Court of Appeal

Judge:

The Honourable Justice Hamilton

Appeal Heard:

January 21, 2016, in Halifax, Nova Scotia

Subject:

Criminal Law; Self-defence under s. 34(2), as it read prior to its March 11, 2013 amendment; Sufficiency of reasons.

Summary:

The trial judge found the appellant guilty of second degree murder for fatally stabbing an unarmed Mr. Downey at a party, when Mr. Downey came toward him after the appellant had moved away from Mr. Downey during a heated argument. The trial judge found the appellant was sober, that Mr. Downey was impaired by alcohol and drugs, that the appellant was shorter than Mr. Downey, but 45 pounds heavier and that they were about the same age. He noted the appellant did not testify that he was afraid of Mr. Downey or that he had no other way to preserve himself from Mr. Downey. He found the appellant failed to retreat earlier when he had an opportunity to do so, when another person at the party restrained Mr. Downey by grabbing and pinning him. The trial judge rejected the defence of accident and self-defence under s. 34(1). He also rejected the defence of self-defence under s. 34(2), by finding that the appellant did not have a reasonable belief that the only way he could preserve himself from death or grievous bodily harm at the hands of Mr. Downey was by fatally stabbing him.

Issues:

Did the trial judge err in applying s. 34(2) of the Criminal Code as it read prior to its March 11, 2013 amendment?

Result:

Appeal dismissed. The trial judge’s reasons do not indicate he misapplied s. 34(2). He did not overemphasize the appellant’s opportunity to retreat. It was just one of seven factors he considered. There is nothing to suggest he failed to consider that the appellant, in defending himself against attack, was not expected to weigh to a nicety, the exact measure of necessary defensive action required; the fact the appellant had his knife out before Mr. Downey approached him did not per se negate self-defence; the appellant had no obligation to retreat; the appellant’s actions did not need to be proportionate to the attack or the immediacy of the situation. The judge’s reasons were sufficient. The judge properly considered and weighed the whole of the appellant’s evidence.