Appendix A - Sample Court of Appeal Factum (Ontario)

• Author: Mark C. Halfyard/Michael Dineen/Jonathan Dawe
• Pages: 153-184

153

Sample Court of Appeal Factum

(Ontario)

A

1

C59489

COURT OF APPEAL FOR ONTARIO

B E T W E E N:

HER MAJESTY THE QUEEN

RESPONDENT

AND

VALTER CUNHA

APPELLANT

PART I: STATEMENT OF THE CASE

1. In December, 2011 the Appellant shot and wounded a man he found in his house

during an apparent home invasion robbery. He maintained that he had acted in self-

defence, explaining that he had just seen another gun-wielding man chasing his upstairs

tenant through the house. When he shot the second man in the back he had believed this

man to be a confederate who (a) was holding something in his hands which the

Appellant feared might be a gun and (b) turning towards him in defiance of the

Appellant’s direction to “freeze”. Although the trial judge largely accepted the defence

evidence, he rejected the Appellant’s self-defence claim on the grounds that the

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Appellant should have waited to verify that the man he shot was actually armed. The

Appellant’s main ground of appeal is that the trial judge erred by “weighing to a nicety”

the Appellant’s assessment of the danger he faced and the need to resort to defensive

force.

2. The Appellant was charged with discharging a firearm with intent to wound and

aggravated assault. His trial took place from April 22 to 25, 2014 in the Superior Court of

Justice in Toronto before Mr. Justice Macdonald, sitting without a jury. On May 12, 2014,

the trial judge delivered reasons convicting the Appellant on both counts. On October 27,

2014, the trial judge dismissed the Appellant’s s. 12 Charter challenge to the mandatory

five year minimum sentence for discharging a firearm with intent to wound and imposed

this sentence, less one year credit for pre-trial custody and onerous bail conditions.1 The

Appellant appeals both his convictions and his sentence.

PART II: STATEMENT OF THE FACTS

Overview

3. The charges against the Appellant arose from an incident in December, 2011 in

which he was suddenly confronted by an armed intruder in his house. The house was

divided into separate apartments, with the Appellant living in the unit on the main floor.

Unbeknownst to him, his upstairs tenant sold marijuana from his apartment and had

hosted a drug deal that had gone bad. The Appellant overheard a struggle and cries of

“shoot him.” After retrieving and loading his handgun, which he was licensed to

1 The Appellant was also sentenced to 4½ years concurrent on the aggravated assault

count.

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possess, he went to the residence’s front hall where he came upon his tenant being

pursued by a man wielding a shotgun. On the trial judge’s findings of fact, the Appellant

then saw the complainant, Mr. Barros, a stranger to him, at another door entering the

Appellant’s own unit. The Appellant told him to “freeze.” When Mr. Barros ignored this

direction and began to turn towards him the Appellant shot him twice, wounding him.

He testified that he feared Mr. Barros was armed with a gun and that he was turning

around to shoot him.

4. The trial judge did not reject the core of the Appellant’s evidence, but held that he

had acted unreasonably by not waiting to see Mr. Barros’s hands in order to confirm he

had a gun before he shot him. The Appellant submits on appeal that the trial judge erred

in law by unreasonably second-guessing the split-second decisions of a frightened

householder confronted with a life and death situation, and that based on his own

findings of fact he should have acquitted the Appellant on the basis that the Crown had

failed to disprove that he had acted in lawful self-defence. In the alternative, the

Appellant submits that certain findings of fact made by the trial judge reflect

misapprehensions of the evidence and reasoning errors. With respect to sentence, the

Appellant submits that if his convictions are upheld the mandatory minimum sentence of

five years imposed on him constitutes unconstitutional punishment. The mandatory

minimum sentence is grossly disproportionate in circumstances like these, where a

licenced gun owner defending his life and property from armed intruders is found to

have misjudged a fast-moving and terrifying situation.