R. v. Bengy,

• Jurisdiction: Ontario
• Judge: Strathy, C.J.O., Tulloch and Hourigan, JJ.A.
• Neutral Citation: 2015 ONCA 397
• Citation: 2015 ONCA 397,(2015), 335 O.A.C. 268 (CA),[2015] O.J. No 2958 (QL),[2015] OJ No 2958 (QL),335 OAC 268,325 CCC (3d) 22
• Date: 08 June 2015
• Court: Court of Appeal (Ontario)

R. v. Bengy (K.) (2015), 335 O.A.C. 268 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JN.011

Her Majesty the Queen (respondent) v. Kimron Bengy (appellant)

(C57571; 2015 ONCA 397)

Indexed As: R. v. Bengy (K.)

Ontario Court of Appeal

Strathy, C.J.O., Tulloch and Hourigan, JJ.A.

June 8, 2015.

Summary:

The accused was one of several persons charged respecting the victim's stabbing death following a parking lot fight. The accused was convicted of second degree murder. He appealed his conviction on the grounds that: (1) he was denied the retrospective benefit of new Criminal Code self-defence provisions that came into force after the offence and after his trial; (2) the trial judge erred in refusing to leave provocation with the jury; and (3) the trial judge erred in failing to instruct the jury to apply the R. v. D.W. (SCC 1991) principles when considering both self-defence and prior exculpatory statements by the accused.

The Ontario Court of Appeal dismissed the appeal. The trial judge properly instructed the jury. The new self-defence provisions did not apply retrospectively to offences that pre-dated the provisions coming into force. There was no error in finding no air of reality to provocation, so it was properly not left with the jury.

Civil Rights - Topic 3131.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to benefit of lesser punishment - [See Statutes - Topic 6714 ].

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence - Effective March 11, 2103, the self-defence provisions of the Criminal Code (ss. 34 to 37) were repealed and replaced by a new s. 34 - The Ontario Court of Appeal held that the new "test for self-defence was, therefore, simplified into three basic requirements, applicable to all cases: (i) Reasonable belief (34(1)(a)): the accused must reasonably believe that force or threat of force is being used against him or someone else; (ii) Defensive purpose (34(1)(b)): the subjective purpose for responding to the threat must be to protect oneself or others; and (iii) Reasonable response (34(c)): the act committed must be objectively reasonable in the circumstances. When the first two requirements are met, the success of the defence will hinge on the question of the reasonableness of the responsive act. To inform this inquiry, s. 34(2) provides a non-exhaustive list of relevant considerations. None are requirements. The relevance of any factor, enumerated or not, will be a matter for the trier of fact to determine." - See paragraphs 28 to 29.

Criminal Law - Topic 1282

Murder - Provocation - Whether accused acted before his passion cooled - [See Criminal Law - Topic 1289 ].

Criminal Law - Topic 1289

Offences against person and reputation - Murder - Provocation - Evidence and proof - At the accused's murder trial, the trial judge refused to leave provocation with the jury on the ground that on the evidence there was no air of reality to the defence - There was no evidence to support one of the requirements of provocation (i.e., a subjective loss of self-control by the accused) - On the contrary, the only evidence was from the accused's exculpatory statement that he purposefully reacted to defend someone else - The Ontario Court of Appeal held that the factors relied on by the accused, considered separately or cumulative, did not leave open a reasonable possibility that the accused lost control - To charge the jury on provocation would be "entirely speculative and inconsistent with the trial judge's duty to keep from the jury defences for which there is no real evidentiary foundation." - See paragraphs 72 to 87.

Statutes - Topic 6704

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Presumption against retrospectivity and retroactivity - [See Statutes - Topic 6714 ].

Statutes - Topic 6705

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Presumption against retrospectivity or retroactivity rebutted - [See Statutes - Topic 6714 ].

Statutes - Topic 6708

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Procedural and substantive matters defined - [See Statutes - Topic 6714 ].

Statutes - Topic 6714

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Retrospective or retroactive operation - Criminal or penal legislation - On March 11, 2013, the Citizen's Arrest and Self-defence Act came into force, amending the Criminal Code's self-defence provisions - The existing ss. 34 to 37 were repealed and replaced by a new s. 34 - The accused was convicted of second degree murder - The offence and trial pre-dated the new s. 34 coming into force - The accused sought a retrospective application of the new s. 34 on the ground that it was more beneficial to him - The Ontario Court of Appeal held that the new self-defence provisions did not apply retrospectively to offences pre-dating their coming into force, regardless of the date of the trial - Legislation affecting substantive rights was presumed to apply prospectively unless there was a clear legislative intent to apply the new provisions retrospectively - Depending upon the circumstances, the new self-defence provisions were more generous in some cases and more restrictive in others - Those differences between the repealed self-defence provisions and the new self-defence provisions resulted in a substantive change, not a mere procedural change - The content and existence of the defence was affected, not merely the manner in which the defence was presented - Since the new provisions were either beneficial or prejudicial to an accused based on the circumstances, a distinction between prejudicial and beneficial statutes was of no assistance in determining whether the new provisions applied retrospectively - Since there was nothing to indicate a legislative intent to retrospectively apply the new provisions, the presumption against retrospectivity was not rebutted - The court rejected the accused's argument that since he was still "in the system" (pending appeal), the new provision should apply - That doctrine applied to judicial changes in the law (former interpretation of the law incorrect), but not to legislative changes in the law (correctness on prior law not in doubt) - See paragraphs 17 to 71.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 1].

R. v. Reid (W.J.) (2003), 167 O.A.C. 336; 65 O.R.(3d) 723 (C.A.), refd to. [para. 11].

R. v. Modeste (E.) (2015), 335 O.A.C. 289; 2015 ONCA 398, refd to. [para. 17].

R. v. O'Connell (T.), [2014] O.A.C. Uned. 775; 2014 OAC 881, refd to. [para. 17].

R. v. Rogers (C.), [2015] O.A.C. TBEd. JN.013; 2015 ONCA 399, refd to. [para. 17].

R. v. Pandurevic (M.), [2013] O.T.C. Uned. 2978; 298 C.C.C.(3d) 504; 2013 ONSC 2978, refd to. [para. 24].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81, refd to. [para. 25].

R. v. Pintar (J.) (1996), 93 O.A.C. 172; 30 O.R.(3d) 483 (C.A.), refd to. [para. 26].

R. v. Saunders (B.), 2014 ONSC 4670, disagreed with [para. 32].

R. v. Parker, 2013 ONCJ 195, disagreed with [para. 32].

R. v. Williams (T.M.), [2013] B.C.T.C. Uned. 1774; 2013 BCSC 1774, refd to. [para. 32].

R. v. Wang, 2013 ONCJ 220, refd to. [para. 32].

R. v. Carriere (D.M.) (2013), 573 A.R. 250; 2013 ABQB 645, refd to. [para. 32].

R. v. Heydari, 2014 ONSC 2350, refd to. [para. 36].

R. v. Evans (D.J.) (2015), 367 B.C.A.C. 148; 631 W.A.C. 148; 2015 BCCA 46, refd to. [para. 37].

R. v. Dineley (S.), [2012] 3 S.C.R. 272; 436 N.R. 59; 297 O.A.C. 50; 2012 SCC 58, refd to. [para. 40].

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241, refd to. [para. 41].

R. v. Simon (J.M.) (2013), 558 A.R. 384; 2013 ABQB 303, refd to. [para. 65].

R. v. Wigman, [1987] 1 S.C.R. 246; 75 N.R. 51, refd to. [para. 69].

R. v. Rollocks (R.) (1994), 72 O.A.C. 269; 19 O.R.(3d) 448 (C.A.), refd to. [para. 70].

R. v. Luke (I.A.) (1994), 69 O.A.C. 200; 17 O.R.(3d) 51 (C.A.), refd to. [para. 70].

R. v. Cairney (M.J.), [2013] 3 S.C.R. 420; 450 N.R. 1; 561 A.R. 192; 594 W.A.C. 192; 2013 SCC 55, refd to. [para. 73].

R. v. Tran (T.K.), [2010] 3 S.C.R. 350; 409 N.R. 1; 493 A.R. 123; 502 W.A.C. 123; 2010 SCC 58, refd to. [para. 73].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 74].

R. v. Gill (R.) (2009), 246 O.A.C. 390; 241 C.C.C.(3d) 1; 2009 ONCA 124, refd to. [para. 78].

R. v. Angelis (D.) (2013), 300 O.A.C. 367; 296 C.C.C.(3d) 143; 2013 ONCA 70, refd to. [para. 78].

R. v. Gauthier (C.), [2013] 2 S.C.R. 403; 445 N.R. 97; 360 D.L.R.(4th) 1; 2013 SCC 32, refd to. [para. 86].

R. v. Araya (N.) (2015), 468 N.R. 114; 329 O.A.C. 1; 2015 SCC 11, refd to. [para. 92].

R. v. B.D. (2011), 273 O.A.C. 241; 266 C.C.C.(3d) 197; 2011 ONCA 51, refd to. [para. 92].

R. v. Bucik (M.) (2011), 283 O.A.C. 161; 2011 ONCA 546, refd to. [para. 99].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 34 [para. 27].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 667 [para. 43].

Counsel:

Richard Litkowski, for the appellant;

Michael Bernstein and Robert Gattrell, for the respondent.

This appeal was heard on December 1-3, 2014, before Strathy, C.J.O., Tulloch and Hourigan, JJ.A., of the Ontario Court of Appeal.

On June 8, 2015, Hourigan, J.A., released the following judgment for the Court.