R v Bilodeau, 2024 ABCA 149
[54] After deliberating for a few hours, the jury returned with the following question:
In relation to the shots against Maurice, if hypothetically the first shot from Anthony was deemed to be self-defence, would the additional shots also be considered self-defence or is each shot evaluated individually against the criteria to determine self-defence.
[55] The trial judge responded to this question by instructing the jury:
Members of the jury, it is for you to decide after consideration of the totality of the circumstances and the evidence at different points in time whether Anthony Bilodeau was acting in self-defence when he shot Maurice Cardinal. And of course I will reiterate that you are to consider all of the jury charge in relation to the issue of self-defence.
[56] During discussions between the trial judge and counsel prior to answering the jury’s question, defence counsel objected to the use of the words “different points in time” and indicated that the defence position was that there was one continuous act in relation to Mr. Cardinal and the jury should be instructed that it has to consider all points in time.
[57] In Khill, the Supreme Court explained that an accused’s actions must be assessed holistically and without artificial compartmentalization, so that the actions of all parties can be appropriately contextualized, stating at paragraph 83:
This broad temporal frame allows the trier of fact to consider the full context of the accused’s actions in a holistic manner. Parliament made a choice not to repeat the freeze-frame analysis encouraged by such concepts as provocation and unlawful assault. Rather than a forensic apportionment of blows, words or gestures delivered immediately preceding the violent confrontation, the “incident” extends to an ongoing event that takes place over minutes, hours or days. Consistent with the new approach to self-defence under s. 34, judges and juries are no longer expected to engage in a step by step analysis of events, artificially compartmentalizing the actions and intentions of each party at discrete stages, in order to apply the appropriate framework to the facts (see, e.g., R v Paice, 2005 SCC 22, [2005] 1 SCR 339, at paras 17-20). For example, where both parties are engaged in aggressive and confrontational behaviour, s. 34(2)(c) does not demand a zero-sum finding of instigation, provocation, cause or consent (paras 21-22). Parliament has now selected a single overarching standard to weigh the moral blameworthiness of the accused’s act in context: reasonableness. This reflects the complexity of human interaction and allows triers of fact to appropriately contextualize the actions of all parties involved, rather than artificially fragmenting the facts.
[58] In Khill, the Court also stated at paragraph 61, when dealing with the second element of self-defence, under the heading “Did the Accused Do Something for the Purpose of Defending or Protecting Themselves or Another Person from that Use or Threat of Force”, that the analysis must take into account the threat of force as it existed at a particular point in time, not to put an accused’s conduct into a silo, but to assess a confrontation in its full context, in how it evolved and with respect to the accused’s role in its evolution. The Court cautioned decision makers that:
great care is needed to properly articulate the threat or use of force that existed at a particular point in time so that the assessment of the accused’s action can be properly aligned to their stated purpose. Clarity of purpose is not meant to categorize the accused’s conduct in discrete silos, but instead appreciate the full context of a confrontation, how it evolved and the accused’s role, if any, in bringing that evolution about.
[59] A number of cases recognized that an accused may initially act in self-defence but that continued use of force may result in self-defence no longer being applicable. In R v Whiteley, 2017 ONCA 804, the accused was struck by an individual. The accused then picked up a metal object and struck the individual several times while he was on his knees. The court held at paragraph 8 that it was open to a trial judge to assess the blows with a metal object differently:
We agree with the Crown that the trial judge concluded that some of the blows landed with the metal object could not be justified in self-defence. That conclusion does not turn on an assessment of the appellant’s credibility, but rather on the totality of the evidence, which included the appellant’s testimony and his description of the relevant events in his statement. On that evidence, the trial judge concluded that the appellant continued to use deadly force after, on a reasonable assessment of the circumstances as perceived by the appellant, the use of that degree of force was no longer necessary as the appellant was not in any imminent danger. On that analysis, which was open to the trial judge on the evidence, the self-defence claim failed.
[60] In R v AA, 2019 BCCA 389, the complainant was insulted by four youths which resulted in a physical fight. The accused, one of the youths, was involved with the other youths in pushing, shoving and hitting the complainant, who was knocked to the ground. Once the complainant was knocked to the ground, there was no concern that he would get up to confront the youths. Nonetheless the accused grabbed a tennis racket and while the complainant was on the ground, struck him a number of times with the racket causing the complainant to lose consciousness. The Court of Appeal at paragraph 38 upheld the conviction and referenced the trial judge’s assessment of the changing legal character of the application of force by the accused:
While the initial application of force by [A.A.] was lawful, that changed during the course of the altercation. Once [B.B.] was down on the ground for the second time, it was no longer necessary or lawful to continue to apply force to [B.B.] with the tennis racket. There was no necessity to beat [B.B.] with his own tennis racket.
The use of such force at that point was no longer proportional. There were two teens on one adult male. The teens had the upper hand. They easily subdued [B.B.] to the ground. [A.A.] did not need to keep striking [B.B.] with the tennis racket to extract himself from the fight or to protect himself or others. The use of the tennis racket at that point was used in retaliation and as a means to injure [B.B.].
[61] We agree with the Crown that Khill does not stand for the proposition that an accused who initially acts in self-defence can continue his assault long after the threat has ended and past the point of proportionality. The jury in this case was told to assess the appellant’s actions considering all the circumstances as they developed throughout the altercation. That was an appropriate answer to the question.
[62] The trial judge’s instruction that the jury should consider all the evidence but that they could consider the individual shots in the context of all the evidence to determine whether they amounted to self-defence was correct. It was proper to inform them to consider all of the evidence and to also consider particular points in time. We see no error in the trial judge’s response to the jury’s question.
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