May 5, 2016

Self-Defence Narrative Meets Air of Reality, Should Have Been Put to Jury

R v Mustard (G), 2016 MBCA 40 (CanLII)

Keywords: Second Degree Murder; Manslaughter; Self-Defence; Jury Instructions; Air of Reality; R v Cinous, 2002 SCC 29 (CanLII)


The Appellant, Gerald Arnold Mustard, is a casual acquaintance of the deceased’s housemate, Karla Petersen. Ms. Petersen invites the Appellant to attend their Winnipeg residence. The Appellant and the deceased had never met before, but the three socialize while consuming beer, cocaine, and marihuana.

The deceased asks the Appellant to leave; informs him if he does not leave soon, he would be “physically” thrown out. The deceased returns to the living room to find the Appellant has not left. Based on Ms. Petersen’s description, the ensuing altercation is as follows:

The deceased was the larger man. He was highly intoxicated and unarmed. After some brief pushing and shoving, the two men separated and then Petersen saw the accused pull a pocket knife out of his pants and open the blade. She then saw what she described as the accused punching the deceased towards his face or neck. She could not say if the punch struck the deceased. In her words, “it happened very fast.”

A few moments later, the deceased got the accused to the ground and began to choke him with two hands. Petersen then saw the deceased grab his own neck which was bleeding. At some point in the fight the accused stabbed the deceased, cutting the left jugular vein. Petersen called 911. While Petersen was talking to the 911 operator, the accused said, “I’m sorry. I didn’t mean to,” as well as, “He jumped me and I stabbed him.” The deceased was taken to hospital by paramedics, operated on, but later was taken off life support after he was declared brain dead (see paras 4-5).

The Appellant did not testify in his own defence. Ms. Petersen testifies she was “drunk, but not intoxicated enough not to know what I was doing”; her testimony reveals several inconsistencies, including an acknowledgment she had given a different accounting of events to police, and discrepancies as to when she took possession of the knife (critical for determining whether the deceased is stabbed while the Appellant is standing or while he is being choked).

The Appellant is convicted of the included offence of manslaughter following a trial by judge and jury for second degree murder. He appeals his conviction on the following two grounds:

  1. the judge erred by refusing to instruct the jury on self-defence because she found no air of reality to the claim; and
  2. that the judge misapprehended the evidence in coming to this decision.

Mainella J.A. finds the trial judge did so err, allowing the appeal and refusing to apply the curative proviso. By substantively weighing the evidence and making findings of fact as to the circumstances of the fight, the trial judge erred in law.


Self-Defence & Retroactivity

At the time of the Appellant’s trial, the “new” self-defence provisions in the Code had recently come into force (pursuant to the Citizen’s Arrest and Self-defence Act, SC 2012, c 9). The parties proceeded by agreement that these “new” provisions applied retrospectively.

Citing R v Evans (DJ), 2015 BCCA 46 (CanLII), 367 BCAC 148; R v Bengy (K), 2015 ONCA 397 (CanLII), 335 OAC 268; R v Rogers (C), 2015 ONCA 399 (CanLII), 338 OAC 105, leave to appeal to SCC ref’d, [2015] SCCA No 448 (QL); and Green c R, 2015 QCCA 2109 (CanLII), the Court of Appeal found, “…several appellate courts in other jurisdictions have decided that the “new” self-defence provisions do not apply retrospectively” (see para. 12).

Ultimately, the Court declined to consider the issue, stating it was “not an appropriate case” to do so as the issue had not been litigated below, and had no bearing on the Appellant’s matter. The question remains a live issue that, for now, “…is better left for another day with a proper record” (see para. 12).

Air of Reality

In the present case, the Appellant requested the trial judge put the defence of self-defence to the jury on two alternative bases:

  1. Petersen was unreliable; that is was possible to infer the Appellant had the knife when he was on the ground and only stabbed the deceased after being choked by him;
  2. If the jury accepted the deceased was stabbed while they were both standing, the Appellant’s act of stabbing was nevertheless reasonable in the circumstances.

The trial judge rejected the former basis as mere “speculation”, and found insufficient evidence to give an air of reality that it was reasonable in the circumstances to stab an unarmed man in the neck – even if the deceased was larger than the Appellant.

Citing R v Cinous, 2002 SCC 29 (CanLII) at paras 51, 55, [2002] 2 SCR 3, the Court of Appeal held a trial judge’s determination that there was no air of reality to the defence of self-defence is a question of law reviewable on a standard of correctness.

The Court of Appeal was careful to emphasize the burden to raise an air of reality is evidential, the question for the trial judge being “whether there is…(1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true” (see para. 17, citing Cinous at para. 65).

The Court of Appeal determined, “weighing the circumstances of the fight was a task reserved for the jury” (para. 34). For the purpose of determining whether the defence of self-defence passed the air of reality test, the trial judge was required to “…assume the truth of the evidence” (para. 34) tending to support the defence’s theory the deceased was stabbed on the ground. For the Court of Appeal, it was clear the trial judge “…failed to do that” (para. 34).

Moreover, the Court of Appeal found it was not the trial judge’s duty to assess the quality, credibility, or reliability of Ms. Petersen’s evidence – a properly instructed jury is tasked with whether to “accept all, part or none” of the evidence (especially with respect to the issue of when Ms. Petersen took possession of the Appellant’s knife).

The Court of Appeal found the trial judge went to too far in finding whether the “punching motion” described by Ms. Peterson as having occurred when both the Appellant and deceased were standing was, in fact, the moment the stabbing occurred. There were objective facts to support an alternative narrative – that the punching motion was a punch, but did not result in the fatal stab wound. Therefore, instructing the jury on self-defence was “necessary for ‘a fair trial and true verdict’” (see para. 41).