In Regina v. Fougere, 2019 ONCA 505, the Ontario Court of Appeal set aside a conviction and ordered a new trial for aggravated assault where the Crown erroneously told the jury that self-defence could not apply if the accused struck the complainant first.
The accused testified at trial that the complainant had struck him first, while other witnesses disagreed. In the Crown’s jury address, he said four times that self-defence was unavailable if the jury found that the accused had struck first. The Crown’s address was as follows:
In his jury address, Crown counsel stated four times that if the jury found that the appellant had struck the complainant first, then self-defence was not available to the appellant:
These are the factors: a person is – that if it’s believed, on reasonable grounds, that force is being used against thatperson or another person, or that the threat of force is being made against them or another person. So what that is iswhether Mr. Fougere believed that, on reasonable grounds, that force was being used against him, against him or anotherperson that’s – in that instance self-defence is open to him. So if on the Crown’s theory – if Mr. Fougere struck first, if you find that he struck first, self-defence is over, all right, because Mr. Fougere struck first. … So if you find that as a fact, thatMr. Marcheson was struck first, self-defence is done, all right. You don’t – the Crown’s met that – the Crown has, has established that that does not apply, that the reason the force was used was in self-defence.
Now, the next factor is, the act that constitutes the offence is committed for the purpose of defending yourself. Okay, sogoing back to the first one, Mr. Fougere would have to believe that Mr. Marcheson had, had assaulted him or was threatening to assault him; that’s the first thing. Was – did Mr. Fougere believe, on reasonable grounds, that Marcheson was – had assaulted him or was threatening to assault him? And if you find that Mr. Fougere struck first, that one’s done, but it goes further than that. The next one is, that the act that constitutes the offence, the aggravated assault, is committed for thepurpose of defending or protecting oneself or another person. Okay, what that means is, is – you have to find, first of all,that Mr. Fougere thought he was being attacked or there was a threat of attack. If he struck him first, obviously that’s notthe case. [Emphasis added.]
The Court of Appeal held that under both the pre- and post-2012 self-defence provisions there was no automatic preclusion of self-defence where the accused struck the first blow. The Court said:
 The trial judge’s charge was conventional on self-defence. But he did not comment at all on the Crown’s assertion that if the appellant struck the first blow then he could not claim to have been acting in self-defence. This was an error. The Crown’s submission on the first blow took on added force from the lack of correction. Arguably the charge reinforced the Crown’s submission. First, after outlining the three conditions required to disprove self-defence, the trial judge stated that in considering them, the jury might find assistance in considering who struck the first blow. Absent a correction that self-defence was still available even if the appellant struck the first blow, if the jury considered only the Crown’s position then a consideration of who struck the first blow might lead them to the erroneous conclusion that self-defence was not available. Second, in outlining the Crown’s “theory of the case”, the trial judge repeated the Crown’s position that the appellant did not “‘believe on reasonable grounds that force or a threat of force was being used against him’ because he struck Mr. Marcheson first, before Marcheson ever acted aggressive
As such, the Court of Appeal found that there an air of reality to the defence on the facts. The trial judge had not corrected this error in the jury charge. The trial judge also erroneously applied the post-2012 self-defence provisions, which may have further confounded the issue. The verdict was unsafe.
If you have been charged with aggravated assault or assault, call Mr. J.S. Patel at 403-585-1960.