Her Majesty the Queen Crown v. Cody Alexander Muise Defendant LIBRARY HEADING Judge : The Honourable Justice Peter P. Rosinski, 2013 NSSC 351

SUPREME COURT OF NOVA SCOTIA Citation : R. v. Muise, 2013 NSSC 351 Date: 20131031 Docket: CRH 373467 Registry: Halifax Between: Her Majesty the Queen Crown v. Cody Alexander Muise Defendant LIBRARY HEADING Judge : The Honourable Justice Peter P. Rosinski Heard: May 6, 2013 Oral Decision: May 6, 2013 Subject: Consideration of whether self-defence provisions s.34(2) and s.35 of the Criminal Code of Canada have an air of reality and should be put to the jury for this consideration.

Summary: Muise shot and killed Brandon Hatcher claiming he did so in self-defence. Muise had gone to the vicinity of Hatcher’s home, wearing a bullt proof vest, armed with an M-1rifle, and accompanied by two friends who had a single shot shotgun and a .22 Cal. revolver. The three hid more than 100 feet away behind large boulders in an elevated position, knowing that Hatcher would shortly appear from a cluster of residences. It was dark that night and Hatcher fired one shot from his shotgun in the direction of the three – they returned multiple shots: one shotgun blast; three .22 calibre shots and likely 12 M-1 rifle shots. The Defence claimed their purpose that night was

only to scare Hatcher, possibly by shooting up his house. Issue: In these circumstances should self defence s.34(2) and s.35 of the Criminal Code of Canada be put to the jury? Result: There was evidence sufficient to meet the low “air of reality” threshold for s.34(2) to be put to the jury – s.35 was found to add nothing and to be unnecessarily complicating to the jury’s task, so it was not put to the jury. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: R. v.

Muise, 2013 NSSC 351 Date: 20131031 Docket: CRH 373467 Registry: Halifax Between: Her Majesty the Queen Crown v. Cody Alexander Muise Defendant Judge: The Honourable Justice Peter P. Rosinski Heard: May 6, 2013, in Halifax, Nova Scotia Counsel: Christine Driscoll and Darrell Martin, for the Crown

Peter Planetta, for the Defendant By the Court: [1] This is a decision to address the question: should Sections 34(2) and 35 of the Criminal Code of Canada, the self defenceprovisions be put to the jury in this case? [2] Mr. Muise is charged with first degree murder on the basis that it was planned and deliberate. [3] His counsel argues that both of these provisions should be put to the jury. [4] The Supreme Court of Canada majority in R. v. Cinous 2002 SCC 29 , [2002] 2 SCR 3, stated at paragraph 124: Self defence under s. 34(2) provides a justification for killing.

A person who intentionally takes another human life is entitled to anacquittal if he can make out the elements of the defence. This defence is intended to cover situations of last resort. In order for thedefence of self-defence under s.34(2) to succeed at the end of the day, a jury would have to accept that the accused believed, onreasonable grounds, that his own safety and survival depending on killing the victim at that moment. ∙ ∙ ∙ [5] The Court also notes at paragraph 107: …that the existence of an actual assault is not a pre-requisite for a defence under s. 34(2).

Rather, the starting point is the perspective ofthe accused.

Lamer C.J. stated at p. 13: The question that the jury must ask itself is therefore not “was the accused unlawfully assaulted?” but rather “did the accused reasonablybelieve, in the circumstances, that he was being unlawfully assaulted?” [6] At paragraph 93, the Court set out the constituent elements of Section 34(2): ∙ ∙ ∙ “(1) the existence of an unlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3) a reasonablebelief that it is not possible to preserve oneself from harm except by killing the adversary.” All three of these elements must beestablished in order for the defence to succeed.

The air of reality test must therefore be applied to each of these three elements. If any ofthese elements lacks an air of reality, the defence should not be put to the jury. [7] Stated differently by Justice Doherty in the Ontario Court of Appeal in R. v.

Pilon 2009 ONCA 248 at para. 64: The trial judge properly instructed herself that s.34(2) could only be left with the jury if, on the totality of the evidence, there was an airof reality to that defence. … She identified and applied the air of reality analysis (paras. 33-55) holding that the defence could go to thejury only if there was evidence upon which a properly instructed jury, acting reasonably, could have a reasonable doubt with respect toeach of the constituent elements of s.34(2). … [8] And at para. 66: While the trial judge properly considered the entirety of the record, she correctly focused on the evidence concerning the appellant’sstate of mind when the fatal shots were fired.

The defence of self-defence is only available if in the evidence there is a basis to conclude(or at least have a reasonable doubt) that the appellant had the required reasonable apprehension and reasonable belief when he fired thefatal shots. The events leading up to the shooting, the prior history between the parties, McKinnon’s habit of carrying a gun and hisviolent disposition provide important context. However, the justification for killing as defined in s.34(2) must exist when the fatal shot isfired.

It is irrelevant to the availability of the defence that on the evidence the defence may have been available at some point earlier in

the confrontation. [ 9 ] And at para. 68: I see no error in this part of the trial judge’s analysis. Self-defence is a justification based on the necessity of self-preservation. The rationale underlying that self-preservation is fundamentally at odds with the motivation of one who attacks and kills another. [ 10 ] Justice Doherty went on then to consider another issue.

He notes at para. 70: Counsel next argues that the trial judge unfairly limited the subjective component of the s.34(2) defence when, at para. 53, she declined to factor into her assessment the attitudes and beliefs of the criminal sub-culture in which the appellant lived. [ 11 ] Justice Doherty adopted the words of Justice Binnie in his concurring reasons in Cinous at para. 130 : …the only way the defence could succeed is if the jury climbed into the skin of the respondent and accepted as reasonable a sociopathic view of appropriate dispute resolution.

There is otherwise no air of reality, however broadly or narrowly defined, to the assertion…[of self-defence]. [ 12 ] Justice Doherty went on to say at paras. 73 to 75 in Pilon : [73] … The reasonableness standard ensures that the self-defence justification will not extend to killings committed in circumstances that the community, as represented by the jury, regards as unreasonable and beyond the pale of any acceptable justification. [74] The reasonableness inquiry is not, however, purely objective. … the jury must consider the relevant circumstances as the accused perceived those circumstances.

The jury then tests that perception against the community standard of reasonableness. [75] I see a world of difference, however, between testing the reasonableness of an accused’s apprehension and belief in the circumstances as the accused perceived them, and testing the reasonableness of that apprehension and belief in light of the appellant’s personal moral code or world view. It may well be, given the criminal sub-culture in which the appellant operated, that he lived by the motto “kill now or be killed later”.

In assessing the reasonableness of the appellant’s conduct, however, the jury cannot accept that motto. To do so would effectively eliminate the “reasonableness” requirement form the defence of self-defence. [ 13 ] Turning then to the case at Bar, all counsel agree that Mr. Muise arguably reasonably believed he was under assault by Mr. Hatcher on December 3 rd , 2010 immediately prior to his firing up to 12 rounds from his M1 rifle in the direction of Mr. Hatcher, one of which struck and killed Mr. Hatcher. [ 14 ] Secondly, as to whether Mr.

Muise had a reasonable, that’s subjectively and objectively, apprehension of risk of death or grievous bodily harm given: the evidence that Mr. Hatcher discharged his pump action shot gun first; the history of violence between Mr. Muise and Mr. Hatcher, including the likelihood that Mr. Hatcher previously attempted to shoot Mr. Muise on October 16, 2010 and wounded thereby, his girlfriend, Sarah Oakley instead, as well as the three shot gun blasts into a hang out frequented by Mr. Muise and his friends and in which he had just been an hour earlier, also likely by Mr.

Hatcher on December 3 rd ; and given the evidence of the building animosity between the two since Mr. Muise got out of jail in mid-November 2010 as captured by the text messages in evidence and the conduct of the two; I conclude that there is an air of reality to this constituent element of s. 34(2). [ 15 ] Thirdly, as to whether Mr. Muise had a reasonable belief, subjectively and objectively, that it was not possible to preserve himself from harm except by killing Mr.

Hatcher, I keep in mind particularly the comments from Justice Doherty in Pilon regarding the “kill now or be killed later” criminal subculture mentality. At this stage, the question is whether there is merely an air of reality to Mr. Muise’s claim that he had such a subjective and objective belief at the time he fired the two bursts from his M1 rifle in the direction where he believed Mr. Hatcher was. [ 16 ] The Crown makes the point that there is no air of reality to this element of self-defence because there is unequivocal evidence that Mr. Muise believed Mr.

Hatcher likely wanted to cause him grievous bodily harm or death, yet Mr. Muise sought out Mr. Hatcher whom he believed would be armed with a firearm, by specifically travelling on foot to Mr. Hatcher’s neighbourhood and very close by to

his actual residence in the darkness of night; answered Mr. Hatcher’s telephone call to Mr. Muise and specifically told Mr. Hatcher that Mr. Muise was in the vicinity “out back”; and that Mr. Muise with Mr. Matt Munroe and Mr. Ryan MacDougall took out positions behind rocks in an elevated position about 180 feet away from where they expected Mr. Hatcher would likely arrive and laid in wait for him. [ 17 ] The Crown says that there can be no air of reality to the claim that Mr. Muise’s subjective belief that once he heard a gunshot from Mr.

Hatcher’s direction that he had to “protect myself before I get killed; instinct takes over.” It says that Mr. Muise intended a violent confrontation with Mr. Hatcher and even when it occurred, his firing of his M1 rifle at Mr. Hatcher’s direction could not in the circumstances be the basis for a claim of self-defence because a subjective belief could in no circumstances be considered reasonable. [ 18 ] While Mr. Muise could not claim a reasonable belief by relying on a pre-emptive strike rationale against Mr. Hatcher in these circumstances, the evidence suggests that Mr.

Hatcher fired his shot gun first, and he was known to have similarly disposed associates living in that neighbourhood with him.

Therefore, on the low threshold of the air of reality test, it is not possible for me to conclude that there is no basis on the evidence for a properly instructed jury acting reasonably to conclude that they could have a reasonable doubt with respect to this constituent element of s. 34(2) of the Criminal Code . [ 19 ] Therefore, each of the constituent elements of s. 34(2) have been found to have an air of reality and the defence must be put to the jury. [ 20 ] The defence also argued that it put s. 35 of the Criminal Code to the jury.

In my view, given the greater complexity of that provision, coupled with the arguably no material advantage to the accused in the circumstances, that I can envision, I am not prepared to put that defence to the jury. Rosinski, J.