Brisson v. The Queen

Brisson v. The Queen
Collection
Supreme Court Judgments
Date
1982-08-09
Report
[1982] 2 SCR 227
Case number
16220
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio
On appeal from
Quebec
Subjects
Criminal law
Decision Content
Supreme Court of Canada
Brisson v. The Queen, [1982] 2 S.C.R. 227
Date: 1982-08-09
Roger Brisson Appellant;
and
Her Majesty The Queen Respondent.
File No.: 16220.
1981: October 15; 1982: August 9.
Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Criminal law—Murder—Charge to jury—Self-defence—Excessive force—Whether there was sufficient evidence to put the defence of self-defence to the jury—Whether use of excessive force in self-defence reducing murder to manslaughter—Section 613(1)(b)(iii) applicable—Criminal Code, R.S.C. 1970, c. C-34, ss. 7, 34, 212, 215, 613(1)(b)(iii).
Appellant was convicted of first degree murder and his appeal to the Court of Appeal was dismissed with a dissent. The dissenting judge found that, although the trial judge had properly put the defence of self-defence to the jury, he erred when he did not instruct them that if the appellant used excessive force in self-defence, murder could be reduced to manslaughter. The appeal was based on this dissenting judgment.
Held: The appeal should be dismissed.
Per Martland, Estey and McIntyre JJ.: A trial judge must put to the jury all defences which arise from the evidence. There must, however, be some evidence sufficient to give an air of reality to a defence before the obligation to put a defence can arise. Here, there was no evidence sufficient to require the trial judge to put the issue of self-defence to the jury, and the accused therefore suffered no injustice as a result of any deficiency in the charge. This was a case where s. 613(1)(b)(iii) of the Code should apply to dismiss the appeal.
Pappajohn v. The Queen, [1980] 2 S.C.R. 120; Kelsey v. The Queen, [1953] 1 S.C.R. 220; Wu v. The King, [1934] S.C.R. 609; Workman v. The Queen; Huculak v. The Queen, [1963] S.C.R. 266; Colpitts v. The Queen, [1965] S.C.R. 739, referred to. Per Laskin and Ritchie JJ.: There was no evidence to leave the issue of self-defence to the jury, let alone any issue of excessive self-defence as a basis for a verdict of manslaughter. This was a proper case to apply s. 613(1)(b)(iii) of the Criminal Code.
R. v. Challice (1979), 45 C.C.C. (2d) 546, referred to.
Per Dickson, Beetz, Chouinard and Lamer JJ.: It seems highly questionable whether there was evidence to warrant placing the defence of self-defence before the jury. In any event, unless related to intent under s. 212 of the Code or to provocation, the notion that excessive force in self-defence could reduce what would otherwise be murder to manslaughter should be rejected. On a reasonable statutory interpretation of s. 34 of the Code it is apparent that a qualified defence of excessive force does not exist.
R. v. Barilla (1944), 82 C.C.C. 228; Mead’s and Belt’s Case (1823), 1 Lewin 184, 168 E.R. 1006; R. v. Smith (1837), 8 Car & P. 160, 173 E.R. 441; R. v. Odgers (1843), 2 M. & Rob. 479, 174 E.R. 355; R. v. Hussey (1924), 89 J.P. 28; R. v. Ouellette, [1950] 2 W.W.R. 875; R. v. Basarabas and Spek (1981), 62 C.C.C. (2d) 13; R. v. Stanley (1977), 36 C.C.C. (2d) 216; R. v. Crothers (1978), 43 C.C.C. (2d) 27; R. v. Deegan, [1979] 6 W.W.R. 97; R. v. Fraser (1980), 55 C.C.C. (2d) 503; R. v. McKay, [1957] V.R. 560; R. v. Howe (1958), 100 C.L.R. 448; Viro v. The Queen (1978), 18 A.L.R. 257; Palmer v. The Queen, [1971] 1 All E.R. 1077; R. v. McInnes, [1971] 3 All E.R. 295; Reference under s. 48A of the Criminal Appeal (Northern Ireland) Act 1968 (No. 1 of 1975), [1976] 2 All E.R. 937; R. v. Appleby, [1979] 1 W.W.R. 664; R. v. Hay (1973), 22 C.R.N.S. 191; R. v. Campbell (1977), 38 C.C.C. (2d) 6; R. v. Trecroce (1980), 55 C.C.C. (2d) 202; R. v. Reilly (1982), 66 C.C.C. (2d) 146; Pilon v. The Queen, [1966] 2 C.C.C. 53; Linney v. The Queen, [1978] 1 S.C.R. 646; R. v. Bufalo, [1958] V.R. 363; R. v. Haley (1959), 76 W.N. (N.S.W.) 550; R. v. Tikos (No. 1), [1963] V.R. 285; R. v. Tikos (No. 2), [1963] V.R. 306; Aleksovski v. The Queen, [1979] W.A.R. 1; Masnec v. The Queen, [1962] Tas. S.R. 254; R. v. Johnson, [1964] Qd. R. 1; R. v. Hassin, [1963] Crim. L.R. 852, referred to.
APPEAL from a judgment of the Quebec Court of Appeal, [1980] C.A. 457, affirming a conviction of murder in the first degree. Appeal dismissed.
Michel F. Denis, for the appellant.
André Vincent, for the respondent.
The reasons of Laskin C.J. and Ritchie were delivered by
THE CHIEF JUSTICE—This is an appeal from a judgment of the Quebec Court of Appeal, Bélanger J.A. dissenting, affirming a conviction of murder in the first degree entered on the verdict of a jury. The dissenting judge disagreed with the majority that, there having been misdirection on an important point by the trial judge, s. 613(1)(b)(iii) of the Criminal Code could be properly invoked for dismissal of the appeal. Having taken an appeal to this Court as of right based on Bélanger J.A.’s dissent, the appellant applied for and was given leave by this Court to raise four other grounds of appeal, all being questions of law.
In my view, only the ground on which Bélanger J.A. dissented raised any arguable issue in this case. Some of the other grounds may, in other circumstances, raise issues that should engage the concern of a final appellate court, but I do not find them cogent enough in this case to justify interference with the conviction. It is nonetheless desirable that I should speak to them in these reasons.
Perspective on all issues canvassed in this Court requires a brief reference to the facts, which are unusual and somewhat bizarre. The accused was charged with murder in the first degree for the unlawfull killing of a person whose burned body, defying identification, was found in the accused’s car which had been set on fire with gasoline. The medical or scientific cause of death could not be determined but there was evidence that the deceased did not die in the fire or, more precisely, from carbon monoxide asphyxiation. There was, however, a very high level of alcohol in his blood, high enough according to expert evidence, to be a possible cause of death. The body was discovered in the car on March 28, 1977. The accused had a grocery business in Montreal, Quebec, and was having financial difficulties as of the beginning of 1977. Early in March he obtained two birth certificates and later on a passport and an international vaccination certificate. On Saturday, March 26, 1977, he failed to take his store’s receipts (which were put into a bag containing cheques, accounts and cash) to his bank’s depository. Next day he left his young daughter with his brother-in-law and was seen leaving his store carrying two bags. He registered at a hotel in Montreal under a false name. On Monday, March 28, 1977, the day of the discovery of the burned body in his car, the accused flew to Toronto and then to Vancouver where he stayed for three days. Then an air ticket was issued in his name for a flight to Los Angeles and then to Tahiti.
On April 1, 1977, his Longueuil bank received the deposit minus the cash. Included was a letter to the manager, stating that the accused had been kidnapped, that money had been demanded and announcing his death because he could identify his abductors. Prints found on the letter were later identified as those of the accused. On May 7, 1977 he travelled by air from Los Angeles to Montreal where he registered in a rooming house. A niece recognized him at an intersection two days later and on May 15, 1977 a former work-mate of the accused recognized him and followed him to the rooming house. He notified the family who had thought the accused was dead. A brother sought out the police who went with him to the rooming house where they found the accused with some money, with Montreal newspapers dating from preceding March 28th and with his passport showing his itinerary to Tahiti. From the time of his return to Montreal until he was discovered, the accused did not contact any of his family or his friends.
He did not testify at his trial but gave evidence at a voir dire respecting the admissibility of three statements he made to the police. All three were admitted in evidence. The first two statements, which it is unnecessary to canvass in any detail, referred to a contrived account of his kidnapping and of his treatment by his kidnappers after he was allegedly seized at his car near his place of business and when he was on his way to make a night deposit at his bank. According to the first statement, it was they who took him to a Montreal hotel, then to Toronto, Vancouver and Los Angeles. The second statement was substantially the same with some update in saying that he was flown to Tahiti, and touching on other facts then known to the police. There was no explanation by the accused as to why he did not try to get in touch with the authorities in the various places where he was allegedly left by his kidnappers or try to reach his family. The obvious falsity of the statements as to the kidnapping could not but be damaging.
The third statement was of a completely different character. He said in it that his business was in a precarious state and that in desperation he decided to walk away from everything. He obtained a passport and on March 27, 1977 he took the bank deposit from his store, put certain effects in some bags, placed a case of beer in the back seat of his car and went to rent a room in a Montreal hotel. Still undecided about leaving, he went for a walk and met a tramp (un clochard) with whom he had dinner. They came back by taxi to the hotel and the tramp was put in the accused’s car and given a 40 oz. bottle of rye. They drove around for two and one-half to three hours, the tramp drinking constantly. A dispute broke out and the tramp hit the accused across the forehead with the half-full bottle of rye. The accused stopped the car and tried to calm his passenger but could not do so. He pushed him to the corner, stretched his arm over the back seat, took a bottle of beer from the case that was there and hit the tramp on the head with the bottle to calm him but the bottle broke and the person lay inert, crumbled on the front seat with his head at the door. The accused drove around for some time with the inert body which was bleeding from the ears. He then took two gasoline cans which he had in his trunk and filled them at a station and later set the interior of the car on fire. The statement also contained an admission by the accused that he sent the “kidnap” letter to the bank and also described his travels to the west coast and to the Pacific.
Of the five grounds of appeal in this case, the one that can be dismissed out of hand is that there was no proper hearing before the Court of Appeal when the three judges of the Court, each giving reasons, did not pass on all the issues raised before them. They gave dispositive reasons, and the fact that one or more of them found it unnecessary to dwell on all the points raised in argument does not amount to reversible errors, however desirable it may be, especially for an appellant looking to a further appeal, that each point raised be separately considered. Again, I am unable to agree that there was reversible error here in the instruction given by the trial judge on character evidence, especially when the accused did not testify. The trial judge in saying that evidence of good character has no effect when there is proof beyond a reasonable doubt of the commission of the crime charged is saying in effect that good character is not itself a defence. Of course, evidence of good character may have a bearing on intent but in the circumstances here this is not such a case.
A third point taken on behalf of the accused was that the trial judge improperly told the jury that the same rules applied to the assessment of testimony, whether offered by the Crown or by the defence. If the trial judge’s instructions in this connection could be taken as diminishing or qualifying the burden of proof resting on the Crown, there would be merit in the contention. In the context in which the challenged instruction was given, I do not think the objection to it can stand. This is not a case where the jury may have been misled by being directed to determine guilt or innocence on the basis of the credibility of the witnesses on each side: see, for example, R. v. Challice (1979), 45 C.C.C. (2d) 546. The fourth ground taken by the accused was that there was fatal misdirection by the trial judge in telling the jury that they did not have to determine the cause of death in order to find the accused guilty and also in telling them that if they concluded that alcohol was the cause of death, they should acquit. What was apparently objected to on the latter point was the trial judge’s use of the word “conclusion” in telling the jury that if they came to the conclusion that alcohol was the cause of death they should acquit. The objection was that this watered down the burden of proof on the Crown. Having regard to the trial judge’s charge on this issue, the objection is trifling and without merit.
So too, in this case, there is no merit in the contention that the trial judge erred in telling the jury that they did not have to determine the cause of death to find the accused guilty. The mere fact that in some cases the cause of death cannot be determined is no more a disabling hurdle for the Crown than the fact that in some cases there is no corpus delicti. If there is evidence upon which a jury can determine beyond a reasonable doubt that the death of a person was brought about by an unlawful act of the accused accompanied by the required intent to constitute the offence of murder, a finding of the exact cause of death, in a medical or scientific sense, is not a necessary condition of conviction. Causation, where there is a jury, is essentially a jury question on a proper instruction by the trial judge as to the law. In this case, proper instruction was given. The trial judge made it clear that in order to convict of murder the jury had to find that an unlawful act of the accused caused the death of the victim and he also instructed them on the required intent. Again, he said, quite properly, that if the jury determined that death resulted from alcohol, they should acquit. This brings me to the point of law on which Bélanger J.A. dissented. Bélanger J.A. took the clear point that there was a fatal failure by the trial judge, having dealt with self-defence, to instruct on manslaughter if in acting in self-defence the accused used excessive force in the circumstances. Although the trial judge had instructed the jury on provocation and its effect on the murder charge, he did not relate manslaughter to any specific defence when, at the end of his address to the jury, he told them of the four verdicts that were open to them, namely, murder in the first degree, murder in the second degree, manslaughter and acquittal. According to Bélanger J.A., the jury was placed in the position of finding the accused guilty of murder if they found he had used excessive force in acting in self-defence rather than finding him guilty of manslaughter. The learned dissenting judge made no mention of s. 613(1)(b)(iii), being obviously of the opinion that where there is a serious non-direction amounting to a misdirection there is no room for the application of the curative provision. I agree with him completely in a case where the accused is deprived of his legal right to have the jury pass on a qualified defence that would, if accepted, result in a verdict of manslaughter.
I had originally formed the view that there was a basis in the evidence not only to support an instruction on self-defence alone (which the trial judge gave) but also evidence of possible excessive force requiring, according to Bélanger J.A., an instruction on manslaughter. (If this was a correct view of the issues, it would obviously be wrong to apply the curative provisions of Criminal Code, s. 613(1)(b)(iii)).
Having read the reasons of Dickson J. and those prepared by my brother McIntyre, I have reviewed again the record of the facts which I have set out in my reasons herein and am now persuaded that the trial judge overreached in leaving even self-defence to the jury. I therefore agree with my brother McIntyre that there was no evidence to leave that issue to the jury, let alone any issue of excessive self-defence as a basis for a verdict of manslaughter. I also now agree with him, following the majority judgments of the Quebec Court of Appeal, that this is in any event a proper case to apply the proviso in Criminal Code, s. 613(1)(b)(iii).
I would accordingly, and following McIntyre J., dismiss the appeal.
The reasons of Martland, Estey and McIntyre JJ. were delivered by
MCINTYRE J.—I have read the reasons for judgment of my brothers, the Chief Justice and Dickson J. I agree with the Chief Justice in his rejection of all grounds of appeal. Though I agree in the result reached by Dickson J., in that I would dismiss the appeal, I would confine my reasons for so doing to the proposition that there was no evidence before the trial judge sufficient to require him to put the issue of self-defence to the jury, and the accused therefore suffered no injustice as a result of any deficiency in the charge. It is also, in my view, a case where the provisions of s. 613(1)(b)(iii) of the Criminal Code would apply to dismiss the appeal in any event.
A trial judge must put to the jury all defences which arise from the evidence. There must, however, be some evidence sufficient to give an air of reality to a defence before the obligation to put a defence can arise. In Pappajohn v. The Queen, [1980] 2 S.C.R. 120, at pp. 126 and 127, I dealt with this question—with the approval of the majority of the Court—and I would refer again to the words of Fauteux J. in Kelsey v. The Queen, [1953] 1 S.C.R. 220, where he said, at p. 226:
The allotment of any substance to an argument or of any value to a grievance resting on the omission of the trial Judge from mentioning such argument must be conditioned on the existence in the record of some evidence or matter apt to convey a sense of reality in the argument and in the grievance.
See, as well, the other cases referred to in Pappajohn on this point: Wu v. The King, [1934] S.C.R. 609 and Workman v. The Queen; Huculak v. The Queen, [1963] S.C.R. 266.
Can it be said in the case at bar that there was before the court at trial any such evidence which would convey a sense of reality in the suggestion that the accused killed in self‑defence? In my view, the answer must be: no.
The appellant did not give evidence at trial. The suggested basis for the defence of self‑defence is to be found in a statement he made to the police which is reproduced, in part, in the reasons of Dickson J. in these terms:
[TRANSLATION] At that point I stopped the car suddenly. I asked him to calm down, which he had no intention of doing. I pushed him back to his side, reached over to the back seat, took a bottle of beer from a case of twelve and hit him on the head with it to calm him down. The bottle shattered and he stopped moving. He was slumped over and motionless on the front seat with his head leaning against the door on the trim next to the window.
This statement was put before the jury with the other evidence which revealed the planning and deliberation, and the elaborate scheme referred to in the recital of facts given by the Chief Justice. In my view, it affords no basis for a suggestion of self-defence but, assuming it is true, it speaks rather of the reaction of an angry man who, with one hand, was capable of holding his opponent down while he, sitting in the driver’s seat of a car, reached with the other arm into the back seat of the car, opened the case of beer, took out a bottle and delivered a blow to the head of his opponent. This does not afford evidence of repelling force by force in the words of s. 34(1) of the Criminal Code. Rather it provides evidence of a calculated retaliation, well after any need for self-defence existed. In my view, no air of reality attaches to the assertion that the appellant acted in self-defence, particularly when this statement—the sole basis of the defence—is considered against the background of the evidence adduced by the Crown. The trial judge, therefore, was not required to charge on this issue.
In the Court of Appeal, Crête C.J.Q. and Monet J.A. were of the opinion that any deficiencies in the charge on the issue of self-defence were such that the proviso in s. 613(1)(b)(iii) of the Code should be applied to dismiss the appeal. I am in agreement with them. Applying the test in Colpitts v. The Queen, [1965] S.C.R. 739, and even assuming some deficiency in the charge given in this case, I am of the view that on the whole of the evidence, much of which was uncontested, there is no possibility that a jury, properly instructed, would have any reasonable doubt on the question of the appellant’s guilt.
I refrain from any comment on the question dealt with by Dickson J. regarding the availability of a verdict of manslaughter where an accused acting in self-defence, as described in s. 34 of the Code, causes a death by the use of an excess of force.
I would dismiss the appeal.
The reasons of Dickson, Beetz, Chouinard and Lamer JJ.
DICKSON J.—This is an appeal from the Court of Appeal of Quebec following conviction of the appellant Brisson, by a jury at Montreal, on a charge of first degree murder. The question of substance is whether the trial judge erred in failing to direct the jury that if they found that the accused had used excessive force in defending himself from his victim, they should find him guilty only of manslaughter, and not murder.
After study of the transcript and the authorities the views which I hold with respect to the self‑defence issue are as follows. In the first place I question whether there was any evidentiary base for the defence. Secondly, in my view, the verdict is murder and not manslaughter if the Crown establishes the requisite deadly intent (means to cause death or means to cause bodily harm that he knows is likely to cause death and is reckless whether death ensues or not, s. 212 of the Criminal Code) and the defence of self‑defence fails.
I
On the evidentiary point, the evidence gleaned from a statement of the accused to the police, was to the following effect. Brisson had met un clochard (a rubby-dub) with whom he had had supper. He took the clochard by taxi to the parking lot of the Hotel Loews and put him in his car. He gave the clochard a 40-ounce bottle of rye that was already in the trunk of the car. They drove about in the car for two-and-one-half hours, the clochard drinking throughout this time. At one point a dispute broke out and the clochard hit Brisson on the forehead with the half-empty bottle of rye. The statement by Brisson continues:
[TRANSLATION] At that point I stopped the car suddenly. I asked him to calm down, which he had no intention of doing. I pushed him back to his side, reached over to the back seat, took a bottle of beer from a case of twelve and hit him on the head with it to calm him down. The bottle shattered and he stopped moving. He was slumped over and motionless on the front seat with his head leaning against the door on the trim next to the window.
On these facts it seems to me highly questionable whether there was evidence to warrant placing the defence of self-defence before the jury. Assuming, however, arguendo that the trial judge was correct in charging the jury on self-defence I pass to the substantial legal point which arises.
II
Canadian Authorities
The defence of self-defence is codified in our Criminal Code. The Code preserves the common law with slight variation. Although it is to the Code and not the cases that we should primarily direct attention, the Canadian authorities which have considered the issue of excessive force in self-defence have paid scant heed to the Code. They have concentrated, in the main, on the jurisprudence as it has developed in Australia, in England and in Canada. For that reason I will turn to the cases before addressing s. 34 of the Criminal Code.
A number of Canadian cases have suggested that it is open to a jury to bring in a verdict of manslaughter if they find that the force used by an accused in self-defence is excessive. The first of these is R. v. Barilla (1944), 82 C.C.C. 228 (B.C.C.A.). O’Halloran J.A. found error on the part of the trial judge in failing to instruct the jury that if they found that firing the revolver as Barilla did was an unnecessarily violent act of self-defence in the circumstances of the attack then launched, that it was open to them to find a verdict of manslaughter. There was no discussion in Barilla of the principles involved and no mention of the Criminal Code. O’Halloran J.A. relied on three very early English cases: Mead’s and Belt’s Case (1823), 1 Lewin 184, 168 E.R. 1006; R. v. Smith (1837), 8 Car & P. 160, 173 E.R. 441; R. v. Odgers (1843), 2 M. & Rob. 479, 174 E.R. 355 and upon the later case of R. v. Hussey (1924), 89 J.P. 28.
A close reading of the cases relied upon in Barilla provides scant support for the legal proposition for which those cases are said to stand. As will be seen, the Privy Council and the English Court of Appeal in later cases did not draw from these and other early English authorities the conclusion that excessive force in self-defence results in a manslaughter verdict.
Many of the Canadian cases simply follow Barilla. See for example, R. v. Ouellette, [1950] 2 W.W.R. 875 (B.C.C.A.) and R. v. Basarabas and Spek (1981), 62 C.C.C. (2d) 13 (B.C.C.A.). In R. v. Stanley (1977), 36 C.C.C. (2d) 216 (B.C.C.A.), Branca J.A. stated the law in the following terms (at p. 232):
If the force used was not excessive and/or if the death was caused with the justification offered in s. 34(2)(a) and (b) then he, Stanley, was justified in killing Blosky and was not criminally responsible.
On the other hand, if the force used was excessive or if the death was caused in circumstances not coming within the justification provided in s. 34(2)(a) and (b) and if there was not an intent within s. 212, then the death was caused by an unlawful act but not in circumstances amounting to murder.
The critical words are those found in the second paragraph “and if there was not an intent within s. 212”. In R. v. Crothers (1978), 43 C.C.C. (2d) 27 the Saskatchewan Court of Appeal purported to adopt the principles stated by Branca J.A. in the headnote in Stanley’s case. But the headnote is in error. The words to which I have above directed attention are repeated in the headnote “and if there was not intent within s. 42 of the Criminal Code”. Section 42 is concerned with assertion of a right to a house or real property. No mention is made of s. 212 of the Code dealing with intent in murder.
Alberta has been the province in which the doctrine has been most favourably received but the Alberta Court of Appeal has been divided in its opinion as to the legal underpinning of the doctrine. In R. v. Deegan, [1979] 6 W.W.R. 97 (Alta. C.A.) Prowse J.A. said (at p. 104):
If the accused’s mind was consumed with an apprehension of death or grievous bodily harm, his acts thereafter “being the purely physical products of” such passion, can it be said that he formulated the requisite specific intent for murder? In my view, in such circumstances, he cannot be said to have formed a genuine intent of the nature required to support such a conviction.
If the accused does not have the intent requisite for murder under s. 212 of the Code or if there is reasonable doubt on the point, then of course the verdict should be manslaughter and not murder. If that is what is meant by the above passage then it would seem to me to be in accordance with principle. If, however, Mr. Justice Prowse is speaking of an intent other than that contemplated in s. 212 of the Code then I confess to some difficulty, and it is compounded by the following passage from his reasons (at p. 105):
In cases where the learned trial judge finds that there is evidence that warrants placing the defence of self-defence before the jury, I am of the view that it is sufficient, in placing this issue of manslaughter based on such evidence, to do so by putting the following question to it: “If you find that the accused’s actions were dictated by a fear of death of grievous bodily harm, or if you are left with a reasonable doubt on that point, then you should bring in a verdict of manslaughter although you found he used excessive force.”
This issue only arises after the jury has rejected the defence of self-defence, and is considering whether the accused had the intent required to support a conviction for murder. For this reason care should be taken to make clear to the jury that it must only consider this issue if it rejects that defence.
In R. v. Fraser (1980), 55 C.C.C. (2d) 503 Mr. Justice Moir of the Alberta Court of Appeal reviewed in some detail the Australian cases of R. v. McKay, [1957] V.R. 560, R. v. Howe (1958), 100 C.L.R. 448 (H.C. of Austr.) and Viro v. The Queen, (1978), 18 A.L.R. 257 (H.C. of Austr.) and concluded (at p. 522):
The Australian High Court has therefore held that the qualified defence of excessive force operates as does the defence of provocation. The effect of the defence is not to negative the intention to kill or to cause injury but to hold that an intent to kill or injure, when force is permissible, is less morally culpable than the intent to kill or injure recklessly under other circumstances.
He referred to the fact that this conclusion was rejected by the Judicial Committee of the Privy Council in Palmer v. The Queen, [1971] 1 All E.R. 1077 followed by the English Court of Appeal in R. v. Mclnnes, [1971] 3 All E.R. 295 and left open by the House of Lords in Reference under s. 48 A of the Criminal Appeal (Northern Ireland) Act 1968 (No. 1 of 1975), [1976] 2 All E.R. 937.
Moir J.A. (with whom Lieberman J.A. concurred) observed, correctly in my opinion, that the law of Canada is in a very unsatisfactory state. “Decisions of various Courts of appeal go in both directions and, indeed, may be inconsistent within the same Court.” He continued at p. 523:
In the rather uncertain state of the law and for the reasons given by the High Court of Australia in Viro I hold that the qualified defence of excessive force is available to the respondent. However, for it to exist the following elements must be found by the trier of fact:
1. Certain serious circumstances must exist which led the accused to reasonably believe a situation involving danger existed.
2. The accused used unreasonable or excessive force.
3. The accused was acting honestly when he used excessive force in that he mistakenly believed that the degree of force he was using was reasonable.
If all of these elements are found, and even if the trier of the fact concludes the accused intentionally killed the victim, the qualified defence may be successfully invoked and the accused may be found guilty of manslaughter only.
Mr. Justice Moir founded himself upon a reduced moral culpability of the accused, as in provocation, to make the crime manslaughter and not murder. One of the difficulties of this approach, as it seems to me, lies in the fact that Parliament has recognized the possibility of a lesser moral culpability in a situation of provocation and has made due provision for it, in express and precise terms, in s. 215 of the Code. Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation (s. 215(1)). The conditions which must be met are set out in detail in the Code:
(2) A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted upon it on the sudden and before there was time for his passion to cool.
(3) For the purposes of this section the questions
(a) whether a particular wrongful act or insult amounted to provocation, and
(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received, are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.
(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.
Mr. Justice Moir and Mr. Justice Lieberman in R. v. Fraser, supra, adopted the very detailed charge as set out by Mason J. in Viro v. The Queen:
(1)(a) It is for the jury first to consider whether when the accused killed the deceased the accused reasonably believed that an unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him.
(b) By the expression ‘reasonably believed’ is meant, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself.
(2) If the jury is satisfied beyond reasonable doubt that there was no reasonable belief by the accused of such an attack no question of self-defence arises.
(3) If the jury is not satisfied beyond reasonable doubt that there was no such reasonable belief by the accused, it must then consider whether the force in fact used by the accused was reasonably proportionate to the danger which he believed he faced.
(4) If the jury is not satisfied beyond reasonable doubt that more force was used than was reasonably proportionate it should acquit.
(5) If the jury is satisfied beyond reasonable doubt that more force was used, then its verdict should be either manslaughter or murder, that depending upon the answer to the final question for the jury—did the accused believe that the force which he used was reasonably proportionate to the danger which he believed he faced.
(6) If the jury is satisfied beyond reasonable doubt that the accused did not have such a belief the verdict will be murder. If it is not satisfied beyond reasonable doubt that the accused did not have that belief the verdict will be manslaughter [at p. 303].
If the law of Canada is as above and judges must henceforth give juries instructions on the issue of manslaughter arising from excessive use of force in self-defence along the lines of those set forth by Mason J. in Viro v. The Queen, I cannot but think that the task of the jury, presently difficult enough in a murder case, will be vastly more so.
In Manitoba a unanimous Court of Appeal in R. v. Appleby, [1979] 1 W.W.R. 664 rejected the idea that if excessive force is used, then the verdict must be manslaughter and not murder, O’Sullivan J.A. being of the opinion that the present law in England and in Canada is as summed up in Arch-bold Criminal Pleading, Evidence and Practice, 39th ed., 1976, p. 1035, paragraph 2470:
Where a person who is attacked uses a greater degree of force than was necessary in the circumstances and thereby kills the aggressor, and the jury accordingly reject a defence of self-defence, a verdict of manslaughter may in some cases still be open to them. There is no rule that, on a charge of homicide where a defence of self-defence has been raised but has failed because the force used went beyond what was reasonable in the circumstances, the judge should direct the jury that the verdict should be guilty of manslaughter only… There are cases of this kind where a direction to that effect would be wholly inappropriate and where the proper verdict would be guilty of murder …However, the facts on which the defence of self-defence was unsuccessfully sought to be based may in some cases go to show that the defendant acted under provocation or that, although acting unlawfully, he lacked the intent to kill or to cause grievous bodily harm; and in such cases a verdict of manslaughter would be proper.
Archbold, of course, is summarizing the position in England subsequent to the Privy Council decision in Palmer v. The Queen, supra.
The Ontario Court of Appeal has dealt with the matter now under discussion in a number of cases over the last few years. In R. v. Hay (1973), 22 C.R.N.S. 191 the Court concluded that no jury properly instructed could have come to the conclusion that the force represented by the firing of the shot was not excessive; accordingly, on the evidence, the defence of self-defence was not available to the accused. In R. v. Campbell (1977), 38 C.C.C. (2d) 6, the charge was one of attempted murder and it was urged that the trial judge had erred in failing to direct the jury that excessive force in self-defence leads to a verdict of attempted manslaughter. The court held it unnecessary to decide the question whether there is a separate rule that excessive force used in self-defence reduces murder to manslaughter and the limits of that doctrine, since, where it is recognized, it is applicable only where the charge is murder. Mr. Justice Martin, speaking for the court, noted that the Judicial Committee of the Privy Council in Palmer v. The Queen, supra, held that there is no separate rule of law that excessive force in self-defence leads to a verdict of manslaughter, although an issue might, none the less, arise whether there was provocation where self-defence is relied on, or whether the requisite intent for murder had been proved. He added “[e]ven in Australia where excessive force in self-defence is recognized as a “qualified” defence to murder, the precise limits of the doctrine have not been finally settled: see Australian Criminal Law, 2nd ed., pp. 96-98, by Colin Howard” (at p. 17).
The Ontario Court of Appeal returned to the question of excessive self-defence in R. v. Trecroce (1980), 55 C.C.C. (2d) 202, the judgment of the court being again delivered by Mr. Justice Martin. The discussion on this point was obiter (at p. 211):
In the present case, assuming without deciding, that the qualified defence of excessive self-defence exists as a substantive doctrine, the circumstances were not such as to require its submission to the jury. and:
Whatever the true view may be, which we do not find necessary to decide, the doctrine of excessive force in self-defence has no application to the facts of this case. Where excessive force in self-defence has been recognized as a substantive doctrine, it would appear that the following conditions, at least, are necessary to give rise to that qualified defence:
(a) The accused must have been justified in using some force to defend himself against an attack, real or reasonably apprehended.
(b) The accused must have honestly believed that he was justified in using the force that he did.
(c) The force used was excessive only because it exceeded what the accused could reasonably have considered necessary.
Prior to the foregoing passage Mr. Justice Martin reviewed most of the cases to which I have adverted and then referred to the writings of Professor Colin Howard, who has written extensively on the subject (at pp. 210-11):
Professor Colin Howard who, on balance, supports the view t