R. v. Squire, [1977] 2 SCR 13

Supreme Court of Canada

R. v. Squire, [1977]  2 S.C.R. 13

Date: 1976-07-12

Her Majesty The Queen (Plaintiff) Appellant;

and

Lawrence Squire (Defendant) Respondent.

1976: February 5; 1976: July 12.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Non-capital murder—Defences—Drunkenness—Provocation—Accused under the influence of alcohol and aggressive—Accused accompanying deceased outside for a fight—Accused kicked by deceased before shooting him—Sufficiency of evidence of wrongful act or insult—Criminal Code, R.S.C. 1970, c. C-34, s. 215(3).

Respondent, a policeman, was charged and convicted of non-capital murder. Having completed his duties on the day shift he had been drinking with two fellow constables, first at the home of one of them and thereafter at a succession of bars. In the course of the evening respondent had become aggressive and argumentative; an argument had developed in one hotel with two strangers chiefly due to the aggressive action of respondent and later respondent and one of his fellow constables had tossed the same two strangers out of another hotel. Shortly after that when the three friends left in respondent’s automobile his driving was so erratic that he was stopped by two other constables who were on patrol. Respondent told these other constables that he had been “shaking up creepies” and kept asking them to go with him to various hotels to continue this activity. At the next bar the three again ordered beer. Respondent made an approach to two girls, which was not at all obnoxious though one of them did tell the deceased that he had saved her life as “those three goofs were trying to put the hassle on us”. The deceased shortly thereafter motioned for respondent to go outside and told a friend that there was going to be a fight. That friend was prevented from following the deceased and respondent by one of respondent’s companions. Outside, the deceased and respondent appeared to have animated conversation which ended in a scuffle or fight. Respondent pushed the deceased who kicked respondent twice. Subsequently the respondent went to the ground. When he got up he had a revolver in his hand and shot the deceased twice, the deceased reeled and started to run and three more reports were heard. Three bullet wounds were found in the deceased. At trial the only defence

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pressed was that of drunkenness, though a defence of provocation by reason of drunkenness had been mentioned by defence counsel prior to jury selection.

In the Court of Appeal where the defence of provocation was urged the conviction at trial was set aside and a new trial ordered because of the failure of the trial judge to deal in his charge with the defence of provocation.

Held: The appeal should be allowed.

While it is the duty of a trial judge in his charge to the jury to deal with any defence available to the accused on the evidence led whether or not defence counsel chose to advance that defence in his address to the jury, a trial judge is under no duty to invite the jury to consider defences of which there is no evidence or which cannot reasonably be inferred from the evidence. Parnerkar v. The Queen, [1974] S.C.R. 449, is determinative that whether there is any evidence of wrongful act or insult is a question of law to be determined by the trial judge. As the Court of Appeal in the present case found that there was such evidence and the appeal is against that conclusion, the issue to be determined is whether there was evidence of wrongful acts or insults that a reasonable jury acting judicially could find sufficient to deprive an ordinary person of the power of self-control. Throughout the evening the respondent was aggressive and he seized on the slightest confrontation by the deceased to again become so. The two kicks which he received during the ensuing fight could not constitute the kind of provocation to cause a police officer to draw his gun and fire five shots at his assailant. There was nothing in the evidence on which to base a defence of provocation.

Mancini v. Director of Public Prosecutions (1941), 28 Cr. App. R. 65; Lee Chun-Chuen v. The Queen, [1963] A.C. 220; Wu v. The King, [1934] S.C.R. 609; Parnerkar v. The Queen, [1974] S.C.R. 449 referred to.

APPEAL from a judgment of the Court of Appeal for Ontario[1] allowing an appeal by an accused from a conviction for non-capital murder. Appeal allowed, verdict of jury affirmed.

Charles Scullion, for the appellant.

Charles Ryall, for the respondent.

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The judgment of the Court was delivered by

SPENCE J.—This is an appeal by leave from the judgment of the Court of Appeal for Ontario pronounced on April 21, 1975. By that judgment, the Court of Appeal for Ontario allowed art appeal from the conviction of the respondent on February 20, 1974, upon a charge of non‑capital murder. The Court of Appeal for Ontario directed a new trial.

The respondent was an officer of the Niagara Regional Police Force and on November 26, 1973, having completed his duties on the day shift, met two fellow officers, Faragher and Montgomery, intending to spend the evening together. First at Faragher’s residence, and later, all three officers consumed a considerable quantity of alcohol. It would appear that the respondent consumed considerably more than either of his two fellow constables.

At about ten o’clock in the evening, the three men went to one hotel where they were served more alcoholic beverages then on to another where the same thing occurred. On leaving the second hotel, the three men observed two other men and some type of an argument arose, chiefly through the aggressive action of the respondent. When that incident seemed to have quietened down, the three men entered a third hotel named the Klondike and the respondent, finding therein the two with whom he had previously quarrelled, he and his fellow constable Montgomery simply tossed them out of the hotel. Shortly thereafter, the three entered the respondent’s automobile with the respondent driving and his driving was so erratic that he attracted the attention of two other constables, Fiddes and Pearson, who were on patrol. These constables stopped the respondent and his two companions and the respondent told Constable Fiddes that he had been “shaking up creepies” at the Klondike Hotel. Constable Fiddes testified that the respondent kept asking him to go with the respondent to these various hotels “to shake up creepies”. Constable Fiddes testified that he declined and requested Montgomery to drive the respondent’s car but as they left the respondent continued to drive his own automobile.

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Their next stop seems to have been the Steven’s Hotel where they again ordered beer. Constable Montgomery testified that the respondent left the table and went to a booth. Constable Faragher stated that a couple of girls were seated at that booth. Both young ladies testified as to the approach to them made by the respondent, which was not at all obnoxious, but one of them had spoken to her friend Tremblay, the deceased, using the words “You really saved my life because those three goofs were trying to put the hassle on us”. Thereafter, the deceased Tremblay stood behind the table occupied by the respondent and his fellows and motioned that the respondent should go out of the building. Tremblay then walked to the door followed by the respondent and on the way out Tremblay spoke to a friend Jacques Veilleux and said “Come on, Jack, there’s going to be a fight”. Veilleux attempted to follow the respondent and Tremblay but was stopped by Montgomery. The latter two engaged in a short fight.

Constable Fiddes continued his patrol. He parked his car where he could observe the area surrounding Steven’s Hotel and observed that the respondent’s car was parked near that hotel. For the circumstances which followed, I quote the following from the appellant’s factum which cited Constable Fiddes’ testimony:

A few minutes after I parked, I saw a male person later identified to me as the deceased, come out of the front door of the hotel onto the sidewalk. This person then stopped and turned around and faced the hotel door and placed his hands on his hips as though he was expecting someone else to follow. A few seconds later I saw Lawrence Squire come out of the hotel in the same manner and go down onto the sidewalk and face Mr. Tremblay. They appeared to have animated conversation which ended up in a scuffle or a fight between the two.

I saw Squire motion several times towards Tremblay as though to push or strike him. He did not make contact at that point. Tremblay raised clenched fists in a fighting position. Squire pushed Tremblay with his hand placed on his chest and Tremblay kept his hands up and attempted to kick Squire with his right foot. Squire pushed or swung at Tremblay and Tremblay then kicked Squire with his right foot twice…

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I started to drive to the area and as I was approaching the curb or going parallel to the curb Tremblay and Squire made close contact and Squire went to the ground. When Squire got up he had a revolver in his hand and pointed it at Tremblay and shot twice. Tremblay reeled backwards and started to run and I heard three more reports. Squire followed with the gun still pointing at Tremblay. Tremblay fell on the driveway located directly west of the Steven’s Hotel at a point where the sidewalk adjoins the entrance of the driveway. Squire followed to where Tremblay was lying face down with his head pointing in a due west direction and placed the gun at the back of Tremblay’s head. At this point I was running parallel to the curb and I had the radio microphone in my hands and I called the dispatcher requesting a CIB team and an ambulance and advising that there had been a shooting at the Steven’s Hotel. I stopped the car and began to get out. During that time Squire had disappeared from my view.

Counsel for the respondent, in his factum, states:

Except for the reservations and additions hereinafter set forth, the Respondent adopts the Statement of Facts set forth in Part I of the Memorandum of Fact and Law filed on behalf of the Appellant.

In so far as the actual incident outside the hotel is concerned, counsel for the respondent, in his factum, only added the following:

9. Where the Respondent was kicked, and the consequent pain, was the subject of comment by the Court as follows:

MR. ROOT: “The question was not phrased properly. It was a question of pain. One might be knocked to the ground but not feel any pain. The resulting tumble might give you pain.”

HIS LORDSHIP: “If we see a man kicked and knocked down or hit and knocked down, isn’t it a reasonable conclusion that it was a painful experience and isn’t that all he is saying, “and it would have been a painful kind of thing?” and the answer is, “I assume”. We would all assume that.”

MR. ROOT: “I agree.”

HIS LORDSHIP: “Shouldn’t we leave it at that?” [Emphasis added].

MR. AGRO: “I will leave it.” [Emphasis added].

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Tremblay died as a result of the bullets fired by the respondent who was charged with non‑capital murder.

Counsel for the respondent at trial was a very experienced counsel and particularly so in matters of criminal law. Before the jury was selected, the said counsel for the respondent, making a submission to the trial judge, said:

I make this statement openly and for the purposes of the record in order that Your Lordship knows that we intend and hope to restrict the issues to the very narrow issue of the defence of drunkenness and because of the kicking, and I must concede it is very thin, a defence of provocation by reason of the man’s drunkenness.

Despite that reference to provocation, counsel for the respondent, in his address to the jury, did not refer to provocation in any way. The learned trial judge requested both the Crown and the defence to outline their theories in writing and, in his charge, he said:

I will read to you the theory of the defence as they have written it out:

First, the onus is on the Crown to prove guilt beyond a reasonable doubt, which burden remains on the Crown throughout and if the jury has a reasonable doubt as to the guilt of the accused they must find the accused not guilty of murder, but guilty of manslaughter;

Secondly, the accused is not required, where drunkenness is a defence, to prove his defence by a preponderance of evidence. There is no onus on the accused; all he needs do is raise a reasonable doubt as to his ability to form the intent, and not to prove an inability to form the necessary intent;

Thirdly, that the total evidence indicates conduct completely out of character, a complete change in the man from what Montgomery and Faragher knew of him;

Fourthly, that by reason of the marked and dramatic change in the man following the third drink at the Lord Nelson, coupled with the irritability, irrational behaviour, rambling speech, inability to recognize persons, the jury can find that something was added to that drink;

Fifthly, the description of the accused as given by Pearson “a drunken man” and his observations of the man point to a complete incapacity to form any intent;

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Sixthly, that the acts of violence after the shooting when he broke and entered other people’s homes, robbed and assaulted them, are so out of character of the accused as to show that at the time of the shooting his mind was so affected by alcohol that he was incapable of forming the intent to murder or, at least, provide some reasonable doubt about it.

It will be seen that that theory of the defence depended wholly upon the defence of drunkenness. As I have said, the respondent’s then counsel was a very experienced and able counsel and one would be most unwise to assume that his failure to advance to the jury the defence of provocation was an accident. In the light of the evidence which I have very briefly outlined, he probably exhibited a very considerable degree of wisdom in refraining from advancing the defence of provocation.

After his conviction, the respondent appealed to the Court of Appeal for Ontario and there urged most strongly the defence of provocation.

It is, of course, the duty of a trial judge to submit to the jury in his charge any defence available to the accused which had been revealed by the evidence whether or not counsel for the accused chose to advance that defence in his address to the jury: Mancini v. Director of Public Prosecutions[2]. And, of course, in many cases, there are alternative defences and counsel for the accused feels that his presentation to the jury would only be weakened if he presented alternatives requiring the jury to make two different findings of fact. It is, however, equally plain that a trial judge is under no duty to invite the jury to consider defences of which there is no evidence or which cannot reasonably be inferred from the evidence: Mancini v. Director of Public Prosecutions, supra, at p. 72, Lee Chun-Chuen v. The Queen[3], at p. 233, Wu v. The King[4], at pp. 616 and 617.

Martin J.A., giving the reasons for the Court of Appeal, having made the statement which I have just made, continued:

It is therefore necessary to determine whether on any reasonable view of the evidence, the jury could find

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provocation within the meaning of section 215 of the Criminal Code.

And after an examination of a considerable number of authorities including Parnerkar v. The Queen[5], and also having regard to much of the evidence, continued:

I am satisfied, however, that there was evidence of provocation appropriate for the consideration of the jury, since there was evidence upon which the jury could find that the deceased had assaulted the appellant, and that such assault was sufficient to deprive an ordinary person of the power of self-control.

This is the problem which now faces this Court. The authoritative pronouncement upon the question of provocation as a defence by virtue of what is now s. 215 of the Criminal Code is Parnerkar v. The Queen, supra. In that appeal, Chief Justice Fauteux, giving the judgment for the majority, said at p. 454:

Subsection (3) declares that the constituent elements, which are described in (ii)(a) and (b) above, are questions of fact and, therefore, assigns exclusively to the jury the function to decide as to these facts.

The function assigned to the jury with respect to the particular facts mentioned in s. 203(3) does not in any way differ from the function they have to decide all other questions of fact, whether these facts constitute elements of a crime or elements of an excuse or a justification for a crime charged. Indeed and in all of the cases, the valid exercise of the function of the jury is, according to the very words of the oath of office taken by them, to give a verdict according to evidence. They cannot go beyond the evidence and resort to speculation nor, of course, would it be proper for the trial judge to invite them to do so. If, then, the record is denuded of any evidence potentially enabling a reasonable jury acting judicially to find a wrongful act or insult of the nature and effect set forth in s. 203 (3) (a) and (b), it is then, as a matter of law, within the area exclusively reserved to the trial judge to so decide and his duty to refrain from putting the defence of provocation to the jury.

Although there were dissenting judgments in Parnerkar, the Court was unanimous on the only issue which, I think, is involved in the present

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appeal, namely, that whether there was any evidence of a wrongful act or insult is a question of law to be determined by the trial judge. The Court of Appeal for Ontario determined that there was such evidence and the appeal of the Attorney General is against such a conclusion. Therefore, the determination of whether the record contained any such evidence must be made by this Court. In doing so, one must consider all of the evidence adduced at trial. That evidence, I have summarized briefly above. I now characterize that evidence as the story of a man who drank heavily and set out to pick a quarrel with any member of a group of people whom he described as “creepies”, who succeeded in picking that quarrel on at least one previous occasion that night, and upon getting into the quarrel with Tremblay and perhaps seeming to be losing the physical battle he drew his revolver, shot Tremblay twice and then followed Tremblay as he reeled backwards and fired three further shots. The pathologist giving evidence for the Crown found three bullet wounds in the deceased Tremblay.

It is true that there was evidence that Tremblay motioned to the respondent to indicate that the respondent leave the Steven’s Hotel very evidently so that they might fight and that he, Tremblay, informed his friend Veilleux that there was going to be a fight but the respondent needed no second invitation and the respondent was the aggressor when the fight commenced. During the fight, such as it was, Tremblay twice kicked at the respondent but how serious those kicks were is a matter of mere conjecture. Constable Fiddes testified that the respondent went to the ground but was unable to say whether that was the result of being knocked to the ground by Tremblay or from losing his balance.

As I have said, it is the duty of this Court to come to a decision whether those circumstances amount to any evidence that a reasonable jury acting judicially could find a wrongful act or insult sufficient to deprive an ordinary person of the power of self-control (s. 215(2)), and I am strongly of the view, with great respect to the opinion expressed by Martin J.A., that no jury acting judicially could come to such a conclusion. It must

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be remembered that on the evidence the respondent was, throughout the disgraceful incidents of the evening, a bad-tempered aggressor and that he seized on the slightest confrontation by Tremblay to again become the aggressor. If, during the fight which followed, and which I am of the opinon was a fight between two men fully consenting to the battle, he suffered a couple of kicks of indefinite violence, the provocation resulting therefrom could not possibly have caused a police officer to draw his gun and fire five shots at his assailant. To put it very shortly, I agree with the view of the learned counsel for the respondent at trial who, upon the basis of this evidence, decided that there was simply nothing on provocation which he could present to a jury and who, therefore, depended on the one available defence of drunkenness. There was much to be said in favour of that defence but very evidently the jury rejected it and that, of course, is not the subject of any review in this Court.

For these reasons, I am of the opinion that the appeal by the Crown should be allowed, the judgment of the Court of Appeal be quashed, and that the verdict of the jury be affirmed. I have not found it necessary, under these circumstances, to deal with the application of s. 613(l)(b)(iii) of the Code.

Appeal allowed, verdict of jury affirmed.

Solicitor for the appellant: The Attorney General for Ontario, Toronto.

Solicitor for the respondent: Charles Ryall, Niagara Falls.