected with Lewis via a video chat, and she told him about the truck. He encouraged her to pull over to see who it was. He testified later that he could see some of the scene that was unfolding.

She says she pulled over in the parking lot of another lounge, Rumours, in Avondale. The truck followed her, and she saw it was Mason. She told him to stop driving because he was drunk. She said she could tell he had been drinking from the tone of his voice and the smell of alcohol. Lewis said he saw this unfold through the video call on his cell phone. He said at this point Mason was angry, that he was “flipping out”. [ 31 ] Mason’s testimony on that afternoon was more or less consistent with that of N.S. He says that he was at the Oasis Pub and had one or two beer.

He agrees he spoke with N.S. on the phone, and again outside Rumours Bar. [ 32 ] N.S. expressed concern that she thought Mason would follow her to the Lewis house. So she called Lewis and said she didn’t want to meet him at his house because she was afraid that Mason would arrive. Then she got another phone call from Mason. He wanted her to come to his house instead of going to the Lewis house. She refused, and at that point, Mason said he was getting another call which he thought was from Lewis.

Lewis testified that he called Mason to tell him to stop harassing his girlfriend. [ 33 ] Mason’s story diverges at this point. He says he went to his own home to do some maintenance work in his kitchen. He says he had time for a couple of drinks of vodka. He said it was at this point Lewis called him and asked him to come over to the Lewis house. [ 34 ] N.S. said she continued to the Lewis house, and while she was still in her car, she saw Mason come out of his house. She said he was walking toward the Lewis house swinging his fists.

She said he was shouting angrily, and said “I’m going to finish this once and for all”. He went up the steps on the side of the house, and entered into the kitchen. She then recounts the sequence of events as she remembered them. [ 35 ] She said she heard Lewis telling Mason to leave. Lewis asked Conway to get Mason to leave. She said that Conway, who was in his 40’s, took off his jacket as if to physically get Mason to leave, but then thought the better of it and retreated. At this point Mason grabbed her wrists and held so tight she said they were hurting. She said she was trying to keep Mason and Lewis apart.

She started screaming for him to let go of her wrists, and Mason began banging his head on the cupboards and the wall. He caused damage to both, as evidenced by the photographs entered into evidence. N.S. said there was a lot of blood coming from Mason’s nose, and as a result, he left significant amounts of blood on the cupboards and the wall. That blood was later subject to DNA analysis. By this time, she said, Lewis had retrieved his gun, and he and the others were exiting the house through the front door. N.S. said Mason tried to follow them, but she stood in the way.

Instead of going through her, she said he tried to go through the wall and again caused damage. [ 36 ] As Mason tried to get past N.S., he managed to get out through the side door and was on the top step. At that time Lewis and the others had come around the front of the house. She said that Lewis said repeatedly that Mason should leave, or he would shoot. He had the gun in his hands and it was by his side. N.S. said she told Lewis to take her car and leave. Lewis said in his testimony that he was trying to get to the car.

The car was parked next to the steps coming from the side door of the house. [ 37 ] Mason’s testimony again diverges. He said he went to the Lewis house to the side door, but the door was locked. He said he

never did enter the house, and certainly did not cause the damage that was described by the other witnesses. He said N.S. was notpresent and he did not recall any altercation with her. He said then Lewis came towards him with the shotgun in his hand. He agreed hewas on the ground and had abrasions on his face from the gravel. [38] What happened next is not clear. N.S. said she was still trying to keep them apart. Mason picked up the garbage bin and threwit at Lewis, missing him. Mason then went down the stairs. She was not sure whether he lunged down the stairs at Lewis, or if he fellafter losing his balance.

Either way, Mason ended up at the bottom of the stairs on the ground next to Lewis. The testimony of thewitnesses diverge to some extent at this point. [39] N.S. says that Mason fell on the ground and then she heard a shot. It was her testimony that Mason was shot while he was onthe ground. [40] Lewis says that Mason was on the ground. He wasn’t sure whether he jumped from the stairs or fell. He said while Masonwas on the ground, he grabbed at him, and the gun went off. [41] Another witness, Jamie Mason (not related to Bernard Mason, but living in the same area) was driving by the Lewis house atthis point.

He knew both Lewis and Bernard Mason. He said he saw two men struggling on the steps and saw N.S. there as well. Shewas screaming. He continued up the road, turned around and when he came back in front of the Lewis house he heard a gunshot, andsaw one of the men fall. He said Lewis’ face was as “white as a ghost”. Jamie Mason continued to his house, which was a short distanceaway, parked his car, and then walked back to the Lewis house. [42] After the shot was fired, Lewis told N.S. to call an ambulance. At that point, Jamie Mason came back.

He said he saw BernardMason on the ground, several neighbours were present as well. He said he helped Bernard Mason over to a picnic table. Jamie Masonsaid he saw that Bernard Mason’s jeans were torn and the muscle in his leg was exposed. He said Bernard Mason seemed in shock. Shortly afterwards the ambulance arrived and the Police. By this time Lewis, N.S. and two others had left the scene in N.S.’s car. [43] In her testimony, N.S. described the scene as chaotic. She said when Mason came into the house he “went crazy”. Shedescribed him as being out of control, as if “he didn’t know what he was doing”.

Even though both Conway and Lewis attempted to getMason to leave, she said there was no stopping him, that “he was on a road to do something”. She said things were moving very fast, asshe described it in a statement she gave to Police: “everything was going a million miles an hour”. The events she described indicate a lotof confusion, but I accepted her account of what happened. It was clear that Mason was threatening everyone present, in particularLewis.

He caused physical damage to the kitchen, and was causing quite a disturbance leading up to the shooting. [44] Mason was taken to the hospital, where he was treated for the wound. It required two surgeries, including a skin graft. Hespend about four days in the hospital. While there he was assessed, interviewed, and his blood tested. His comments to the medical staffbelie his testimony in this matter. [45] In his testimony, he said he only had one or two beer, and about two drinks of vodka that afternoon. The medical chartindicates he was quite intoxicated.

He told the nurse doing the triage assessment that he had 7 – 8 beer that afternoon. The EmergencyRoom Record reported he admitted to 9 beer. The Emergency Room Resident noted he reported having 9 – 12 beer. [46] The blood analysis is even more telling. The blood appears to have been taken at about 08:53 PM, or about three hours afterMason could have had his last drink. It reported his blood-alcohol level at 53.8 milimoles per litre (mmol/L). The legal limit in Canadais 17 mmol/L, or 80 mg/dL. The hospital report noted that a level of 60 mmol/L is toxic.

This means that, some hours after the incident,his blood alcohol level was still more than three times the legal limit. I conclude that at the time of the incident, he was severelyintoxicated. [47] Mason’s testimony was quite unreliable. He was unable to recall much of what happened that day. His faulty memory may beattributable to the shock of being shot, or to the almost toxic levels of alcohol in his system, or both. I am unable to accept his testimonywhere it differs from other witnesses, in particular, N.S., Jamie Mason, Richard Terry, and the Accused, Jesse Lewis. [48] The Accused testified.

As directed by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] 1 S.C.R.742, 1991 CarswellOnt 1015, I must consider his testimony in light of all the evidence. At paragraph 11, the Court set out a formulationwhich provides guidance on considering the testimony of an accused. [49] First, if I believe the evidence of the Accused, then I will accept that

section 34 will apply as a defence. [50] Second, if the testimony of the Accused is not credible, but it raises a reasonable doubt, then

section 34 will also apply. [51] Finally, even if the testimony of the Accused does not raise a reasonable doubt, then I must consider whether the evidencewhich I find credible, when considered on the basis of all the evidence, raises a reasonable doubt. [52] Having considered the testimony of Jesse Lewis, I find it generally credible, in particular where it is consistent with theevidence of other witnesses, especially N.S. and Jamie Mason. Where his testimony was relevant to significant elements of the offencesit was, in my view, generally credible. Self-Defence [53] This defence arises from

section 34 of the Code. It reads as follows: 34(1) A person is not guilty of an offence if

(

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [ 54 ] This provision requires the Court to examine three elements of the conduct which constituted the offence. First, reasonable belief, relates to the Accused’s state of mind whether force or the threat of force was being used; second, whether the purpose of the act was, in the mind of the Accused, to defend himself from harm; and third, whether the response of the Accused was reasonable.

The factors set out in sub-section (2) are to be considered in making that determination. [ 55 ] A review of a commentary in The 2019 Annotated Tremeear’s Criminal Code , elaborates further on these requirements. First, the Belief is subjective, as it relates to the accused’s state of mind, his belief that force is being used or threatened against him or another person. A mistake about the existence or threat of force is not fatal to the accused’s claim under the section, but the claim must be reasonable.

It need not be an imminent attack, but the presence or absence of an imminent threat would seem relevant to determine whether his belief was reasonable. [ 56 ] The Purpose relates to the act which constituted the offence. In this case, the discharge of the gun. The inquiry and standard is subjective. The accused’s purpose must be to defend or protect himself from the actual or threatened force. It must not be vengeance, punishment, or vindication of honour. [ 57 ] The third requirement, Response, relates to the reasonableness of the act of the accused.

The standard is objective and requires a contextual analysis of all the circumstances. This includes the factors listed in sub-section (2). There is no reference to retreat from the scene as a necessary option, nor is there an explicit reference to proportionality, but authorities have indicated these are likely

included in several of the factors in sub-section 34(2). [58] Counsel for the Accused submitted that the fact that this happened in the Accused’s home is significant. He suggested that inthe usual case, self-defence is to be applied only as a last resort, and that other options, including retreat from the situation, must beconsidered. However, the where the incident occurs in the residence, different considerations apply. In R. v. Forde, 2011 ONCA 592the Ontario Court of Appeal reflected on this issue at paragraphs 37-38: 37.

Retreat in the context of the law of self-defence reflects the principle that killing or seriously injuring another person should onlybe sanctioned as a last resort and should not be permitted if other reasonable options are available. However, it is well-established atcommon law that different considerations apply where a person is attacked in his or her own home. These considerations areencapsulated in the rather archaic maxim "a man's home is his castle." The origins of the so-called "castle doctrine" lie in Lord Coke'sstatement in Semayne's Case (1604), 77 E.R. 194 (Eng.

K.B.), at p. 195: That the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose. 38. The maxim that a man's home is his castle has given rise to the principle that a person has the right to defend him or herself in hisor her own home without the duty to retreat from the home in the face of an attack. As Cardozo J. put it in People v. Tomlins, 213 N.Y.240 (U.S. N.Y. Ct. App. 1914), at pp. 243: It is not now, and never has been the law that a man assailed in his own dwelling, is bound to retreat.

If assailed there, he may stand hisground, and resist the attack. He is under no duty to take to the field and the highways, a fugitive from his own home. [59] The Crown has argued that before considering self-defence, options including retreat from the situation must be considered. Forde would support the view of the defence that when the act takes place in his residence, the Accused may be in a different situationthan otherwise. In such a situation, it is not an unreasonable response to stand ones ground. The more recent case of R. v. Cormier, 2017NBCA 10 further supports this view.

In an appeal from a jury decision, the Court considered that in the case of his residence, theAccused was entitled to have the jury consider self-defence. It said, at paragraph 63: 63. In our view, the jury should have been told that Mr. Cormier was lawfully entitled to repel Messrs. Eldridge and Beckinghamfrom entering into or damaging Mr. Cormier Sr.'s home, provided what he did to that end was reasonable in the circumstances. There wasno evidence the actual stabbing was done in defending Mr.

Cormier Sr.'s property, which explains why defence counsel did not ask thejudge to leave defence of property with the jury as a self-standing defence against the charge. The evidence, in its most favourableinterpretation for Mr. Cormier, revealed that, when he struck out with the knife, it was to defend himself against Mr. Eldridge's imminentattack. This is quite possibly a case in which what began as the defence of property quickly morphed into the defence of one's person. Inthese circumstances, the door was certainly not a barrier to self-defence and the factor set out in s. 34(2)(

b) had no real application. [60] In considering the circumstances, the Court is obliged to look at the entire situation. It is not permitted to analyze the eventsapart from the chaotic circumstances which arise in the evidence. The Ontario Court of Appeal commented in R. v. Cunha, 2016 ONCA491 at paragraph 47: 47. Overall, the trial judge failed to take account of the entire situation from Mr. Cunha's perspective - a frightened home ownersuddenly confronted with armed men in his home.

The trial judge artificially separated out the sequence of events relating to Mr.Massaquoi, who was carrying a shotgun, from the encounter a very short time later between the appellant and Mr. Barros, and treatedthem as though they were virtually unrelated events. This is clearly inconsistent with what happened, and failed to pay sufficient attentionto the factual context and to the entire tableau of the evidence. This was an error in principle in assessing self-defence. [61] The obligation of the Court is to look at the entire situation. The Cunha case involved the shooting of an unarmed man in theback.

But the facts disclosed it was a scary situation. The Court provided an analysis at paragraphs 7-8: 7. As for the objective element of the defence, it is accepted that in considering the reasonableness of the defendant's use ofdefensive force, the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection,as this court noted in R. v. Mohamed, 2014 ONCA 442, 310 C.C.C. (3d) 123 (Ont.

C.A.), at para. 29: As Professor Paciocco notes at p. 36: The law's readiness to justify "mistaken self-defence" recognizes that those in peril, or even in situations of perceived peril, do not havetime for full reflection and that errors in

interpretation and judgment will be made. In a similar vein, Martin J.A. commented in R. v. Baxter (1975), (ON CA), 27 C.C.C. (2d) 96, at p. 111, that in deciding whether the force used by the accused was more than was necessary in self-defence under both s. 34(1) and (2), the jury mustbear in mind that a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety theexact measure of necessary defensive action. 8. It is well established that self-defence can be invoked on the basis of reasonable mistakes of fact, including whether the putativeassailant was armed.

As this court noted in R. v. Currie, (ON CA), [2002] O.J. No. 2191, 166 C.C.C. (3d) 190 (Ont.C.A.), at para. 43: The Supreme Court of Canada in Cinous [2002 SCC 29] confirmed the principle established in R. v. Pétel, (SCC),[1994] 1 S.C.R. 3 that the existence of an actual assault is not a prerequisite for a defence under s. 34(2). The question that the jury must

ask itself is not whether the accused was unlawfully attacked, but whether he reasonably believed in the circumstances that he was being unlawfully attacked. The question for the trial judge on the threshold evidential test is whether there is evidence upon which a jury acting reasonably could conclude that the accused reasonably believed he was about to be attacked and that this belief was reasonable in the circumstances. 9. It is also the law that a person who is defending himself, and other occupants of his house, is not obliged to retreat in the face of danger. In R. v.

Forde , 2011 ONCA 592 , 277 C.C.C. (3d) 1 (Ont. C.A.) , this court considered the issue of retreat at some length, and concluded at para. 55: "a jury is not entitled to consider whether an accused could have retreated from his or her own home in the face of an attack (or threatened attack) by an assailant in assessing the elements of self-defence." [ 62 ] I take two principles from these authorities. First, individuals cannot be expected to think rationally in chaotic situations. Their subjective view, as long as it meets the test of reasonableness, is critical.

Second, defence of a threat in the Accused’s own home carries with it a different standard from other venues. An accused is not expected to retreat in such a situation. [ 63 ] I will use these principles when examining the evidence as applied to the factors in

section 34 of the Code . It is useful to take the provisions in sub-section 34(2) and examine them individually in light of the evidence. [ 64 ] In paragraph 34(2)(a), I am directed to examine the nature of the force or threat in the eyes of Lewis. He feared for the threat of serious bodily harm. Mason had a reputation, and Lewis had seen him in an aggressive mode before. The threat of harm was credible, in particular because he was so out of control that afternoon, from either anger, or intoxication, or both. The evidence on this point supports his reasonable belief that Mason intended to cause him serious injury. [ 65 ] Paragraph 34(2)(

b) directs me to examine the extent to which the “use of force was imminent, and whether there were other means available to respond”. The evidence supports that the force was ongoing. Mason had entered the house, and was in a rage. N.S. said he was out of control, and nothing could stop him. He had already caused damage in the kitchen, and his anger was directed at Lewis. While Mason says he never entered the house, the DNA analysis of the blood on the broken cupboards and the wall, coupled with the eye-witness testimony, indicate that he was there, and was causing damage. This evidence supports Lewis’ reasonable belief that he was likely to be seriously injured. [ 66 ] Paragraph 34(2)(

c) refers to the Accused’s role in the incident. In this case, Lewis was in his home. It was Mason who intruded into the scene. In fact, Mason’s intrusion had elements of a home invasion. He entered the home against the wishes of its occupants. He caused destruction, and assaulted N.S. by grabbing her by the wrists to the point of pain. Lewis’ role was solely in response to the actions of Mason. Lewis says he never intended to shoot, only to threaten. Jamie Mason said he witnessed the shooting, and saw Lewis’ face immediately as Mason fell. He said his face was white, as if in shock. He also said that just before the shot both he and Mason were struggling together. [ 67 ] Paragraph 34(2)(

d) raises the issue of the use of a weapon during the incident. In this case, the only weapon, in the traditional sense of the term, was the shotgun used by Lewis, he said, for protection from Mason. On the other hand, while Mason did not carry a weapon with him, given his behaviour, level of intoxication, his rage and anger and his physical strength when compared with the other individuals in the house, it could be said that his body was used as a weapon to threaten Lewis and others. He also used the garbage bin as a weapon when he raised it above his head and threw it at Lewis. [ 68 ] Paragraph 34(2)(

e) suggests a comparison of the physical characteristics of each of the parties. In this case, Mason was at least 100 pounds heavier than Lewis, and his physical capacity was significantly greater. The disparity in size, weight and strength would lead to a conclusion that Mason, in his angry and out-of-control state, was a serious threat to Lewis. [ 69 ] Paragraph 34(2)(

f) requires an assessment of any history in their relationship which would be relevant. The evidence of most of the witnesses, including Mason, Lewis, N.S., Terry and the Police officers, was consistent in that there had been bad blood between them for some time. The evidence was not clear on what had initially triggered the acrimony between them, but in recent times it was exacerbated by the sexual relationships with each other’s girlfriend on at least two occasions.

In addition, the evidence disclosed several incidents where Mason threatened Lewis, the latest being the day before Mason received the gunshot wound. That incident was described by both Lewis and Terry. This history of acrimony, together with the aggressive behaviour of Mason, was evident from the testimony of several witnesses. Cst. Galway said the statements he collected as part of his investigation all referred to Mason as a “tough guy, or a hard ticket”. Terry said he had a reputation for aggression and fighting. All of this would have played on Lewis’ mind as this incident unfolded. [ 70 ] Paragraph 34(2)(

g) seeks a consideration of the response of Lewis to the aggressive and threatening behaviour of Mason. I considered the evidence of Mason’s behaviour in the time prior to this incident, including the day before, and his conduct when he entered the Lewis home. He was on a rampage, and it seemed clear that if he had connected with Lewis, he had the means and capacity to do serious harm to him. Considering the evidence of the way the events unfolded, an objective assessment would bring one to the conclusion that it was impossible for anyone to stop Mason.

The events unfolded very quickly, so there was no time to seek help from the Police. There was severe violence taking place in his home, and Lewis knew the physical capacities of Mason. The law does not expect him to flee or retreat from a situation, which occurs in his own home. In this instance, wielding a gun as a response was proportionate to the threat of serious harm. [ 71 ] The evidence surrounding the firing of the gun was inconclusive as to how deliberate it was. Lewis said “he was on the ground, grabbed me, and the gun went off”.

Jamie Mason said Lewis’ face was white immediately after the shot, indicating it was a surprise to him. On the other hand, it would be equally plausible that with his finger on the trigger, he squeezed it in a reflex action as Mason approached him. [ 72 ] All of these factors help me determine whether the three requirements in subsection 34(1) of the Code are met. As for belief, I find that Lewis had a reasonable belief that the threat of force and harm from Mason was likely if no action was taken. The purpose of wielding the gun was to protect himself, and his home, from the use of force by Mason.

And a non-lethal wound from a gunshot was reasonable in the circumstances. I find that the facts support an application of this provision. Lewis was terrified of what Mason

intended. He had a realistic, as well as reasonable, apprehension that there was a serious threat of force being used against him. Accordingly, I find that Lewis is entitled to the defence of self-defence. [ 73 ] I find that Bernard Mason entered the Lewis home in an angry rage that afternoon, determined to do harm to Jesse Lewis. He went on a destructive rampage in the few minutes he was inside the house. When he exited the house, he attempted to attack Lewis and in an out-of-control manner, either jumped or fell down the steps on the side of the house in an effort to make contact with Lewis.

I also find there is no evidence that Lewis pointed the gun he was carrying at Mason. The evidence of both N.S. and Jamie Mason was that the gun was kept at Lewis’ side, down by his leg. That fact supports an inference that when he was on the ground, Mason was attempting to grab either Lewis or the gun or both, when it went off. [ 74 ] Jamie Mason said he saw the two men struggling, and that Bernard Mason fell after the shot was fired. That evidence presents a strong inference that he had gotten up off the ground and was making physical contact during a struggle with Lewis when the gun was fired.

Jamie Mason had the best perspective. He could see the entire scene from the road, and was not part of the preceding chaos. N.S.’s perspective was a little different, and she said she was not certain whether Mason jumped off the steps or fell. She was also uncertain as to how close they were, and whether Mason grabbed Lewis while getting up from the ground. She thought Mason was on the ground when the shot was fired, but was not certain.

I find that he was in the process of standing up and grabbing Lewis when the gun went off. [ 75 ] I am also of the view that the evidence discloses the likelihood of serious injury to Lewis if Mason had made contact with him. I find that Lewis had no option but to use the means at his disposal to protect himself. He initially tried to leave the scene, but on his way to the car, was interrupted by Mason’s drunken rage on the steps at the side of the house. He was not obligated to retreat from his own home, but that was his initial reaction.

It was Mason’s persistence in attacking Lewis that led to the gunshot. [ 76 ] The Crown’s theory that this was a deliberate shooting was not supported by the evidence. There was no pre-meditation involved. The fact of Lewis’ possessing the gun for protection from Mason does not make the shooting deliberate. The evidence strongly supports a view that Lewis was reacting to a situation caused by the unlawful intrusion of Mason into his home. I do not accept that he had any realistic options. [ 77 ] The Crown suggested that a threatening text message sent to Mason some six months earlier demonstrated his intent.

I do not accept this

interpretation for several reasons. The text was too detached in time from the incident to represent his intent at the time. More importantly, the text was not sent from Lewis’ cell phone, but from another. The evidence failed to prove, beyond a reasonable doubt, that Lewis sent it. [ 78 ] Finally, the Crown submitted that because he had advance knowledge of Mason’s intent and his disposition he could have prepared for the altercation using alternative approaches. I reject that

interpretation. Self-defence is not negatived because he was aware of Mason’s disposition. On the contrary, I find it makes Lewis’ actions more reasonable, since his perceptions of the threat of harm would be subjectively reinforced by that knowledge. [ 79 ] One aspect of this case deserves some mention. Police were very quick to lay charges against Jesse Lewis. This is understandable in that it was Mason who was shot, and Lewis held the gun. However, the evidence also disclosed that Police were aware of the actions and conduct of Mason that afternoon.

There certainly was evidence of several criminal offences on the part of Mason, including offences related to home invasion, damage to property, uttering threats, assault of N.S., and impaired driving. It is strange that there was no investigation of these actions to determine whether criminal charges against Mason would have been appropriate. [ 80 ] The failure to investigate Mason does not directly affect the investigation of Lewis’ conduct.

However, Lewis said, in response to the Crown’s question why he didn’t call the Police instead of taking action himself, that he didn’t think the Police would take him seriously. Police response to the evidence about Mason’s activities would indicate that perhaps Lewis had a point. Conclusion [ 81 ] In order to convict on the first five counts on the Indictment the Crown was obligated to prove beyond a reasonable doubt each of the elements of the offences, and also to prove beyond a reasonable doubt that the elements of self-defence as set out in

section 34 of the Code were not present. [ 82 ] On the first count, that of aggravated assault, the Crown has proved that a shot fired from a gun held by Jesse Lewis caused a serious injury to Bernard Mason. But the Crown did not prove to the requisite standard that Lewis did so intentionally. I was left with a reasonable doubt as to whether, at the moment when the shot was fired, it was deliberate. In addition, Jesse Lewis is entitled to the benefit of the self-defence provisions in

section 34 of the Code . I find him not guilty of Count # 1. [ 83 ] On the second count, that of discharging a firearm with intent to cause injury, I find that the Crown has failed to prove intent beyond a reasonable doubt. In addition, Jesse Lewis is entitled to the benefit of the self-defence provisions in

section 34 of the Code . Accordingly, I find him not guilty of Count # 2. [ 84 ] On the third count, that of possessing a weapon for a purpose dangerous to the public peace, I find that the Crown has made out the element of possession. However, the Crown has not proved beyond a reasonable doubt that the purpose for which the weapon is carried or possessed was for a reason dangerous to the public peace. The evidence supported an alternate

interpretation, that the weapon was possessed for protection. Jesse Lewis is also entitled to the benefit of the self-defence provisions in

section 34 of the Code . Accordingly, I find him not guilty of Count # 3. [ 85 ] On the fourth count, that of careless use of a firearm, I find that the Crown has failed to make out the element of careless use, and in addition has not proven beyond a reasonable doubt that there was no lawful use of the firearm. Jesse Lewis is entitled to the benefit of the self-defence provisions in

section 34 of the Code which provide lawful justification for his use of the firearm. Accordingly, I find him not guilty of Count # 4.

[ 86 ] On the fifth count, that of pointing a firearm at another person, I find that the Crown has failed to prove beyond a reasonable doubt that this offence has been made out. There was no evidence that the gun was pointed at anyone. The evidence before the Court was that the gun, at the relevant times, was held by Lewis close to his body by his leg, and was not pointed at anyone. To the extent necessary, I would also find that he is entitled to the benefit of the self-defence provisions in

section 34 of the Code . Accordingly, I find him not guilty of Count # 5. [ 87 ] On the sixth count, that of operating a motor vehicle while disqualified, has been conceded by the Defence. The evidence of N.S., the video showing Lewis driving, and the Prohibition Order supports conviction on this count. Accordingly, I find him guilty of Count # 6. [ 88 ] On the seventh count, breach of a condition of a Recognizance that he not possess a firearm, guilt was dependent on a finding that he was in possession of a firearm. It was not dependent on the purpose of the weapon.

Accordingly, since there was proof of possession, he is in breach of condition no. 6 of the Recognizance dated April 19, 2017. Accordingly, I find him guilty of Count # 7. [ 89 ] On the eighth count, that of driving while prohibited, pursuant to a Recognizance dated April 19, 2017, the Crown only had to prove that he drove a vehicle. A conviction on Count # 6 is sufficient to make out this offence.

Accordingly, I find him guilty of Count # 8. [ 90 ] On the ninth count, that of breach of a condition of the Recognizance that he keep the peace and be of good behaviour, the Crown only had to prove guilt on any one of the other counts. A conviction on Count # 6 is sufficient to make out this offence. Accordingly, I find him guilty of Count # 9. [ 91 ] On the tenth count, that of breach of a condition of the Recognizance that he not communicate with N.S., the Crown had only to prove contact with her.

The evidence in this trial proves beyond a reasonable doubt that, at least on April 21, 2017, Lewis had significant contact with N.S. Accordingly, I find him guilty of Count # 10. [ 92 ] Finally, on the eleventh count, that of breach of a Probation Order dated February 1, 2016, that he keep the peace and be of good behaviour, the Crown had only to prove conviction of an offence. A conviction on Count # 6 is sufficient to make out this offence. Accordingly, I find him guilty of Count # 11. DISPOSITION [ 93 ] In

summary, the Crown has failed to prove guilt beyond a reasonable doubt on Counts 1 through 5. Acquittals will be entered on each of these. [ 94 ] The evidence, and the admission of the defence, in respect of Count # 6, proves the elements of the offence of driving while prohibited. A conviction will be entered on Count # 6. [ 95 ] Counts # 7, 8, 9, 10, and 11 are breaches of court orders. Based on the conviction on Count # 6, and the evidence presented at trial, I am satisfied that these offences have been made out. Convictions will be entered on these counts. _____________________________ Alphonsus E. Faour Justice