R. v. Abbaya (F.E.), 2000 ABPC 202

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: December 13, 2000
• Citations: 2000 ABPC 202;(2000), 289 A.R. 82 (ProvCt)

R. v. Abbaya (F.E.) (2000), 289 A.R. 82 (ProvCt)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. MR.119

Her Majesty the Queen v. Franz Emmanuel Abbaya

(91519207P10101-04; 2000 ABPC 202)

Indexed As: R. v. Abbaya (F.E.)

Alberta Provincial Court

Allen, P.C.J.

December 13, 2000.

Summary:

The accused was involved in a bar brawl where he allegedly injured Howes and Akers. The accused was charged with four counts on the same information: two counts of assault with a weapon, contrary to s. 267(a) of the Criminal Code and two counts of assault causing bodily harm, contrary to s. 267(b).

The Alberta Provincial Court found that the Crown proved all of the elements of all four charges, however, because of the Keinapple principle, only convicted the accused of assault with a weapon and assault causing bodily harm relating to Howes, and assault causing bodily harm relating to Akers.

Criminal Law - Topic 39.6

General principles - Mens rea or intention - Transferred intent or transferred malice - [See Criminal Law - Topic 1411 ].

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence - The Alberta Provincial Court discussed the complexity of the provisions of the Criminal Code relating to self-defence, defence of others, and defence of property - See paragraphs 30 to 82.

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence - The Alberta Provincial Court noted that when self-defence was raised, it must be remembered that "there is no burden upon the accused to prove he or she was not acting in self-defence or in defence of another; rather, the onus is upon the Crown to prove that he or she was not doing so" - The court further noted that this did not mean that the Crown had to disprove every constituent element of the section relied upon by an accused in asserting self-defence - Rather, it was sufficient if the Crown could disprove any one of the constituent elements beyond a reasonable doubt - See paragraphs 31 and 32.

Criminal Law - Topic 1411

Offences against person and reputation - Assaults - Intention or mens rea - As Howes was leaving a bar, someone spoke to him - As he turned, the accused hit him in the head with a bottle - The bottle broke - Howes allegedly grabbed the accused and dropped to the floor to protect himself - The accused continued to cause blows to Howes' head - Akers, the bar's bouncer intervened and sustained injuries to his shoulder and hand - The accused was charged with assaulting Akers with a weapon and assault causing bodily harm against Akers - In finding the accused guilty, the Alberta Provincial Court held that the doctrine of transferred intent applied - The accused intended to harm Howes - Even though his act had an effect that was not intended (i.e., he hit and injured Akers), he was still guilty of the offence of assault against that person (in this case Akers) - See paragraphs 83 to 94.

Criminal Law - Topic 1416

Offences against person and reputation - Assaults - Assault with a weapon - [See first Criminal Law - Topic 1420 and Criminal Law - Topic 1423 ].

Criminal Law - Topic 1417

Offences against person and reputation - Assaults - Assault causing bodily harm - [See second Criminal Law - Topic 1420 and Criminal Law - Topic 1423 ].

Criminal Law - Topic 1420

Offences against person and reputation - Assaults - Defence - Self-defence - As Howes was leaving a bar, someone spoke to him - As he turned around, the accused hit him in the head with a bottle - The bottle broke - Howes allegedly grabbed the accused and dropped to the floor to protect himself - The accused continued to cause blows to Howes' head with the bottle - The accused was charged with assault with a weapon and assault causing bodily harm - The accused asserted that when Howes grabbed him he continued to hit Howes because he was simply trying to ward off an assault to himself - Thus, he was acting in self-defence (Criminal Code, s. 34(1)) - Moreover, the accused alleged that he did not realize that he continued to hold the broken bottle when hitting Howes - The Alberta Provincial Court reviewed s. 34(1) and rejected the accused's argument - See paragraphs 52 to 70.

Criminal Law - Topic 1420

Offences against person and reputation - Assaults - Defence - Self-defence - As Howes was leaving a bar, someone spoke to him - As he turned around, the accused hit him in the head with a bottle - The bottle broke - Howes allegedly grabbed the accused and dropped to the floor to protect himself - The accused continued to cause blows to Howes' head with the bottle - The accused was charged with assault causing bodily harm - He asserted that when Howes grabbed him he was simply trying to ward off an assault against himself by continuing to hit him - He was acting in self-defence (Criminal Code, s. 34(2)) - The Alberta Provincial Court reviewed s. 34(2) and rejected the accused's argument - Although s. 34(2) could be invoked even when the accused was the initial aggressor and the force used was not proportional, there was no evidence of an unlawful assault by Howes against the accused, there was no reasonable apprehension of a risk of death or grievous bodily harm, and the accused could not have reasonably believed that there was no other way to preserve himself from this harm - See paragraphs 71 to 75.

Criminal Law - Topic 1423

Offences against person and reputation - Assaults - Defence - Defence of others - As Howes was leaving a bar, someone spoke to him - As he turned around, the accused hit him in the head with a bottle - The bottle broke - Howes allegedly grabbed the accused and dropped to the floor to protect himself - The accused continued to cause blows to Howes' head and was charged with assault with a weapon and assault causing bodily harm - He asserted that he acted in defence of his cousin - Particularly, the accused alleged that Howes had threatened his cousin and that he was protecting him (Criminal Code, s. 37) - The Alberta Provincial Court reviewed s. 37 and rejected this argument -The evidence did not establish that an assault by Howes against the accused's cousin was imminent, that the cousin was under the accused's protection, or that the force used in the assault was "no more force than was necessary" - Rather, the court noted that the accused used an "unreasonable and a reckless measure of force" against Howes - See paragraphs 1 to 52.

Cases Noticed:

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 23].

R. v. Bisson (Y.), [1998] 1 S.C.R. 306; 222 N.R. 365, refd to. [para. 24].

R. v. Starr (R.D.) (2000), 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161 (S.C.C.), refd to. [para. 25].

R. v. Avetysan (A.) (2000), 262 N.R. 96; 195 Nfld. & P.E.I.R. 338; 586 A.P.R. 338 (S.C.C.), refd to. [para. 25].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 26].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81; 95 C.C.C.(3d) 481, refd to. [para. 30].

R. v. Linney (1977), 13 N.R. 217; 32 C.C.C.(2d) 294 (S.C.C.), refd to. [para. 31].

R. v. Mulder (1978), 40 C.C.C.(2d) 1 (Ont. C.A.), refd to. [para. 31].

R. v. Latour (1950), 98 C.C.C. 258 (S.C.C.), refd to. [para. 31].

R. v. Picarello (1923), 37 C.C.C. 229 (S.C.C.), refd to. [para. 31].

R. v. Hebert (D.M.), [1996] 2 S.C.R. 272; 197 N.R. 277; 77 B.C.A.C. 1; 126 W.A.C. 1; 107 C.C.C.(3d) 42, refd to. [para. 32].

R. v. Chisam (1963), 47 Cr. App. R. 130 (C.C.A.), refd to. [para. 35].

R. v. Duffy (1966), 50 Cr. App. R. 68 (C.C.A.), refd to. [para. 37].

R. v. Barkhouse (1983), 58 N.S.R.(2d) 392; 123 A.P.R. 392 (Prov. Ct.), refd to. [para. 40].

R. v. Rose (1884), Cox C.C. 540, refd to. [para. 47].

R. v. Whynot (S.) (1983), 61 N.S.R.(2d) 33; 133 A.P.R. 33; 9 C.C.C.(3d) 449 (C.A.), refd to. [para. 48].

R. v. Pétel (C.), [1994] 1 S.C.R. 3; 162 N.R. 137; 59 Q.A.C. 81; 87 C.C.C.(3d) 97, refd to. [para. 48].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1; 55 C.C.C.(3d) 97, refd to. [para. 48].

R. v. Mallot - see R. v. Malott (M.A.).

R. v. Malott (M.A.), [1998] 1 S.C.R. 123; 222 N.R. 4; 106 O.A.C. 132; 121 C.C.C.(3d) 456, refd to. [para. 48].

R. v. Antley (1964), 42 C.C.C.(2d) 417 (Ont. C.A.), refd to. [para. 49].

R. v. Baxter (1975), 27 C.C.C.(2d) 96 (Ont. C.A.), refd to. [para. 49].

R. v. Deegan (1979), 17 A.R. 187; 49 C.C.C.(2d) 417 (C.A.), refd to. [para. 49].

R. v. Kandola (J.S.) (1993), 27 B.C.A.C. 226; 45 W.A.C. 226; 80 C.C.C.(3d) 481 (C.A.), refd to. [para. 49].

R. v. D.S.F. (1999), 118 O.A.C. 272; 132 C.C.C.(3d) 97 (C.A.), refd to. [para. 52].

R. v. Ewanchuk (S.B.), [1999] 1 S.C.R. 330; 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1; 131 C.C.C.(3d) 481, refd to. [para. 57].

R. v. Brisson, [1982] 2 S.C.R. 227; 44 N.R. 1; 69 C.C.C.(2d) 97, refd to. [para. 58].

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104; 52 C.C.C.(2d) 481, refd to. [para. 58].

R. v. Aalders, [1993] 2 S.C.R. 482; 154 N.R. 161; 55 Q.A.C. 161; 82 C.C.C.(3d) 215, refd to. [para. 58].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81; 86 C.C.C.(3d) 481, refd to. [para. 58].

R. v. Esau (A.J.), [1997] 2 S.C.R. 777; 214 N.R. 241; 116 C.C.C.(3d) 289, refd to. [para. 58].

R. v. Bulmer - see R. v. Laybourn, Bulmer and Illingworth.

R. v. Laybourn, Bulmer and Illingworth, [1987] 1 S.C.R. 782; 75 N.R. 271, refd to. [para. 60].

R. v. Pintar (J.) (1996), 93 O.A.C. 172; 110 C.C.C.(3d) 402 (C.A.), refd to. [para. 62].

R. v. Nelson (1992), 54 O.A.C. 14; 71 C.C.C.(3d) 449 (C.A.), refd to. [para. 67].

R. v. Clark (1983), 44 A.R. 141; 5 C.C.C.(3d) 264 (C.A.), refd to. [para. 69].

R. v. Trombley (E.) (1998), 110 O.A.C. 329; 126 C.C.C.(3d) 495 (C.A.), affd. [1999] 1 S.C.R. 757; 238 N.R. 95; 120 O.A.C. 302, refd to. [para. 71].

R. v. Reilly, [1984] 2 S.C.R. 396; 55 N.R. 274; 6 O.A.C. 88, refd to. [para. 71].

R. v. Faid, [1983] 1 S.C.R. 265; 46 N.R. 461; 42 A.R. 308; 2 C.C.C.(3d) 513, refd to. [para. 74].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524, refd to. [para. 82].

R. v. Deakin (1974), 26 C.R.N.S. 236 (Man. C.A.), refd to. [para. 85].

R. v. Droste (1984), 52 N.R. 176; 3 O.A.C. 179; 10 C.C.C.(3d) 404 (S.C.C.), refd to. [para. 87].

R. v. Delaney, [1989] Y.J. No. 182 (Terr. Ct.), refd to. [para. 88].

R. v. George (1960), 128 C.C.C. 289 (Man. C.A.), refd to. [para. 89].

R. v. Daviault (H.), [1994] 3 S.C.R. 63; 173 N.R. 1; 64 Q.A.C. 81; 93 C.C.C.(3d) 21, refd to. [para. 89].

R. v. Starratt (1972), 5 C.C.C.(2d) 32 (Ont. C.A.), refd to. [para. 92].

R. v. Madsen (1991), 95 Sask.R. 290 (Q.B.), refd to. [para. 92].

R. v. Dunfield (1990), 103 N.B.R.(2d) 172; 259 A.P.R. 172 (C.A.), refd to. [para. 92].

R. v. Lepage (1989), 79 Sask.R. 246; 74 C.R.(3d) 368 (Q.B.), refd to. [para. 92]

R. v. Wolfe (1974), 20 C.C.C.(2d) 382 (Ont. C.A.), refd to. [para. 92].

R. v. Jobidon, [1991] 2 S.C.R. 714; 128 N.R. 321; 49 O.A.C. 83; 66 C.C.C.(3d) 454, refd to. [para. 93].

R. v. Loonskin (1990), 103 A.R. 193 (C.A.), refd to. [para. 93].

R. v. Carrière (1987), 76 A.R. 151; 35 C.C.C.(3d) 276 (C.A.), refd to. [para. 93].

R. v. D.W.P. - see R. v. Provo.

R. v. Provo, [1989] 2 S.C.R. 3; 97 N.R. 209; 59 Man.R.(2d) 1, refd to. [para. 94].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 37 [para. 44].

Authors and Works Noticed:

Williams, Glanville, Criminal Law - The General Part (2nd Ed. 1961), p. 126 [para. 86].

Counsel:

A. Finlayson, for the Crown;

F.K. MacDonald, for the accused.

This action was heard by Allen, P.C.J., of the Alberta Provincial Court, who delivered the following decision at Edmonton, Alberta, on December 13, 2000.