R. v. R.S., 2019 ONCA 832

SELF-DEFENCE - UNREASONABLE VERDICT

Background

The Appellant, RS, was attacked by five men in the lobby of his apartment building. Without any warning, one of the men hit him in the head with a baseball bat. The Appellant fell to the floor and a gun fell out of his pocket. The Appellant picked up the gun, swung around and fired four shots within five seconds in the direction of his attackers. One of the shots fatally injured the attacker with the bat. The Appellant was charged with second-degree murder (amongst other firearm related offences).

The main issue at trial was whether the Appellant had acted in self-defence. The trial judge convicted the Appellant of manslaughter on the basis that he had the requisite intent to cause bodily harm that he knew was likely to cause death. The trial judge concluded that the Appellant’s firing of the gun was not objectively reasonable as the Appellant fired the gun when he knew the attackers were retreating.

Unreasonable Verdict

An appellate court may find a trial judge’s verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in making that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (See R v RP, 2012 SCC 22).

The trial judge rejected the Appellant’s assertion of self-defence on the basis that he knew his attackers were running away when he began to shoot. Respectfully, however, the Appellant’s testimony at trial plainly contradicts this finding. Nothing in his cross-examination suggests that he knew the attackers were running away at the time he began to shoot. Nothing in the evidence before the trial judge allows for the conclusion that prior to firing the first shot the Appellant was aware that his attackers were fleeing. There was no finding by the trial judge as to the sequence of the shots, or which of the shots killed the deceased. The trial judge’s conclusion on this point therefore amounts to a palpable and overriding error.

Objective Component

The ONCA finds that the trial judge held the Appellant’s actions to too high a standard for the application of self-defence. Within five seconds, the Appellant was hit in the back of the head, grabbed his gun and fired the shots. For the trial judge to find that the shots were grossly disproportionate to the threat he faced the Appellant would have had to process the attack, evaluate the potential threat and react in a measured fashion in less than five seconds. The reasonableness of an accused’s self-defence must be contrasted with the reality of the situation in which he finds himself.

There is a very real possibility that the Appellant’s use of force was reasonable at the commencement of the shots, but became unreasonable before the shots concluded. No findings were made on this point. GIven the lack of evidence, the Crown has failed to establish beyond a reasonable doubt that the Appellant did not act in self-defence.

Remedy

The verdict in this case was unreasonable. It was not supported by the evidence adduced at trial. This error cannot be corrected at trial; this is not a case where evidence was improperly admitted or excluded. As laid out in R v Pittiman, 2006 SCC 9, “where a conviction is set aside on the ground that the verdict is unsupported by evidence, the court of appeal, absent legal errors in respect of the admissibility of evidence, will usually enter an acquittal.” 

An acquittal is all the more appropriate given that the events in question occurred seven years ago. It is not in the interest of justice for the Appellant or all other persons involved for this matter to go back to trial. Moreover, the Appellant was a young person within the meaning of the Youth Criminal Justice Act, SC 2002, c. 1.

Due to all of these factors, Nordheimer JA, writing for the court, allowed the appeal and entered acquittals on the charges of second-degree murder, attempted murder, and careless use of a firearm.