R. v. Deluney (R.A.), (2014) 355 Nfld. & P.E.I.R. 192 (NLPC)

• Judge: Gorman, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: October 01, 2014
• Jurisdiction: Newfoundland and Labrador
• Citations: (2014), 355 Nfld. & P.E.I.R. 192 (NLPC);2014 NLPC 1314

R. v. Deluney (R.A.) (2014), 355 Nfld. & P.E.I.R. 192 (NLPC);

    1106 A.P.R. 192

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. OC.012

Her Majesty the Queen v. Robert Arthur Deluney

(2014 NLPC 1314A00060)

Indexed As: R. v. Deluney (R.A.)

Newfoundland and Labrador

Provincial Court

Gorman, P.C.J.

October 6, 2014.

Summary:

The accused was charged with assault. He pleaded defence of the person.

The Newfoundland and Labrador Provincial Court found the accused not guilty.

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence (incl. preventing assault) - The Newfoundland and Labrador Provincial Court reviewed the law respecting defence of the person (Criminal Code, s. 34) - In summary, the court stated "(1) that the use of reasonable force in defence of the person is allowed, but not against those acting pursuant to lawful authority (unless the person acting in defence of the person reasonably believes that the other person is acting unlawfully); (2) that the accused must reasonably believe that 'force is being used against them or another person or that a threat of force is being made against them or another person' (a subjective and objective test); (3) that the 'act' of self-defence committed by the accused is committed 'for the purpose of defending or protecting themselves or the other person from that use or threat of force'; and (4) that in determining if the force used by an accused person was reasonable, a number of statutory factors (which are non-exhaustive) must be considered. ... Interestingly, the new s. 34 of the Criminal Code refers not only to defending oneself against the application of force, but the threat of force as well. This might be seen as an expansion of the former self-defence provisions contained within the Criminal Code which referred solely to the accused having 'been unlawfully assaulted.' I use the word 'might' because of the definition of assault contained within s. 265(1)(b) of the Criminal Code." - See paragraphs 22 to 30.

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence (incl. preventing assault) - The Newfoundland and Labrador Provincial Court, in reviewing the law respecting defence of the person (Criminal Code, s. 34), stated that "It had been held in relation to the former self-defence provisions in the Criminal Code that when the defence of self-defence is raised, 'the burden of proof in relation to this defence is on the Crown, who must prove beyond a reasonable doubt that the defence does not apply' (see R. v. Cinous (J.) [2002, SCC)]). In R. v. Ryan [2011, NLCA], it was noted, in the context of the former s. 34(2) of the Criminal Code, that for 'a self-defence plea to be successful, the trier-of-fact must be left with a reasonable doubt as to the existence of all the elements of the defence ... If the Crown proves beyond a reasonable doubt that any one of the above three elements is lacking, self-defence is not available to an accused ... ' Those comments are still applicable ... " - see paragraph 31.

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence (incl. preventing assault) - The Newfoundland and Labrador Provincial Court, considered what constituted reasonable force in the context of defence of the person under the new s. 34 of the Criminal Code which was enacted in 2013 - The court referred to the 2010 decision in R. v. Szczerbaniwicz (G.) (SCC) which indicated that a trial judge assessing the reasonableness or proportionality of force used pursuant to a justification had to determine "whether the force used was 'reasonable in all the circumstances' ... The reasonableness of 'all the circumstances' necessarily includes the accused's subjective belief as to the nature of the danger or harm, but the objective component of the defence is also required." - The court concluded that the reasoning set out in Szczerbaniwicz still applied because both the former and present defence of person provisions required that any force used by an accused acting in self-defence be reasonable - However, the reasoning in Szczerbaniwicz was now subject to the requirement that the factors set out in the current s. 34(2) (though not limited to them) be considered in determining reasonableness - See paragraphs 32 to 35.

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence (incl. preventing assault) - The accused and his brother were having a heated argument - The brother moved towards the accused - The accused grabbed the brother by his jacket and a struggle ensued - The accused was charged with assault - He pleaded defence of the person - The Newfoundland and Labrador Provincial Court found the accused not guilty - The court considered the factors set out in s. 34(2) of the Criminal Code and concluded that the Crown had failed to prove that the force used by the accused was not used to defend himself within the parameters of s. 34(1) - The force used by the accused was designed to defend himself from being assaulted by the brother and was reasonable in the circumstances - See paragraphs 51 to 58.

Criminal Law - Topic 1420

Assaults - Defence - Self-defence - [See all Criminal Law - Topic 239 ].

Cases Noticed:

R. v. Prokofiew (E.) (2012), 435 N.R. 1; 296 O.A.C. 1; 2012 SCC 49, refd to. [para. 10].

R. v. Phelan (D.B.) (2013), 337 Nfld. & P.E.I.R. 64; 1047 A.P.R. 64; 2013 NLCA 33, refd to. [para. 10].

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. 11].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 11].

R. v. J.M.H. (2011), 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 11].

R. v. Ahmed (O.), [2013] O.A.C. Uned. 381; 2013 ONCA 473, refd to. [para. 11].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 13].

R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 65 C.R.(6th) 193; 2009 SCC 22, refd to. [para. 14].

R. v. Hubler (T.M.) et al. (2013), 542 A.R. 145; 566 W.A.C. 145; 2013 ABCA 31, refd to. [para. 14].

R. v. Boston (R.) (2013), 309 O.A.C. 24; 2013 ONCA 498, refd to. [para. 14].

R. v. Dawydiuk (M.N.) (2010), 285 B.C.A.C. 190; 482 W.A.C. 190; 253 C.C.C.(3d) 493 (C.A.), refd to. [para. 19].

R. v. Palombi (K.) (2007), 225 O.A.C. 264; 222 C.C.C.(3d) 528 (C.A.), refd to. [para. 19].

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. 19].

R. v. George, [1960] S.C.R. 871, refd to. [para. 20].

R. v. Bartlett (1989), 79 Nfld. & P.E.I.R. 143; 246 A.P.R. 143 (Nfld. T.D.), refd to. [para. 20].

R. v. Pankiw (J.K.) (2013), 431 Sask.R. 108; 2014 SKPC 173, refd to. [para. 23].

R. v. Polapady (N.), 2014 ONCJ 121, refd to. [para. 23].

R. v. C.T., 2013 BCPC 312, refd to. [para. 24].

R. v. Saunders (B.), 2014 ONSC 4670, refd to. [para. 28].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 162 C.C.C.(3d) 129, refd to. [para. 31].

R. v. Ryan (W.J.) (2011), 304 Nfld. & P.E.I.R. 124; 944 A.P.R. 124; 2011 NLCA 9, refd to. [para. 31].

R. v. Harris (R.), 2014 ONCJ 401, refd to. [para. 31].

R. v. McKay (A.J.) (2009), 240 Man.R.(2d) 74; 456 W.A.C. 74; 246 C.C.C.(3d) 24 (C.A.), refd to. [para. 33].

R. v. Szczerbaniwicz (G.), [2010] 1 S.C.R. 455; 401 N.R. 47; 2010 SCC 15, refd to. [para. 33].

R. v. Manning (J.C.) (2014), 345 Nfld. & P.E.I.R. 13; 1074 A.P.R. 13 (N.L. Prov. Ct.), refd to. [para. 34].

R. v. Nevett (P.E.), [2014] B.C.T.C. Uned. 469 (S.C.), refd to. [para. 35].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 34(1) [para. 23]; sect. 34(2) [para. 26].

Authors and Works Noticed:

Coughlin, Steve, The Rise and Fall of Duress: How Duress Changed Necessity before Being Excluded by Self-Defence (2013), 39 Queen's L.J. 83, pp. 116, 117 [para. 35]; 118 [para. 25].

Counsel:

J. Noseworthy, for Her Majesty the Queen;

A. Baker, for Mr. Deluney.

This matter was heard at Corner Brook, N.L., on October 1, 2014, by Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment on October 6, 2014.