COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Knibbs,

 

2008 BCCA 426

Date: 20081031

Docket: CA035072

Between:

Regina

Respondent

And

Dennis George Knibbs, Jr.

Appellant

Before:

The Honourable Madam Justice Rowles

The Honourable Mr. Justice Donald

The Honourable Mr. Justice Bauman

 

G. Orris, Q.C.

Counsel for the Appellant

M. T. Ainslie

Counsel for the (Crown) Respondent

Place and Date of Hearing:

Vancouver, British Columbia

September 9, 2008

Place and Date of Judgment:

Vancouver, British Columbia

October 31, 2008

 

Written Reasons by:

The Honourable Mr. Justice Donald

Concurred in by:

The Honourable Madam Justice Rowles

The Honourable Mr. Justice Bauman

Reasons for Judgment of the Honourable Mr. Justice Donald:

INTRODUCTION

[1]                The appellant was the last man standing after a violent encounter between three drug dealers in a skid row hotel in Vancouver.  The other two men died of shotgun wounds.  The appellant was charged with the second degree murder of Trumaine Abraham Ekoh Habib.  The judge left identification, self-defence and provocation with the jury.

[2]                The appellant was convicted by the jury on 5 May 2007 in Vancouver.  He appeals on grounds that:

1.         the judge misdirected the jury on the assessment of evidence by telling them that they need not decide what happened in the hotel room where the shooting occurred;

2.         the judge erred in his instructions on provocation; and

3.         the judge further erred in compromising the appellant’s defence of self-defence by what he said about provocation.

[3]                I have concluded the judge erred in his instructions on provocation.  I do not agree with the respondent’s contention that there was no air of reality to the defence of provocation, that the defence should not have been left to the jury, and that, if the defence was properly before the jury, either the instructions were adequate or, if they were not, they do not support interference with the verdict.  Because I would order a new trial on this ground, I do not find it necessary to deal with the other grounds. 

BACKGROUND

[4]                The misdirection on provocation was in relation to section 232 of the Criminal Code, R.S.C. 1985, c. C-46, which reads:

            232.  (1) 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.

            (2)  A wrongful act or an 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 on 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.

[Emphasis added.]

[5]                While the evidence of the circumstances varies amongst the witnesses, it seems safe to conclude that the appellant and his cousin, Elliston “Ian” Lee Liscombe, were attempting to enter the room occupied by Habib when Habib shot Liscombe with a sawed-off shotgun at very short range (30 cm.), whereupon the appellant struck Habib with a baton, shot him three times with a handgun and once (fatally) with Habib’s shotgun. 

[6]                Several days before the event, Habib struck Liscombe on the head with a baseball bat.  The appellant intervened in the fight by punching Habib. 

[7]                All three men trafficked in drugs.  The appellant and Liscombe felt Habib was poaching on their territory, which included the hotel where the shooting took place.  The owner of the hotel had barred Habib from the premises but Habib went to the hotel anyway and occupied another man’s room on the day in question.

[8]                The jury asked this question during their deliberations:

In section 232(3) it says “no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do.”  When Knibbs and Liscombe forced entry to Room 15, was Habib within his legal right to fire the shotgun at them or is firing the shotgun under those circumstances considered a wrongful act?

If we are not to consider this specific issue (i.e. Habib and self defense), could we please have some clarification on essential ingredient #1 for provocation?

In his main charge, the judge referred to a wrongful act as the first essential ingredient of provocation.

[9]                In responding to the question, the judge formulated a test for determining whether Habib had a right to defend himself by shooting Liscombe:  “whether or not he [Habib] perceived reasonably and honestly a need to defend himself in the manner that he did.”  The test combined certain elements of self-defence, but it was not in the terms of section 34(2) of the Criminal Code, which defence counsel submitted was the proper test.  Section 34(2) reads:

            (2)  Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a)  he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b)  he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

[10]            In my respectful opinion, defence counsel was correct in insisting upon a direction in the language of section 34(2) when the judge answered the jury’s question.  The judge’s formulation was somewhat amorphous and lacked the focus of section 34(2) on the circumstances immediately preceding the alleged “wrongful act”.  I am concerned that the lack of focus in the judge’s guidance may have allowed the jury to apply a law of the jungle to the consideration of the questioned act – that in the drug milieu, lethal force in self-defence is justifiable regardless of the immediate circumstances.  By framing a test according to what the judge called a “common sense” approach, he created the risk that the jury might not assess the objective reasonableness of shooting an intruder without warning.

[11]            There is a second, but related, ground for a new trial.  When the judge reviewed the evidence immediately surrounding the event, he invited the jury to speculate on what Habib might have seen. 

ANALYSIS 

Instructions on Provocation 

[12]            The jury wanted to know if Habib had a lawful right to shoot Liscombe.  The phrase “lawful right” means, in the context of the provocation defence, “a right sanctioned by law”:  R. v. Thibert, [1996] 1 S.C.R. 37, 131 D.L.R. (4th) 675, at para. 29, adopting what was said by Martin J.A. for the Ontario Court of Appeal in R. v. Haight (1976), 30 C.C.C. (2d) 168, who, at 175, gave self-defence as an example of a legally sanctioned right:

We are of the view that "legal right" in this section means a right which is sanctioned by law, for example, the right to use lawful force in self-defence, as distinct from something that a person may do without incurring any legal liability.  The law does not approve of everything which it does not forbid.

[Emphasis added.]

[13]            The problem for the judge was to explain Habib’s right to defend himself without confusing the jury on the appellant’s plea of self-defence under section 37 of the Criminal Code

[14]            The re-charge is as follows, with the various expressions of the test underlined:

THE COURT:  Thanks, folks.  Have a seat.  Sorry about that.  Now, when I told you yesterday to forget my throwaway comment about the possibility of self-defence from Mr. Habib, I was thinking to myself, after hearing from counsel, that everything you heard about s. 37 relating to Mr. Knibbs is not something that you should be considering relating to Mr. Habib.  That has not changed, all right?

            Having said that, your question deserves an answer and there are some things that I do not want to call self-defence because that is something that is a different defence than provocation and that is something that is s. 37.  So when I am talking about Mr. Habib, I am simply going to use a phrase -- and I will try and stick with it.  If I slip into self-defence, I may miss -- perceived need to defend himself, that is what I will try and say.  I may forget the word perceived.  That is going to be the phrase that refers to what we are going to say about Mr. Habib and it is not going to in any way bring in s. 37.

            Now, I have to give you some more explanation.  The first thing that you need to know is this.  The short answer to your question, and it is not going to be a short answer, but the short answer is that ultimately this is a question of fact that you are going to have to determine.  Now, like everything else -- yes, sir?

A JUROR:  My Lord, was that a question of fact?

THE COURT:  Fact.  And like all other questions of fact, there are guidelines and parameters that I am now going to attempt to explain to you.  In the general sense, without talking about this case, but using the phrase from the section that you have picked out and the particular phrase legal right, a person has a legal right to defend himself or herself from danger or threat of danger.  There are some limitations on that that will sound similar to s. 37, but there is not any statute that we are going to look at.  So in a general sense you can accept that, that people can defend themselves.  Common sense, really, isn’t it?

            In this case, if Mr. Habib had a right to defend himself is going to be your decision; facts based on the evidence.  Like everything else, you cannot speculate.  Your decision has to come from the evidence.  Like everything else, the benefit of doubt here will fall to Mr. Knibbs.  In other words, when you are asking yourselves did Mr. Knibbs have a perceived need to defend himself, you will have to be satisfied beyond a reasonable doubt that he did have that need before you can determine that he was exercising a legal right as noted in that section.  In other words, Mr. Habib never gets the benefit of a reasonable doubt here.  He is not an accused person.  That benefit will always fall to Mr. Knibbs throughout this exercise.

            There are clearly some common sense limitations which you are going to have to consider in determining whether or not he had and felt he had a right to defend himself.  You bring your common sense to this.  The limitations will be this.

            First of all, Mr. Habib will have to have been -- if you find he had a legal right, he will have to have been honestly and reasonably perceiving a serious danger and threat to himself.

            Secondly, his action in firing the shotgun, assuming you conclude that that was the first shot fired, you will have to determine was fired -- beyond a reasonable doubt you will have to determine this, was fired in response to the first thing I said, the perceived danger that you must find that he had.

            Thirdly, you will have to determine that his reaction in firing was not excessive in all the circumstances.  And again, you are going to bring your common sense to that.

            Now, you can see why I said it is going to sound a lot like s. 37, but he is not on trial here.  It is not a defence.  I do not want to call it self-defence.  I do not want you to confuse the self-defence provisions that are there for Mr. Knibbs that we discussed yesterday.

            Now, one more thing.  You cannot conclude that Mr. Habib had a need to defend himself without looking at and assessing the relevant evidence.  That is the only place it can come from.  You cannot speculate on it and you must be very, very careful here because while the decision is yours and not mine, whatever assessment or determination you make about this evidence, and you clearly do not have to accept this next comment, but I offer it to you, the evidence that Mr. Habib had a need to defend himself and did not act excessively in doing so is thin and you have to look at that evidence very, very carefully before you decide this point.

            Amongst that evidence, and I will not suggest to you this is all the evidence on this point, but some of the evidence that you will want to consider will be this.  Is there any evidence and, if so, what is it that suggests Mr. Habib thought that either Ian or Mr. Knibbs had a gun in their possession?  Remember, while it is true that Mr. Habib ends up getting shot, you may find, you may have already determined that he was shot with a gun that Mr. Habib brought to the party, not a gun that Mr. Knibbs or Ian brought to the party.

            So look at that.  Would he have thought that either of them had a gun?  The fact is, Mr. Orris argues -- and you may have decided this point or you may not have already, but -- and, of course, you can change your mind even if you have, but that there is not even enough evidence that either Ian or Mr. Knibbs actually had a gun, never mind whether or not Ian [sic] might have thought they had a gun.  Did either of them actually have a gun or were both of the guns actually in the room when these two people were at the door? 

            You will want to consider what Mr. Habib could have known and would have known from the other side of that door at the time he fired, and again not by speculating.  The evidence of the people in the hallway might suggest to you that when that door was opened, there was not a possibility that anybody saw based on the evidence.  You might find that Mr. Habib looked out to see who was there and what they may have been carrying.  It is clear, if you accept what most of the witnesses seem to suggest, that there was something like banging, pushing in an attempt to get the door open going on, but consider whether or not there was anything else at all that Mr. Habib might have known at that point to enhance what he might have felt as a threat and a perceived need to defend himself.

            You will want to consider that there was at some point at least two men outside the door and only one man inside.  When I say at one point, you will recall the evidence from most of the witnesses was that Ian started at the door by himself and the evidence might lead you to conclude that Mr. Knibbs came later.

            You will want to consider what evidence there is of the past relationship between the person, Mr. Habib, and Mr. Knibbs, and within that you will want to consider the prior altercation where the evidence would seem to suggest and you might find the only weapon that was brought was brought by Mr. Habib, and Mr. Knibbs and Mr. Liscombe fought with essentially one punch from Mr. Knibbs and to what extent does that lend itself to whether or not Mr. Habib felt he needed to defend himself by shooting somebody with a shotgun who was trying to get into the room, and evidence that you, of course, consider relevant, but not speculation, that bears on did he honestly and reasonably believe he needed to defend himself.  What had happened before that first shot which came early in the altercation, you might find, what had happened to that point to cause Mr. Habib to believe he had a need to defend himself to that extent?  All of that you will need to consider in determining whether or not he perceived reasonably and honestly a need to defend himself in the manner that he did.

            Now, again if you conclude beyond a reasonable doubt that he did have a perceived need to defend himself, that would be a legal right within the last phrase of 232(3), the one you have asked me about, and if you come to that conclusion, again beyond a reasonable doubt, that would mean that ingredient number one, wrongful act, is gone.  If he had a legal right to do it, it is not a wrongful act.

            On the other hand, if he did not have a legal right to do it -- and this next line you have heard me say many times over the last couple of weeks so listen to it closely.  If you have a reasonable doubt about whether or not he had a legal right to do it, then it would seem to me that there is no alternative other than to determine that the shooting of Mr. Liscombe with the shotgun was a wrongful act.

            All right, looking back at your question, the first part says, “Was Habib within his legal right to fire?”  I think I have answered that.  You have to answer that based on the evidence.  And the second part of that question -- well, the second part was, “Or was it a wrongful act to so fire?”  So again it is within your domain as a finding of fact.  And that would seem to cover as well the last part of the paragraph which I have not read since you have been in the courtroom, but which I am sure you recall.  It says, “If we are not to consider this specific issue,” you wanted to hear more about wrongful act.  I have covered that as well, I think.

            Madam Foreman, I will ask you, and then if there is something further after you go into the jury room, you can let the sheriff know.  Does that address the questions that you raised in the written question?

[Emphasis added.]

[15]            The judge discussed the question with counsel in the absence of the jury.  He was persuaded by counsel for the Crown that in answering the question, he should avoid reference to any particular section of the Criminal Code, and instead provide the jury with a “common sense meaning” of self-defence as a legal right within the meaning of section 232. 

[16]            It is unclear what the source of the judge’s formulation was.  The common law of torts sanctions reasonable force in self-defence:  Mann v. Balaban (1969), [1970] S.C.R. 74 at 87, 8 D.L.R. (3d) 548:

            In an action for assault, it has been, in my view, established that it is for the plaintiff to prove that he was assaulted and that he sustained an injury thereby.  The onus is upon the plaintiff to establish those facts before the jury.  Then it is upon the defendant to establish the defences, firstly, that the assault was justified and, secondly, that the assault even if justified was not made with any unreasonable force and on those issues the onus is on the defence.

[17]            The judge’s instruction roughly conforms to the civil law of self-defence:  reasonable apprehension of harm and a proportionate response.  But I do not think it would be appropriate in the context of a criminal trial to borrow from the civil law and assemble a “common sense” test.  In my opinion, the test must be what Parliament has prescribed.

[18]            In R. v. Squire (1975), 10 O.R. (2d) 40, 26 C.C.C. (2d) 219, the Court of Appeal ordered a new trial on a murder case on the ground that the trial judge erred in not leaving provocation with the jury.  This was reversed by the Supreme Court of Canada (1976), [1977] 2 S.C.R. 13, 29 C.C.C. (2d) 497, on the holding that there was no evidentiary foundation for the defence, but the Court did not express any disagreement with Martin J.A.’s remarks at 51-52 (O.R.), which are relevant to the present case:

            Where two persons engage in a fight in anger by mutual consent the blows struck by each constitute an assault on the other, unless justifiable in self-defence in accordance with the provisions of the Code: see Russell on Crime, 12th ed. (1964), vol. 1, p. 679; R. v. Coney et al. (1882), 15 Cox C.C. 46, per Cave, J., at pp. 49-50, per Hawkins, J., at pp. 60-1; R. v. Knock (1877), 14 Cox C.C. 1. 

            The blows struck by the combatants in such circumstances are wrongful acts and are, accordingly, capable of constituting provocation. 

[Emphasis added.]

[19]            The wrongfulness of the act in Squire said to give rise to provocation was determined by reference to the Criminal Code.

[20]            The only Criminal Code provision that fits the circumstances of the present case is section 34(2).  The elements of self-defence of section 34(2) were described in R. v. Pétel, [1994] 1 S.C.R. 3 at 12, 87 C.C.C. (3d) 97, by Lamer C.J.C. for the majority:

            It can be seen from the wording of s. 34(2) of the Code that there are three constituent elements of self-defence, when as here the victim has died: (1) the existence of an unlawful assault; (2) a reason­able apprehension of a risk of death or grievous bodily harm; and (3) a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary.

[21]            The advance of the appellant and Liscombe and the attempt to force their way into the room might reasonably have constituted an assault.  Section 265(1)(b) of the Criminal Code defines assault in this way:

265. (1)  A person commits an assault when

 (b)  he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose;

The act of Habib in shooting Liscombe was to repel the assault.

[22]            The judge’s instruction allowed the jury to consider the circumstances in a general way, again on a “common sense” basis, whereas under section 34(2)(a) the jury had to concentrate their minds on “the violence with which the assault was originally made or with which the assailant pursues his purposes”.  There was very little evidence about the movements of the appellant and Liscombe in the hallway. 

[23]            Then the jury would move on to section 34(2)(b) and enquire whether Habib believed “on reasonable grounds, that he cannot preserve himself from death or grievous bodily harm”.  This is much more pointed and specific than the judge’s test:  “[whether Habib was] ... honestly and reasonably perceiving a serious danger and threat to himself.”  On that test, the jury could have found that the anticipa­tion of another fight with the appellant and Liscombe might be enough to justify shooting Liscombe at short range, whether or not death or grievous bodily harm was anticipated.  Furthermore, the judge’s test does not, as required by section 34(2)(b), bring the jury to consider whether Habib had no choice but to shoot Liscombe.  In that regard, the jury might wonder whether a verbal warning by Habib that he had a gun or firing a warning shot would have been reasonable alternatives, and if so whether Habib’s intention was to settle a score rather than repel a lethal attack.

[24]            I cannot say that the jury would inevitably have found justification if they were instructed on section 34(2).

Speculation

[25]            I turn now to the problem of speculation.  Regrettably, the judge, having warned the jury not to speculate, went on to invite them to do just that, on the very matters on which section 34(2) is focused.  The relevant passage in the re-charge is:

            You will want to consider what Mr. Habib could have known and would have known from the other side of that door at the time he fired, and again not by speculating.  The evidence of the people in the hallway might suggest to you that when that door was opened, there was not a possibility that anybody saw based on the evidence.  You might find that Mr. Habib looked out to see who was there and what they may have been carrying.  It is clear, if you accept what most of the witnesses seem to suggest, that there was something like banging, pushing in an attempt to get the door open going on, but consider whether or not there was anything else at all that Mr. Habib might have known at that point to enhance what he might have felt as a threat and a perceived need to defend himself.  

[Emphasis added.]

[26]            No one testified that Habib looked out the door to see who was approaching or that either the appellant or Liscombe was carrying a weapon.  Any conclusions the jury reached on these points would have been guesswork going to “reasonable apprehension of death or grievous bodily harm” and to the belief that there was no reasonable alternative but to shoot Liscombe.

The Respondent’s Submissions

[27]            The respondent submits that if there was an error in the judge’s instruction on provocation, it is inconsequential because there was no air of reality to provocation in the circumstances.  With respect, this is an untenable position.  It was the Crown that proposed leaving provocation with the jury.  The defence concurred and the judge accepted the position of counsel.  It must be taken that the judge satisfied  himself that there was an air of reality to the defence.  We should be slow to question the trial judge’s determination of available defences.  Mr. Justice Cory, for the majority, said in the leading case of R. v. Thibert, [1996] 1 S.C.R. 37, 131 D.L.R. (4th) 675:

[33]      It is trite but important to recall that the trial judge had the tremendous advantage of seeing and hearing the testimony of all who testified.  The trial judge was in a very advantageous position to determine if there was such evidence of provocation adduced that the defence should be left with the jury.  He considered the objections of the Crown to leaving the defence with the jury but decided, rightly in my view, that he should instruct the jury on the defence. Unless there is an absence of any evidence as to the objective and subjective elements of the defence such a decision of a trial judge should not be lightly interfered with by an appellate court

[Emphasis added.]

[28]            I cannot say there is an absence of any evidence supporting the defence.  The consensus of the evidence is that the gunshots were heard over a very brief time, something like five to ten seconds.  Liscombe was the appellant’s cousin and it appears they were in the drug trade together.  The circumstances leave open the realistic possibility that the appellant was taken by surprise by the shooting and lost his self-control at seeing his cousin shot. 

[29]            The respondent also submits that provocation does not arise when the actions of the accused bring about a foreseeable response:  R. v. Faid, [1983] 1 S.C.R. 265 at 276, 2 C.C.C. (3d) 513.  I do not find that case particularly helpful.  There, the appellant’s evidence was addressed to self-defence and he did not testify that he killed the victim in the heat of passion.  The respondent also cited the decision of R. v. Louison (1975), 26 C.C.C. (2d) 266 (Sask. C.A.), aff’d (1978), [1979] 1 S.C.R. 100, 51 C.C.C. (2d) 479, where it was held that the response of the victim, which the defence relied upon as a wrongful act, was entirely predictable and not unexpected.  There could therefore be no suddenness as required by section 232.  In Louison, the appellant had confined the victim in the trunk of a car and when opening the trunk, the victim struck the appellant; in turn the appellant struck the victim.  Those circumstances are not comparable to those in the present case.  Here there is no evidence that the appellant expected the shooting and every reason to infer that he was surprised by it.

CONCLUSION

[30]            The misdirection I have identified as reversible error occurred in response to a jury’s question.  The special significance of jury questions was noted by Lamer C.J.C. in R. v. Brydon, [1995] 4 S.C.R. 253 at 263, 101 C.C.C. (3d) 481: 

IV. Analysis

(i)  The Import of Jury Questions

            This Court has on a number of occasions highlighted the importance of answering jury queries in a careful, complete and correct manner:  see R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. Naglik, [1993] 3 S.C.R. 122; R. v. Pétel, [1994] 1 S.C.R. 3; and R. v. S. (W.D.), [1994] 3 S.C.R. 521.  In Naglik, I held, writing for the majority, at p. 139:

Answers to questions from the jury are extremely important, and carry influence far exceeding instructions given in the main charge.  If the jury asks a question about an issue addressed in the main charge, it is clear that they did not understand or remember that part of the main charge, and it is also clear that they must exclusively rely on the answer given by the trial judge to resolve any confusion or debate on the point which may have taken place in the jury room during their deliberations up to that point.

[31]            The question created an awkward situation for the judge.  In pre-charge and post-charge discussions with the judge, both counsel agreed that provocation should be left with the jury, but neither wanted him to discuss Habib’s position in terms of self-defence.  This was to avoid the confusion that may result from having to sort out two forms of self-defence, each with a different onus.  The judge did his best to accommodate this concern and, in fact, at defence counsel’s request, he retracted a self-defence reference concerning Habib in the main charge.  But when the jury posed the question, it became impossible to sidestep the issue of Habib’s self-defence, and an answer had to be given quickly.  There was very little case law available to assist the judge.  While the judge had to be right in dealing with the question, the error is understandable. 

[32]            For the foregoing reasons, I would set aside the verdict and order a new trial.

“The Honourable Mr. Justice Donald”

I agree: 

“The Honourable Madam Justice Rowles”

I agree: 

“The Honourable Mr. Justice Bauman”