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DEFENCES - Self-defence

Friday, December 06, 2019 @ 6:24 AM  

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Appeal by RS, a young person, from convictions for manslaughter, aggravated assault, and careless use of a firearm. The appellant was attacked by five men in the lobby of an apartment building. He had his back to his attackers when he was hit in the back of the head with a baseball bat with sufficient force that he fell to his knees, during which time his gun fell out onto the floor. The appellant had a gun in his pocket because he had been shot at on two prior occasions and feared for his life. The appellant picked up the gun and fired four shots. As the shots were fired, the attackers were running out of the building. The deceased was hit in the back by a bullet and fatally injured. The appellant contended that he fired his gun to protect himself against what he perceived would be the continuation of the initial attack. The trial judge rejected the appellant’s claim of self-defence. She concluded that the appellant’s act of firing the gun was not objectively reasonable, principally because she found that the appellant fired the gun at a time when he knew that the attackers were retreating.

HELD: Appeal allowed. RS was acquitted. The trial judge erred in her analysis of self-defence in a manner that rendered her verdicts unreasonable. The judge’s finding that the appellant knew his attackers were running away when he began to shoot was essential to the verdict, but plainly contradicted by the appellant’s evidence which the trial judge relied upon to support this finding. The appellant said that he saw the attackers running at some point, but where that point fell in the timeline surrounding the events was unclear. He was never asked whether, when he did see the men running away, he was already firing the gun or whether he only then started to fire the gun. There was no finding by the trial judge regarding the sequence of the shots. The sequence of the shots was critical to any determination of the appellant’s ability to discern the actions of his attackers, and thus the risk of harm that he was facing, which was, in turn, essential to any finding as to the objective reasonableness of his actions. There was no basis on the evidence for any conclusion that, prior to firing the first shot, the appellant was aware that his attackers were running away. In reaching her conclusion on self-defence, the trial judge failed to consider the actual circumstances in which the events transpired. The trial judge tested the actions of the appellant against a standard that was much too high for the proper application of self-defence. The trial judge required the appellant, in less than five seconds, to process what had happened, evaluate the potential threat, and essentially react in a reflective and measured fashion.

R. v. R.S., [2019] O.J. No. 5367, Ontario Court of Appeal, G. Huscroft, D. Paciocco and I.V.B. Nordheimer JJ.A., October 22, 2019. Digest No. TLD-December22019013