Date: 20060823
Docket: T-2262-05
Citation: 2006 FC 1014
Ottawa, Ontario, August 23, 2006
Present:
The Honourable Paul U.C. Rouleau
BETWEEN:
ANTOINE
ZARZOUR
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of a decision of the Disciplinary Court at Cowansville Institution
(the Court) dated October 6, 2005. The Chairperson of the Court had found the
applicant guilty of the disciplinary offence set out in paragraph 40(h)
of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the
Act), that is, fighting with, assaulting or threatening to assault another
person.
[3]
According
to one of the guards, inmate Tymchuk said that Mr. Zarzour insulted
Mr. Tymchuk on a number of occasions. Given Mr. Zarzour’s refusal to
withdraw his remarks, Mr. Tymchuk physically assaulted him. During the
evening of June 6, 2005, Mr. Tymchuk entered Mr. Zarzour’s cell and struck Mr.
Zarzour on the head.
[4]
A
supervisor, who had been informed of the assault, inquired as to Mr. Zarzour’s
condition. Mr. Zarzour told him that everything was fine, because he did not
want to have [translation]
"problems with people on the front line".
[5]
Later that
same evening, a little before 10:40 p.m., Mr. Tymchuk went into Mr. Zarzour’s
cell a second time and told him: [translation]
"I’m going to slice you if you report me". Mr. Zarzour claims
that he then assaulted inmate Tymchuk using a broomstick so as to push him back
into the corridor. An altercation followed until guards came down into the
corridor to put a stop to the fight.
[6]
On June
20, 2005, Mr. Zarzour was charged under paragraph 40(h) of the Act. For
his part, Mr. Tymchuk received an inmate offence report.
[7]
On June
23, 2005, Mr. Zarzour pleaded guilty to the offence of fighting with Mr.
Tymchuk on June 6, 2005, at 10:40 p.m. Since he also said that he had acted in
self-defence, the Court explained to him that self-defence was a defence and
that the Court could not accept a plea of guilty if he was also alleging
self-defence. Mr. Zarzour acknowledged that he had been the assailant and that
he wanted to plead guilty in order to end the matter as quickly as possible. As
he later explained to the Court: [translation]
"I was afraid of retaliation from [Tymchuck] and then retaliation from his
friends . . . it was to my advantage to plead guilty, and then just let the
matter slide".
[8]
When Mr.
Zarzour pleaded guilty, the Correctional Service of Canada, with the Court’s
consent, withdrew the report against Mr. Tymchuk.
[9]
Mr.
Zarzour subsequently filed a motion in writing, dated August 7, 2005, seeking
to set aside his plea of guilty. On July 25, 2005, Mr. Zarzour met with two
officers of the Correctional Service of Canada with regard to another
disciplinary matter. One of the officers told him that Mr. Tymchuk [translation] "wanted to slice
[him] and then gouge out [his] eyes".
[10]
In this
regard, Mr. Zarzour explained the following to the Court:
[translation]
So I said to him, "Listen, I said .
. . I didn’t know that, how long have you known that?" "Well, he told
us that when he went back in the hole [on] July 14." I said, "Yes,
but why didn't you tell me that?" "There was no point, you pleaded
guilty."
[11]
The Court
granted Mr. Zarzour’s motion seeking to set aside his plea of guilty and
scheduled the hearing on the merits for September 22, 2005.
[12]
In its
decision delivered orally on October 6, 2005, the Court based its analysis of
self‑defence on subsection 34(1) of the Criminal Code,
R.S.C. 1985, c. C-46.
[13]
In
dismissing the defence of self-defence, the Court concluded that [translation] "in light of the
facts in evidence, the Court cannot see how [the applicant] can say . . .
[that] he was unlawfully assaulted when he declared himself to be the assailant
in this incident". The Court stated that [translation] "the defence of self-defence can certainly
not be accepted".
[14]
Mr.
Zarzour was therefore convicted of the offence under paragraph 40(h) of
the Act.
[15]
In his
memorandum, Mr. Zarzour submits that the Court made two principal errors:
first, by deciding that only subsection 34(1) of the Criminal Code
applied to the defence of self-defence in this case, and, second, by separating
the two incidents that took place on June 6, 2005, and therefore not taking
into account, in this case, the first assault on Mr. Zarzour in assessing the
applicability of the defence of self-defence.
[16]
In Dasilva
v. Canada (Attorney General), 2006 FC 508, at paragraphs
27-33, this Court decided that the standard of review applicable to the
Independent Chairperson’s decision was that of reasonableness simpliciter.
In Dasilva, supra, the principal issue was whether the applicant
had been charged under the appropriate provision of the Act, that is, a
question of mixed fact and law.
[17]
With
regard to the first issue, namely, whether the Court erred in determining that
only subsection 34(1) of the Criminal Code applied to the situation,
this Court is in agreement with Dasilva, supra. The standard of
review of reasonableness simpliciter applies in this case.
[18]
However,
with respect to the second issue, namely, whether the Court erred in separating
the two incidents that took place on June 6, 2005, the issue is rather one of
assessing the facts and, consequently, the appropriate standard of review would
instead seem to be that of patent unreasonableness (Forrest v. Canada (Attorney
General), 2002 FCT 539, [2002] F.C.J. No. 713 (QL), at paragraphs 16-19).
The statutory basis of self-defence
[19]
Mr.
Zarzour submits, firstly, that the Court erred in deciding that only subsection
34(1) of the Criminal Code applied to the defence of self-defence in
this case.
[20]
In its
decision, the Court asserted that [translation]
"the defence of self-defence alleged by Mr. Zarzour is based on
[subsection 34(1)] of the Criminal Code". In his submissions during
the disciplinary hearing, Mr. Zarzour’s counsel stated the following:
[translation]
Self-defence: if you have been struck,
and then you take means to stop the assault. Because that is what
Antoine Zarzour did, he took a broom with a dustpan, and then he tried to get
Tymchuk out of his cell . . . . [Emphasis added.]
[21]
Subsection
34(1) of the Criminal Code applies where a person is "unlawfully
assaulted" and is "justified in repelling force by force if the force
he uses . . . is no more than is necessary to enable him to defend
himself":
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34. (1) Every one who is
unlawfully assaulted without having provoked the assault is justified in
repelling force by force if the force he uses is not intended to cause death
or grievous bodily harm and is no more than is necessary to enable him to
defend himself.
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34. (1) Toute personne
illégalement attaquée sans provocation de sa part est fondée à employer la
force qui est nécessaire pour repousser l’attaque si, en ce faisant, elle n’a
pas l’intention de causer la mort ni des lésions corporelles graves.
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This situation is similar to that described by Mr. Zarzour’s
counsel.
[22]
However,
as the Court noted in its decision, Mr. Zarzour had declared himself to be the
assailant during the incident that took place at 10:40 p.m. on June 6, 2005.
Since subsection 34(1) specifically states that the person must be assaulted
"without having provoked the assault", the Court therefore did not
err in concluding that the defence of self-defence under subsection 34(1)
cannot be accepted.
[23]
However,
the Court did not take into consideration the sections following section 34 of
the Criminal Code which also deal with self-defence but in circumstances
other than those provided for in section 34.
[24]
For
example, section 35 of the Criminal Code applies where a person has
without jurisdiction assaulted another or has without justification provoked an
assault on himself:
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35. Every one who has without
jurisdiction assaulted another but did not commence the assault with intent
to cause death or grievous harm, or has without justification provoked an
assault on himself by another, may justify the use of force subsequent to the
assault if
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35. Quiconque a, sans
justification, attaqué un autre, mais n’a pas commencé l’attaque dans le but
de causer la mort ou des lésions corporelles graves, ou a, sans
justification, provoqué sur lui-même une attaque de la part d’un autre, peut
justifier l’emploi de la force subséquemment à l’attaque si, à la fois :
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(a)
he uses the force
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a) il en fait usage :
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(i)
under
reasonable apprehension of death or grievous bodily harm from the violence of
the person whom he has assaulted or provoked, and
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(i)
d’une
part, parce qu’il a des motifs raisonnables d’appréhender que la mort ou des
lésions corporelles graves ne résultent de la violence de la personne qu’il a
attaquée ou provoquée,
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(ii)
in the
belief, on reasonable grounds, that it is necessary in order to preserve
himself from death or grievous bodily harm;
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(ii)
d’autre
part, parce qu’il croit, pour des motifs raisonnables, que la force est
nécessaire en vue de se soustraire lui-même à la mort ou à des lésions
corporelles graves;
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(b)
he did not, at any time before the necessity of preserving himself from death
or grievous bodily harm arose, endeavour to cause death or grievous bodily
harm; and
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b) il n’a, à aucun moment avant
qu’ait surgi la nécessité de se soustraire à la mort ou à des lésions
corporelles graves, tenté de causer la mort ou des lésions corporelles
graves;
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(c)
he declined further conflict and quitted or retreated from it as far as it
was feasible to do so before the necessity of preserving himself from death
or grievous bodily harm arose.
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c) il a refusé de continuer
le combat, l’a abandonné ou s’en est retiré autant qu’il lui était possible
de le faire avant qu’ait surgi la nécessité de se soustraire à la mort ou à
des lésions corporelles graves.
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Even if we accept that Mr. Zarzour provoked the assault or
assaulted Mr. Tymchuk first, Mr. Zarzour could still plead self-defence
under subsection 35(1), especially since nothing indicates that Mr. Zarzour intended
to cause death or bodily harm. Instead, he tried to defend himself from a
violent act that could have caused death or bodily harm. In addition, he
assaulted Mr. Tymchuk only because he feared that Mr. Tymchuk would assault
him, and he stopped fighting as soon as the threat was no longer present, that
is, when the guards intervened.
[25]
Similarly,
the Court did not take into consideration section 37 of the Criminal Code
which also appears to apply to Mr. Zarzour’s situation:
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37. (1) Every one is justified
in using force to defend himself or any one under his protection from
assault, if he uses no more force than is necessary to prevent the assault or
the repetition of it.
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37. (1) Toute personne est
fondée à employer la force pour se défendre d’une attaque, ou pour en
défendre toute personne placée sous sa protection, si elle n’a recours qu’à
la force nécessaire pour prévenir l’attaque ou sa répétition.
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(2)
Nothing in this section shall be deemed to justify the willful infliction of
any hurt or mischief that is excessive, having regard to the nature of the
assault that the force used was intended to prevent.
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(2)
Le présent article n’a pas pour effet de justifier le fait d’infliger
volontairement un mal ou dommage qui est excessif, eu égard à la nature de
l’attaque que la force employée avait pour but de prévenir.
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[26]
Neither
section 35 nor section 37 of the Criminal Code refers to provocation or
justification for the assault. It is not important in these two cases who
started the fight or what caused it. The defence of self-defence can therefore
be relied on in certain cases, regardless of who instigated or provoked the
assault in question.
[27]
It is also
important to note that in R. v. Antley (1963) 42 C.R. 384, [1964] 1 O.R.
545, [1964] 2 C.C.C. 142, at paragraph 11, the Court asserted that it was not
necessary for the accused to wait to be assaulted before defending himself. On
the contrary, if the accused had reasonable grounds for apprehending an
imminent assault from the victim, the accused was justified in using force to
defend himself before the victim took action.
[28]
In the
same decision, the Court added that it was not relevant to determine whether
the accused had attempted to obtain assistance from others before using force
to defend himself. Where there is an apprehension of an imminent assault,
instinctively an individual’s first reaction to a threat would be to attempt to
protect himself (R. v. Antley, supra, at paragraph 13).
[29]
Thus, in
this case, it is not necessarily relevant to consider the fact that Mr. Zarzour
assaulted Mr. Tymchuk first or that he did not attempt to call the guards to
help him.
The two incidents of June 6,
2005
[30]
This Court
is in agreement with Mr. Zarzour’s submission that the Court erred in law by
separating the two incidents and not taking the first assault on Mr. Zarzour
into account.
[31]
Despite
the fact that there was an interval of more than an hour between the incidents,
it is impossible to separate them completely to the point of not considering
the first incident when Mr. Tymchuk entered Mr. Zarzour’s cell and
assaulted him, since this incident is important in ascertaining Mr. Zarzour’s
state of mind at the time of the second incident.
[32]
In the
case of self-defence, it is important to determine whether the accused truly apprehended
an imminent assault. Previous threats, assaults or incidents are used to
determine the state of mind of the accused:
. . . although it is true that
the previous threats may help the jury to decide whether threats were made on
the evening of the crime, they are also very relevant in determining what the
accused believed, not only concerning the existence of the threats, but also
concerning her apprehension of a risk of death . . . and her belief in the need
to use deadly force. By failing to mention these two elements in his
answer, the trial judge seriously limited the relevance of the previous threats
. . . (R. v. Pétel,
[1994] 1 S.C.R. 3).
[33]
In this
case, considering the first incident, it is reasonable to believe that Mr.
Zarzour apprehended a second assault when Mr. Tymchuk entered his cell again
around 10:40 p.m. The two incidents constitute a series of events that are
impossible to separate in order to consider them in isolation.
For
these reasons, this Court is of the opinion that Mr. Zarzour demonstrated that
the Court’s decision was unreasonable with regard to the first issue, and
patently unreasonable with regard to the second issue. The application for
judicial review will therefore be allowed and the decision will be referred
back to the Court for reconsideration.
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