Docket: CACR2235 Her Majesty the Queen Appellant - v. -, 2013 SKCA 111

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 111 Date: 2013-10-23 Between: Docket: CACR2235 Her Majesty the Queen Appellant - and - Christopher Lines Respondent Coram: Richards C.J.S., Jackson and Ottenbreit JJ.A. Counsel: Jerome Tholl for the appellant Grant Schmidt for the respondent Appeal: From: Q.B. N.J. 47 of 2011, J.C. of Regina Heard: May 15, 2013 Disposition: Appeal dismissed Written Reasons: October 23, 2013 By: The Honourable Chief Justice Richards

In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Ottenbreit Richards C.J.S. I. INTRODUCTION [ 1 ] An altercation took place between Christopher Lines, the respondent, and Christopher Stewart. Mr. Stewart suffered some relatively significant injuries as a result of the fight. [ 2 ] Mr. Lines was charged with assault causing bodily harm. He admitted to striking Mr. Stewart but said he had been acting in self- defence as per s. 34(1) of the Criminal Code . The trial judge acquitted him on that basis. [ 3 ] The Crown appeals the acquittal.

It says the trial judge did not correctly identify and apply the essential elements of the defence of self-defence. In particular, the Crown says the trial judge overlooked both the question of whether Mr. Lines provoked the assault and the question of whether Mr. Lines used more force than was necessary to defend himself. [ 4 ] I conclude, for the reasons set out below, that the Crown’s appeal must be dismissed. The trial judge did consider both provocation and the issue of unnecessary force. II. background [ 5 ] As noted, Mr.

Lines was charged that, in committing an assault on Christopher Stewart, he caused bodily harm to him, contrary to s. 267 (

b) of the Criminal Code . [ 6 ] Mr. Stewart was the former boyfriend of Marie Armstrong. They started seeing each other in approximately 1999 and had a daughter, Erin, in 2002. Their relationship ended in 2003. [ 7 ] Ms. Armstrong was Mr. Lines’s girlfriend at the time of the events underpinning this appeal. They began their relationship in approximately 2006. [ 8 ] Erin lived with Mr. Stewart and Ms. Armstrong had visitation rights every third weekend. There were some difficulties with regard to the visitation exchanges but there had been no violence at any of them. [ 9 ] On July 1, 2010, Mr. Stewart and Ms.

Armstrong had arranged for Mr. Stewart to bring Erin to the Northgate Mall parking lot in Regina, at 5:30 p.m., for a scheduled exchange to occur. Mr. Stewart arrived at the parking lot, with Erin, at 5:20. Ms. Armstrong and Mr. Lines were already there. Mr. Lines was standing in front of his truck smoking a cigarette. [ 10 ] Mr. Stewart testified at the preliminary inquiry. However, in the period of time between the preliminary inquiry and the trial, Mr. Stewart passed away from causes unrelated to the altercation.

His testimony from the preliminary inquiry, in the form of the audio recording and the transcript, was admitted as evidence at the trial. [ 11 ] Mr. Stewart testified as to the following train of events occurring after he arrived at the parking lot: (

a) Ms. Armstrong opened the door of his car and began talking to Erin while he exited the car and started to get Erin’s things ready. While he was doing this, Mr. Lines moved into the empty space between the two vehicles. (

b) He asked Ms. Armstrong why she had to bring people to the exchange. Mr. Lines pointed to the parking lot and asked him if he would like to go there and discuss things. Mr. Lines’s tone was very aggressive. He believed Mr. Lines wanted to fight. He told Mr. Lines that he was not supposed to be at the exchanges and that he had nothing to say to him. (

c) Mr. Lines shoved him and then took a swing at him. He grabbed Mr. Lines by the arm and shirt and they struggled. Mr. Lines tried to kick him in the groin. He did not strike Mr. Lines first but he swung at him a few times to try to get away from him. Mr. Lines flipped him onto the ground. (

d) The next thing he remembered was getting off the ground with lots of bleeding and his eye swelling shut. (

e) The incident occurred on the side of his car that was the furthest away from Mr. Lines’s truck. (

f) Mr. Lines was wearing steel-toed work boots. (

g) He never challenged Mr. Lines to a fight. He was wearing flip flops and shorts and had no interest in a physical confrontation. (

h) He had not consumed any alcohol or drugs on the day in question. [ 12 ] Mr. Lines, while admitting to the physical altercation, testified to a different series of events having occurred:

(

a) He knew he was supposed to be in his own vehicle during the exchange, but did not get into it when Mr. Stewart arrived. (

b) Mr. Stewart started yelling about him being out of his vehicle and stated that he was not supposed to be there. He replied to Mr. Stewart by saying, “What’s your problem?” (

c) He acknowledged saying something to Mr. Stewart to the effect of “Let’s go talk about this over there” while gesturing out into the parking lot. (

d) Mr. Stewart came around the car and shoved him and he shoved Mr. Stewart back. At that point, Mr. Stewart went to his car, got his keys and pressed the panic button on the key chain, thereby activating the horn alarm. He moved closer to Mr. Stewart to put himself between Ms. Armstrong and Erin and Mr. Stewart. Mr. Stewart then came back to him and took a swing at him. He pushed Mr. Stewart back and they grabbed each other. He was trying to control Mr. Stewart. They ended up on the ground a couple of times. He admitted he was probably on top of Mr. Stewart and that some of his punches may have connected with Mr. Stewart. (

e) He saw Mr. Stewart reaching for something on the ground and, thinking it was a weapon, he turned and kicked Mr. Stewart. He did not aim at a specific spot but did intend to kick him. The kick contacted Mr. Stewart in the head. No weapons were used or seen, other than possibly the keys Mr. Stewart had in his hand. He believed most of the injuries to Mr. Stewart came from his kick. (

f) He viewed himself as having been the victim of an attack, but did not return to Regina to speak to the police on the day of the incident and did not report the incident until two weeks later. (

g) He did not require any medical attention but did suffer a black eye, his neck was scratched up and his shirt was torn. [ 13 ] Despite the altercation, Ms. Armstrong exited Mr. Lines’s truck after Mr. Lines had re-entered it. She approached Mr. Stewart and taunted him by pointing her finger at him and telling him three times to learn to grow up. She did not testify about having any fear of Mr. Stewart at that point in time. [ 14 ] The trial judge said Ms. Armstrong was a very questionable witness.

He found her testimony to be totally unreliable and effectively disregarded it for the purposes of his decision. [ 15 ] Seth Jorgensen was a person unknown to any of the persons involved in the altercation. He witnessed a portion of the events in question as a result of attending the parking lot to make a bank deposit. Mr. Jorgensen testified to the following: (

a) He was exiting his car when he heard a child and a woman yelling in the parking lot. He looked over and observed Mr. Lines with Mr. Stewart in a headlock and “feeding [Mr. Stewart] uppercuts -- punches to the face.” He observed Mr. Lines administer more than five punches. He did not see Mr. Stewart throw any punches. Mr. Lines and Mr. Stewart were located by the driver’s side of Mr. Stewart’s car when this was occurring. (

b) He drove his car over to the scene. While driving, he observed Mr. Stewart to be on his hands and knees and he saw Mr. Lines kick Mr. Stewart’s head area. (

c) Upon arriving at the scene, he observed Mr. Lines to be in his truck and Mr. Stewart to be back in his car with the driver’s door open. He observed a female outside of the truck yelling at Mr. Stewart. [ 16 ] Kathy McKenzie was another person unknown to any of the persons involved in the fight. She too witnessed a portion of the events in question as a result of being in the parking lot after completing some shopping. Ms. McKenzie’s testimony was to this effect: (

a) She heard some commotion in the parking lot and saw a physical altercation going on between two men. Mr. Stewart’s car horn was honking. She saw Mr. Stewart on the ground, on his hands and knees. Mr. Lines was over top of Mr. Stewart and punching him. She saw many punches, which she quantified at ten, with the punches being mainly in the head. (

b) She did not see Mr. Stewart throw punches or be aggressive. (

c) She got into her car and drove over to the scene. She observed Mr. Stewart to be in his car and she saw a female being verbally aggressive to him. She called 911. [ 17 ] As a result of the blows struck by Mr. Lines, Mr. Stewart suffered injuries including: a bruised face; an extremely swollen face; a swollen eye; black eyes; a broken jaw; nerve damage; five or six fractured orbital bones; and gouged elbows and knees. He spent one and one-half days in the hospital and was “out of commission” for two weeks and missed work. He was unable to eat solid food for a week. [ 18 ] The Crown now appeals the acquittal.

III. the trial decision [ 19 ] The trial judge began his reasons for decision by reviewing the testimony of the witnesses in some detail. He then quoted s. 34(1) of the Criminal Code , the key provision governing self-defence. He underlined that Mr. Lines did not have to prove that the defence applied but, rather, that the Crown had to prove it did not apply. [ 20 ] The trial judge then commented on the reliability and credibility of each of the witnesses who had testified and concluded as follows: I am not satisfied, beyond a reasonable doubt, that the accused struck the first blow.

I am not satisfied beyond a reasonable doubt that the

defence of self-defence does not apply. I am satisfied that the accused, in neither the blows he struck or the kick to the area of Stewart’shead, intended to cause death or grievous bodily harm. In spite of my reservations concerning the accused’s testimony, I cannot say thatI am satisfied as to his guilt, beyond a reasonable doubt. Under this circumstance, I’m required to enter a finding of not guilty. IV. analysis [21] This is an appeal from an acquittal. Accordingly, the Crown’s only right of appeal is with respect to a question of law. See: Criminal Code, s. 676.

The Crown may not take issue with the trial judge’s findings of fact. In other words, “an unreasonable resultunsupported by the evidence” is not a legitimate ground of appeal in this case. See: R. v. Paice, 2005 SCC 22, [2005] 1 S.C.R. 339 atpara. 21. [22] The central issue before the Court concerns the defence of self-defence. In particular, it concerns the question of whether the trialjudge erred in applying s. 34(1) of the Code.

At the relevant time, it read as follows: 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. [23] It is common ground that the defence available pursuant to s. 34(1) involves four elements: (

a) Mr. Lines must have been unlawfully assaulted; (

b) Mr. Lines must not have provoked the assault; (

c) The force used by Mr. Lines must not have been intended to cause death or grievous bodily harm; and, (

d) The force used by Mr. Lines must have been no more than was necessary to have enabled him to defend himself. [24] The defence can succeed only if each of these requirements has been satisfied. See: R. v. Hebert, (SCC), [1996]2 S.C.R. 272 at para. 23. [25] The Crown says the trial judge erred in law with respect to two of the elements of the defence of self-defence: provocation and theuse of unnecessary force. It submits these errors arise because of a complete failure on the part of the trial judge to deal with thesepoints. [26] Let me begin with provocation.

In his decision, the trial judge did not expressly identify provocation as a factor to be considered oran issue to be resolved. In fact, he did not use the word “provocation” in the course of his reasons. That said, he did quote the whole ofs. 34(1) of the Code at the beginning of the relevant part of his analysis. It, of course, starts with the words “Every one who isunlawfully assaulted without having provoked the assault….” He then commented on the evidence of Mr. Jorgensen and Ms.

McKenzieby stressing that they did not see the beginning of the fight: … They saw portions of the fight, often from some considerable distance across the parking lot. From their perspective Lines wasclearly the aggressor. Although in fairness, they had no context and were not aware of events leading up to their attention being drawn tothe scene. I cannot rely on their testimony to determine who was the aggressor or who initiated the first blow. [emphasis added] [27] The trial judge went on to say this about the evidence of Mr.

Stewart: It is very difficult to make an assessment as to the credibility or reliability respecting Stewart, as I am simply reading a transcript of histestimony from a previous proceeding. I do infer a certain level of frustration in the exchange process, the frequent changes in both timeand location on the date in question, and the presence of the accused. Whether this frustration caused him to act or react somewhat outof character is impossible to determine. [emphasis added] [28] Next, the trial judge commented on Mr.

Lines’s testimony by saying this: The accused presented as a basically credible witness, although he clearly has an interest in the outcome of the proceeding. Although Iexpect he tended to understate the extent of his conduct, his explanation of how the incident developed is plausible.

His explanationrespecting the kick, although I am hesitant to accept it, is similarly plausible under the circumstance. [emphasis added] [29] Finally, as noted above, in summarizing his conclusions with respect to self-defence, the trial judge wrote as follows: I am not satisfied, beyond a reasonable doubt, that the accused struck the first blow. I am not satisfied beyond a reasonable doubt that thedefence of self-defence does not apply. I am satisfied that the accused, in neither the blows he struck or the kick to the area of Stewart’shead, intended to cause death or grievous bodily harm.

In spite of my reservations concerning the accused’s testimony, I cannot say thatI am satisfied as to his guilt, beyond a reasonable doubt. Under this circumstance, I’m required to enter a finding of not guilty.

[emphasis added] [ 30 ] Thus, as indicated, the Crown is correct in contending that the trial judge did not explicitly refer to the issue of provocation and did not expressly lay out an assessment of that issue. [ 31 ] Nonetheless, the trial judge’s reasoning as a whole indicates that he was alert to the issue of provocation and that he did deal with it. First, although the prosecutor did not highlight or stress provocation in his closing argument, he certainly put it on the table by commenting, for example, that “[i]t is clear that Mr.

Lines started this incident.” Second, the trial judge quoted s. 34(1) of the Code which, of course, includes a reference to provocation. Third, the trial judge observed that the testimony of Mr. Jorgensen and Ms. McKenzie did not reveal “who was the aggressor or who initiated the first blow.” Fourth, in referring to the transcript of Mr. Stewart’s testimony at the preliminary hearing, he observed that “[w]hether this frustration caused him to act or react somewhat out of character is impossible to determine.” Fifth, and very importantly, the trial judge said that Mr.

Lines was a basically credible witness and that “his explanation of how the incident developed is plausible.” Finally, the trial judge said that he was “not satisfied, beyond a reasonable doubt, that [Mr. Lines] struck the first blow.” [ 32 ] The Crown, in its submission, focuses on the trial judge’s comment that he was not satisfied beyond a reasonable doubt that Mr.

Lines “struck the first blow.” It says this reflects an erroneously narrow approach to provocation on the part of the judge given that s. 36 of the Code says provocation includes “provocation by blows, words or gestures.” There is obviously some merit in this argument but, considering the trial judge’s reasons as a whole, it seems to me that he did deal with provocation in this wider sense. The key in this regard is his finding that Mr. Lines’s explanation of “how the incident developed” was “plausible.” This, of course, picks up the full transaction involving Mr. Lines and Mr.

Stewart, including their competing versions of who had said what in the lead up to the fight. The judge’s awareness of the full scope of what might be held to have amounted to provocation is also reflected in his comment about the evidence of Mr. Jorgensen and Ms.

McKenzie to the effect that their evidence did not reveal “ who was the aggressor or who initiated the first blow.” [ 33 ] Thus, in the end, although the trial judge’s handling of the issue of provocation was certainly not perfect, I am not persuaded that he failed to deal with it. [ 34 ] Much the same kind of analysis applies to the question of whether the trial judge failed to consider if Mr. Lines used more force than necessary to defend himself. That issue was front and center during the submissions of counsel at the end of the trial.

For example, early in his argument, and after reviewing key parts of the evidence, defence counsel said “… in the melee that -- everything is consistent with using reasonable force.” Later on, the trial judge himself raised the unreasonable force issue very squarely with defence counsel: THE COURT: I -- I expect you’re referring to

Section 34; are you, and if that’s the case, I -- you’re arguing, I gather, that -- that a kick is -- was no more than was necessary to defend himself. That kicking someone in the course of a fight, particularly when it winds up kicking him in the head, is reasonable under the circumstances?

Is that what your position is? [ 35 ] During the course of the prosecutor’s submissions, as well, the trial judge pointed directly to the issue of unnecessary force by stating as follows: THE COURT: Well, the issue in my mind is whether or not the -- the response, assuming there was an unprovoked assault, whether the response by the accused was more than was necessary to enable him to defend himself? The prosecutor then devoted a substantial part of his attention to that question.

For example, he said this: … I would suggest that what we’ve heard from those other witnesses should leave the court in no doubt that, yes, indeed, he did intend to kick him in the face and that Mr. Stewart was not on the ground simply bending over reaching for a weapon or a -- and that could not even have plausibly have been the case. He was down on the ground as described by the two civilians who turned to see this in progress. [ 36 ] In his reasons for decision, the trial judge again revealed that he was alert to the unnecessary force issue by reviewing all of the evidence and then going on to summarize Mr.

Lines’s position with respect to self-defence, including his position with respect to unnecessary force: Lines acknowledged that he never actually saw Stewart with anything that could be used as a weapon, other than possibly his car keys, however, his actions had caused concern in that regard.

Overall, although not denying either landing several blows or the kick to Stewart’s head area, Lines maintained that he was not the aggressor; that he acted in self-defence; that he did not intend to cause death or grievous bodily harm, and that his actions or reactions, were no more than necessary to enable him to defend himself. [emphasis added] [ 37 ] Although he did not go on to expressly analyse the question of unnecessary force, the trial judge did say, in the penultimate paragraph of his decision, that Mr. Lines’s explanation about the kick to Mr.

Stewart’s head was “plausible under the circumstance.” This is significant because Mr. Lines had testified to his belief that most of Mr. Stewart’s injuries had come from the kick. Further, the kick had featured prominently in counsels’ submissions about unnecessary force. More specifically, defence counsel had said Mr. Lines kicked Mr. Stewart in the course of reacting to seeing him reaching for what Mr. Lines believed to be a weapon. On the other hand, the prosecutor had urged the trial judge to find that Mr. Lines had deliberately kicked Mr. Stewart in the face after Mr.

Stewart was on his hands and knees on the ground. It is also worth noting that, in dealing with Mr. Stewart’s evidence, the trial judge said it was “very difficult to make an assessment as to credibility or reliability” because he had merely read the transcript of Mr. Stewart’s evidence at the preliminary hearing and had not heard him testify. It was in light of all of this that the judge concluded his decision by saying “I cannot say that I am satisfied as to his guilt, beyond a reasonable doubt.” [ 38 ] As a result, I am not able to accept the Crown’s argument that the trial judge acquitted Mr.

Lines without considering the question of whether he had used more force than was necessary to defend himself. The trial judge was alert to this issue and, even though his treatment of it in his reasons for decision was less than ideal, I am not persuaded that he failed to deal with it.

V. conclusion [ 39 ] The Crown’s appeal is dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 23rd day of October, A.D. 2013. “Richards C.J.S.” Richards C.J.S. I concur “Jackson J.A.” Jackson J.A. I concur “Ottenbreit J.A.” Ottenbreit J.A.