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R. v. Pétel, [1994] 1 S.C.R. 3

 

Her Majesty The Queen                                                                   Appellant

 

v.

 

Colette Pétel                                                                                      Respondent

 

Indexed as:  R. v. Pétel

 

File No.:  23424.

 

1993:  November 3; 1994:  January 20.

 


Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

 

on appeal from the court of appeal for quebec

 

                   Criminal law ‑‑ Self‑defence ‑‑ Elements of self‑defence ‑‑ Charge to jury ‑‑ Question from jury ‑‑ Whether trial judge erred in his answer in differentiating between previous threats and threats made against accused on evening of incident and in relating previous threats only to existence of assault ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 34(2) , 265(1) .

 

                   The accused was charged with the second degree murder of R.   R was involved in drug trafficking with E, with whom the accused's daughter was living.  At trial, the accused described the terrible existence caused by the presence of E in her house and by his drug trafficking.  She said that he was always angry and threatened her frequently.  The accused moved in order to put an end to E's presence in her house, but this was unsuccessful, as he continued to go to her home to conduct his illegal activities.  According to the accused, on the evening of the crime, E went to her home with a revolver and cocaine and asked her to hide the weapon.  He forced her to weigh some cocaine and suggested he would kill her, together with her daughter and granddaughter.  Shortly afterwards the accused's daughter arrived accompanied by R.  At this point the accused consumed a small amount of drugs and she then went to get the weapon she had hidden in the bathroom.  She fired at E and seeing that R was lunging at her, she also fired at him.  E survived but R died.  In his charge to the jury, the trial judge explained the law of self‑defence and summarized the main points in the evidence which could support this defence.  In reply to a question from the jury, the judge indicated that the act or threat giving rise to self‑defence must have taken place on the evening of the crime, and that the previous threats or acts are only relevant in assessing the assault on the evening of the crime.  The accused was convicted of second degree murder.  The Court of Appeal allowed the accused's appeal and ordered a new trial.  In a majority judgment the court held that the trial judge erred in his answer to the jury's question in differentiating the previous threats from the threats made on the evening of the incident and in relating the previous threats only to the existence of an assault.

 

                   Held (La Forest, L'Heureux‑Dubé, Gonthier and Major JJ. dissenting):  The appeal should be dismissed.

 

(1)  Self‑defence:  Applicable Principles

 

                   It can be seen from s. 34(2)  of the Criminal Code  that there are three constituent elements of self‑defence when, as here, the victim has died:  (1) the existence of an unlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3) a reasonable belief that it is not possible to preserve oneself from harm except by killing the attacker.  In all three cases the jury must seek to determine how the accused perceived the relevant facts and whether that perception was reasonable.  This is an objective determination.  An honest but reasonable mistake as to the existence of an assault is therefore permitted.  The existence of an assault must not be made a kind of prerequisite for the exercise of self‑defence to be assessed without regard to the perception of the accused.  It is the accused's state of mind that is relevant and must be examined.  The question that the jury must ask itself is not whether "the accused was  unlawfully assaulted" but rather whether "the accused reasonably believed, in the circumstances, that she was being unlawfully assaulted".  Nor is there a formal requirement that the danger be imminent.  Imminence is only one of the factors which the jury should weigh in determining whether the accused had a reasonable apprehension of danger and a reasonable belief that she could not extricate herself otherwise than by killing the attacker.

 

(2)  Self‑defence:  Charge to Jury

 

                   Per Lamer C.J. and Sopinka, Cory, McLachlin and Iacobucci JJ.:  The trial judge erred in limiting his answer to the jury's question to only one of the elements of self‑defence, namely the existence of an assault.  First, this answer suggests that the only relevance of the threats prior to the evening of the crime was in enabling the jury to determine whether there had actually been an assault (in this case, death threats) that evening and whether the assailant was in a position to carry out those threats.  This diverted the jury from the question it really should have been considering, namely the reasonable belief of the accused in the existence of an assault.  Emphasizing the victims' acts rather than the accused's state of mind has the effect of depriving the latter of the benefit of any error, however reasonable.  Secondly, although it is true that the previous threats may help the jury to decide whether threats were made on the evening of the crime, they are also very relevant in determining what the accused believed, not only concerning the existence of the threats, but also concerning her apprehension of a risk of death or grievous bodily harm and her belief in the need to use deadly force.  By failing to mention these two elements in his answer, the trial judge seriously limited the relevance of the previous threats and might have led the jury to disregard the entire atmosphere of terror which the accused said pervaded her house.  Those threats form an integral part of the circumstances on which the perception of the accused might have been based.  It is clear that the way in which a reasonable person would have acted cannot be assessed without taking into account these crucial circumstances.  In explaining how the threats prior to the evening of the crime could be used the trial judge should actually have referred not only to s. 265(1)(b) of the Code but also, most importantly, to s. 34(2) .

 

                   Per La Forest, L'Heureux‑Dubé, Gonthier and Major JJ. (dissenting):  The judge's answer contained no error.  It did not overlook the very important element of the accused's belief.  While he did not elaborate on this point in his answer, he emphasized each of the elements of self‑defence by three times re‑reading s. 265(1)(b) of the Code.  The trial judge had already read this paragraph in his general charge and gone on to give clear and complete explanations of the essential criterion of the accused's state of mind at the time she caused the death, including her apprehension of death or grievous bodily harm from which she could not preserve herself except by the force she used.  The purpose referred to in the judge's answer could only be the purpose to kill on the part of the victim, and his comment on the belief on reasonable grounds that the victim had present ability to effect this purpose could mean nothing other than the accused's belief that the victim was capable of killing the accused, leaving her no alternative but to act first.  Consequently, one cannot conclude that the judge's answer could have been understood by the jury or could have led it to make a finding other than on the basis of a reasonable belief by the accused in a danger of death which she could not avoid except by killing her attacker.

 

Cases Cited

 

By Lamer C.J.

 

                   R. v. Lavallee, [1990] 1 S.C.R. 852; Reilly v. The Queen, [1984] 2 S.C.R. 396; R. v. Nelson (1992), 71 C.C.C. (3d) 449; R. v. W.(D.), [1991] 1 S.C.R. 742; Colpitts v. The Queen, [1965] S.C.R. 739.

 

Statutes and Regulations Cited

 

Criminal Code, R.S.C., 1985, c. C‑46, ss. 34(2) , 265(1) , 686(1) (b)(iii).

 

Authors Cited

 

Canada.  Law Reform Commission.  Working Paper 29.  Criminal Law ‑‑ The General Part:  Liability and Defences.  Ottawa:  Minister of Supply and Services Canada, 1982.

 

Stuart, Don.  Canadian Criminal Law:  A Treatise, 2nd ed. Toronto:  Carswell, 1987.

 

                   APPEAL from a judgment of the Quebec Court of Appeal (1993), 53 Q.A.C. 253, 78 C.C.C. (3d) 543, allowing the accused's appeal from her conviction for murder and ordering a new trial.  Appeal dismissed, La Forest, L'Heureux‑Dubé, Gonthier and Major JJ. dissenting.

 

                   Claude Chartrand and Claude Labrecque, for the appellant.

 

                   Josée Ferrari, for the respondent.

 

                   English version of the judgment of Lamer C.J. and Sopinka, Cory, McLachlin and Iacobucci JJ. delivered by

 

                   Lamer C.J. ‑‑

 

I.  Facts

 

                   The respondent Colette Pétel is charged with the second degree murder of Alain Raymond.  She is the mother of Josée Desjardins, who, at the time of the alleged offence, was Serge Edsell's girlfriend.  Edsell and Raymond were jointly involved in drug trafficking.

 

                   Josée Desjardins and Serge Edsell met and began living together in March 1989.  In early May, after being evicted from the apartment where they were living, they moved in temporarily with the respondent.  In her testimony the respondent described the terrible existence caused by Edsell's presence in her house, the fact that he was engaged in drug trafficking there and the comings and goings of his customers in the house.  She said that Edsell was always angry, that he threatened her frequently and that he beat his girlfriend Josée Desjardins.  The respondent even tried to commit suicide.  However, this version of the facts was contradicted by the testimony of Josée Desjardins at the preliminary inquiry.  (Desjardins was killed before the trial and so could not testify at it.)  She denied that she had ever been beaten by Edsell.

 

                   In early July the respondent moved in order to put an end to Edsell's presence in her house.  This was unsuccessful, as Edsell continued to go to the respondent's home to conduct his drug trafficking operations.

 

                   On July 21, Edsell went to the respondent's home with a revolver, cocaine and scales.  He asked her to hide the weapon.  He forced her to weigh some cocaine and then suggested he would kill her, together with her daughter and granddaughter.  Shortly afterwards Josée Desjardins arrived accompanied by Alain Raymond.  At this point the respondent consumed a small amount of drugs and then went to get the weapon she had hidden in the bathroom.  She fired at Edsell, who fell at once.  Seeing that Raymond was lunging at her, she also fired at him.  Edsell survived but Raymond died of his injuries.  Josée Desjardins' version of the facts was slightly different.  She said that the respondent fired on Edsell and then aimed at her own daughter.  Raymond then tried to escape and that is when the respondent also shot him.

 

                   In her statements to the police immediately after these events the respondent admitted firing at Edsell and Raymond and said she wished both of them dead.

 

II.  Applicable Legislation

 

Criminal Code, R.S.C., 1985, c. C‑46 

 

                   34.  . . .

 

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

 

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

 

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

 

 

 

                   265.  (1)  A person commits an assault when

 

(a)  without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

 

(b)  he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose;

 

III.  Decisions of Quebec Courts

 

Superior Court

 

                   It is necessary to analyze in detail the instructions given by the trial judge to the jury regarding self‑defence, since the respondent challenged their validity.

 

                   The trial judge began this part of his charge by reading s. 34(2)  of the Criminal Code  to the jury.  He then identified four elements of this defence.  First, there was the existence of an assault, here defined by s. 265(1) (b) of the Criminal Code , which he read to the jury.  Second, the accused must have intended to cause the victim's death.  The third and fourth conditions are found in s. 34(2) (a) and (b), namely reasonable apprehension of death or grievous bodily harm and a reasonable belief that it is not possible to preserve oneself from that danger except by killing the assailant.

 

                   The trial judge went on to say that the jury must base its decision on [translation] "the accused's assessment of the situation".  That means, the judge said, that the accused can be in a self‑defence situation even if her perception of the events was wrong, provided this error of perception could have been made by an ordinary person placed in the same circumstances.  The judge also said that the accused did not have to wait to be hit first in order to rely on self‑defence.

 

                   The judge then summarized the main pieces of evidence pertaining to the situation of self‑defence in which the respondent claimed she had been.  In particular, he discussed the probative value to be given to Josée Desjardins' testimony.  Finally, he noted the evidence presented of Edsell's and Raymond's propensity for violence, in particular by means of their criminal records.

 

                   The jury began its deliberations and, after asking to hear the respondent's testimony again, it submitted a question to the judge.  This question read as follows:

 

[translation]

 

Definition of self‑defence

 

(1) Threats or acts which may have taken place over several months

 

(2) Threats which were made on the evening of July 21, 1989 only

 

The judge answered this question as follows:

 

[translation]  So, in other words, ladies and gentlemen, you are asking me to define for you, if I understand correctly, the meaning of the word "assault" in the context of the justification of self‑defence.  First, what is an assault, and I will re‑read to you s. 265(1) (b) of the Criminal Code , which applies in the present case, so:

 

"A person commits an assault when he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose."

 

                                                                   . . .

 

                   So the act or threat mentioned in s. 265(1) (b) must have taken place on the evening of July 21 because the Code clearly says "has present ability", that is, at the actual time of the events.  Now, threats or acts prior to July 21 are relevant in that they may help you to assess the assault on the evening of July 21, 1989.

 

                   In other words, these previous acts or threats help you to determine whether Alain Raymond and Serge Edsell attempted or threatened, because according to the evidence, if you believe it, this was a common plan, whether as I say Alain Raymond or Serge Edsell attempted or threatened on the evening of July 21, by an act or a gesture, to apply force to Mrs. Pétel, to her daughter or to her granddaughter, whether the assailant had or caused . . . the alleged victim to believe on reasonable grounds that he had present ability to effect his purpose.

 

                   So the previous facts help you to assess the situation, but the threat or the assault or the threat or the gesture that evening, in the context of a, of the carrying out of an assault, that must be assessed on July 21.

 

                   The jury convicted the accused of second degree murder.

 

Court of Appeal (1993), 78 C.C.C. (3d) 543

 

                   The respondent appealed her conviction to the Court of Appeal.  She argued that the charge to the jury on self‑defence was erroneous.  She submitted that the judge should have said that the previous threats were relevant in determining not only whether the victims threatened the accused and had present ability to effect their purpose, but also, which he failed to do, in determining the accused's state of mind regarding the imminence of the assault and the belief that she could not otherwise preserve herself from death.  The respondent based her arguments on R. v. Lavallee, [1990] 1 S.C.R. 852.

 

Proulx J.A.

 

                   Proulx J.A. found that the trial judge had made two errors.  First, he had failed to tell the jury that the fact Alain Raymond lunged at the respondent, probably in order to take the weapon from her, was an independent ground which could be a basis for self‑defence.  The jury could thus have thought that the death threats made by Edsell were the only ground that could justify her killing the two men.

 

                   Second, Proulx J.A. was of the view that the answer given by the trial judge to the jury's question regarding threats was inadequate.  In his opinion, Lavallee indicates that a contextual approach should be taken in assessing the apprehension of danger and the belief in the need to use deadly force.  Accordingly the history, circumstances and perceptions of the accused must be taken into account and it is not absolutely necessary to call an expert witness on this point.  The threats prior to the events of July 21 were highly relevant in determining whether the accused had a reasonable apprehension of an imminent assault causing death or grievous bodily harm.  However, the answer to the jury's question could suggest that the only relevance of the previous threats and acts was to determine whether or not the victims had made threats on the evening of July 21.  According to Proulx J.A., this was an error of law justifying an order for a new trial, since it is not clear that the jury would have come to the same conclusion if it had been given a complete answer.

 

LeBel J.A.

 

                   LeBel J.A. agreed with Proulx J.A. on the question of the distinction between the threats immediately preceding the incident and the previous threats.  However, he considered that the trial judge had made no error in failing to mention Raymond's gesture as an independent basis for self‑defence.

 

McCarthy J.A. (dissenting)

 

                   McCarthy J.A. was of the view that Lavallee dealt with a different kind of situation from that of the respondent, and he considered that in any event that case recognized the validity of the presumption that a person is not in a self‑defence situation if the danger is not imminent.  Only expert testimony, said McCarthy J.A., can rebut this presumption.  He therefore considered that the trial judge was right in telling the jury that the assault had to be imminent on the evening of July 21.

 

IV.  Issue

 

                   As this is an appeal as of right, the only issue before this Court is the one on which there was a dissent, namely whether the trial judge erred in his answer to the jury's question in differentiating the threats made on the evening of the incident from the previous threats and in relating the latter only to whether there had been an assault.

 

V.  Analysis

 

A.  Elements of Self‑defence

 

                   The law on self‑defence has often been criticized for its complexity and lack of coherence:  D. Stuart, Canadian Criminal Law:  A Treatise (2nd ed. 1987), at p. 413; and Canada Law Reform Commission, Working Paper 29, Criminal Law ‑‑ The General Part:  Liability and Defences (1982), at p. 116.  When the courts interpret the provisions of the Criminal Code , they should therefore try to confine themselves to general principles and not unnecessarily create complex rules and subtle distinctions.

 

                   It can be seen from the wording of s. 34(2) of the Code that there are three constituent elements of self‑defence, when as here the victim has died:  (1) the existence of an unlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3) a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary.

 

                   In all three cases the jury must seek to determine how the accused perceived the relevant facts and whether that perception was reasonable.  Accordingly, this is an objective determination.  With respect to the last two elements, this approach results from the language used in the Code and was confirmed by this Court in Reilly v. The Queen, [1984] 2 S.C.R. 396, at p. 404:

 

The subsection can only afford protection to the accused if he apprehended death or grievous bodily harm from the assault he was repelling and if he believed he could not preserve himself from death or grievous bodily harm otherwise than by the force he used.  Nonetheless, his apprehension must be a reasonable one and his belief must be based upon reasonable and probable grounds.  The subsection requires that the jury consider, and be guided by, what they decide on the evidence was the accused's appreciation of the situation and his belief as to the reaction it required, so long as there exists an objectively verifiable basis for his perception.  [Emphasis in original.]

 

                   Some doubt may still exist as to whether this passage from Reilly also applies to the existence of an assault.  For my part, I think that the word "situation" refers to the three elements of s. 34(2) .  An honest but reasonable mistake as to the existence of an assault is therefore permitted.  This is also how the Ontario Court of Appeal understood it in R. v. Nelson (1992), 71 C.C.C. (3d) 449, at p. 455.  The existence of an assault must not be made a kind of prerequisite for the exercise of self‑defence to be assessed without regard to the perception of the accused.  This would amount in a sense to trying the victim before the accused.  In a case involving self‑defence, it is the accused's state of mind that must be examined, and it is the accused (and not the victim) who must be given the benefit of a reasonable doubt.  The question that the jury must ask itself is therefore not "was the accused unlawfully assaulted?" but rather "did the accused reasonably believe, in the circumstances, that she was being unlawfully assaulted?".

 

                   Moreover, Lavallee, supra, rejected the rule requiring that the apprehended danger be imminent.  This alleged rule, which does not appear anywhere in the text of the Criminal Code , is in fact only a mere assumption based on common sense.  As Wilson J. noted in Lavallee, this assumption undoubtedly derives from the paradigmatic case of self‑defence, which is an altercation between two persons of equal strength.  However, evidence may be presented (in particular expert evidence) to rebut this presumption of fact.  There is thus no formal requirement that the danger be imminent.  Imminence is only one of the factors which the jury should weigh in determining whether the accused had a reasonable apprehension of danger and a reasonable belief that she could not extricate herself otherwise than by killing the attacker.

 

B.  Charge to the Jury

 

                   In his charge the trial judge reiterated the three elements indicated by the wording of s. 34(2)  of the Criminal Code , namely the existence of an assault, the apprehension of a danger of death or grievous bodily harm and the impossibility of otherwise extricating oneself.  He added that the accused must have intended to cause her attacker's death.  Although it is not strictly speaking an element of self‑defence, this fourth criterion was justified in the circumstances since this was a murder charge.  In any event, the respondent does not deny that she intended to cause the death of Edsell and Raymond.

 

                   The judge also said that the jury should try to determine how the accused assessed the situation and compare that assessment with what a reasonable person placed in the same circumstances would have thought.  To explain this, the judge repeated almost word for word two paragraphs from Reilly.

 

                   The judge then went on to summarize the main points in the evidence which could support the respondent's defence.  He did not limit the relevance of a particular piece of evidence to its effect on only one of the elements of self‑defence.  Accordingly, one may conclude that the jury must have understood that they were to look at the evidence as a whole in considering each element of self‑defence.  This is exactly what s. 34(2)  of the Criminal Code  requires.  Thus no fault may be found in the main charge given by the trial judge, a judge of great experience; on the contrary, it could serve as a model.

 

                   The same is not true, however, of the answer given by the judge to the question put to him by the jury regarding the relevance of the threats immediately preceding the incident of July 21 and the threats prior to that date.  The importance of adequately answering questions put by the jury should be borne in mind:  R. v. W.(D.), [1991] 1 S.C.R. 742, at pp. 759‑60.  The question will generally relate to an important point in the jury's reasoning, so that any error the judge may make in answering it becomes all the more damaging.  It is often necessary to repeat certain aspects of the main charge in order to place the specific question in a more general context.

 

                   The question asked by the jury was specific, as the jury had identified its concern:  the threats made by the victim in the months preceding the incident and those made on the day itself and, it can be assumed, the distinction that should be made between the two types of threat or act.  The question was general, however, in the sense that the jury did not indicate whether its concern related only to one element of self‑defence.  The question concerned the "definition of self‑defence", without more detail.  The judge nonetheless limited his answer to only one of the elements, the existence of an assault and the assailant's ability to carry it out.  This led him to make two errors.

 

                   First, the judge's answer suggested that the only relevance of the threats prior to July 21 was in enabling the jury to determine whether there had actually been an assault on the evening of July 21, that is, in the present case, death threats, and whether the assailant was in a position to carry out those threats.  In a way the judge treated the earlier threats like similar fact evidence of the present threats.  Their only use would then be to make it more plausible that Edsell also made threats in the minutes preceding the shots fired by the accused.  This in my view diverted the jury from the question it really should have been considering, namely the reasonable belief of the accused in the existence of an assault.  Emphasizing the victims' acts rather than the accused's state of mind has the effect of depriving the latter of the benefit of any error, however reasonable.  The jury's attention should not be diverted from its proper concern,  the guilt of the accused, by an inquiry into the guilt of the victim.

 

                   Secondly, and this is the crucial point, the judge's answer might have led the jury to believe that the threats made before July 21 could serve no other purpose than to determine the existence of the assault and the assailant's ability, thus denying their relevance to reasonable apprehension of a danger of death or grievous bodily harm and to the belief that there was no solution but to kill the attacker.  The judge said that the previous threats served to [translation] "assess the assault on the evening of July 21".  He then explained what "assess the assault" meant:

 

[translation]  . . . these previous acts or threats help you to determine whether Alain Raymond and Serge Edsell attempted or threatened . . . to apply force to Mrs. Pétel . . . whether the assailant had or caused . . . the alleged victim to believe on reasonable grounds that he had present ability to effect his purpose.  [Emphasis added.]

 

The judge was in fact here repeating almost exactly the wording of s. 265(1) (b) of the Criminal Code .  Although it is true that the previous threats can help the jury to decide whether threats were made immediately before the respondent shot Edsell and Raymond, they are also very relevant in determining what the respondent believed, not only concerning the existence of the threats, but also concerning her apprehension of the risk of death and her belief in the need to use deadly force.  By failing to mention these two elements in his answer, the trial judge seriously limited the relevance of the earlier threats.  In explaining how these threats could be used he should actually have referred not only to s. 265(1) (b) but also, most importantly, to s. 34(2) of the Code.

 

                   The importance of failing to relate the earlier threats to the elements of self‑defence cannot be underestimated.  The threats made by Edsell throughout his cohabitation with the respondent are very relevant in determining whether the respondent had a reasonable apprehension of danger and a reasonable belief in the need to kill Edsell and Raymond.  The threats prior to July 21 form an integral part of the circumstances on which the perception of the accused might have been based.  The judge's answer to this question might thus have led the jury to disregard the entire atmosphere of terror which the respondent said pervaded her house.  It is clear that the way in which a reasonable person would have acted cannot be assessed without taking into account these crucial circumstances.  As Wilson J. noted in Lavallee, at p. 883:

 

                   The issue is not, however, what an outsider would have reasonably perceived but what the accused reasonably perceived, given her situation and her experience.

 

By unduly limiting the relevance of the previous threats the judge in a sense invited the jury to determine what an outsider would have done in the same situation as the respondent.

 

VI.  Conclusion

 

                   The undisputed evidence that Edsell, her alleged attacker, handed over his weapon and asked his future victim to hide it, conduct that is odd to say the least for someone intending to kill, must have had a clear effect on the jury, indeed on any jury composed of reasonable individuals.  In the Court of Appeal and in this Court, however, counsel for the Crown did not argue that, given the evidence in this case, no substantial wrong or miscarriage of justice occurred, and that s. 686(1) (b)(iii) of the Criminal Code  should thus be applied.  The Crown has the burden of showing that this provision is applicable:  Colpitts v. The Queen, [1965] S.C.R. 739.  This Court cannot apply it proprio motu.  Having found an error of law in the judge's answer to the question by the jury, I must accordingly dismiss the appeal and affirm the order for a new trial.

 

                   English version of the reasons of La Forest, L'Heureux-Dubé, Gonthier and Major JJ. delivered by

 

                   Gonthier J. (dissenting) ‑‑ I have had the benefit of reading the reasons of the Chief Justice.  I agree with his statement of the applicable principles of law and his explanation of those principles.  However, I cannot concur in his reading of the answer given by the trial judge to the question asked by the jury regarding previous threats or acts and the threats of the evening of July 21, 1989 as they affect the definition of self‑defence.  In my view the judge's answer did not overlook the very important element of the accused's belief.  In his answer to the jury the judge clearly said:

 

                   [translation]  In other words, these previous acts or threats help you to determine whether Alain Raymond and Serge Edsell attempted or threatened . . . on the evening of July 21, by an act or a gesture, to apply force to Mrs. Pétel, to her daughter or to her granddaughter, whether the assailant had or caused . . . the alleged victim to believe on reasonable grounds that he had present ability to effect his purpose.  [Emphasis added.]

 

                   It is true that the judge did not elaborate on the accused's belief, nor did he elaborate on the elements of the definition of self‑defence other than the relative importance of the previous threats and the threats at the time of the crime, which was all that the question asked by the jury dealt with.

 

                   However, he emphasized and pointed to each of the elements of this defence by three times re‑reading s. 265(1) (b) of the Criminal Code, R.S.C., 1985, c. C‑46 .  He could not have done this any better or any more succinctly and clearly.  This re‑reading, which he characterized as such, repeated his reading of the paragraph in his general charge the day before, which was immediately followed by clear and complete explanations of the essential criterion of the accused's state of mind at the time she caused the death, including her apprehension of death or grievous bodily harm from which she could not preserve herself except by the force she used.

 

                   There could be no doubt as to the "purpose" in question.  Only one thing was discussed, the purpose to kill on the part of the victim.  The belief on reasonable grounds that the victim had present ability to effect this purpose could mean nothing other than the accused's belief that the victim was capable of killing the accused, thus leaving her no alternative but to act first.  With all due respect, I cannot conclude that the judge's answer could have been understood by the jury or could have led it to make a finding other than on the basis of a reasonable belief by the accused in a danger of death which she could not avoid except by killing her attacker.  In my opinion, the judge's answer contained no error and was adequate.

 

                   I would therefore allow the appeal.  I would set aside the Court of Appeal's judgment and restore the guilty verdict.

 

                   Appeal dismissed, La Forest, L'Heureux‑Dubé, Gonthier and Major JJ. dissenting.

 

                   Solicitor for the appellant:  Claude Chartrand, Longueuil.

 

                   Solicitors for the respondent:  Rolland, Pariseau, Olivier & St‑Louis, Montréal.

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