Brisson v. The Queen, [1982] 2 SCR 227

Supreme Court of Canada

Brisson v. The Queen, [1982] 2 S.C.R. 227

Date: 1982-08-09

Roger Brisson Appellant;

and

Her Majesty The Queen Respondent.

File No.: 16220.

1981: October 15; 1982: August 9.

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

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law—Murder—Charge to jury—Self-defence—Excessive force—Whether there was sufficient evidence to put the defence of self-defence to the jury—Whether use of excessive force in self-defence reducing murder to manslaughter—Section 613(1)(b)(iii) applicable—Criminal Code, R.S.C. 1970, c. C-34, ss. 7, 34, 212, 215, 613(1)(b)(iii).

Appellant was convicted of first degree murder and his appeal to the Court of Appeal was dismissed with a dissent. The dissenting judge found that, although the trial judge had properly put the defence of self-defence to the jury, he erred when he did not instruct them that if the appellant used excessive force in self-defence, murder could be reduced to manslaughter. The appeal was based on this dissenting judgment.

Held: The appeal should be dismissed.

Per Martland, Estey and McIntyre JJ.: A trial judge must put to the jury all defences which arise from the evidence. There must, however, be some evidence sufficient to give an air of reality to a defence before the obligation to put a defence can arise. Here, there was no evidence sufficient to require the trial judge to put the issue of self-defence to the jury, and the accused therefore suffered no injustice as a result of any deficiency in the charge. This was a case where s. 613(1)(b)(iii) of the Code should apply to dismiss the appeal.

Pappajohn v. The Queen, [1980] 2 S.C.R. 120; Kelsey v. The Queen, [1953] 1 S.C.R. 220; Wu v. The King, [1934] S.C.R. 609; Workman v. The Queen; Huculak v. The Queen, [1963] S.C.R. 266; Colpitts v. The Queen, [1965] S.C.R. 739, referred to.

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Per Laskin and Ritchie JJ.: There was no evidence to leave the issue of self-defence to the jury, let alone any issue of excessive self-defence as a basis for a verdict of manslaughter. This was a proper case to apply s. 613(1)(b)(iii) of the Criminal Code.

R. v. Challice (1979), 45 C.C.C. (2d) 546, referred to.

Per Dickson, Beetz, Chouinard and Lamer JJ.: It seems highly questionable whether there was evidence to warrant placing the defence of self-defence before the jury. In any event, unless related to intent under s. 212 of the Code or to provocation, the notion that excessive force in self-defence could reduce what would otherwise be murder to manslaughter should be rejected. On a reasonable statutory interpretation of s. 34 of the Code it is apparent that a qualified defence of excessive force does not exist.

R. v. Barilla (1944), 82 C.C.C. 228; Mead’s and Belt’s Case (1823), 1 Lewin 184, 168 E.R. 1006; R. v. Smith (1837), 8 Car & P. 160, 173 E.R. 441; R. v. Odgers (1843), 2 M. & Rob. 479, 174 E.R. 355; R. v. Hussey (1924), 89 J.P. 28; R. v. Ouellette, [1950] 2 W.W.R. 875; R. v. Basarabas and Spek (1981), 62 C.C.C. (2d) 13; R. v. Stanley (1977), 36 C.C.C. (2d) 216; R. v. Crothers (1978), 43 C.C.C. (2d) 27; R. v. Deegan, [1979] 6 W.W.R. 97; R. v. Fraser (1980), 55 C.C.C. (2d) 503; R. v. McKay, [1957] V.R. 560; R. v. Howe (1958), 100 C.L.R. 448; Viro v. The Queen (1978), 18 A.L.R. 257; Palmer v. The Queen, [1971] 1 All E.R. 1077; R. v. McInnes, [1971] 3 All E.R. 295; Reference under s. 48A of the Criminal Appeal (Northern Ireland) Act 1968 (No. 1 of 1975), [1976] 2 All E.R. 937; R. v. Appleby, [1979] 1 W.W.R. 664; R. v. Hay (1973), 22 C.R.N.S. 191; R. v. Campbell (1977), 38 C.C.C. (2d) 6; R. v. Trecroce (1980), 55 C.C.C. (2d) 202; R. v. Reilly (1982), 66 C.C.C. (2d) 146; Pilon v. The Queen, [1966] 2 C.C.C. 53; Linney v. The Queen, [1978] 1 S.C.R. 646; R. v. Bufalo, [1958] V.R. 363; R. v. Haley (1959), 76 W.N. (N.S.W.) 550; R. v. Tikos (No. 1), [1963] V.R. 285; R. v. Tikos (No. 2), [1963] V.R. 306; Aleksovski v. The Queen, [1979] W.A.R. 1; Masnec v. The Queen, [1962] Tas. S.R. 254; R. v. Johnson, [1964] Qd. R. 1; R. v. Hassin, [1963] Crim. L.R. 852, referred to.

APPEAL from a judgment of the Quebec Court of Appeal, [1980] C.A. 457, affirming a conviction

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of murder in the first degree. Appeal dismissed.

Michel F. Denis, for the appellant.

André Vincent, for the respondent.

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

THE CHIEF JUSTICE—This is an appeal from a judgment of the Quebec Court of Appeal, Bélanger J.A. dissenting, affirming a conviction of murder in the first degree entered on the verdict of a jury. The dissenting judge disagreed with the majority that, there having been misdirection on an important point by the trial judge, s. 613(1)(b)(iii) of the Criminal Code could be properly invoked for dismissal of the appeal. Having taken an appeal to this Court as of right based on Bélanger J.A.’s dissent, the appellant applied for and was given leave by this Court to raise four other grounds of appeal, all being questions of law.

In my view, only the ground on which Bélanger J.A. dissented raised any arguable issue in this case. Some of the other grounds may, in other circumstances, raise issues that should engage the concern of a final appellate court, but I do not find them cogent enough in this case to justify interference with the conviction. It is nonetheless desirable that I should speak to them in these reasons.

Perspective on all issues canvassed in this Court requires a brief reference to the facts, which are unusual and somewhat bizarre. The accused was charged with murder in the first degree for the unlawfull killing of a person whose burned body, defying identification, was found in the accused’s car which had been set on fire with gasoline. The medical or scientific cause of death could not be determined but there was evidence that the deceased did not die in the fire or, more precisely, from carbon monoxide asphyxiation. There was, however, a very high level of alcohol in his blood, high enough according to expert evidence, to be a possible cause of death. The body was discovered in the car on March 28, 1977.

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The accused had a grocery business in Montreal, Quebec, and was having financial difficulties as of the beginning of 1977. Early in March he obtained two birth certificates and later on a passport and an international vaccination certificate. On Saturday, March 26, 1977, he failed to take his store’s receipts (which were put into a bag containing cheques, accounts and cash) to his bank’s depository. Next day he left his young daughter with his brother-in-law and was seen leaving his store carrying two bags. He registered at a hotel in Montreal under a false name. On Monday, March 28, 1977, the day of the discovery of the burned body in his car, the accused flew to Toronto and then to Vancouver where he stayed for three days. Then an air ticket was issued in his name for a flight to Los Angeles and then to Tahiti.

On April 1, 1977, his Longueuil bank received the deposit minus the cash. Included was a letter to the manager, stating that the accused had been kidnapped, that money had been demanded and announcing his death because he could identify his abductors. Prints found on the letter were later identified as those of the accused. On May 7, 1977 he travelled by air from Los Angeles to Montreal where he registered in a rooming house. A niece recognized him at an intersection two days later and on May 15, 1977 a former work-mate of the accused recognized him and followed him to the rooming house. He notified the family who had thought the accused was dead. A brother sought out the police who went with him to the rooming house where they found the accused with some money, with Montreal newspapers dating from preceding March 28th and with his passport showing his itinerary to Tahiti. From the time of his return to Montreal until he was discovered, the accused did not contact any of his family or his friends.

He did not testify at his trial but gave evidence at a voir dire respecting the admissibility of three statements he made to the police. All three were admitted in evidence. The first two statements, which it is unnecessary to canvass in any detail, referred to a contrived account of his kidnapping

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and of his treatment by his kidnappers after he was allegedly seized at his car near his place of business and when he was on his way to make a night deposit at his bank. According to the first statement, it was they who took him to a Montreal hotel, then to Toronto, Vancouver and Los Angeles. The second statement was substantially the same with some update in saying that he was flown to Tahiti, and touching on other facts then known to the police. There was no explanation by the accused as to why he did not try to get in touch with the authorities in the various places where he was allegedly left by his kidnappers or try to reach his family. The obvious falsity of the statements as to the kidnapping could not but be damaging.

The third statement was of a completely different character. He said in it that his business was in a precarious state and that in desperation he decided to walk away from everything. He obtained a passport and on March 27, 1977 he took the bank deposit from his store, put certain effects in some bags, placed a case of beer in the back seat of his car and went to rent a room in a Montreal hotel. Still undecided about leaving, he went for a walk and met a tramp (un clochard) with whom he had dinner. They came back by taxi to the hotel and the tramp was put in the accused’s car and given a 40 oz. bottle of rye. They drove around for two and one-half to three hours, the tramp drinking constantly. A dispute broke out and the tramp hit the accused across the forehead with the half-full bottle of rye. The accused stopped the car and tried to calm his passenger but could not do so. He pushed him to the corner, stretched his arm over the back seat, took a bottle of beer from the case that was there and hit the tramp on the head with the bottle to calm him but the bottle broke and the person lay inert, crumbled on the front seat with his head at the door. The accused drove around for some time with the inert body which was bleeding from the ears. He then took two gasoline cans which he had in his trunk and filled them at a station and later set the interior of the car on fire. The statement also contained an admission by the accused that he sent the “kidnap” letter to the bank and also described his travels to the west

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coast and to the Pacific.

Of the five grounds of appeal in this case, the one that can be dismissed out of hand is that there was no proper hearing before the Court of Appeal when the three judges of the Court, each giving reasons, did not pass on all the issues raised before them. They gave dispositive reasons, and the fact that one or more of them found it unnecessary to dwell on all the points raised in argument does not amount to reversible errors, however desirable it may be, especially for an appellant looking to a further appeal, that each point raised be separately considered. Again, I am unable to agree that there was reversible error here in the instruction given by the trial judge on character evidence, especially when the accused did not testify. The trial judge in saying that evidence of good character has no effect when there is proof beyond a reasonable doubt of the commission of the crime charged is saying in effect that good character is not itself a defence. Of course, evidence of good character may have a bearing on intent but in the circumstances here this is not such a case.

A third point taken on behalf of the accused was that the trial judge improperly told the jury that the same rules applied to the assessment of testimony, whether offered by the Crown or by the defence. If the trial judge’s instructions in this connection could be taken as diminishing or qualifying the burden of proof resting on the Crown, there would be merit in the contention. In the context in which the challenged instruction was given, I do not think the objection to it can stand. This is not a case where the jury may have been misled by being directed to determine guilt or innocence on the basis of the credibility of the witnesses on each side: see, for example, R. v. Challice (1979), 45 C.C.C. (2d) 546.

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The fourth ground taken by the accused was that there was fatal misdirection by the trial judge in telling the jury that they did not have to determine the cause of death in order to find the accused guilty and also in telling them that if they concluded that alcohol was the cause of death, they should acquit. What was apparently objected to on the latter point was the trial judge’s use of the word “conclusion” in telling the jury that if they came to the conclusion that alcohol was the cause of death they should acquit. The objection was that this watered down the burden of proof on the Crown. Having regard to the trial judge’s charge on this issue, the objection is trifling and without merit.

So too, in this case, there is no merit in the contention that the trial judge erred in telling the jury that they did not have to determine the cause of death to find the accused guilty. The mere fact that in some cases the cause of death cannot be determined is no more a disabling hurdle for the Crown than the fact that in some cases there is no corpus delicti. If there is evidence upon which a jury can determine beyond a reasonable doubt that the death of a person was brought about by an unlawful act of the accused accompanied by the required intent to constitute the offence of murder, a finding of the exact cause of death, in a medical or scientific sense, is not a necessary condition of conviction. Causation, where there is a jury, is essentially a jury question on a proper instruction by the trial judge as to the law. In this case, proper instruction was given. The trial judge made it clear that in order to convict of murder the jury had to find that an unlawful act of the accused caused the death of the victim and he also instructed them on the required intent. Again, he said, quite properly, that if the jury determined that death resulted from alcohol, they should acquit.

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This brings me to the point of law on which Bélanger J.A. dissented. Bélanger J.A. took the clear point that there was a fatal failure by the trial judge, having dealt with self-defence, to instruct on manslaughter if in acting in self-defence the accused used excessive force in the circumstances. Although the trial judge had instructed the jury on provocation and its effect on the murder charge, he did not relate manslaughter to any specific defence when, at the end of his address to the jury, he told them of the four verdicts that were open to them, namely, murder in the first degree, murder in the second degree, manslaughter and acquittal. According to Bélanger J.A., the jury was placed in the position of finding the accused guilty of murder if they found he had used excessive force in acting in self-defence rather than finding him guilty of manslaughter. The learned dissenting judge made no mention of s. 613(1)(b)(iii), being obviously of the opinion that where there is a serious non-direction amounting to a misdirection there is no room for the application of the curative provision. I agree with him completely in a case where the accused is deprived of his legal right to have the jury pass on a qualified defence that would, if accepted, result in a verdict of manslaughter.

I had originally formed the view that there was a basis in the evidence not only to support an instruction on self-defence alone (which the trial judge gave) but also evidence of possible excessive force requiring, according to Bélanger J.A., an instruction on manslaughter. (If this was a correct view of the issues, it would obviously be wrong to apply the curative provisions of Criminal Code, s. 613(1)(b)(iii)).

Having read the reasons of Dickson J. and those prepared by my brother McIntyre, I have reviewed again the record of the facts which I have set out

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in my reasons herein and am now persuaded that the trial judge overreached in leaving even self-defence to the jury. I therefore agree with my brother McIntyre that there was no evidence to leave that issue to the jury, let alone any issue of excessive self-defence as a basis for a verdict of manslaughter. I also now agree with him, following the majority judgments of the Quebec Court of Appeal, that this is in any event a proper case to apply the proviso in Criminal Code, s. 613(1)(b)(iii).

I would accordingly, and following McIntyre J., dismiss the appeal.

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

MCINTYRE J.—I have read the reasons for judgment of my brothers, the Chief Justice and Dickson J. I agree with the Chief Justice in his rejection of all grounds of appeal. Though I agree in the result reached by Dickson J., in that I would dismiss the appeal, I would confine my reasons for so doing to the proposition that there was no evidence before the trial judge sufficient to require him to put the issue of self-defence to the jury, and the accused therefore suffered no injustice as a result of any deficiency in the charge. It is also, in my view, a case where the provisions of s. 613(1)(b)(iii) of the Criminal Code would apply to dismiss the appeal in any event.

A trial judge must put to the jury all defences which arise from the evidence. There must, however, be some evidence sufficient to give an air of reality to a defence before the obligation to put a defence can arise. In Pappajohn v. The Queen, [1980] 2 S.C.R. 120, at pp. 126 and 127, I dealt with this question—with the approval of the majority of the Court—and I would refer again to the words of Fauteux J. in Kelsey v. The Queen, [1953] 1 S.C.R. 220, where he said, at p. 226:

The allotment of any substance to an argument or of any value to a grievance resting on the omission of the

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trial Judge from mentioning such argument must be conditioned on the existence in the record of some evidence or matter apt to convey a sense of reality in the argument and in the grievance.

See, as well, the other cases referred to in Pappajohn on this point: Wu v. The King, [1934] S.C.R. 609 and Workman v. The Queen; Huculak v. The Queen, [1963] S.C.R. 266.

Can it be said in the case at bar that there was before the court at trial any such evidence which would convey a sense of reality in the suggestion that the accused killed in self‑defence? In my view, the answer must be: no.

The appellant did not give evidence at trial. The suggested basis for the defence of self‑defence is to be found in a statement he made to the police which is reproduced, in part, in the reasons of Dickson J. in these terms:

[TRANSLATION] At that point I stopped the car suddenly. I asked him to calm down, which he had no intention of doing. I pushed him back to his side, reached over to the back seat, took a bottle of beer from a case of twelve and hit him on the head with it to calm him down. The bottle shattered and he stopped moving. He was slumped over and motionless on the front seat with his head leaning against the door on the trim next to the window.

This statement was put before the jury with the other evidence which revealed the planning and deliberation, and the elaborate scheme referred to in the recital of facts given by the Chief Justice. In my view, it affords no basis for a suggestion of self-defence but, assuming it is true, it speaks rather of the reaction of an angry man who, with one hand, was capable of holding his opponent down while he, sitting in the driver’s seat of a car, reached with the other arm into the back seat of the car, opened the case of beer, took out a bottle and delivered a blow to the head of his opponent. This does not afford evidence of repelling force by force in the words of s. 34(1) of the Criminal Code. Rather it provides evidence of a calculated retaliation, well after any need for self-defence existed. In my view, no air of reality attaches to the assertion that the appellant acted in self-defence, particularly when this statement—the sole basis of the defence—is considered against the

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background of the evidence adduced by the Crown. The trial judge, therefore, was not required to charge on this issue.

In the Court of Appeal, Crête C.J.Q. and Monet J.A. were of the opinion that any deficiencies in the charge on the issue of self-defence were such that the proviso in s. 613(1)(b)(iii) of the Code should be applied to dismiss the appeal. I am in agreement with them. Applying the test in Colpitts v. The Queen, [1965] S.C.R. 739, and even assuming some deficiency in the charge given in this case, I am of the view that on the whole of the evidence, much of which was uncontested, there is no possibility that a jury, properly instructed, would have any reasonable doubt on the question of the appellant’s guilt.

I refrain from any comment on the question dealt with by Dickson J. regarding the availability of a verdict of manslaughter where an accused acting in self-defence, as described in s. 34 of the Code, causes a death by the use of an excess of force.

I would dismiss the appeal.

The reasons of Dickson, Beetz, Chouinard and Lamer JJ.

DICKSON J.—This is an appeal from the Court of Appeal of Quebec following conviction of the appellant Brisson, by a jury at Montreal, on a charge of first degree murder. The question of substance is whether the trial judge erred in failing to direct the jury that if they found that the accused had used excessive force in defending himself from his victim, they should find him guilty only of manslaughter, and not murder.

After study of the transcript and the authorities the views which I hold with respect to the self‑defence issue are as follows. In the first place I question whether there was any evidentiary base for the defence. Secondly, in my view, the verdict is murder and not manslaughter if the Crown establishes the requisite deadly intent (means to

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cause death or means to cause bodily harm that he knows is likely to cause death and is reckless whether death ensues or not, s. 212 of the Criminal Code) and the defence of self‑defence fails.

I

On the evidentiary point, the evidence gleaned from a statement of the accused to the police, was to the following effect. Brisson had met un clochard (a rubby-dub) with whom he had had supper. He took the clochard by taxi to the parking lot of the Hotel Loews and put him in his car. He gave the clochard a 40-ounce bottle of rye that was already in the trunk of the car. They drove about in the car for two-and-one-half hours, the clochard drinking throughout this time. At one point a dispute broke out and the clochard hit Brisson on the forehead with the half-empty bottle of rye. The statement by Brisson continues:

[TRANSLATION] At that point I stopped the car suddenly. I asked him to calm down, which he had no intention of doing. I pushed him back to his side, reached over to the back seat, took a bottle of beer from a case of twelve and hit him on the head with it to calm him down. The bottle shattered and he stopped moving. He was slumped over and motionless on the front seat with his head leaning against the door on the trim next to the window.

On these facts it seems to me highly questionable whether there was evidence to warrant placing the defence of self-defence before the jury. Assuming, however, arguendo that the trial judge was correct in charging the jury on self-defence I pass to the substantial legal point which arises.

II

Canadian Authorities

The defence of self-defence is codified in our Criminal Code. The Code preserves the common law with slight variation. Although it is to the Code and not the cases that we should primarily direct attention, the Canadian authorities which

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have considered the issue of excessive force in self-defence have paid scant heed to the Code. They have concentrated, in the main, on the jurisprudence as it has developed in Australia, in England and in Canada. For that reason I will turn to the cases before addressing s. 34 of the Criminal Code.

A number of Canadian cases have suggested that it is open to a jury to bring in a verdict of manslaughter if they find that the force used by an accused in self-defence is excessive. The first of these is R. v. Barilla (1944), 82 C.C.C. 228 (B.C.C.A.). O’Halloran J.A. found error on the part of the trial judge in failing to instruct the jury that if they found that firing the revolver as Barilla did was an unnecessarily violent act of self-defence in the circumstances of the attack then launched, that it was open to them to find a verdict of manslaughter. There was no discussion in Barilla of the principles involved and no mention of the Criminal Code. O’Halloran J.A. relied on three very early English cases: Mead’s and Belt’s Case (1823), 1 Lewin 184, 168 E.R. 1006; R. v. Smith (1837), 8 Car & P. 160, 173 E.R. 441; R. v. Odgers (1843), 2 M. & Rob. 479, 174 E.R. 355 and upon the later case of R. v. Hussey (1924), 89 J.P. 28.

A close reading of the cases relied upon in Barilla provides scant support for the legal proposition for which those cases are said to stand. As will be seen, the Privy Council and the English Court of Appeal in later cases did not draw from these and other early English authorities the conclusion that excessive force in self-defence results in a manslaughter verdict.

Many of the Canadian cases simply follow Barilla. See for example, R. v. Ouellette, [1950] 2 W.W.R. 875 (B.C.C.A.) and R. v. Basarabas and Spek (1981), 62 C.C.C. (2d) 13 (B.C.C.A.). In R. v. Stanley (1977), 36 C.C.C. (2d) 216 (B.C.C.A.), Branca J.A. stated the law in the following terms (at p. 232):

If the force used was not excessive and/or if the death was caused with the justification offered in s. 34(2)(a)

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and (b) then he, Stanley, was justified in killing Blosky and was not criminally responsible.

On the other hand, if the force used was excessive or if the death was caused in circumstances not coming within the justification provided in s. 34(2)(a) and (b) and if there was not an intent within s. 212, then the death was caused by an unlawful act but not in circumstances amounting to murder.

The critical words are those found in the second paragraph “and if there was not an intent within s. 212”. In R. v. Crothers (1978), 43 C.C.C. (2d) 27 the Saskatchewan Court of Appeal purported to adopt the principles stated by Branca J.A. in the headnote in Stanley’s case. But the headnote is in error. The words to which I have above directed attention are repeated in the headnote “and if there was not intent within s. 42 of the Criminal Code”. Section 42 is concerned with assertion of a right to a house or real property. No mention is made of s. 212 of the Code dealing with intent in murder.

Alberta has been the province in which the doctrine has been most favourably received but the Alberta Court of Appeal has been divided in its opinion as to the legal underpinning of the doctrine. In R. v. Deegan, [1979] 6 W.W.R. 97 (Alta. C.A.) Prowse J.A. said (at p. 104):

If the accused’s mind was consumed with an apprehension of death or grievous bodily harm, his acts thereafter “being the purely physical products of” such passion, can it be said that he formulated the requisite specific intent for murder? In my view, in such circumstances, he cannot be said to have formed a genuine intent of the nature required to support such a conviction.

If the accused does not have the intent requisite for murder under s. 212 of the Code or if there is reasonable doubt on the point, then of course the verdict should be manslaughter and not murder. If that is what is meant by the above passage then it would seem to me to be in accordance with principle. If, however, Mr. Justice Prowse is speaking of an intent other than that contemplated in s. 212 of the Code then I confess to some difficulty, and it is

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compounded by the following passage from his reasons (at p. 105):

In cases where the learned trial judge finds that there is evidence that warrants placing the defence of self-defence before the jury, I am of the view that it is sufficient, in placing this issue of manslaughter based on such evidence, to do so by putting the following question to it: “If you find that the accused’s actions were dictated by a fear of death of grievous bodily harm, or if you are left with a reasonable doubt on that point, then you should bring in a verdict of manslaughter although you found he used excessive force.”

This issue only arises after the jury has rejected the defence of self-defence, and is considering whether the accused had the intent required to support a conviction for murder. For this reason care should be taken to make clear to the jury that it must only consider this issue if it rejects that defence.

In R. v. Fraser (1980), 55 C.C.C. (2d) 503 Mr. Justice Moir of the Alberta Court of Appeal reviewed in some detail the Australian cases of R. v. McKay, [1957] V.R. 560, R. v. Howe (1958), 100 C.L.R. 448 (H.C. of Austr.) and Viro v. The Queen, (1978), 18 A.L.R. 257 (H.C. of Austr.) and concluded (at p. 522):

The Australian High Court has therefore held that the qualified defence of excessive force operates as does the defence of provocation. The effect of the defence is not to negative the intention to kill or to cause injury but to hold that an intent to kill or injure, when force is permissible, is less morally culpable than the intent to kill or injure recklessly under other circumstances.

He referred to the fact that this conclusion was rejected by the Judicial Committee of the Privy Council in Palmer v. The Queen, [1971] 1 All E.R. 1077 followed by the English Court of Appeal in R. v. Mclnnes, [1971] 3 All E.R. 295 and left open by the House of Lords in Reference under s. 48 A of the Criminal Appeal (Northern Ireland) Act 1968 (No. 1 of 1975), [1976] 2 All E.R. 937.

Moir J.A. (with whom Lieberman J.A. concurred) observed, correctly in my opinion, that the law of Canada is in a very unsatisfactory state. “Decisions of various Courts of appeal go in both

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directions and, indeed, may be inconsistent within the same Court.” He continued at p. 523:

In the rather uncertain state of the law and for the reasons given by the High Court of Australia in Viro I hold that the qualified defence of excessive force is available to the respondent. However, for it to exist the following elements must be found by the trier of fact:

1. Certain serious circumstances must exist which led the accused to reasonably believe a situation involving danger existed.

2. The accused used unreasonable or excessive force.

3. The accused was acting honestly when he used excessive force in that he mistakenly believed that the degree of force he was using was reasonable.

If all of these elements are found, and even if the trier of the fact concludes the accused intentionally killed the victim, the qualified defence may be successfully invoked and the accused may be found guilty of manslaughter only.

Mr. Justice Moir founded himself upon a reduced moral culpability of the accused, as in provocation, to make the crime manslaughter and not murder. One of the difficulties of this approach, as it seems to me, lies in the fact that Parliament has recognized the possibility of a lesser moral culpability in a situation of provocation and has made due provision for it, in express and precise terms, in s. 215 of the Code. Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation (s. 215(1)). The conditions which must be met are set out in detail in the Code:

(2) A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted upon it on the sudden and before there was time for his passion to cool.

(3) For the purposes of this section the questions

(a) whether a particular wrongful act or insult amounted to provocation, and

(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,

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are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.

Mr. Justice Moir and Mr. Justice Lieberman in R. v. Fraser, supra, adopted the very detailed charge as set out by Mason J. in Viro v. The Queen:

(1)(a) It is for the jury first to consider whether when the accused killed the deceased the accused reasonably believed that an unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him.

(b) By the expression ‘reasonably believed’ is meant, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself.

(2) If the jury is satisfied beyond reasonable doubt that there was no reasonable belief by the accused of such an attack no question of self-defence arises.

(3) If the jury is not satisfied beyond reasonable doubt that there was no such reasonable belief by the accused, it must then consider whether the force in fact used by the accused was reasonably proportionate to the danger which he believed he faced.

(4) If the jury is not satisfied beyond reasonable doubt that more force was used than was reasonably proportionate it should acquit.

(5) If the jury is satisfied beyond reasonable doubt that more force was used, then its verdict should be either manslaughter or murder, that depending upon the answer to the final question for the jury—did the accused believe that the force which he used was reasonably proportionate to the danger which he believed he faced.

(6) If the jury is satisfied beyond reasonable doubt that the accused did not have such a belief the verdict will be murder. If it is not satisfied beyond reasonable

[Page 244]

doubt that the accused did not have that belief the verdict will be manslaughter [at p. 303].

If the law of Canada is as above and judges must henceforth give juries instructions on the issue of manslaughter arising from excessive use of force in self-defence along the lines of those set forth by Mason J. in Viro v. The Queen, I cannot but think that the task of the jury, presently difficult enough in a murder case, will be vastly more so.

In Manitoba a unanimous Court of Appeal in R. v. Appleby, [1979] 1 W.W.R. 664 rejected the idea that if excessive force is used, then the verdict must be manslaughter and not murder, O’Sullivan J.A. being of the opinion that the present law in England and in Canada is as summed up in Arch-bold Criminal Pleading, Evidence and Practice, 39th ed., 1976, p. 1035, paragraph 2470:

Where a person who is attacked uses a greater degree of force than was necessary in the circumstances and thereby kills the aggressor, and the jury accordingly reject a defence of self-defence, a verdict of manslaughter may in some cases still be open to them. There is no rule that, on a charge of homicide where a defence of self-defence has been raised but has failed because the force used went beyond what was reasonable in the circumstances, the judge should direct the jury that the verdict should be guilty of manslaughter only… There are cases of this kind where a direction to that effect would be wholly inappropriate and where the proper verdict would be guilty of murder …However, the facts on which the defence of self-defence was unsuccessfully sought to be based may in some cases go to show that the defendant acted under provocation or that, although acting unlawfully, he lacked the intent to kill or to cause grievous bodily harm; and in such cases a verdict of manslaughter would be proper.

Archbold, of course, is summarizing the position in England subsequent to the Privy Council decision in Palmer v. The Queen, supra.

The Ontario Court of Appeal has dealt with the matter now under discussion in a number of cases over the last few years. In R. v. Hay (1973), 22

[Page 245]

C.R.N.S. 191 the Court concluded that no jury properly instructed could have come to the conclusion that the force represented by the firing of the shot was not excessive; accordingly, on the evidence, the defence of self-defence was not available to the accused. In R. v. Campbell (1977), 38 C.C.C. (2d) 6, the charge was one of attempted murder and it was urged that the trial judge had erred in failing to direct the jury that excessive force in self-defence leads to a verdict of attempted manslaughter. The court held it unnecessary to decide the question whether there is a separate rule that excessive force used in self-defence reduces murder to manslaughter and the limits of that doctrine, since, where it is recognized, it is applicable only where the charge is murder. Mr. Justice Martin, speaking for the court, noted that the Judicial Committee of the Privy Council in Palmer v. The Queen, supra, held that there is no separate rule of law that excessive force in self-defence leads to a verdict of manslaughter, although an issue might, none the less, arise whether there was provocation where self-defence is relied on, or whether the requisite intent for murder had been proved. He added “[e]ven in Australia where excessive force in self-defence is recognized as a “qualified” defence to murder, the precise limits of the doctrine have not been finally settled: see Australian Criminal Law, 2nd ed., pp. 96-98, by Colin Howard” (at p. 17).

The Ontario Court of Appeal returned to the question of excessive self-defence in R. v. Trecroce (1980), 55 C.C.C. (2d) 202, the judgment of the court being again delivered by Mr. Justice Martin. The discussion on this point was obiter (at p. 211):

In the present case, assuming without deciding, that the qualified defence of excessive self-defence exists as a substantive doctrine, the circumstances were not such as to require its submission to the jury.

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and:

Whatever the true view may be, which we do not find necessary to decide, the doctrine of excessive force in self-defence has no application to the facts of this case. Where excessive force in self-defence has been recognized as a substantive doctrine, it would appear that the following conditions, at least, are necessary to give rise to that qualified defence:

(a) The accused must have been justified in using some force to defend himself against an attack, real or reasonably apprehended.

(b) The accused must have honestly believed that he was justified in using the force that he did.

(c) The force used was excessive only because it exceeded what the accused could reasonably have considered necessary.

Prior to the foregoing passage Mr. Justice Martin reviewed most of the cases to which I have adverted and then referred to the writings of Professor Colin Howard, who has written extensively on the subject (at pp. 210-11):

Professor Colin Howard who, on balance, supports the view that excessive self-defence is a qualified defence to murder discusses in an informative article some of the difficulties inherent in the doctrine: “Two Problems in Excessive Defence”, 84 L.Q.R. 343 (1968). The rationale of the doctrine has, perhaps, not been finally settled. Professor Howard suggests that the basis of excessive self-defence might be assimilated with provocation, extenuating even an intentional killing. He, however, appears to favour the view that a killing by the use of excessive force in self-defence is properly classified as a form of involuntary manslaughter arising from criminal negligence. The doctrine is not necessarily more generous to the accused than the traditional view as expounded by Lord Morris in Palmer v. The Queen, supra: see Smith and Hogan, Criminal Law, 4th ed. (1978), pp. 330-1.

Recently, in an as yet unreported decision[1], R. v. Reilly (Howland C.J.O., Arnup and Weatherston JJ.A., judgment delivered March 9, 1982) the Ontario Court of Appeal, speaking through Arnup

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J.A. again reviewed the cases and concluded:

In the light of the decisions of the Courts of Appeal of British Columbia, Alberta and Saskatchewan, and upon consideration of the careful review of the subject by Martin J.A. in Campbell and Trecroce, supra, I have reached the conclusion that the doctrine of excessive force in self-defence rendering the accused guilty only of manslaughter instead of murder should be recognized in Ontario. Without deciding that there are no other requisites for its application in particular cases, I conclude also that the conditions stated by Martin J.A. in Trecroce as to the minimum prerequisites should be applied.

The judgment does not say why the use of excessive force in self-defence should reduce murder to manslaughter, nor is there reference to the Criminal Code.

The review of judgments of provincial appellate courts will be complete with reference to Pilon v. The Queen, [1966] 2 C.C.C. 53 in which Owen J.A. was of the opinion, at p. 59 of the report, that the instructions given to the jury were not satisfactory, in particular because “the presiding Judge omitted to instruct the jury that excessive force used in self-defence could result in a verdict of manslaughter”. That is all that was said on the point.

In Linney v. The Queen, [1978] 1 S.C.R. 646, Mr. Justice de Grandpré and I, in our respective judgments, made reference to the trial judge’s charge in which, inter alia, he directed the jury that excessive use of force in self-defence would lead to a verdict of manslaughter. That part of the charge passed without comment in this Court for the reason that that issue was not before us. The only question in Linney’s case was whether the trial judge erred in failing to instruct the jury that if they were in doubt as to whether the act of killing was provoked it was their duty to reduce the offence from murder to manslaughter.

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A review of the Canadian authorities shows a singular lack of uniformity in result and in reasoning. It is difficult to say that the cases follow any pattern, or the law of any country, or that, to date, any clear statement of principle has emerged.

III

Australia

The defence of the excessive use of force in self-defence is often referred to as an Australian doctrine and its origin traced to a series of Australian cases. Some common law states in Australia have held that an accused, who used more force than reasonably necessary to defend himself and caused the death of his assailant, would be guilty of manslaughter and not murder, provided he believed that the degree of force he was using was warranted by the situation. The general statement of the Australian law was made by Dixon C.J. in Howe, supra, at pp. 460-61:

The assumption made for the purpose of [deciding whether excessive defence is manslaughter] is that a man actually defending himself from the real or apprehended violence of the deceased has used more force than was justified by the occasion and that death has ensued from this use of excessive force. In all other respects, so it is assumed, the elements of a plea of self-defence existed. That is to say it is assumed that an attack of a violent and felonious nature, or at least of an unlawful nature, was made or threatened so that the person under attack or threat of attack reasonably feared for his life or the safety of his person from injury, violation or indecent or insulting usage. This would mean that an occasion has arisen entitling the person charged with murder to resort to force to repel force or apprehended force. Had he used no more force than was proportionate to the danger in which he stood, or reasonably supposed he stood, although he thereby caused the death of his assailant he would not have been guilty either of murder or manslaughter. But assuming that he was not entitled to a complete defence to a charge of murder, for the reason only that the force or violence which he used against his assailant or apprehended assailant went beyond what was needed for his protection or what the circumstances could cause him reason-

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ably to believe to be necessary for his protection, of what crime does he stand guilty? Is the consequence of the failure of his plea of self-defence on that ground that he is guilty of murder or does it operate to reduce the homicide to manslaughter?

Dixon C.J. gave this answer to the question he posed himself:

There is no clear and definite judicial decision providing an answer to this question but it seems reasonable in principle to regard such a homicide as reduced to manslaughter…

See in elaboration of this R. v. Howe, supra, Viro v. The Queen, supra, R. v. Bufalo, [1958] V.R. 363, R. v. Haley (1959), 76 W.N. (N.S.W.) 550, R. v. Tikos (No.1), [1963] V.R. 285, R. v. Tikos (No. 2), [1963] V.R. 306. There is also extensive scholarly writing available including Morris, “The Slain Chicken Thief”, (1958) 2 Sydney L. Rev. 414; Morris, “Development in the Law of Homicide”, [1960] Crim. L.R. 468; Morris, “A New Qualified Defence to Murder”, (1960) Adelaide L. Rev. 23:

This explicit formulation by the Australian courts of a previously unrecognised qualified defence to a charge of murder is a major development in the law of homicide. It recognises a middleground between a conviction of murder and an acquittal… [at p. 23].

Some authors have expressed doubt as to the utility of this development, given the familiar rules relating to involuntary manslaughter. Thus, Professor Howard has written:

The second difficulty in the present law arises from the form it has taken of being a new category of voluntary manslaughter. To regard excessive defence in its present form as voluntary manslaughter is unsatisfactory because there is no present analogy between excessive defence and provocation. It follows that the law would be clearer and more satisfactory if an excessive defence case were regarded as an instance of involuntary manslaughter rather than voluntary manslaughter.

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Alternatively, if they thought it were open to them, the courts might convert excessive defence into a true voluntary manslaughter by changing its basis to assimilate it with provocation [Howard, “Two Problems in Excessive Defence”, (1968) 84 L.Q.R. 343 at pp. 360-61].

Other useful scholarly writings are Howard, “Excessive Defence”, [1964] Crim. L.R. 448, Morris and Howard, “A New Manslaughter” in Studies in Criminal Law (1964); Smith, “Excessive Defence—A Rejection of Australian Initiative”, [1972] Crim. L.R. 524; Sornarajah, “Excessive Self-Defence in Commonwealth Law”, (1972) 21 Int. and Comp. L.Q. 758; James, “The Queens-bury Rules of Self Defence”, (1972) 21 Int. and Comp. L.Q. 357.

Professor Elliot (“Excessive Self-Defence in Commonwealth Law” (1973) 22 Int. and Comp. L.Q. 727) is critical of the doctrine. He introduces his article with the trenchant paragraph:

The task of defining the proper scope of excessive self-defence is a difficult one. It will be argued that the Australian cases, despite their considerable heuristic value, have not resolved the difficulty. It should be added that, so far as Australian law is concerned, it may well be time for an obituary. The plea of excessive self-defence has no basis in statute or code in Australia. It was fashioned from common law material and it is not unlikely that the doctrine received its quietus with the Privy Council decision in Palmer.

Discussing the limits of self-defence in the Australian cases, he concludes that (at p. 736):

The common law doctrine of excessive self-defence, as it has developed in Australia, is seriously defective. In cases where it does apply it will often add little more than unnecessary complication to the issues of self-defence and provocation. And it appears to be inapplicable in a class of cases where there is genuine need for a qualified defence.

[Page 251]

It must not be forgotten that in Australia, as in the United States, criminal law is a matter of state competence and thus may vary from state to state. Added to this is the fact that some of the Australian states have adopted criminal codes whereas others have not, preferring to remain common law criminal jurisdictions. The so-called “qualified defence” of excessive force is a product of the common law states. Of the three states possessing criminal codes, Queensland, Tasmania and Western Australia all have rejected the concept. “It has been held in both Queensland and Tasmania that the doctrine is peculiar to the common law and therefore has no application under the codes of those states” (Howard, Criminal Law (1977), at p. 90). Subsequent to this statement by Professor Howard it was held in Western Australia that under the Criminal Code of that state if a defence under s. 248 or 249 of the Code would fail because the degree of force used in self-defence was excessive, the crime is not reduced from murder to manslaughter: Aleksovski v. The Queen, [1979] W.A.R. 1.

The rejection of the “qualified” defence of excessive self-defence by all those Australian states which have a criminal code is of interest to us in Canada, as are the reasons for the rejection. The obstacle to reading the principle into the Tasmanian Code was found in the detailed provisions which the Code made in relation to the same subject matter: Masnec v. The Queen, [1962] Tas. S.R. 254, at p. 262. “Sections 46 and 47 as to the use of force in self‑defence are but two of a group of no less than twenty sections covering comprehensively the occasions on which the use of force is legally justified”. Sections 25 to 45 of the Canadian Criminal Code equally cover comprehensively and authoritatively the occasions on which the use of force is legally justified. There would seem to be little room for competing or supplementary common law doctrine.

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It has been said by one or more of the authors that the presence in our Code of s. 7(3) affords a means of supplementing our Code with a common law defence not open to the Australian states because the criminal codes of those states lacked the equivalent of s. 7(3). That is not correct. Section 7(3) of our Code reads:

(3) Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of the Parliament of Canada, except in so far as they are altered by or are inconsistent with this Act or any other Act of the Parliament of Canada.

Section 8 of the Tasmanian Criminal Code Act is a comparable section and the Tasmanian Court of Criminal Appeal responded to argument based thereon as follows (at p. 265):

As to the same s. 8 of the Act, which formed the basis of the second argument, it is true that in terms it operates to save “all rules and principles of the Common law which render any circumstances a justification or excuse for any act or omission”, but it only does so except insofar as they are altered by or are inconsistent with the Code. In view of the compelling words of s. 157(1)(c) in particular we are unable to give this general provision the effect contended for, in any case there is good reason historically for viewing it as having been inserted ex abundante cautela (see per Crisp J. in Reg. v. Vallance, [1960] Tas. S.R. 51, at p. 86) and not as intended to modify one of the most significantly comprehensive parts of the whole Code.

Section 157(1)(c) is the counterpart of s. 212(a) of our Code. In R. v. Johnson, [1964] Qd. R. 1 the Court of Criminal Appeal of Queensland refused to follow R. v. Howe for the reason given in the headnote:

The common law doctrine expressed in R. v. Howe ([1958] 100 C.L.R. 448), that where a plea of self defence to murder fails only because the death was occasioned by the use of excessive force a verdict of manslaughter should be returned, is based on the common law concept that malice aforethought is an

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essential ingredient of murder. That concept is no part of the law of Queensland and the doctrine referred to is not expressly or impliedly incorporated into the Code.

The Supreme Court of Western Australia—Court of Criminal Appeal—in Aleksovski v. The Queen, supra, rejected R. v. Howe and Viro v. The Queen. A passage from the judgment of Burt C.J. will suffice to explain why.

In my opinion and for the reasons given by the Court of Criminal Appeal in R. v. Johnson [1964] Qd. R. 1, those cases have no application to the Criminal Code. In my opinion, under the Code, and expressing myself now without regard to the onus of proof, if the act causing death was done with intent to kill or to cause grievous bodily harm, but in self defence within the meaning of the second part of s 248, the verdict is not guilty; if that defence fails and if nothing more appears, the verdict is wilful murder or murder as the case might be. There is no half-way house [at p. 5].

IV

England

When one comes to consider the interplay of the so-called qualified defence of excessive force and criminal codes one finds that the issue is by no means a new one. The authors (Lord Blackburn, Barry, Lush and Stephen JJ.) of the 1879 Report of the Criminal Code Bill Commission whose Draft Code formed the basis of the Canadian Criminal Code of 1892 considered the doctrine of excessive self-defence and rejected it out of hand (C. 2345 English Parliamentary Papers (1879) Vol. 36, p. 157). The earlier Report of the Commissioners who framed the Indian Penal Code had argued for the same half-way house which later found favour in some of the Australian courts. The Report of the Indian Code states (Criminal Code Bill Commission—Report, at p. 45):

For the law itself has encouraged the slayer to inflict on the assailant any harm short of death which may be necessary for the purpose of repelling the outrage,—to give the assailant a cut with a knife across the fingers, which may render his right hand useless to him for life,

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or to hurl him downstairs with such force as to break his leg. And it seems difficult to conceive that circumstances which would be a full justification of any violence short of homicide, should not be a mitigation of the guilt of homicide. That a man should be merely exercising a right by fracturing the skull and knocking out the eye of an assailant, and should be guilty of the highest crime in the code if he kills the same assailant,—that there should be only a single step between perfect impunity and liability to capital punishment seems unreasonable. In a case in which the law itself empowers an individual to inflict any harm short of death, it ought hardly, we think, to visit him with the highest punishment if he inflicts death.

The authors of the 1879 Report flatly rejected this argument: “If we thought that the common law was such as is here supposed, we should without hesitation suggest that it should be altered. But we think that such is not and never was the law of England. The law discourages persons from taking the law into their own hands. Still the law does permit men to defend themselves …And when violence is used for the purpose of repelling a wrong, the degree of violence must not be disproportioned to the wrong to be prevented, or it is not justified” (at p. 45). In the view of the Commissioners provocation and full self-defence, if I may use that term, exhausted the possibilities. The Report of the Commissioners was in accordance with the traditional English view of the defence of self-defence to a charge of murder. Either the defence succeeds, in which case the accused is acquitted or it fails, in which case he is convicted of murder. In R. v. Hassin, [1963] Crim. L.R. 852 the Court of Criminal Appeal described as a “novelty in present times” a submission that if an accused exceeded the bounds of self-defence, the proper verdict was manslaughter.

In 1971, in Palmer v. The Queen, [1971] 1 All E.R. 1077 the Privy Council gave careful consideration to the leading Australian authority, the decision of the High Court in Howe, but did not find it persuasive. Their Lordships held (at p. 1088):

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If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.

Their Lordships went on to say:

A jury will be told that the defence of self-defence, where the evidence makes its raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence. But their Lordships consider in agreement with the approach in De freitas v. R. (1960), 2 W.I.R. 523 that if the prosecution have shown that what was done was not done in self-defence then that issue is eliminated from the case. If the jury consider that an accused acted in self-defence or if the jury are in doubt as to this then they will acquit. The defence of self-defence either succeeds so as to result in an acquittal or it is disproved in which case as a defence it is rejected. In a homicide case the circumstances may be such that it will become an issue whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking then that matter would be left to the jury.

This was followed in R. v. Mclnnes, [1971] 3 All E.R. 295. The Court of Appeal, Criminal Division held that where self-defence fails on the ground that the force used went clearly beyond that which was reasonable in the light of the circumstances as they reasonably appeared to the accused, it is not the law that the inevitable result must be that he can be convicted of manslaughter only, and not of murder. The Court held that if self-defence failed for the reason stated, it affords the accused no protection at all. The Court continued (at p. 301):

But it is important to stress that the facts on which the plea of self-defence is unsuccessfully sought to be based may nevertheless serve the accused in good stead. They may, for example, go to show that he may have acted under provocation or that, although acting unlawfully,

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he may have lacked the intent to kill or cause serious bodily harm, and in that way render the proper verdict one of manslaughter.

In Reference under s. 48A of the Criminal Appeal (Northern Ireland) Act 1968 (No. 1 of 1975), supra, the House of Lords was invited to apply the Australian doctrine of excessive use of force in self-defence, to the “defence of use of reasonable force in the prevention of crime”. Lord Diplock declined the invitation, stating that the issue of self-defence was “quite different” from that of reasonable force in the prevention of crime. The latter defence, he noted, is based on statute and not on the common law. The Criminal Law (Northern Ireland) Act 1968 (No. 1 of 1975) specifically provided for the use of force in the prevention of crime or in effecting the lawful arrest of suspected offenders (s. 3). It also provided that s. 3 replaces the common rules dealing with the same matters. Viscount Dilhorne in the course of his judgment said (at p. 956):

…I can find no escape from the conclusion that if a crime was committed, it was murder if the shot was fired with intent to kill or seriously wound. To hold that it could be manslaughter would be to make entirely new law. If a plea of self-defence is put forward in answer to a charge of murder and fails because excessive force was used though some force was justifiable, as the law now stands the accused cannot be convicted of manslaughter. It may be that a strong case can be made for an alteration of the law to enable a verdict of manslaughter to be returned where the use of some force was justifiable but that is a matter for legislation and not for judicial decision.

With respect, I agree.

There is no special rule to the effect that death caused by the use of excessive force in self‑defence can only be manslaughter. However, as stated in Archbold, Criminal Pleading, Evidence and Practice (39th ed.) at p. 1035, the facts on which the

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defence of self-defence was unsuccessfully sought to be based may in some cases go to show that the defendant acted under provocation or that, although acting unlawfully, he lacked the intent to kill or to cause grievous bodily harm; and in such cases a verdict of manslaughter would be proper. That I take to be the position at common law and, in broad terms, the position, as I understand it, under our Criminal Code.

As Barwick C.J. pointed out in dissent in Viro v. The Queen, supra, the justices in R. v. Howe ignored the fundamental considerations applicable to murder and manslaughter in developing their “new rule”; the distinction between murder and manslaughter is based upon intent. The presence or absence of intent must be determined by the jury and that finding of fact is determinative of all that follows.

V

The Criminal Code

A consideration of the elements of murder, self-defence, and the consequences of that “defence” must begin with s. 212(a) and s. 34 of the Criminal Code. Culpable homicide is murder when the person who causes the death means to cause the death or means to cause bodily harm that he knows is likely to cause death and is reckless whether death ensues or not. An accused who is charged with murder or manslaughter may invoke the defence or self‑defence and s. 34 of the Code which 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

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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.

Section 34(1) may only be invoked if there is no intention to cause death or grievous harm and no more force than is necessary is used. Section 34(2) is invoked where death or grievous harm has resulted but (i) the accused reasonably apprehended his own death or grievous harm and (ii) he believed on reasonable grounds that he had no other means of avoiding his own death or grievous harm. Section 34(1) affords justification in circumstances where the force used was not intended to cause death or grievous harm and is not excessive. Section 34(2) affords justification where there was an intention to cause death but under circumstances where objectively it was reasonable that the person accused believed he was going to be killed and subjectively he did so believe. Section 34(2) obviously provides for acquittal, despite the fact that the accused means to cause death or bodily harm that he knows is likely to cause death.

On the construction of s. 34 it is difficult to see how the amount of force used will determine that a murder should be reduced to manslaughter. In such a case one must of necessity be dealing with s. 34(2), i.e. there exists an intention to cause death. Otherwise we fall under s. 34(1) where there is no intention to cause death and thus no question of reducing murder to manslaughter. In s. 34(2) we are concerned primarily with the person who has caused death and intended to cause death. All of these elements of murder are present.

On a reasonable statutory interpretation of s. 34 it is apparent that a qualified defence of excessive force does not exist.

To summarize, I would reject the notion that excessive force in self-defence, unless related to

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intent under s. 212 of the Code or to provocation, reduces what would otherwise be murder to manslaughter.

I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: Michel F. Denis, Montreal.

Solicitor for the respondent: Gabriel Lassonde, Montreal.