R. v. Gee, [1982] 2 SCR 286

Supreme Court of Canada

R. v. Gee, [1982] 2 S.C.R. 286

Date: 1982-08-09

Her Majesty The Queen Appellant;

and

Robert Douglas Gee Respondent.

File No.: 16447.

1982: February 8; 1982: August 9.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT FOR APPEAL FOR ALBERTA

Criminal law—Murder—Defences—Justification—Whether or not “qualified” defence of use of excessive force in preventing commission of indictable offence a recognized defence—Criminal Code, R.S.C. 1970, c. C-34, ss. 27, 34.

Criminal law—Charge to jury—Whether or not errors made in charge warranting retrial.

Respondent was charged with second degree murder. The defence maintained that the victim had assaulted one of respondent’s associates and that respondent and his co-accused killed the victim while trying to prevent that offence. The question arose in respect of s. 27 of the Criminal Code as to whether there exists in Canada a “qualified” defence of use of excessive force in preventing the commission of an offence which would have the effect of reducing what would otherwise be murder to manslaughter.

Held (Martland, Ritchie and Estey JJ. dissenting): The appeal should be dismissed.

Per Dickson, Beetz, Chouinard and Lamer JJ.: In Canada there is no “qualified” defence of use of excessive force in the prevention of the commission of an offence which would have the effect of reducing what would otherwise be murder to manslaughter. The effect of s. 27 is to justify the accused in committing what would otherwise be an unlawful act. If in the opinion of the jury the force used in preventing the commission of an offence was reasonable in all the circumstances, the accused is entitled to an acquittal. If the s. 27 defence fails, the jury should render the verdict which would have been rendered, absent s. 27. That will be murder if the accused had the required intent. The proper verdict may be manslaughter not because of a partial justification under s. 27 but because the special mental element required for guilt of murder has not been proven. The

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half-way house is not to be found in s. 27 but, if at all, in s. 212.

The trial judge’s charge to the jury was in error. Firstly, the judge erred by charging the jury on self-defence under s. 34 when there was no evidence from which a jury could reasonably infer that the accused assisted in killing the victim under a reasonable apprehension of death or grievous bodily harm. The judge charged the jury that if the accused used more force than was reasonably necessary for self-defence, they must find the accused not guilty of murder but guilty of manslaughter. In devoting so much attention to self-defence the judge failed to direct attention to the only possible ground of justification, namely s. 27 and the use of force to prevent the commission of an offence.

Secondly, the charge on s. 27 was inadequate. The judge failed to make clear that if justification under s. 27 did not succeed, the verdict would be murder or manslaughter depending upon the presence or absence of intent. There was evidence which put the question of intent and the possibility of a manslaughter verdict in issue.

The jury were confused as to the distinction between murder and manslaughter, twice asking for redirection. Only in the second redirection did the judge state that “the difference between murder and manslaughter is one of intent”. It is not clear that at this point in the deliberations this statement was sufficient to overcome the confusion caused by the other deficiencies in the charge.

Per Laskin C.J. and McIntyre J.: The potential for confusion in the charge to the jury warranted an order for a new trial. The trial judge erred in charging the jury on s. 34 of the Code for the facts did not support the defence of self-defence. The charge did not adequately deal with the s. 27 defence and did not leave it clearly open to the jury that the verdict of manslaughter could be returned in the absence of an intent to kill, despite the use of excessive force.

Per Martland, Ritchie and Estey JJ., dissenting: There is no “qualified” defence of the use of excessive force in the prevention of an offence having the effect of reducing what would otherwise be murder to man-

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slaughter. The charge to the jury contained no errors sufficient to warrant the granting of a new trial. The respondent could not properly complain of placing the issue of self-defence before the jury for it was not prejudicial to him. The trial judge properly dealt with the application of s. 27 for the factual background of the case did not require the jury to be charged with respect to s. 21(b). The charge adequately explained the difference between murder and manslaughter.

[R. v. McKay, [1957] V.R. 560; Brisson v. The Queen, [1982] 2 S.C.R. 227, referred to.]

APPEAL from a judgment of the Alberta Court of Appeal (1980), 55 C.C.C. (2d) 525, 19 C.R. (3d) 222, 26 A.R. 212, allowing respondent’s appeal from his conviction for murder and ordering a new trial. Appeal dismissed, Martland, Ritchie and Estey JJ. dissenting.

B.R. Fraser, for the appellant.

Noel O’Brien, for the respondent.

The reasons of Laskin C.J. and McIntyre J. were delivered by

THE CHIEF JUSTICE—This is a Crown appeal by leave against a unanimous judgment of the Alberta Court of Appeal, setting aside but for different reasons in that Court, a conviction of murder. The grounds of appeal advanced by the Crown are set out in the reasons herein delivered by Dickson J. and I need not repeat them but to say only that they relate to errors of the trial judge in directing the jury that excessive force in preventing the commission of a crime against another will reduce a charge of murder against an accused to manslaughter and that honest but mistaken belief that no more force is being used than is necessary will likewise reduce murder to manslaughter. Although there were other issues raised by the Crown respecting self-defence, I am in agreement with Dickson J. that there was no basis for self-defence and hence error of the trial judge in charging the jury on Criminal Code, s. 34 which applies only where self-defence is an issue.

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The members of the Alberta Court of Appeal, McDermid, Moir and Prowse JJ.A., based themselves wholly on the issues noted above respecting the reduction of murder to manslaughter and on justification as it arises under Criminal Code, s. 27. Error of the trial judge in some of those respects was held to be sufficient to support an order for a new trial. In view of the positions taken by the respondent in the appeal here, I find it unnecessary to explore the different views upon which the members of the Court of Appeal proceeded.

It is a well-established principle of our criminal law that a respondent to an appeal here is entitled to hold a judgment in his favour on any grounds available to that respondent which were raised below and are accepted by this Court, notwithstanding that those grounds were not supported below and the appellant has based the appeal here on completely different grounds.

In the appeal to this Court, the respondent relied on the trial judge’s failure to direct the jury properly on justification, an issue which apparently influenced the order of the Alberta Court of Appeal for a new trial.

More telling, however, for the accused respondent was the error of the trial judge in charging on self-defence, which was a non-issue, and in failing to deal adequately with the defence under s. 27 of the Code, which was the only defence open to the accused. She did not leave it clearly open to the jury that a manslaughter verdict could be returned, even where excessive force had been used, if the jury doubted the existence of an intent to kill. This omission, coupled with the misplaced emphasis on self-defence under s. 34 of the Code, created confusion, and I agree with Mr. Justice Dickson that, cumulatively, as a result of the errors, there was such a potential for confusion as to warrant the order for a new trial. In the result, I would dismiss the appeal.

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The reasons of Martland, Ritchie and Estey JJ. were delivered by

MARTLAND J. (dissenting)—I am in agreement with the opinion expressed by Mr. Justice Dickson that, in relation to s. 27 of the Criminal Code, there does not exist a “qualified” defence of the use of excessive force in the prevention of the commission of an offence which would have the effect of reducing what would otherwise be murder to manslaughter. I do not agree that, accepting that view of the law, there were errors in the charge to the jury sufficient to warrant the granting of a new trial.

It is said that there was error on the part of the trial judge in charging the jury with respect to self-defence under s. 34 of the Code. I agree that there was no evidence from which the jury could reasonably infer that the respondent, when he assisted in killing Powley, did so under a reasonable apprehension of death or grievous bodily harm, or that he reasonably believed he could not otherwise save himself from bodily injury. However, the issue of self-defence was raised when it was suggested that the respondent acted after Powley had lunged at him with a broken bottle. The trial judge felt that the respondent was entitled to have that defence put before the jury.

The charge in relation to s. 34 was not prejudicial to the respondent and it was favourable to him in that the jury was directed that if more force was used than was reasonably necessary for the respondent to defend himself, the jury should find the accused not guilty of murder, but guilty of manslaughter. In my opinion the placing before the jury of the issue of self-defence was not something about which the respondent can properly complain and it was not an error which should result in a new trial.

The only defence upon which the respondent sought to rely which has real substance is that which is provided in s. 27 of the Code:

27. Every one is justified in using as much force as is reasonably necessary

(a) to prevent the commission of an offence

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(i) for which, if it were committed, the person who committed it might be arrested without warrant, and

(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or

(b) to prevent anything being done that, on reasonable and probable grounds he believes would, if it were done be an offence mentioned in paragraph (a).

In my opinion this defence was properly placed before the jury in the charge. The trial judge said:

The second defence of justification raised by the accused is that of preventing the commission of an offence. The Criminal Code provides that “Everyone is justified in using as much force as is reasonably necessary to prevent the commission of an offence for which, if it were committed, the person who committed it might be arrested without warrant and that would be likely to cause immediate and serious injury to the person or property of anyone”. The offence of assault causing bodily harm is one for which a person may be arrested without a warrant, so that you need not concern yourselves with this aspect of the defence. You must consider whether the accused acted to prevent the commission of an offence, the offence of assault causing bodily harm, and whether this offence was likely to cause immediate and serious injury to the person of Paul Racz. If you are satisfied that they did not, then, you should reject this defence. If you are satisfied or if you have a reasonable doubt that the accused acted in this manner, then, you must consider whether they used no more force than was reasonably necessary under the circumstances.

The evidence in the statements of the accused and in the testimony of the accused Gee indicates that when the fight broke out initially they ran. When they returned to the bedroom, they found Racz and Powley in the struggle that you have heard described and both were covered with blood. They have indicated repeatedly,—I don’t think I need to review the evidence in this regard. It runs throughout the statements and through the evidence of Gee and you will have the statements with you so that you can examine them. The theme runs throughout the statements and in the evidence of the accused Gee that they were afraid that Powley was

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going to cause serious harm to Racz or to kill him. Again, you should consider that they had some knowledge of Powley’s background with respect to sadism. You should consider the circumstances in which they found themselves and their mental condition. Under all of these circumstances, you must consider whether they acted to prevent Powley from causing bodily harm by assaulting Racz. You must then consider whether the force that they used was reasonably necessary.

If you are satisfied that this defence has been established or if you have a reasonable doubt with respect to it, you must find the accused not guilty of murder.

The factual background of this case did not require the trial judge to charge the jury in respect of para. (b) of s. 27. The evidence submitted on behalf of the defence was that the respondent, and his co-accused Susan Fife, inflicted repeated blows on the deceased, Powley, in order to assist and protect their friend, Racz, with whom Powley was fighting. Their efforts, according to this evidence, were directed toward preventing the continuation of an assault by Powley, who was armed with a broken bottle.

This evidence relates to the prevention of a crime under para. (a). It relates to the prevention of a continuing assault on Powley. It does not relate to the prevention of an assault, which is the situation contemplated by para. (b).

In her recharge to the jury, the trial judge said:

Ladies and gentlemen, I have received a question from you indicating that you wish described in clear and defined in clear and concise terms culpable homicide, second degree murder and manslaughter.

With respect to culpable homicide, a person commits culpable homicide when he causes the death of a human being by means of an unlawful act. With respect to murder, culpable homicide is murder—and I think I advised you previously that you can disregard the phrase second degree, it is not of significance with respect to your deliberations. Culpable homicide is murder where the person who causes the death of a human being means to cause his death or means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not. With respect to manslaughter, culpable homicide that is not murder is

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manslaughter. Perhaps, I can assist you further. There are four circumstances under which you must find the accused not guilty of murder period. If you have even a reasonable doubt that the accused committed culpable homicide, you must find them not guilty of murder. If you have even a reasonable doubt with respect to the defence of self-defence, you must find them not guilty of murder. If you have even a reasonable doubt with respect to the defence of acting to prevent the commission of an offence, you should find them not guilty of murder. If you have even a reasonable doubt with respect to the defence of necessity, you must find them not guilty of murder.

There are three circumstances under which you must find the accused not guilty of murder but guilty of manslaughter. If you have a reasonable doubt with respect to the defence of self-defence, but are satisfied that more force was used than was necessary, you must find the accused not guilty of murder and guilty of manslaughter. If you have even a reasonable doubt with respect to the defence of provocation, you must find the accused not guilty of murder and guilty of manslaughter. If you are satisfied that the accused committed culpable homicide, but have a reasonable doubt with respect to whether they committed murder, then you must find the accused not guilty of murder and guilty of manslaughter.

It is put against the trial judge that, in the second paragraph of this passage she did not refer to s. 27. The reason for this is that, in the first paragraph of the passage, the trial judge lists four circumstances in which, as she puts it, “you must find the accused not guilty of murder period”. One of these circumstances was the s. 27 defence “If you have even a reasonable doubt with respect to the defence of acting to prevent the commission of an offence, you should find them not guilty of murder”.

The second paragraph deals with those situations in which the jury may find the accused not guilty of murder, but guilty of manslaughter. The defence under s. 27 does not appear here because the trial judge was of the view, which I share, that

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there is no qualified defence of the use of excessive force to prevent the commission of a crime which would have the effect of reducing what would otherwise be murder to manslaughter.

The trial judge had already dealt, and in my opinion properly, with the necessity for proof of intent in order to establish a charge of murder. In the first paragraph of the passage above quoted she said: “Culpable homicide is murder where the person who causes the death of a human being means to cause his death or means to cause him bodily harm that he knows is likely to cause death and is reckless whether death ensues or not. With respect to manslaughter, culpable homicide that is not murder is manslaughter”.

In a further recharge she said:

Murder can be committed in two ways. First, a person commits murder when he causes the death of a human being by means of an unlawful act and means to cause his death. Secondly, a person commits murder when he causes the death of a human being by means of an unlawful act and means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not. I will repeat that. A person commits murder when he causes the death of a human being by means of an unlawful act and means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not. A person commits manslaughter when he causes the death of a human being by means of an unlawful act. The difference between murder and manslaughter is one of intent. I can repeat for you what I said with respect to manslaughter. A person commits manslaughter when he causes the death of a human being by means of an unlawful act.

In my opinion the trial judge in her charge dealt properly with the application of s. 27 and with the difference between murder and manslaughter. Section 27 provides, where applicable, an absolute defence. If unreasonable force is used to prevent the commission of a crime, s. 27 is inapplicable

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and, in such a case, the section does not operate to reduce the crime of murder to manslaughter. On the facts of the present case the only way in which a verdict of manslaughter could have been rendered would have been on the basis of lack of intent to commit murder or on the basis of provocation. Both of those possibilities were, in my opinion, properly submitted to the jury.

In the result, it is my opinion that there were no errors in the charge to the jury which were prejudicial to the accused. The appeal should be allowed, the judgment of the Court of Appeal should be set aside and the verdict at trial should be restored.

The judgment of Dickson, Beetz, Chouinard and Lamer JJ. was delivered by

DICKSON J.—The question in this case is whether there exists in Canada a “qualified” defence of use of excessive force in preventing the commission of an offence which would have the effect of reducing what would otherwise be murder to manslaughter. The question arises in respect of s. 27 of the Criminal Code which reads:

27. Every one is justified in using as much force as is reasonably necessary

(a) to prevent the commission of an offence

(i) for which, if it were committed, the person who committed it might be arrested without warrant, and

(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or

(b) to prevent anything being done that, on reasonable and probable grounds he believes would, if it were done, be an offence mentioned in paragraph (a).

I

The Facts

The respondent Gee and one Susan Fife were charged that they did unlawfully kill David Powley and thereby commit second degree murder contrary to the Criminal Code. They were tried before a jury, convicted as charged and sentenced to life

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imprisonment without eligibility for parole for ten years.

On the evening of November 15, 1978, Gee, a male prostitute and female impersonator, Fife, a prostitute, and one Paul Racz met at Gee’s house for drinks before going into the street for the purposes of prostitution. As the weather was inclement the respondent made arrangements for the three of them to go to the home of the deceased, David Powley, who was known to the respondent and described by him as a “kinky trick who had lots of money”. When they arrived they had some more drinks at the bar and then proceeded to an upstairs bedroom. What happened thereafter is described in a statement given by the respondent to the police, a short resumé of which is as follows. Powley suggested that Racz dress up in women’s lingerie which Racz hesitatingly agreed to do. Gee and Fife looked for other lingerie. The statement continues: “The next thing I knew, I heard a smash and we turned around and David and Paul were wrestling. I think Paul tried to knock him out by hitting him over the head with a bottle”. Gee and Fife struck Powley over the head numerous times with objects, including bottles, a frying pan and a lamp. When they ceased Powley was dead. The theory of the Crown was that the killing was the result of a planned robbery which Powley had resisted. The theory of the defence was that Powley attacked Racz and was committing an assault upon him; the respondent and Fife were attempting to prevent the commission of that offence and killed Powley in the process.

II

The Alberta Court of Appeal

All three judges of the Alberta Court of Appeal, for reasons which were by no means concordant, allowed the respondent’s appeal and directed a new trial. McDermid J.A. accepted the law in Canada to be as in Australia and that the honest although mistaken belief that no more force is being used than is necessary is a defence that reduces what would otherwise be murder to manslaughter and that such defence is applicable by virtue of s. 7(3) of the Criminal Code to the

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defence of self-defence. Mr. Justice McDermid held that this reduction from murder to manslaughter is applicable also where the defence is that the force used is to prevent the commission of a crime. He found the justification for this reduction of murder to manslaughter in the lesser degree of “moral culpability” of a person who uses more force than is necessary but not more force than he honestly but mistakenly believes is necessary, to prevent the commission of a violent crime.

If I understand his judgment correctly, Mr. Justice Prowse purports to deal with the question on the basis of the mens rea required for murder; a person who honestly, but erroneously, believes that the force he is using is reasonable lacks the necessary intent for murder. Mr. Justice Moir agreed with Justice Prowse’s conclusion but not his reasoning. He based his judgment upon the fact that “even though there was an intent to kill or injure it may be excused or forgiven because of the surrounding mitigating circumstances” and hence the possibility of reducing the charge of murder to manslaughter should be considered. An accused might apply force knowing that the result would be death or grievous bodily injury. In this sense, the accused would fall prima facie within the definition of murder in s. 212. However, if the accused applied force under the honest belief that it was necessary, then he could not be guilty of murder. Further, it does not appear that this belief need be reasonably held. In these circumstances the jury should ‘reduce’ the charge of murder to one of manslaughter.

The issue raised by all three justices in the Court of Appeal is whether murder is reduced to manslaughter when the defence of justification in preventing the commission of a crime is advanced, and excessive force is used. This is the first time in Canada, so far as I am aware, that a partial defence under s. 27 of the Code has been allowed to reduce what would otherwise be murder to manslaughter. The defence of justification pursuant to s. 27 has hitherto been regarded as a total

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defence, entitling the accused to acquittal, or no defence at all. There has been no half-way house.

III

The Crown appellant defined the issues on the appeal as follows:

[1.] Did the Court of Appeal err in law in holding that the common law concept of excessive force coupled with self-defence reducing murder to manslaughter as developed in the law of Australia, is applicable to a defence of justification in preventing the commission of an offence and therefore the direction given to the jury constituted error in law amounting to misdirection?

[2.] Did the Court of Appeal err in law in holding that the law is the same in Canada as in Australia and that the honest although mistaken belief that no more force is being used than is necessary is a defence that reduces what would otherwise be murder to manslaughter and that such defence is applicable by virtue of section 7(3) of the Criminal Code to the defence of self-defence and therefore the direction given to the jury constituted error in law amounting to misdirection?

[3.] Did the Court of Appeal err in holding that excessive force used in self-defence or justification excuses murder and reduces the crime to one of manslaughter even though the accused had the intent to kill or injure and therefore the direction given to the jury constituted error in law amounting to misdirection?

[4.] Did the Court of Appeal err in holding that if the jury concludes the accused killed the victim and finds against the accused on the issue of self-defence, then the issue of manslaughter should be left with the jury with the following direction:

“if you believe the accused was acting under a reasonable apprehension that another would suffer death or grievous bodily harm, or if you are left with a reasonable doubt on the issue, then, if the accused fails on the issue of self‑defence only because you conclude that he used more force than reasonable in all the circumstances, you should bring in a verdict of guilty of manslaughter.”

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and failure to do so constituted error in law amounting to misdirection.

IV

The argument centered on the question of whether excessive use of force in self-defence could reduce what would otherwise be murder to manslaughter. The Crown appellant argued for a negative response. The respondent Gee argued in the affirmative.

Australian, English and Canadian cases were discussed at some length, in the context of the defence of self-defence, although we are here concerned, not with a case of self-defence but excessive force in the prevention of the commission of an indictable offence, that is to say, to prevent the deceased Powley from continuing an aggravated assault upon Racz. It is well to note the difference in statutory language between s. 34 of the Code, self-defence, and s. 27 of the Code which I have earlier set forth. Section 34 reads:

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.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes, and

(b) he believes, on reasonable and probable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

The qualified defence of excessive force in self-defence has been developed in some common law criminal jurisdictions and has been applied by analogy to the defence of prevention of commission of a crime (see R. v. McKay, [1957] V.R. 560). The gist of the respondent’s argument is that, should a qualified defence of excessive force in self-defence exist in Canada, by analogy, a qualified defence of excessive force in the prevention of an offence should also be admitted. Such

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an analogy, however, may be more difficult to make in a jurisdiction possessing a criminal code, as in Canada, where the two defences are contained in two differently worded statutory provisions.

In the case of Brisson v. The Queen, [1982] 2 S.C.R. 227 judgment delivered concurrently herewith, I have expressed the opinion that excessive force in self-defence, unless related to intent under s. 212 of the Code or to provocation, does not reduce murder to manslaughter. As I emphasized in the reasons in Brisson the distinction between murder or manslaughter is one of intent. Intent is an element of the offence of murder under s. 212 of the Criminal Code. A determination with respect to the presence or absence of this intent must underlie any consideration of the existence of a defence or justification. It is the nature of the offence which determines what possible defences may be open to the accused. For example, a “defence” of provocation under s. 215 of the Criminal Code is unnecessary where there is a finding of absence of intent under s. 212. The offence having been characterized as manslaughter due to the absence of intent under s. 212, it is simply unnecessary to invoke a “defence” such as provocation which reduces murder to manslaughter. Similarly, it is crucial to have characterized the offence as murder or manslaughter before turning to s. 27 of the Code, the defence of prevention of commission of an offence.

The starting point, in my view, is s. 212 of the Code combined with s. 205. According to the Code, s. 205, a person commits homicide, whether directly or indirectly, by any means when he causes the death of a human being. Homicide is culpable or not culpable. Homicide that is not culpable is not an offence. Culpable homicide is murder or manslaughter when he causes the death of a human being in one of four ways, of which s. 205(5)(a) is, for present purposes, relevant, “by means of an unlawful act”. The effect of s. 27 is to justify the accused in committing what would

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otherwise be an unlawful act. It makes lawful what would otherwise be unlawful.

Turning then to s. 212. Culpable homicide is murder when the person who causes the death of a human being means to cause death or means to cause bodily harm or knows that he will cause bodily harm and is reckless whether death ensues or not.

Absent that intent, culpable homicide is manslaughter or infanticide. The killing cannot be murder in the absence of proof of intent required under s. 212(a) of the Criminal Code and that intent may not be inferred merely from the fact of the killing. If the Crown proves beyond a reasonable doubt a killing with such intent, or an unlawful killing without such intent, i.e. the ingredients of murder or manslaughter, respectively, it is then open to the accused to call in aid s. 27 of the Code which I repeat for ease of reference:

27. Every one is justified in using as much force as is reasonably necessary

(a) to prevent the commission of an offence

(i) for which, if it were committed, the person who committed it might be arrested without warrant, and

(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or

(b) to prevent anything being done that, on reasonable or probable grounds he believes would, if it were done, be an offence mentioned in paragraph (a).

This section allows a justification for as much force as is reasonably necessary to prevent the commission of an indictable offence. The section clearly contemplates the possibility of a killing and can even extend its justification to killing with intent to kill, if it is reasonably necessary. The question whether such force was or was not reasonably necessary is one for the jury. If the force is reasonable in all the circumstances the accused is entitled to an acquittal; if not, he is in my view

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guilty of murder if he has the required intent. The jury function in applying the reasonableness test in the administration of justice is stated in Halsbury’s Laws of England (4th ed.), vol. 11, at p. 630 as follows:

In determining whether the force used was reasonable the court will take into account all the circumstances of the case, including the nature and degree of force used, the seriousness of the evil to be prevented and the possibility of preventing it by other means. This provision is of general application and is not limited to arrestable or any other class of offences, but it would not be reasonable to use even slight force to prevent very trivial offences. The circumstances in which it can be considered reasonable to kill another in the prevention of crime must be of an extreme kind; they could probably arise only in the case of an attack against the person which is likely to cause death or serious bodily injury and where killing the attacker is the only practicable means of preventing the harm. It cannot be reasonable to kill another merely to prevent a crime which is directed only against property.

Section 26 of the Code should be read in conjunction with the passage from Halsbury. Section 26 provides that everyone who is authorized to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.

In my view, it cannot be said that force can be partially justified. Success under s. 27 leads to acquittal. If the defence under s. 27 does not succeed, the jury should render the verdict which would have been rendered, absent s. 27. This may be a verdict of manslaughter, not because of partial justification under s. 27 but because the special mental element required for guilt of murder has not been proven. In other words, the half-way house is not to be found in s. 27 but, if at all, in s. 212.

For the above reasons I am of the opinion that there does not exist in Canada a “qualified” defence of use of excessive force in the prevention of the commission of an offence which would have

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the effect of reducing what would otherwise be murder to manslaughter.

V

Charge to the Jury

Let me say immediately that the task of the trial judge in charging the jury was by no means an easy one, having regard to the uncertain state of the law at the time of trial and the generally prevailing view that the principles applicable to the defences of self-defence and prevention of the commission of a crime were, despite different statutory provisions, to be found in the common law and were, to all intents, identical.

In my view the trial judge erred in two respects, first, in charging on s. 34 of the Code and second, in the inadequacy of the charge on s. 27 of the Code. There was no evidence in the record from which a jury could reasonably infer that Gee, when he assisted in killing Powley, did so under a reasonable apprehension of death or grievous bodily harm or that he reasonably believed that he could not otherwise save himself from bodily injury. Gee was entitled to have the jury pass upon all his alternative defences but only where a foundation of fact would give a reality to the defence. The only evidence to which the trial judge referred was that both Gee and Racz had testified that Powley lunged at Gee and kicked Fife. But as the trial judge herself observed, “Now, I think it is quite clear that he [Powley] was not able to get away from Racz so that he could not have carried out his purpose at the time in question”. Additionally, Gee testified that following the lunge by Powley he, Gee, “ran right out of the room”. The possibility of an encounter endangering Gee had therefore terminated and with it any basis for a plea of self-defence. It was later, on his way downstairs, that Gee heard a smash. He ran to the bar, grabbed a bottle, ran upstairs and “smashed him [Powley] over the head with this bottle”.

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The judge charged at length on self-defence. In so doing she instructed the jury that if they were of the view that the accused used more force than was reasonably necessary to enable them to defend themselves, the jury must find the accused not guilty of murder but guilty of manslaughter. To this extent the charge was unduly favourable to the accused. In devoting so much attention to self-defence the judge failed, however, to direct adequate attention to the only possible ground of justification, namely s. 27, and the use of force to prevent the commission of an offence.

The charge on s. 27 was inadequate. Reference was made only to s. 27(a) and not to s. 21(b). The jury was instructed that if “they were satisfied that the defence had been established or if they had a reasonable doubt with respect to it they must find the accused not guilty of murder”. The judge failed to instruct the jury as to what would be the result if the accused failed in the defence under s. 27. On the recharge the judge stated, at p. 967 [of the Case on Appeal]:

There are three circumstances under which you must find the accused not guilty of murder but guilty of manslaughter. If you have a reasonable doubt with respect to the defence of self-defence, but are satisfied that more force was used than was necessary, you must find the accused not guilty of murder and guilty of manslaughter. If you have even a reasonable doubt with respect to the defence of provocation, you must find the accused not guilty of murder and guilty of manslaughter. If you are satisfied that the accused committed culpable homicide, but have a reasonable doubt with respect to whether they committed murder, then you must find the accused not guilty of murder and guilty of manslaughter.

There is reference in the passage to excessive force in self-defence and to provocation but no reference to s. 27. It is not made clear that if justification under s. 27 did not succeed the verdict would be murder or manslaughter depending upon the presence or absence of intent under s. 212. Gee testified that he told Susan Fife not to stab Powley and “only to try and knock him out”. The question of intent and the possibility of a manslaughter

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verdict if s. 27 failed was therefore in issue. The judge did not at any time relate s. 27 to absence of intent.

The jury were confused as to the distinction between murder and manslaughter. In the course of their deliberations they asked twice for a redirection with respect to the distinction. Only in the second redirection did the trial judge specifically state that “The difference between murder and manslaughter is one of intent”. I am not convinced that at this point in the deliberations this statement of the distinction was sufficient to overcome the deficiencies in the charge as a whole, especially when, as here, the charge has been complicated by the introduction of the defence of self-defence and the erroneous concept as to the “qualified” defence of excessive force reducing murder to manslaughter in that part of the charge. The result was to introduce a potential for confusion, the full effect of which no one can assess, and to divert attention from s. 212 and the potentially broad scope of s. 27 of the Code.

In the result I would dismiss the appeal and confirm the order for a new trial but for the reasons given above.

Appeal dismissed, MARTLAND, RITCHIE and ESTEY JJ. dissenting.

Solicitor for the appellant: Bruce R. Fraser, Edmonton.

Solicitors for the respondent: O’Brien, Devlin, Munbolland, Calgary.