Cite as: R. v. Steele, 1973 NSCa 10 1972 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION - CROWN SIDE BEnJEEN: HER MAJESTY THE QUEEN Appellant Vo RICHARD BRUCE STEELE Respondent [ Oral Opinion] McKINNON, C.J.N.S.: nH~ respondent 1Ims charged on July 31, 1972, that he: "at or near Sydney River in the County of Cape Breton, Nova Scot lap on or about the 27\:h day of July, 1912, did I.mlsIlJfully commit an assault on ~me5 Ross Latham and caused him bodily harm, contrary to section 245 (2) of the CdminaJ Code of CC'lMda"o The respondent ~ppeared before His Honour .Judge Chades o 'COrtS'!0t 1 on September 21, 1912, and elected to be tried by D mag ist"ate without a jurVo The ; ea rned ~1C:lg i st rate found the respondell'1!t ~10t gu Ii ty 0 This is sn eppeai by the Cr~~n against acquittal 0 The facts are: On the even i 1\9 of Ju 1y 27, 1972, James Ross l.Btham and il group of friends Wel"C in the Peacock Beverage Room of the Paddot Tavern, \\'hich is located at Sydney River, Cape Breton County, Nova Scotia~ Latham had been drinking "dth on -friend since middayo By evening he described himself as "fee1ing good 1i o
Leave to appeal is granted. We consider it nec~ssary to deal only with the first ground of appeal. The learned trial Judge in giving hts reasons for judgment, stated as follows: "Upon review of the evidence I am satisfied that on the night in quest ion that James Ross Latham was the authoi" of h Is own mis fortuneo He prOVOked the assault by saying "'hat he did to Steele about his wife~ which resulted in my opinion in a temporary loss of self-control and the retaliation used was not excessiveo" At common law~ the use of insulting words did not constitute provocation: see Taylor v. Ro, [1947] SoC.R" l.f62; and therefore it must be governed by the provisions of the CrIminal Code 0 Section 36 of the ~ states: "36. Provocat ion Includes., for the PUI"poses of sect ions34 and 35, provocation by blO\'is, words or gesturesD" H~~ever, sections 34 and 35 state: 11340 (1) Everyone who is unlawful1y assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bod ily harm and is no more than is necessary to enable ~im to defend himself. (2) Every one'who is unlawfully assaulted and who causes death or grievous bodily ht!it·m in repell ing the assault is justified if lel he ctEuses H under reasonable llpprooens ion of death or grievous bodily hclnTI from the violence wioch t<1hich the assault was originally made or with which the ar:;sail •. 'mt pursues his put"poses # and ill he bel ie'J(~s" on reasonable and probable grouncis, that he CCllftilot otherNise preserve himself from death or 9d evou!l bod ity ha rm o " 3 ..
11350 Every ona who has without Just If leat ion assaulted another but did not corrmence the assault \tIlth intent to cause deeth or grievous bodily harm, or has without Justification provoked an assault upon himself by another, may justify the use of force sub sequent to the assault if 1!l he uses the force (I) under reasonable apprehension of death or grievous bod i1 Y he rm f rom the vi 0 I ence of the person Ir.nom he has assaulted Or provoked, and (li) in the belief, on reesonable ,and probable grounds, that it is necessary tn order to preserve himself from death or gf ievOY! bod l1y henn; 121 he did ,not, at any time before the necessity of pre serving himself from death or grievous bodily hanm '. aroSe, endeavour to cause death or grievous bodily hann; and 1£l he declined further conflict and quitted or retreated from it 8S far as it was feasible to do so before ~he necessity of preserving himself from death or grievous bod i ly harm eroseo \I ~l~ither of these sect ioras would appear to apply to the case before us. Section 215 also provides that a wrongful act oriMu1t IT.ay const itute provocat ion, but that sect ion is 1 im!ted in its \jpp'j icat ion to cases of culpabJe homicideo It appears, therefore, that the use of insulting words directed at the appellant did not provide him with a valid defence to the charge~ MeretoJOras c;ould never amount to an assaulto There \'J{)uJd have to be some act indicating an intention of' assaulting or t&lich an ore! fnary person might reasonably construe as lind iCCit fllg such an intelrllt ion, or some sct amounting to an attempto n,ere w~s no such act mode against the raspondent. : 4
We are all agreed that the appeal should be allowedo In the circumstances present here, it 15 the unanimous opinIon of the Court that It would be in the best Interests of the respondent and not contrary to the public Interest to direct the respondent be dIscharged absolutely under the prOvisions of section 662.1 (1) Qf the Criminal Code. 4 DATED at Halifax, Nova Scotia, this 16th day of February, Members of App!!' Division McKinnon, C.J.NoSo Coff in, J.A 0 Cooper, J.Ao Counse" Martin E. Herschorn, Esqo Appellant 5
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.