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PROCEDURE - Trial judge's duties - Charge or directions - Defences

Thursday, August 08, 2019 @ 8:43 AM  

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Appeal by the accused, Billing, from a conviction for aggravated assault. The accused's girlfriend resided with Markland and his wife. The Marklands stated the accused attended their residence in the early morning, honking his horn and driving aggressively. He returned in the early afternoon and had a shouting match with his girlfriend. The accused told Markland's wife that he sought to retrieve belongings from his girlfriend and threatened to kick down the door. The accused denied the wife's account and stated he merely wished to give his girlfriend a letter. Markland returned to his home and heard the accused yelling at his wife. Markland testified the accused stated he had something for him, retrieved a knife from his vehicle, and stabbed him four times before leaving the scene. The accused testified that Markland was the aggressor. He stated that he returned to his vehicle to retrieve the letter for his girlfriend when Markland threw gasoline in his eyes from a jerry can and struck him in the face. The accused testified that the stab wounds were inflicted in self-defence. The accused was convicted following a jury trial. He appealed on the basis the trial judge erred in charging the jury on self-defence.

HELD: Appeal dismissed. A jury instruction contemplating that the accused had a mistaken belief of imminent force was not warranted on the facts. The defence strategy invited a determination of credibility over who initiated the assault. If the accused's evidence did not raise a reasonable doubt that he was responding to Markland's assault, there was no evidence capable of supporting a mistaken belief that he was assaulted. This was not a case involving equivocal conduct. The omission of a Baxter Instruction on the issue of proportionality did not render the jury charge deficient. The judge repeatedly placed the burden of disproving elements of self-defence on the Crown. The judge repeatedly recited the material aspects of evidence relevant to the defence, thoroughly reviewed the accused's version of events, and invited the jury to use common sense in assessing the accused's conduct. Defence counsel was consulted extensively before and after the charge and did not request a Baxter Instruction. There were no other errors that individually or cumulatively rendered the charge deficient.

R. v. Billing, [2019] B.C.J. No. 1214, British Columbia Court of Appeal, L.A. Fenlon, S.A. Griffin and G.B. Butler JJ.A., July 2, 2019. Digest No. TLD-August52019007