R. v. Chubbs, 2013 NLCA 60

Date: 20131003 Docket: 13/22 Citation: R. v. Chubbs , 2013 NLCA 60 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : GRANT CHUBBS APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Rowe, Barry and Harrington JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador St. John’s Appeal Heard: September 18, 2013 Judgment Rendered: October 3, 2013 Reasons for Judgment by Rowe J.A. Concurred in by Barry and Harrington JJ.A. Counsel for the Appellant: Candace Summers

Counsel for the Respondent: Elaine Reid Rowe J.A.: [1] Grant Chubbs appeals his conviction for aggravated assault; he is seeking a new trial. He argues that the Provincial CourtJudge should have, but did not, consider self-defence. FACTS [2] Grant Chubbs and Holly Rich were a couple. On October 12, 2012, they were drinking in the bed sitting house where theylived. When their beer ran out, they went to another room where an acquaintance was also drinking, along with others. [3] Mr. Chubbs asked for a beer. He was told “O.K”. He asked for another for a friend. There was no answer. Mr. Chubbs tookthe second beer.

This led to an altercation, involving initially Mr. Chubbs and Ryan Hartley, then two other men. During the altercation,Mr. Chubbs threw a beer bottle that hit Ms. Rich in the head, causing a cut that required stitches. [4] Based on the foregoing facts as found by the Provincial Court judge, Mr. Chubbs was convicted of aggravated assault on Ms.Rich. At trial, no reference was made to self-defence. [5] Self-defence was raised for the first time in this appeal.

I would note what the British Columbia Court of Appeal stated in R. v.Ullrich (1991), (BC CA), 69 C.C.C. (3d) 473 at 477: There are authorities which establish that in exceptional circumstances a Court of Appeal may allow a defence not raised at trial to beconsidered.

Those exceptional circumstances include a case where the balancing of the interests of justice indicates that an injustice hasbeen done, or where the new defence is based upon an issue of law alone and not on an issue of fact in relation to which it might havebeen necessary to adduce additional evidence at trial, or on appeal, or on a new trial: see R. v. Vidulich, supra, [(1989), (BC CA), 37 B.C.L.R. (2d) 391 (BCCA)] at p. 399; R. v. Speerbrecker (1986), 47 M.V.R. 271, at p. 273 (B.C.C.A.); R. v. Schultz[(1991), (BC CA), 4 B.C.A.C. 9, 9 W.A.C. 9 (C.A.)] at p. 21. See also Sylvan Lake Golf & Tennis Club Ltd. v.

Performance Industries Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678 at paras. 32-33 and R.v. O’Keefe, 2012 NLCA 25 at paras. 25-27. I will say no more about this “procedural” question in light of my analysis on substantivematters below. [6] Counsel for Mr. Chubbs refers to details in the testimony by Ms. Rich and Mr. Chubbs that, she submits, give an “air ofreality” to self-defence, such that the Provincial Court judge should have addressed the issue. This consisted largely of descriptions ofthe fight, e.g. when Mr. Chubbs was hit in the head with a beer bottle. If Mr.

Chubbs was acting in self-defence that would providejustification at law for his otherwise unlawful act of throwing the beer bottle that struck and injured Ms. Rich. ISSUES

(1) Did the Provincial Court judge err by failing to consider self-defence?

(2) Is the curative provision, s. 686(1)(b)(iii), applicable to this error? CRIMINAL CODE [7] The current Criminal Code provisions relating to self-defence came into force in March 2013. As the alleged offence occurredin October 2012, the relevant provisions are those in force at the time. 34.

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the forcehe uses 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 willful infliction of any hurt or mischief that is excessive, having regard tothe nature of the assault that the force used was intended to prevent. ANALYSIS [8] As the Supreme Court of Canada stated in R. v. Davis, (SCC), [1999] 3 S.C.R. 759, at para. 77 (per LamerC.J.C.): In order for the appellant to succeed on this ground of appeal, he must establish two things. First, that the trial judge failed to considerthe defence, and second, that there was an air of reality to the defence.

Failure of a trial judge to consider the defence when there is anair of reality to it, whether sitting alone or with a jury, is an error of law. See also R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3 at para. 51. Here, the trial judge did not consider self-defence. The key question,therefore, is whether there was an air of reality to the defence. [9] The evidence of Mr. Chubbs and Ms. Rich is fragmentary and not consistent. What is clear is that there was an ebb and flowin Mr. Chubbs’ fortunes in the fight. First, Mr. Chubbs had the advantage; later this was reversed as two of Mr. Hartley’s friends came tohis aid.

Mr. Chubbs testified that he lost consciousness when he was hit in the head with a bottle. (He denied any recollection ofthrowing the bottle that struck Ms. Rich; her testimony was quite definite that he did so.) [10] In my view, it does not matter whether one looks at s. 34 or s. 35 of the Criminal Code; in the context of this case, both containsimilar provisions.

They are that: (1) the accused be under a reasonable apprehension of death or grievous bodily harm; and (2) the accused believe on reasonable grounds that he cannot otherwise preserve himself from death or grievous bodily harm. [11] Where is the evidence that Mr. Chubbs was in such fear? Where is the evidence that he threw the bottle as a means to preservehimself? There is none. His testimony simply does not speak to these requirements for self-defence, nor does the testimony of otherwitnesses. [12] This was a kitchen brawl where beer bottles flew back and forth and Ms.

Rich was unfortunate enough to be struck by onethrown by Mr. Chubbs. There was no “air of reality” to self-defence. Mr. Chubbs had no legal justification to do what he did. Hisaction was plainly illegal. Mr. Chubbs has been properly called upon to bear the consequences of his unlawful act. CONCLUSION [13] It has not been shown that the trial judge erred by failing to consider self defence. The appeal is dismissed. _________________________________ M. H. Rowe J.A. I Concur: _______________________________ L. D. Barry J.A. I Concur: ________________________________ M. F. Harrington J.A.