COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Almasri v. Saska,

2019 BCCA 10

Date: 20190114

Docket: CA45059

Between:

Badia Almasri

Respondent

(Claimant)

And

Laszlo Saska,
Terezia Rehak and 0774925 BC Ltd.

Appellants

(Respondents)

Corrected
Judgment:  The text of the judgment was amended at
paragraphs 1 and 8 on February 15, 2019.

Before:

The Honourable Chief Justice Bauman

The Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Hunter

Supplementary
Reasons to
Almasri v. Saska,
2018 BCCA 351

The Appellant appearing in person:

L. Saska

Counsel for the Respondent:

K.J. Hauer

Place and Date of Hearing:

Victoria, British
  Columbia

September 11, 2018

Place and Date of Judgment:

Vancouver, British
  Columbia

September
  12, 2018

Written Submissions received:

December 5 and 12,
  2018

Date of Supplementary Judgment:

January 14, 2019

Summary:

The appellant sought leave
to appeal a costs order but the application was dismissed. An application to
review the leave judgment was also dismissed. The respondent applies for costs.
Held: The respondent is entitled to costs of both the unsuccessful leave
application and the review application.

Supplementary Reasons of the
Court

[1]

On June 11, 2018, Justice Savage, sitting as a single judge in chambers,
heard and dismissed an application by Laszlo Saska and Terezia Rehak for leave
to appeal an order for costs made in the Supreme Court of British Columbia. Mr. Saska
and Ms. Rehak applied pursuant to s. 9(6) of the
Court of Appeal Act,
R.S.B.C.
1996, c. 77,

for an order discharging or varying the order of
Justice Savage. That application was heard by this division on September 11,
2018 and dismissed on September 12, 2018.

[2]

In keeping with the usual practice of this Court, neither the judgment
of Savage J.A. nor the review judgment of this Court addressed the question of
costs. The respondent now applies for costs of both applications.

[3]

Costs in this Court are normally governed by s. 23 of the
Court
of Appeal Act
, which states that:

Unless the court or a justice
otherwise orders, the party who is successful on an appeal is entitled to costs
of the appeal including the costs of all applications made in the appeal.

[4]

In this case, however, the appeal was never properly brought, because
leave to appeal was required and was denied. Although Mr. Saska is
identified as the appellant in the style of cause, it would be more accurate to
characterize him as an applicant. As the appeal was not perfected, there are no
costs of the appeal to allocate. What is left are the costs of two
applications, the leave application before Savage J.A. and the review
application before this division.

[5]

The usual rule is that an unsuccessful applicant for leave to appeal
will be required to pay the costs of the application. That rule applies unless
there is good reason to depart from it:
Cosgrove v. L & C Canada Coastal
Aviation Inc
., 2009 BCCA 397 at para. 3. We can see no reason to
depart from the usual rule in this case. Although the order of Savage J.A. was
entered without a reference to costs, this Court has the jurisdiction under
s. 9(6) of the
Court of Appeal Act
to vary the order of Savage
J.A. in relation to costs, and we consider it appropriate do so:
Pearlman v.
Atlantic Trading Company Ltd
., 2011 BCCA 183. The respondent should have
her costs of the unsuccessful leave application.

[6]

In our view, the same principle should apply to the costs of an
unsuccessful application to review an order dismissing an application for leave
to appeal. Costs should be awarded to the successful respondent unless there is
good reason to make some other order. In this case, we see no reason to depart
from the usual rule.

[7]

Submissions were made to us concerning other applications made prior to
the order made by this division, but we do not consider it appropriate for this
division to deal with costs of those applications.

[8]

For these reasons, we order that costs of the application before Savage
J.A. and the review application before this division be paid by Mr. Saska and
Ms. Rehak to the respondent at Scale 1.

The
Honourable Chief Justice Bauman

The
Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Hunter


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Danjou,

2019 BCCA 16

Date: 20190115

Docket: CA45782

Between:

Regina

Respondent

And

Tejwant Danjou

Applicant

Restriction
on publication:  A publication ban has been mandatorily imposed under s. 517(1)
of the
Criminal Code
restricting the publication, broadcasting or
transmission in any way of the evidence taken, the information given, or the
representations made and the reasons, if any, given or to be given by the
justice presiding over the application for judicial interim release (bail).

Direction of the
Chief Justice on an Application for Review
Pursuant to Section 680 of the
Criminal Code of Canada
.

Counsel for the Applicant:

D. Turko, Q.C.

S.L. Dawson

Counsel for the Respondent:

M. Lefebure

S. McCallum

Written Submissions of the Applicant Filed:

December 13, 2018 and

January 7, 2019

Written Submissions of the Respondent Filed:

January 4, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 15, 2019

Summary:

The applicant is charged
with second degree murder in relation to the death of his common-law partner. He
applied for release pending trial and his application was dismissed. He now
applies for a direction from the Chief Justice that the decision be reviewed by
a division of this Court. Held: Application dismissed. It is not arguable that
the chambers judge committed material errors of fact or law, or that the
decision was clearly unwarranted.

Reasons for Judgment of the Honourable
Chief Justice Bauman:

[1]

Tejwant Danjou seeks an order under s. 680 of the
Criminal Code
,
R.S.C. 1985, c. C-46 to direct the Court of Appeal to review a bail
decision made by Beames J. on 27 September 2018.

[2]

For the following reasons, I find that the bail judge did not arguably
commit any material errors of fact or law. Nor is it arguable that the decision
was clearly unwarranted in the circumstances. As a result I dismiss the
application.

[3]

A publication ban applies to this case under s. 517 of the
Code
.
The s. 517 ban prohibits the publication, broadcast or transmission in any
way of the evidence, information and representations at the bail hearing and
the bail judges reasons. The ban will expire when the trial ends. Until then,
reasons for judgment on this review application and any subsequent review
decision should not be published.

Background

[4]

Mr. Danjou is charged with the second-degree murder of Rama
Gauravarapu, with whom he had been in a common-law relationship since 2015. The
Crown alleges that Mr. Danjou and the victim had been on a winery tour,
got in an argument, then returned separately to the hotel. The Crown alleges Mr. Danjou
beat the victim, then fled. The victim was pronounced dead at the scene and Mr. Danjou
was found shortly thereafter in a dumpster.

[5]

At trial Mr. Danjou expects to raise defences including
intoxication, diminished capacity, provocation, and non-insane automatism.

Judgment on appeal

[6]

The bail judge denied the application for bail pending trial.

[7]

The bail judge summarized the events surrounding the offences as
follows:

[2]        The victim was killed on July 22, 2018, at the
Best Western Hotel in West Kelowna. On autopsy, she was found to have suffered
over 50 injuries, including multiple blows to the head, a cut jugular vein, and
defensive wounds on her hands. There was extensive blood splatter in the room
in which she was killed, on the floor and the walls and small amounts on the
ceiling. Some of the blood splatter was observed to contain human tissue.

[3]        Crown counsel has provided a detailed review of
the circumstances alleged by Crown which I will not set out in full. Suffice it
to say that there is evidence that the accused and the victim had been on a
winery visit earlier in the day, that is on July 22, 2018. They were, according
to Crown's submissions, seen to have an argument or arguments of some sort and
left the winery in separate cabs. On return to the hotel which they had checked
into the previous day, the accused checked into a second room. He then left the
hotel to get cigarettes and apparently to visit the Greyhound bus depot to make
inquiries about taking a bus to the Lower Mainland.

[4]        He returned to the hotel and was seen on
surveillance video to enter the room then occupied by the victim. A short while
later, guests in the room immediately below the victim's room reported hearing
loud noises and a staff member went to the door of the room. She thought she
heard a fight happening inside the room and so, concerned about her safety, she
went to get extra help. When she found her co-worker was busy, she returned to
the room and knocked. A male inside initially refused to open the door,
rejecting any assistance on her part, but when she persisted, the door was
opened and she was able to see a woman, lying on the floor, with swollen eyes,
in what appeared to be a lot of blood. The woman appeared to be having
difficulty breathing and asked the staff person to call the police. The man
inside the room said, "Don't call the police. She doesn't need help".

[5]        The employee,
according to the statement she has provided to this point in time, backed out
of the room, returned to the lobby and called 9-1-1. By the time the police
attended, the man had fled. He was found, with the assistance of a police dog,
in a dumpster a relatively short distance from the hotel. The accused was
assisted from the dumpster, arrested and transported to the hospital. By this
time, the paramedics had responded to the victim and had pronounced the victim
to be dead.

[8]

The bail judge acknowledged that because Mr. Danjou was accused of
second degree murder, the burden lay on Mr. Danjou to show why his
detention was not justified:
Code
, s. 522(2).

[9]

The bail judge concluded Mr. Danjou had met his burden in respect
to the primary and secondary grounds for detention. The bail judge concluded Mr. Danjous
ties to the community meant he was not a risk of failing to attend court. The
bail judge also concluded that detention was not required to protect the public
or prevent Mr. Danjou from committing further offences.

[10]

The bail judge thus focused on the tertiary ground: whether further
detention was necessary to maintain confidence in the administration of
justice:
Code
, s. 515(10)(c). The bail judge considered this
provision in light of the Supreme Court of Canadas guidance in
R. v.
St-Cloud
, 2015 SCC 27. The section provides that detention is justified:

(c)        if the detention is necessary to maintain
confidence in the administration of justice, having regard to all the
circumstances, including

(i)         the apparent strength of the prosecutions case,

(ii)        the gravity of the offence,

(iii)       the circumstances
surrounding the commission of the offence, including whether a firearm was
used, and

(iv)       the fact that the accused
is liable, on conviction, for a potentially lengthy term of imprisonment or, in
the case of an offence that involves, or whose subject-matter is, a firearm, a
minimum punishment of imprisonment for a term of three years or more.

[11]

The bail judge considered the four factors outlined in s. 515(10)(c)
and concluded that the Crowns case was very strong despite the defences Mr. Danjou
purported to raise, that the offence is very grave, that the offence was
violent and that if convicted, Mr. Danjou could face life imprisonment. The
bail judge acknowledged that these four factors are not exhaustive, and at para.
15 of her reasons, the bail judge considered that the ultimate question was
whether

detention is necessary to
maintain confidence in the administration of justice from the perspective of a
reasonable person properly informed who is not a legal expert and not
necessarily able to appreciate the subtleties of the various defences available
to the accused.

[12]

This paragraph echoed
St-Cloud
s guidance that s. 515(10)(c)
requires considering whether a reasonable member of the public would continue
to have confidence in the administration of justice:

[
79
]      Thus, a reasonable member of the
public is familiar with the basics of the rule of law in our country and with
the fundamental values of our criminal law, including those that are protected
by the Charter. Such a person is undoubtedly aware of the importance
of the presumption of innocence and the right to liberty in our society and
knows that these are fundamental rights guaranteed by our Constitution. He or
she also expects that someone charged with a crime will be tried within a
reasonable period of time, and is aware of the adage that justice delayed is
justice denied:
R. v. Trout
, 2006 MBCA 96, 205 Man. R.
(2d) 277, at para. 15. Finally, a reasonable member of the public knows
that a criminal offence requires proof of culpable intent (
mens rea
) and
that the purpose of certain defences is to show the absence of such intent. A
well-known example of this type of defence is the mental disorder defence. The
person contemplated by s. 515(10)(c)
Cr. C
. therefore
understands that such a defence, once established, will enable an accused to
avoid criminal responsibility. However, it would be going too far to expect the
person in question to master all the subtleties of complex defences, especially
where there is overwhelming evidence of the crime, the circumstances of the
crime are heinous and the accused admits committing it.

[
80
]      In
short, the person in question in s. 515(10)(c)
Cr. C.
is
a thoughtful person, not one who is prone to emotional reactions, whose
knowledge of the circumstances of a case is inaccurate or who disagrees with
our societys fundamental values. But he or she is not a legal expert familiar
with all the basic principles of the criminal justice system, the elements of
criminal offences or the subtleties of criminal intent and of the defences that
are available to accused persons.

[13]

The bail judge concluded that Mr. Danjou had not met his burden and
so declined to order his release.

Positions of the parties

[14]

Mr. Danjou submits that the bail judge erred in principle by
improperly considering what the perspective of a reasonable person properly
informed per
St-Cloud
must be. Mr. Danjou submits that the public
would be sympathetic to individuals who may have had a break with reality or
have diminished capacity. Mr. Danjou further submits that the bail judge
erred by finding the expected defences were too complicated for the public to
understand. Mr. Danjou also submits that the tertiary ground is reserved
for cases that shock the community and that the four factors in s. 515(10)(c)
do not reach their highest levels in his case.

[15]

The Crown submits the bail judge made no errors, and that the impugned
language from the bail judge reflects
St-Cloud
. The Crown also submits,
as it submitted at the bail hearing, that there is no evidence to support the
defences raised by Mr. Danjou. Finally, the Crown submits that Mr. Danjou
mistakes the scope of the tertiary ground and that
St-Cloud
necessitates
a far more liberal reading.

Analysis

[16]

Section 680(1) of the
Code
reads:

680 (1) A decision made by a
judge under section 522 or subsection 524(4) or (5) or a decision made by a
judge of the court of appeal under section 261 or 679 may, on the direction of
the chief justice or acting chief justice of the court of appeal, be reviewed
by that court and that court may, if it does not confirm the decision,

(a)        vary
the decision; or

(b)        substitute
such other decision as, in its opinion, should have been made.

[17]

The Supreme Court of Canada interpreted s. 680 in the context of
bail pending appeal in
R. v. Oland
, 2017 SCC 17.
Oland
describes
that the threshold for directing a review is whether it is arguable that the bail
judge committed material errors of fact or law, or whether the impugned
decision was clearly unwarranted in the circumstances. The parties have not
argued that
Oland
applies differently in the context of bail pending
trial, as is the case here, so I will proceed with the analysis on the basis
that
Oland
applies in the same manner to bail pending trial as bail
pending appeal.

[18]

I do not find it arguable that the bail judge committed material errors
of fact or law and do not see the bail judges decision as clearly unwarranted.
The bail judge correctly identified the offence as grave and correctly assessed
the potentially lengthy incarceration facing Mr. Danjou. Mr. Danjou has
not shown that the bail judge misconstrued his likelihood of success at trial,
nor has Mr. Danjou pointed to any error in the bail judges assessment of
the evidence.

[19]

I do not view the bail judge as resting her decision on whether a
reasonable member of the public could not understand the subtleties of the
defence; rather, the bail judge was simply reiterating the
St-Cloud
test.
The bail judge assessed the expected defences as overly weak, not as overly
subtle. Mr. Danjou does not assert that the bail judge fundamentally
misunderstood or underestimated the strength of the defences he sought to
raise, and I have been given no reason to question the bail judges assessment
of the probability of conviction.

[20]

As for the submission that the tertiary ground is limited to cases that
would shock the community, it is simply incorrect. As
St-Cloud
explains
at para. 87:

·

Section 515(10)(c)
Cr. C.
does not create a
residual ground for detention that applies only where the first two grounds for
detention ((a) and (b)) are not satisfied. It is a distinct ground that itself
provides a basis for ordering the pre-trial detention of an accused.

·

Section 515(10)(c)
Cr. C.
must
not be interpreted narrowly (or applied sparingly) and should not be applied
only in rare cases or exceptional circumstances or only to certain types of crimes.

[21]

The bail judge made no arguable error of fact or law in her
consideration s. 515(10)(c).

[22]

I take Mr. Danjous submission that the four factors of s. 515(10)(c)
do not reach the highest levels to argue that even if the bail judge had
properly considered the law, Mr. Danjous detention was clearly
unwarranted under
Oland
. Under
Oland
, for the bail judges
decision to be clearly unwarranted, it must be a decision that no reasonable
bail judge could have made:
R. v. Poony
, 2017 BCCA 447 at para. 29.
I do not see the bail judges overall exercise of discretion to reach this high
standard.

Disposition

[23]

For these reasons, I dismiss Mr. Danjous application to direct a
review.

The Honourable Chief Justice Bauman


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Lloyd,

2019 BCCA 25

Date: 20190115

Docket: CA45046

Between:

Regina

Respondent

And

Joseph Ryan Lloyd

Appellant

Before:

The Honourable Mr. Justice Harris

The Honourable Madam Justice Stromberg-Stein

The Honourable Madam Justice Fenlon

On appeal from:  An
order of the Provincial Court of British Columbia, dated September 18, 2017
(conviction) and January 5, 2018 (sentence) (
R. v. Lloyd
, Vancouver
Registry 233735-2-C).

Oral Reasons for Judgment

Counsel for the Appellant:

D.N. Fai

Counsel for the Respondent:

J.N. Walker

Place and Date of Hearing:

Vancouver, British
  Columbia

January 15, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 15, 2019

Summary:

Appeal of convictions on basis
that an arrest search incidental to arrest that produced evidence on which some
of the convictions depended was unlawful and the search unreasonable. Appeal
dismissed; the judge did not misapprehend the evidence critical to her
conclusion that the arrest was lawful, the search was reasonable, and the
evidence was admissible.

[1]

HARRIS J.A.
: Mr. Lloyd appeals his conviction of multiple
counts of possession of controlled substances for the purposes of trafficking,
carrying a concealed weapon (a knife), possession of a weapon for a purpose
dangerous to the public peace, obstructing a peace officer, and assaulting a
peace officer with a weapon.

[2]

Critical to his convictions was the result of a voir dire held to
determine the admissibility of evidence seized in a search incidental to his
arrest. Mr. Lloyd contended that his arrest was unlawful and accordingly
the search was unreasonable.

[3]

It is not necessary to recount the facts in detail. In short, Mr. Lloyd
was approached by two plain clothes police officers as he sat with another man
outside a coffee shop. The judge accepted that the officers advised the men
that they were police officers investigating a bylaw infraction for smoking
within six metres of a doorway. They advised them that they were not free to leave.
They asked for their names and dates of birth. The accused was uncooperative
but eventually gave his name. One of the officers queried both names on the
computer in the police car. Before the process was complete, the other officer
noticed a bulge in the accuseds clothing that he suspected to be a weapon. He
called a warning to the police officer in the vehicle, who returned to the
scene.

[4]

The officers were concerned that the accused was about to run. They
advised him again that he was not free to go and warned him of the offence of
obstructing police. One officer attempted to grab his arm. A fight ensued and
the accused attempted to draw a knife. The police knocked it out of his hand
and a bystander retrieved it. The fight was intense. The accused was arrested
and searched while handcuffed, lying on the ground, and still struggling. He
was found to be carrying a leather purse under his shirt which contained 25.7
grams of cocaine, 56.59 grams of methamphetamine, and 51.29 grams of heroin and
fentanyl in combination. The drugs were in small plastic bags. The accused was
also carrying a digital scale, two knives, and $1,780 in cash.

[5]

The defence argued that the evidence should be excluded because the
whole police interaction was a ruse for the purposes of interacting with the
accused. Alternatively, the defence argued that the arrest for obstruction was
unlawful, because the officers had already completed the identification of the
accused: they had learned his name and one of them recognized the name. Therefore
there was no further reason to detain him, the arrest was unlawful, and the
ensuing search violated s. 8 of the
Charter
. The defence also
argued that the police tried to conceal, in their initial report to Crown
counsel, the original purpose for their surveillance, and that this should cast
doubt on all their evidence.

[6]

The judge concluded that the arrest was lawful, the search was
reasonable, and the evidence was admissible. She found that the police did not
try to conceal the initial purpose of their investigation. She found the facts
as I have set them out above. In so doing, she rejected the position on the
facts taken by Mr. Lloyds counsel. She accepted that the police had not
completed their confirmation of Mr. Lloyds identity. The officers were
still engaged in the execution of their duty to identify the accused at the
time of the obstructive conduct. She concluded that the arrest was lawful. The
search conducted incidental to that arrest did not violate s. 8 of the
Charter
.
There was justification for a safety search, as the officers had reason to
believe the accused was carrying a weapon and was backing away while blading
his body away from the officer.

[7]

The evidence from the voir dire was admitted as evidence at trial. The
findings of fact made in the voir dire reasons formed the foundation of the
reasons for conviction. Mr. Lloyd contends that the judge made multiple
errors in the conclusions she reached, but, in my view, they boil down to the
proposition that the judge misapprehended the evidence in ways that
contaminated her critical finding that the arrest was lawful.

[8]

As is well known, this Court shows deference to the findings of fact
made by a trial judge in the absence of demonstrable error. In this particular
case, I do not think the appeal can succeed unless Mr. Lloyd can
demonstrate that the judge committed palpable and overriding errors of fact
through misapprehending critical evidence. If the facts, as found by the trial
judge are accepted, there is, in my view, not other basis to interfere with the
convictions.

[9]

I do not think that Mr. Lloyd has done more than reargue his case
at trial. He has not demonstrated any reversible error in the judges findings
or reasoning. What he has done is attempt to persuade us that the judge ought
to have reached different conclusions, for example, by taking a different view
of the credibility of the officers or in her assessment of whether subjective and
objective grounds existed for the arrest. I am satisfied that the judge did not
misapprehend the evidence in the manner required to justify appellate
intervention. All of the material findings of fact made by the judge were open
to her on, and well-supported by, the evidence. On that basis, I would dismiss
the appeal substantially for the reasons given by the judge.

[10]

STROMBERG-STEIN J.A.
: I agree.

[11]

FENLON J.A.
: I agree.

[12]

HARRIS J.A.
: The appeal is dismissed.

The
Honourable Mr. Justice Harris


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Ahmed v. Canna Clinic Medicinal Society,

2019 BCCA 44

Date: 20190116

Docket: CA45263

Between:

Jutta Ahmed

Appellant

(Plaintiff)

And

Canna Clinic
Medicinal Society

Respondent

(Defendant)

Before:

The Honourable Mr. Justice Harris

The Honourable Madam Justice Stromberg-Stein

The Honourable Madam Justice Fenlon

On appeal from:  An
order of the Supreme Court of British Columbia, dated
April 6, 2018 (
Ahmed v. Cannaclinic Medicinal Society
, Vancouver Docket
S182842).

Oral Reasons for Judgment

The Appellant, appearing in person:

J. Ahmed
with M. Ahmed

Counsel for the Respondent:

A. Sodagar

Place and Date of Hearing:

Vancouver, British
  Columbia

January 16, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 16, 2019

Summary:

Ms. Ahmed appeals an
order dismissing her petition for judicial review of a Provincial Court
decision and awarding special costs against her. Held: appeal allowed in part.
The chambers judge did not err by exercising his discretion to dismiss Ms. Ahmeds
petition for judicial review based on her delay and the repetition of issues
raised and decided in previous court proceedings. However, the judges order
awarding special costs against Ms. Ahmed is not supported by the reasons
for judgment, and accordingly must be set aside.

[1]

FENLON J.A.
: Ms. Ahmed is self-represented, although her
husband, Mohamed Ahmed, speaks on her behalf in court proceedings as he did
today. Ms. Ahmed says that the judges decision not to allow her to
proceed with a judicial review of the Small Claims Court decision and ordering
special costs against her shows he was not exercising his discretion
reasonably, and did not understand that there is no time limit on a judicial
review.

[2]

The dispute between Ms. Ahmed and the respondent Canna Clinic
Medicinal Society (Canna Clinic) has been long and fractious. Canna Clinic
leased premises Ms. Ahmed owns on Granville Street in Vancouver. The
leases started in March and September 2014 for three-year terms. Things got off
to a rocky start immediately as the landlord understood the tenant would be
operating a clothing store when in fact it was selling marihuana, apparently
without first obtaining city permits.

[3]

Canna Clinic left the premises in July 2015 because, in its view, Ms. Ahmed
breached her obligations to provide quiet enjoyment. Ms. Ahmed commenced
two separate actions. The first was commenced in Small Claims Court. She sought
approximately $25,000 in damages for damage to the property. That action was
dismissed at a trial conference on April 19, 2017, because Ms. Ahmed had
failed to comply with orders made by the Small Claims Court to file and serve a
trial statement and to produce certain documents. On November 21, 2017, Madam
Justice Iyer of the Supreme Court of British Columbia dismissed Ms. Ahmeds
appeal from that decision. This Court declared Ms. Ahmeds notice of
appeal from Madam Justice Iyers decision a nullity in reasons indexed as 2018
BCCA 114, because there is no right of appeal to this Court from a small claims
order.

[4]

Ms. Ahmed then commenced a second action in B.C. Supreme Court,
again seeking damages for damage to the rental property left, she says, by Canna
Clinic and, in addition, $268,000 in unpaid rent to the end of the lease term. Canna
Clinic applied to dismiss the second action on the basis of cause of action
estoppel. On May 23, 2017, Mr. Justice Steeves made that order. His
decision was upheld by this Court in reasons indexed as 2018 BCCA 319. Put
simply, this Court found that Ms. Ahmed had made a strategic decision to
start in Small Claims Court and, having failed there, could not simply start
over in a different court, even if additional breaches of the lease were being
pursued.

[5]

In the meantime, before this Court heard the appeal from Mr. Justice
Steeves order, Ms. Ahmed applied to the Supreme Court for judicial review
of the April 2017 Provincial Court decision dismissing her action for $25,000
in damages. This amounted to the third time that she had attempted to litigate
the breaches of the lease she says Canna Clinic engaged in. The judge dismissed
Ms. Ahmeds petition for judicial review. Ms. Ahmed now appeals.

[6]

In my view, the judge did not make a mistake in the way he exercised his
discretion. He was aware that there is no time limit for starting a judicial
review proceeding, saying so expressly at para. 5 of his reasons for
judgment. He decided that too much time had gone by and that was a decision
open to him.

[7]

The judge also refused judicial review because the issues raised had
already been dealt with in other court proceedings and could not be challenged
again. That is the same reason this Court gave in dismissing Ms. Ahmeds
appeal to this Court last year:
Ahmed v. Canna Clinic,
2018 BCCA 319. The
judge made no error in his reasoning on this point.

[8]

I see no merit in this part of the appeal.

[9]

I turn now to Ms. Ahmeds submission that the judge made a mistake
in ordering special costs against her. I agree with that submission.

[10]

The judge considered Canna Clinics request for special costs and then
said:

[9]        THE COURT:  Mr. Ahmed, I am not able to agree
with you and I hope you can take some lesson away from this, or your wife can,
or you both can. The courts are here to serve a function, which is to do
justice, but the courts are to do justice according to law, and the legal
process in this case has to come to an end, and that is where it ought to be
now.

[10]      I normally do what I
properly can to not award special costs against people who are unrepresented,
particularly when there is a lawyer on the other side, but I am ordering
special costs here, and I am doing it in accordance with these two cases that
have been cited. In both of them, you were the plaintiff. One was decided by
Madam Justice Fisher, as she then was, and the other by Mr. Justice
Willcock, as he then was. Your insults against the courts, the court
registries, and the judges cannot be accepted, and have to be punished with a
special costs order against you.

[11]

It is clear from his reasons that the judge ordered special costs
against Mr. Ahmed, and yet the order provides that the petitioner, Ms. Ahmed,
is to pay special costs to Canna Clinic. This is a careless and troubling
mistake given that counsel obtained an order dispensing with Ms. Ahmeds
signature. Counsel in that position has a particular responsibility to submit
an order that accurately reflects the courts decision. It is also unfortunate
that the order was accepted and entered in the registry in a form that was not
consistent with the reasons.

[12]

An appeal is from the order entered, and this order is not supported by
the judges reasons for judgment and must be set aside. If the judge intended
to order that Mr. Ahmed pay special costs personally, he did not address
the considerations applicable to a costs order against a non-party. While such
an order could have been made, it appears the judge assumed Mr. Ahmed was
a party as he had been in the two previous cases to which the judge referred. In
these circumstances I would therefore set aside the order for special costs and
replace it with an order that Ms. Ahmed, as the unsuccessful party in the
court below, is to pay ordinary costs at Scale B to Canna Clinic.

[13]

As for the costs of this appeal, success has been divided. In my view,
each party should bear their own costs.

[14]

HARRIS J.A.
: I agree.

[15]

STROMBERG-STEIN J.A.
: I agree.

[16]

HARRIS J.A.
: The appeal is allowed to the extent that the order
of special costs is set aside and replaced with an order on the terms described
in Madam Justice Fenlons reasons for judgment. Each party will bear their own
costs in this Court.

[Discussion with Mr. Ahmed
re: seeking clarification]

[17]

HARRIS J.A.
: The reasons will be transcribed and made available
to you. You will then be able to understand clearly what it is we have ordered.
To summarize, we have ordered that each party will bear their own costs for
this appeal, so you do not have to pay anything in respect of that. Secondly,
insofar as the issue involving costs below from Mr. Justice Macintosh, the
order of special costs against Ms. Ahmed has been set aside. What she owes
are costs on the Party and Party Scale.

The
Honourable Madam Justice Fenlon


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Randhawa
,

2019 BCCA 15

Date:  20190116

Docket:  CA45077

Between:

Regina

Respondent

And

Gursher Singh
Randhawa

Appellant

Before:

The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Harris

The Honourable Madam Justice Griffin

On appeal from:  An
order of the Supreme Court of British Columbia,
dated October 13, 2017 (
R. v. Randhawa
, Vancouver Docket No. 27071).

Counsel for the Appellant:

P.J. Wilson, Q.C.

Counsel for the Respondent:

M.A. Street

Place and Date of Hearing:

Vancouver, British
  Columbia

December 14, 2018

Place and Date of Judgment:

Vancouver, British
  Columbia

January 16, 2019

Written Reasons by:

The Honourable Madam Justice Griffin

Concurred in by:

The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Harris

Summary:

The appellant challenges his
conviction for aggravated assault and possession of a weapon for a dangerous
purpose. He argues the trial judge erred in instructing the jury on
self-defence, and says that the charge properly should have required juror
unanimity on each element of the defence of self-defence. Held: Appeal
dismissed. The Crowns burden of proof in disproving the defence of
self-defence only requires it to prove that one of the three elements of the
defence does not apply. The trial judge properly instructed the jury that unanimity
was required only on the ultimate conclusion that the defence did not apply. In
any event, a functional approach demonstrates that the instruction was clear
that on the facts of this case, jury unanimity was required to determine that
the defence failed on its third element, whether his actions were reasonable in
the circumstances.

Reasons for Judgment of the
Honourable Madam Justice Griffin:

Introduction

[1]

The appellant, Mr. Randhawa, was involved in a bar brawl on May 25,
2014, that led to him brandishing a knife and stabbing six people.

[2]

On October 13, 2017, a jury found Mr. Randhawa guilty of five
counts of aggravated assault contrary to s. 268(2) of the
Criminal Code
,
R.S.C. 1985, c. C-46, and one count of possession of a weapon for a
dangerous purpose contrary to s. 88(1) of the
Code
.

[3]

The sixth person stabbed by Mr. Randhawa did not testify and Mr. Randhawa
was acquitted in relation to that charge.

[4]

At trial, Mr. Randhawa did not contest the underlying conduct establishing
the elements of the offences. Instead, he relied on the defence of self-defence.

[5]

Mr. Randhawa challenges his conviction on the basis that the trial
judge erred in instructing the jury on self-defence.

[6]

The portion of the trial judges charge at issue was based on model jury
instructions produced by the Canadian Judicial Council. Those instructions
treat the three constituent elements of the defence of self-defence as not
requiring juror unanimity, so long as the jury is unanimous in agreeing that
the Crown has proven at least one of the three required elements of the defence
does not apply and that the defence has therefore failed. The Crown submits
that this is a proper charge.

[7]

Mr. Randhawa argues that the charge properly should have required
juror unanimity on which element of the defence of self-defence the Crown had
proven did not apply.

Background

[8]

The bar brawl began after Mr. Randhawa attempted to take a
photograph of two women on the dance floor and a man was in his way. They
argued and a fight ensued, with a number of men joining in.

[9]

The room was dark with flashing strobe lights and loud music. There were
inconsistencies in the witnesses evidence at trial as to what exactly
happened. There was evidence that Mr. Randhawa was in the fight, ended up
at the bottom of a pile of men, fought his way up and pulled out a knife waving
it around him, slashing or stabbing people. Mr. Randhawa was seen the next
day with black eyes, a bruised, puffy and scratched face, and walking with a
limp.

[10]

Mr. Randhawa testified that he felt that there were bodies swarming
around him, he was punched in the face and upper body, and bodies were hurled
on top of him. His knee was bent awkwardly. He felt there were ten to twelve
hands punching him during parts of the fight, five or six men beating him. He
testified in direct as follows:

Q         Various people said that you used a knife; is
that true?

A          Yes, sir. I pulled a knife out of my pocket
and started swinging at people.

Q         When did you do that?

A          After Id already been on the ground once.
The beating wasnt stopping. People were still trying to get at me, while I was
on the ground there, and I figured I had to -- I had to use one, just to get
out of there.

Q         Why did you pull the knife out?

A          To be honest, I was scared. I was getting
beaten up really badly. I was outnumbered by, like I said, a huge, huge amount
of people. And I just really wanted to get out of there. Like, I didnt know
what was going to happen to me.

Q         Why were you scared?

A          To
me, at the time, it felt a little bit confusing. Like, I didnt understand why
there was such a severe sort of fight happening in that situation. There was --
like, you would think after you hit the ground once people would stop. Like,
just some punches were exchanged, but you

would think the fight would end,
and it wasnt. And I was a brown guy in a club with five or six other brown
guys. I dont know if any of youve been to a nightclub but the script sort of
-- you know, Ive seen it before where, you know, people get jumped and stuff. You
hear stories about brain damage and all sorts of things like that. And for all
I knew these guys were gangsters. I didnt know what they were.

Q         And why did you strike out with a knife?

A          I just didnt see
any other way of getting out of the situation. You know, fighting back with punches
wasnt getting me anywhere and I just sort of wanted to get people away from
me. I really wasnt trying to hurt anyone. Like, I didnt try to hit anyone in
the face, or anything like that. I just wanted to get out of there.

[11]

Mr. Randhawa was 26 years old at the time of the offence. He was
just under six feet tall and weighed approximately 180 pounds.

[12]

Mr. Randhawa was cross-examined about his recollection of events
and the sequence of the fight, as well as the manner in which he pulled the
knife out of his pocket, opened it and swung it around him. He admitted to stabbing
one of the victims in the stomach and stabbing a bouncer in the arm. He
admitted to inflicting serious wounds on six people that night.

[13]

In addition to witness testimony about the fight, the jury was shown videotape
of the events towards the end of the fight.

Submissions at trial

[14]

Both the defence and Crown counsel agreed that the issue at trial was
whether the Crown had proven beyond a reasonable doubt that Mr. Randhawa
was not acting in self-defence.

[15]

The parties agreed that s. 34 of the
Code
governed the
defence. It provides:

34  (1)   A person is not
guilty of an offence if

(a)   they
believe on reasonable grounds that force is being used against them or another
person or that a threat of force is being made against them or another person;

(b)   the act that constitutes the
offence is committed for the purpose of defending or protecting themselves or
the other person from that use or threat of force; and

(c)   the act
committed is reasonable in the circumstances.

(2)

In determining whether the act committed is
reasonable in the circumstances, the court shall consider the relevant
circumstances of the person, the other parties and the act, including, but not
limited to, the following factors:

(a)   the nature of the force or
threat;

(b)   the extent to which the use
of force was imminent and whether there were other means available to respond
to the potential use of force;

(c)   the person's role in the
incident;

(d)   whether any party to the
incident used or threatened to use a weapon;

(e)   the size, age, gender and
physical capabilities of the parties to the incident;

(f)    the nature, duration and
history of any relationship between the parties to the incident, including any
prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or
communication between the parties to the incident;

(g)   the nature and
proportionality of the persons response to the use or threat of force; and

(h)   whether the act committed was in response to a use or
threat of force that the person knew was lawful.

[16]

In closing statements to the jury, both the defence and the Crown
emphasized the jury should not have much difficulty determining the first two
questions required by s. 34 of the
Code
. Instead, their focus would
be on the third question: was Mr. Randhawas conduct reasonable in the
circumstances of the case? The defence described this to the jury as the
critical question; the Crown described it as the focus [of their] entire
deliberation and the nub of the case.

Jury Charge

[17]

The trial judge provided the jury with a
written charge, which he then read out to them. He supplemented the written
charge with an oral review of the evidence.

[18]

The trial judge reviewed the basic
information required for most criminal juries, including the importance of
impartiality, the presumption of innocence and the burden of proof on the Crown
to prove guilt beyond a reasonable doubt.

[19]

The trial judge outlined the essential
elements of the offences and advised the jury that the position of the Crown
and defence was that these were not seriously in dispute. He instructed the
jury that he expected they would have little difficulty in finding that the
Crown had established the essential elements, given Mr. Randhawas acknowledgement
that he stabbed each of the complainants. The trial judge instructed the jury
that the central issue for you to decide is whether Mr. Randhawa acted in
self defence (at para. 69).

[20]

The trial judge explained how the jury
should approach the issue of self-defence as follows:

[73]      Mr. Randhawa
does not have to prove that he acted in self defence. It is for the Crown to
prove beyond a reasonable doubt that he did not.

[74]      To decide whether
the Crown has proved beyond a reasonable doubt that Mr. Randhawa did not
act in self defence, you will have to consider three questions:

1.         Has
the Crown proved beyond a reasonable doubt that Mr. Randhawa did not
believe on reasonable grounds that force was being used against him?

2.         Has
the Crown proved beyond a reasonable doubt that Mr. Randhawa did not
commit the act for the purpose of defending or protecting himself from the use
of force?

3.         Has
the Crown proved beyond a reasonable doubt that Mr. Randhawas act was not
reasonable in the circumstances?

[75]
If you find that
the answer to one or more of these questions is yes, the defence of self
defence fails. It does not matter if you do not all agree on which of these
questions is answered yes.

[76]      If you all agree
that the answer to all three questions is no, the conditions for self defence
are present and you must acquit Mr. Randhawa.

[Emphasis
added.]

[21]

Mr. Randhawa submits the trial judge
erred in the above para. 75 of the charge.

[22]

At paras. 80

93 of the charge, the trial judge reviewed in detail
the evidence on each of these three questions relating to self-defence.

[23]

In describing the evidence in relation to
the first two questions, the trial judge told the jury that, in the
circumstances, they would have little difficulty in concluding that the answer was
no.

[24]

In respect of the third question, the trial
judge described the jurys task this way:

Has the Crown
proved beyond a reasonable doubt that Mr. Randhawas act was not
reasonable in the circumstances?

[90]      This question relates to Mr. Randhawas
conduct and requires you to decide whether that conduct was reasonable in the
circumstances as Mr. Randhawa knew or believed them to be.

[91]      Anyone who defends or protects himself or another
person cannot be expected to know exactly how to respond or to deal with the
situation or to know how much force to use to achieve his purpose. What is
reasonable may include several alternatives. This issue here is not whether Mr. Randhawa
believed on reasonable grounds that he had no other course of action available
to him, but rather whether what Mr. Randhawa did was a reasonable thing to
do in the circumstances as he knew or reasonably believed them to be.

[92]      In determining whether the act committed was
reasonable in the circumstances, you must consider all of the circumstances,
including but not limited to:

·

The nature of the force or threat;

·

The extent to which the use of force was imminent and whether
there were other means available to respond to the use or potential use of
force;

·

Mr. Randhawas role in the incident;

·

Whether any of the other people involved used or threatened to
use a weapon;

·

The size, age, gender and physical capabilities of those involved
in the incident;

·

The nature, duration and history of any relationship among the
people involved in the incident, including any prior use or threat of force,
and the nature of that force or threat;

·

Any history of interaction or communication among the people
involved in the incident;

·

The nature and proportionality of Mr. Randhawas response to
the use or threat of force; and

·

Whether Mr. Randhawas act was in response to a use of
threat of force that Mr. Randhawa knew was lawful.

[93]      Both Mr. Wilson on
behalf of Mr. Randhawa and Mr. MacFarlane for the Crown submitted
that this is the critical issue that you will have to decide. Was Mr. Randhawas
use of a knife reasonable in the circumstances? You have heard evidence from a
number of people about what happened at the bar in the late evening of May 24
and the early morning of May 25, 2014. As both counsel noted, no clear story
emerges which may not be surprising given the setting, the conditions in the
bar, the fact that most of the people involved had been drinking and the
passage of time. It is for you to decide based on all of the evidence that you
heard, whether Mr. Randhawa acted reasonably in the circumstances. Use
your common sense, life experience and knowledge of human nature in your
assessment of the evidence to answer this question.

[25]

After he had just explained, as set out
above, that the critical issue for resolution would be whether Mr. Randhawas
use of a knife [was] reasonable in the circumstances, the trial judge then
reviewed the positions of the parties for the jury. In so doing, he focussed on
each partys position regarding this third component of self-defence.

[26]

The trial judge also explained the
concept of jury unanimity:

[
100]    A verdict, whether one of guilty or not
guilty, is the unanimous decision of the jury. To return a verdict requires
that all of you agree on your verdict. While your verdict on the offences with
which Mr. Randhawa has been charged must be unanimous, your route to the
verdict need not be. You could all be satisfied of Mr. Randhawas guilt
beyond a reasonable doubt even though individually you have different views of
the evidence. Similarly, you could all have a reasonable doubt about Mr. Randhawas
guilt, but not agree why. It matters not, provided that your verdicts on the
offences of assault with a weapon and aggravated assault are unanimous.

[103]    If you cannot reach a
unanimous verdict, you should notify the sheriff in writing. He or she will
bring me your message.

[107]    Any verdict you reach must be unanimous. Unless you
are unanimous in finding Mr. Randhawa guilty, you cannot convict him. Nor
can you return a verdict of not guilty unless you agree unanimously that he is
not guilty.

[108]    Each of you must make
your own decision whether Mr. Randhawa is guilty or not guilty of each
count. You should reach your decision only after consideration of the evidence
with your fellow jurors. Your duty is to try to reach a unanimous verdict.
However, you are entitled to disagree if you cannot reach a unanimous verdict
after a sincere consideration of the facts and the law and an honest discussion
with your fellow jurors.

[27]

After the judge finished delivering the charge, the defence objected to para. 75
of the charge, submitting that unanimity was required with respect to a yes
answer on the three components of self-defence because these were elements of
the offence. The Crown disagreed. The trial judge declined to make a correction
to his charge in this regard. After discussion with the parties, the trial judge
did make some additional comments to the jury on other matters.

[28]

During deliberations, the jury sent a question to the court regarding
the correct approach to determine whether Mr. Randhawas conduct was
reasonable. The question was:

When we the jury are determining
whether or not Mr. Randhawas conduct was reasonable in the circumstances,
is that reasonableness based on our thoughts now, looking at the circumstances,
or as Mr. Randhawa knew or believed them to be at the time?

[29]

After hearing submissions from counsel, the trial judge provided the
jury with a response to the question. The response is not challenged on this
appeal, and included the following explanation:

Reasonableness
is an objective standard. It requires you as the jury and the judges of fact to
consider Mr. Randhawas actions through the eyes of the reasonable person.
Now one definition of a reasonable person is as follows.

The reasonable
person is a person of the same age, gender, physical capabilities as well as
past interactions and communications with the complainants as Mr. Randhawa.
A reasonable person cannot be expected to know exactly what course of conduct
or how much force is necessary in self-defence.

While reasonableness is an objective
standard, Mr. Randhawas subjective belief about the circumstances facing
him is a relevant consideration, but it is not determinative. That subjective
belief must be based on reasonable grounds. In other words, Mr. Randhawas
understanding or belief of the circumstances must be reasonable.

Issue on Appeal

[30]

Mr. Randhawa agrees that the only real issue for the jury to decide
in this case was the third question in the defence of self-defence: whether the
Crown had proven that the use of force was not reasonable. Mr. Randhawa
submits that the trial judge needed to instruct the jury of the need for
unanimity in answering that question.

[31]

Mr. Randhawa submits that the instruction that told the jury [i]t
does not matter if you do not all agree on which of these questions is answered
yes (at para. 75), opened up the possibility that the jury could have
rejected the defence of self-defence even though they were not unanimous about
whether the Crown proved that Mr. Randhawas conduct was not reasonable.

[32]

The Crown submits that so long as it proved to each juror that one
element of the defence of self-defence did not apply, such that all members of
the jury agreed the defence did not apply, the jury did not need to be
unanimous on which question they answered yes.

Analysis

[33]

For ease of reference I will repeat the
criteria in s. 34(1) of the
Code
:

34  (1) A person is not guilty of an offence if

(a)  they believe on reasonable
grounds that force is being used against them or another person or that a
threat of force is being made against them or another person;

(b)  the act that constitutes the
offence is committed for the purpose of defending or protecting themselves or
the other person from that use or threat of force; and

(c)  the act committed is reasonable in the circumstances.

[34]

Mr. Randhawa accepts that once there is an air of reality to the defence,
the Crown need only prove beyond a reasonable doubt one of the three elements
of self-defence set out in s. 34(1) of the
Code
does not apply:
R. v. Borden,
2017 NSCA 45 at para. 91;
R. v. Cormier
,
2017 NBCA 10 at para. 40. This is because all three
criteria in s. 34(1) must be present for the defence to be available.

[35]

Mr. Randhawa argues that it flows from this premise, logically,
that the jury must be unanimous in concluding that the Crown has disproved one
of the three elements of the defence. More precisely, Mr. Randhawa submits
that the jury must be unanimous on which of the three elements of the defence the
Crown has disproved.

[36]

Mr. Randhawa submits that if the jury was not unanimous on the
third element of self-defence, which was the only real issue for the jury to
decide in this case, then he was entitled to an acquittal.

[37]

There is little authority on this issue.

[38]

In
R.
v. Dagenais,
2012 SKCA 103, the
Saskatchewan Court of Appeal considered the argument that the jury should have
a unanimous view about each element of the defence to run contrary to common
sense:

[32
]      The final argument advanced
by Mr. Dagenais concerns the defence of self-defence. He takes issue with
the trial judge's instructions to the jury to the effect that jurors were not
required to be unanimous in their individual assessments of the elements of
self-defence so long as they were unanimous with respect to the bottom-line,
i.e.
as long as they were unanimous about whether or not the defence had been made
out. Mr. Dagenais says this was wrong in principle. In his view, the trial
judge should have instructed the jurors that they were required to have a
unanimous view about each element of the defence.

[33
]      We are not prepared to accept
this argument. Counsel for Mr. Dagenais acknowledges that he has no legal
authority for it. We are not inclined to break new ground on this front.

[34]
Simply
put, Mr. Dagenais submission on this point runs counter to common sense
in that, if accepted, it could result in an accused person being acquitted even
though each of the jurors agreed that he or she had no defence. Further, it
also runs counter to the basic principle, reflected in
cases such as
R. v. Thatcher
,
[1987] 1 S.C.R.
652
, to the effect that the members of a jury are required to agree
only on the ultimate verdict
, not on the precise path to that verdict.

[39]

The Appeals Court of Massachusetts recently
reached a similar conclusion, noting that, it is the absence of
self-defense, and not the theory thereof, that is subject to the reasonable
doubt standard:
Commonwealth
v. Humphries,
91 Mass. App. Ct. 1101
(2017), citing
Commonwealth
v. Rodriguez,
370 Mass. 684 at 689
(Sup. Ct. 1976). In
Humphries,
the court held there was no requirement
that the jury be unanimous as to how the absence of self-defence was proved.

[40]

Case law out of the Court of Appeals of Texas is
consistent with this approach. That court described the defence of self-defence
as analogous to the manner and means by which the specific
actus reus
element [of the offence charged] was committed and on which the jury is not
required to unanimously agree:
Harrod v. State
, 203 S.W.3d 622 at 627 (Tex.
App. Ct., 5th Dist. 2006).

[41]

Mr. Randhawa submits that this Court should not follow
Dagenais
as it misconstrues the case it relies on,
R. v.Thatcher
,
[1987] 1 S.C.R. 652, and
is incorrect.

[42]

Mr. Randhawa submits that
Thatcher
merely stands for the
proposition that jurors need not be unanimous on the factual pathway each
relies on to reach a conclusion that the Crown has proven or disproven an
element of an offence or defence, respectively. However, they still need to be
unanimous that the Crown has proven an essential element of an offence, or
negated an essential element of a defence, beyond a reasonable doubt.

[43]

The trouble I have with Mr. Randhawas argument is that it equates the
application of the Crowns burden of proof in disproving the defence of
self-defence with the Crowns burden of proof on elements of an offence. The
application of these burdens of proof are not analogous. In order to meet its overall
burden of proof, the Crown has to satisfy the trier of fact that it has proved
each element of an offence beyond a reasonable doubt. In contrast, the Crown only
has to satisfy the trier of fact that it has disproved one element of the
defence of self-defence beyond a reasonable doubt.

[44]

As such, juror unanimity is required only on
the ultimate conclusion: whether the Crown proved beyond a reasonable doubt
that the accused did not act in self-defence. This is precisely how the trial
judge instructed the jury in this case.

[45]

I agree with the logic identified in
Dagenais
. If this Court were
to accept Mr. Randhawas argument, it could lead to the strange result
that an accused would be acquitted because the Crown failed to disprove the
defence of self-defence, even though each juror unanimously agreed, but in
their own ways, that they were satisfied beyond a reasonable doubt that the
defence did not apply.

[46]

Regardless of the above analysis, I am also satisfied that in the
present case there could be no question in the jurors minds that the only issue
for them to decide was the third element of self-defence. Taking a functional
approach to the whole of the jury instruction, the instruction made it clear
that: there was no basis for concluding the Crown had established that the
defence failed on either of its first two elements; the Crown had to establish
that the defence failed on its third element; and jury unanimity was required
to determine that the defence failed on its third element.

[47]

Additionally, the jurys question to the court made it clear that the
third element of the defence was the jurys focus. The trial judges response
was that reasonableness required you as the jury  to consider Mr. Randhawas
actions through the eyes of the reasonable person. The jury could not be
confused that the one issue they had to decide was, on the facts of this case, something
that they had to all agree on: that Mr. Randhawas conduct was not
reasonable in the circumstances.

Conclusion

[48]

I would therefore dismiss the appeal.

The Honourable Madam Justice Griffin

I AGREE:

The
Honourable Mr. Justice Tysoe

I AGREE:

The Honourable Mr. Justice Harris