R. v. Richter, 2014 BCCA 244
[25] Retreat was thoroughly canvassed by this Court in R. v. Abdalla, 2006 BCCA 210, where Hall J.A. says:
[23] A useful starting point in a discussion of the issue of how retreat impacts on self-defence in the modern law is a passage from the judgment of Sir Owen Dixon in R. v. Howe (1958) 100 CLR 448 …:
14 … to retreat before employing force is no longer to be treated as an independent and imperative condition if a plea of self-defence is to be made out. … Holmes J. pronounced upon the question in a way which one may well be content to adopt: “Rationally, the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth, it has tended in the direction of rules consistent with human nature. Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant, he may stand his ground, and that if he kills him, he has not exceeded the bounds of lawful self-defence. That has been the decision of this court… Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety, or to disable his assailant rather than to kill him”…
…
[24] This Court in R. v. Proulx (1998), 1998 CanLII 6317 (BC CA), 110 B.C.A.C. 62, 127 C.C.C. (3d) 511, referred to Howe. Finch J.A. (as he then was) said that, aside from the case of persons in their own dwelling home, retreat was a factor to be considered in self-defence. He said:
46 … although retreat may be an irrelevant consideration when one is attacked at home, it does not follow that it is also irrelevant when one is attacked elsewhere.
47 In fact, this Court has held that the possibility of retreat is a very relevant consideration when determining whether the accused had no other option to preserve him or herself. In Irwin, supra, Mr. Justice Hollinrake said:
The concept of retreat is one that comes into play under s. 34(2)(b) - “he cannot otherwise preserve himself from death or grievous bodily harm.”
48 This Court reached the same conclusion in R. v. Jaquot (1960), 1960 CanLII 467 (BC CA), 128 C.C.C. 282.
49 Retreat, then, although not an obligation, must be considered in a defence under s. 34(2) since it is a means of otherwise preserving oneself. …
[Emphasis added.]
[26] Consideration of the option of retreat is mandated where an accused, having caused death or grievous bodily harm, relies upon s. 34(2) in his defence. In such cases, s. 34(2)(b) directs the court to determine whether the accused could have preserved himself from death or grievous bodily harm by some means other than by using force. While no similar provision of the Code, as it stood at the time of the offence, mandated consideration of retreat as an option where the accused relied upon the defence described in s. 34(1), the option of retreat is a factor insofar as it weighs in consideration of whether the force used was excessive: R. v. Irwin (1994), 1994 CanLII 486 (BC CA), 49 B.C.A.C. 143 at para. 33 (B.C.C.A.).
[27] The judge, in my view, properly considered the ability to withdraw in the course of addressing the question whether the degree of force used was necessary. He did not say there was an obligation to retreat or withdraw but, rather, said there was an opportunity to do so and that doing so would have made the use of force entirely unnecessary. At para. 81 of the reasons for judgment he held:
A reasonable and appropriate response would have been for Mr. Richter to simply withdraw. He could have added a verbal response. A mild push away might have been reasonable. No blows of any kind were justified. Even assuming some degree of violence could be thought justified, which I do not, then at the very most some minor blow of some sort might lead me to have a reasonable doubt as to whether the force used could be considered excessive. Here, Mr. Richter struck Mr. Groeneveld repeatedly and without warning. The blows were extremely violent and were perpetrated against someone who Mr. Richter must have understood to be blind.
[28] Because some weight could properly be afforded to the opportunity to withdraw in measuring Mr. Richter’s response to this assault, I would not accede to Mr. Richter’s argument. It is hard to think of a clearer or more obvious case in which a party ought to have considered the prospect of a retreat as an alternative to the use of force, than a case involving the unwanted advances of a blind man.
Aucun commentaire:
Publier un commentaire