Citation: R. v. J.E.S., 2009 NSSC 373
Date: 20091119
Docket: Hfx No. 312440A
Registry: Halifax
Between:
Her Majesty the Queen
Appellant
v.
J.E.S.
Young person within the meaning of the
Youth Criminal Justice Act (Canada)
Respondent
DECISION
Restriction on publication: Restriction on publication under s. 110(1) of the Youth Criminal Justice Act
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Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
Judge: The Honourable Justice Gerald R. P. Moir
Heard: November 18, 2009, in Halifax
Written Decision: Oral decision transcribed, edited, and signed on December 8, 2009
Counsel: Terry M. Nickerson, for the appellant
Megan Longley, for the respondent
Moir, J. (Orally):
Introduction
[1] Last fall, JES cut John Young with a knife during an altercation at a teenage drinking party in the woods on a lake behind *. He was charged with using a weapon in the commission of an assault contrary to s. 267(a) of the Criminal Code, causing bodily harm in the commission of an assault contrary to s. 267(b), and unlawful possession for a purpose dangerous to the public peace contrary to s. 88.
[2] The charges were tried before Her Honour Judge Pamela Williams last May. The Youth Justice Court judge found, contrary to the submissions made for JES, that it was established beyond reasonable doubt that he caused a superficial cut to Mr. Young’s chest. However, Judge Williams found that there was reasonable doubt about self-defence, and she acquitted JES of these three charges. (He was convicted on other charges, but they do not bear on the issues under appeal.)
[3] The Crown appealed.
Grounds of Appeal
[4] The grounds of appeal are as follows:
THAT the Youth Justice Court Judge erred in law in instructing herself on the defence of self-defence under s. 34(1) and s. 37(1) of the Criminal Code in the absence of an evidential basis lending an air of reality to that defence.
THAT the Youth Justice Court Judge erred in law in instructing herself on the defence of self-defence under s. 34(2) and s. 37(2) of the Criminal Code given that she found that the accused did cause bodily harm to the complainant.
DID err in law in basing a reasonable doubt on speculation and in the absence of any evidence that the Respondent was being attacked at the time that he inflicted bodily harm on the complainant.
Findings of Fact
[5] Judge Williams found that a large number of teenagers gathered at about seven o’clock for a party and it lasted until midnight. There was much drinking and some brawls broke out.
[6] Mr. Young was “highly intoxicated”. He behaved belligerently and drank so much that he suffered a black-out of memory for much of the evening. Mr. Young remembers punching JES, but he could not assist the judge with any further recollection. JES did not testify.
[7] Three witnesses saw little, and that left Judge Williams with accounts from just two, B. B. and A. D.. Mr. D., who arrived later, left earlier, and drank nothing, was found to be the more credible witness. Mr. B. had been drinking and he left important information out of his testimony. Both were Crown witnesses, the Defence chose not to call evidence.
[8] JES was fifteen. Mr. Young was eighteen and bigger. Mr. Young punched the boy out of the blue. He hardly knew the boy. Judge Williams found it was an unprovoked assault, it was “significant”, and probably more than one punch was inflicted on the boy.
[9] Then, Mr. Young put JES in a headlock. There was no evidence “that JES in any way was fighting back”.
[10] JES is A. D.’s cousin. Mr. D. intervened to stop the altercation. In her decision, the Youth Court Justice judge found:
That altercation ended with the assistance of A. D.. In other words, the evidence before me is that JES had gotten some help in terms of that assault being ended, an ending being put to that assault.
In other words, Mr. Young assaulted JES until Mr. D. put a stop to it.
[11] After separating his cousin from Mr. Young, Mr. D. moved on. About three minutes later by Mr. D.’s estimate, but it could have been “really five minutes or really two minutes or one minute”, Mr. D. “turns around and sees JES with a knife in his hand”.
[12] Mr. D. found JES and Mr. Young facing each other and yelling. Mr. Young’s shirt was off. He seemed angry, in fact he seemed angry and in a mood to fight all along, including before the assault on JES and when Mr. D. moved on after separating the two. This time, however, JES had a knife and Mr. Young was at bay.
[13] Mr. D. disarmed JES. It took him a long time to get the boy to drop the knife. A sensible young women threw it in the lake.
[14] The trial judge found “that there was an apprehension on the part of JES [of a] danger of harm, because he’d just been assaulted”. That finding is also supported by Mr. D.’s testimony about the appearance of anger in Mr. Young before, during, and after his assault on the boy.
[15] I have examined the record. The findings of the trial judge are supported by evidence.
[16] On this appeal, the Crown relied heavily on Mr. B.’s testimony which leaves out Mr. D.’s involvement completely, and gives one the impression of a rapid sequence of events; namely, Mr. Young punches JES, they fall to the ground, and Mr. Young punches JES a few more times, Mr. Young then lets JES be, but JES asks for a knife, JES takes a swing at Mr. Young and misses, Mr. Young is stabbed on the second swing, Mr. Young walks away. The trial judge preferred the evidence of Mr. D., and she accepted some of what Mr. B. said, but she clearly rejected much of it.
[17] Unless there is a reviewable error in the assessment of credibility itself, an appeal is no place for rehabilitating the credibility of a witness. The trial judge’s assessment of the sequence of events is supported by the testimony of the only reliable witness to the events.
[18] The trial judge was well within her function when she said “I don’t know what took place within that span of time [immediately after the assault on JES] that A. [Young] describes as being about three minutes.” She could not place much weight on Mr. B.’s description of a rapid sequence, and Mr. D. saw nothing. We cannot now supply explanations that have Mr. Young and JES separated and uncommunicative until JES takes the first swing of a knife.
First Ground: Air of Reality to Self-Defence
[19] Mr. Nickerson writes, “it is argued that there were two separate incidents of assault between JES and John David Young, the complainant in this matter.” Respectfully, this invites an appellate court to substitute its findings of fact for trial findings that are supported by the evidence. The trial judge found quite the opposite.
[20] The evidence presented by the Crown put the judge in a difficult position. Sometimes young people who gather at a haunt to drink too much seem to revert to childish levels of reasoning. An analogy to childhood skirmishes shows the difficulty the Crown’s evidence presented to a finder of fact who has to determine proof at the criminal standard.
[21] A mother intervenes after her two sons get into a fight. She finds that the older, bigger child hit the younger, smaller one. She scolds the older boy, separates the two, and tends to other things.
[22] She soon hears another frackus. She returns to find the boys facing one another, the younger one holds a stick, and the older boy rubs his forehead where he got a hit. Does she punish the younger one? Not yet. She overcomes the urge to beat both of them with the stick, but she needs to interrogate to find out whether the younger boy walloped his brother out of revenge or the older boy launched another attack only to find that his brother had armed himself to even the odds.
[23] The trial judge was in the position of that mother, but without the interrogation. The earlier, but proximate, assault by Mr. Young on the boy and the apparent continuance of Mr. Young’s anger supplied air of reality to self-defence. The absence of accepted evidence about what happened in the interval, while Mr. D.’s back was turned, led to reasonable doubt.
[24] I will dismiss the first ground.
Second Ground: Excessive Force
[25] The Crown also argues that the trial judge should have considered s. 34(2) of the Code, and not just s. 34(1). Ms. Longley argues, and I agree, that the wound caused in this case was not grievous bodily harm.
[26] However, the Crown’s submission on this point misses the reasoning of Judge Williams. She did not find that the swings with the knife could be understood as attempts to repel the initial assault. She found that the initial assault gave rise to fears of further harm, and she could not tell what went on between the two immediately before the swings.
[27] It is also argued that the trial judge should have had regard to s. 37(2). In my opinion, the trial judge’s finding that JES held the knife for a “defensive purpose” and used it defensively is supported by the evidence of what Mr. Young did to the boy minutes before, Mr. Young’s continuing angry appearance, and the absence of the boy’s protector, Mr. D..
[28] The trial judge referred to the “two inch superficial stab wound”, which Mr. Young did not even notice until he was walking out of the woods. She found that “the action was not excessive force”. Although she did not refer to the excessive infliction provision in s. 37(2) expressly, her mind was clearly on it.
[29] Moreover, once she determined, on evidence supporting the conclusion that self-defence had an air of reality, the question became whether the Crown had proved excessive force beyond reasonable doubt.
[30] I will dismiss the second ground.
Third Ground: Speculation
[31] Mr. Nickerson pointed out that in cases such as R. v. Chan, [2005] N.S.J. 134 (C.A.) there is far more evidence from which to infer a defendant’s state of mind as it pertains to self-defence. He writes:
There is no evidence at all before the court in this matter as to the accused’s state of mind, and although the court is entitled to infer from circumstantial evidence about the accused’s state of mind, it is respectfully submitted that the complete lack of evidence during that three minute gap in time other than from Mr. B., between the first and second assault, goes not only to the accused’s state of mind, but as to whether or not the accused is actually being assaulted.
[32] In my view, there was evidence from which to infer JES’s defensive state of mind: his age and size, Mr. Young’s age and size, the beating, the protection by Mr. D., the continuation of Mr. Young’s anger, the brief absence of the protector, and the two back at it with JES holing an equalizer.
[33] Moreover, the Crown’s reliance on the absence of credible information about what happened when Mr. D.’s back was turned tends to shift the burden. Again, the question for Judge Williams was whether self-defence was excluded beyond reasonable doubt.
[34] I will dismiss the third ground of appeal.
Conclusion
[35] I will dismiss the appeal.
J.