R v RS: Considering Lived Realities in Self-Defence Claims
If an individual is hit in the head with a baseball bat and subsequently shoots and kills his attacker, were they acting in self-defence? What if the individual fired four shots in less than five seconds and did not know his attacker was running away? The Ontario Court of Appeal (“ONCA”) recently considered these facts in R. v. R.S., 2019 ONCA 832 [R.S. ONCA]. Leave to appeal has not yet been sought.
The appellant, R.S., lived in an apartment building in the Jane and Woolner neigbourhood in Toronto. A gang known as the “Gators” was known to operate in this neighbourhood. The appellant had been shot at on two previous occasions, the last time being about two months earlier. After the last shooting, the appellant, fearing for his life, bought a gun and carried it with him.
On April 12, 2012, after having gone out to meet a friend, the appellant returned to his building around 10:00 pm. Shortly after the appellant re-entered the apartment building, five men entered the lobby, one of whom was carrying a baseball bat. Unbeknownst to the appellant, two of the men were members of the Gators. “Oblivious as to what was about to happen” (R.S. ONCA, para 6), the appellant opened the door into the building for one of the men.
The appellant then turned to walk towards the elevators, with his back toward the group of men. It was then that the individual with the baseball bat hit the appellant on the back of the head, causing the appellant to fall to his knees and his gun to fall out of his pocket.
The appellant picked up the gun and, as shown by video evidence, fired four shots in less than five seconds. As the appellant fired the gun, the group of men were running out of the building. One of the bullets hit the man with the baseball bat in the back, fatally injuring him. Another bullet grazed and injured another of the men in the group.
The crux of this case turns on whether the appellant knew his attackers were running away and whether his actions were objectively reasonable to support a finding of self-defence.
- the existence of an unlawful assault;
- a reasonable apprehension of a risk of death or grievous bodily harm; and
- a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary.
Each of these elements require a subjective and objective component. Whether the objective component was made out for the third element was at issue.
At trial, Justice Forestell rejected claims of self-defence based on her finding that the appellant knew that his attackers were running away (R. v. R.S., 2014 ONSC 1996, para 146) [R.S. ONSC] and thus found the appellant guilty of manslaughter and aggravated assault. Justice Forestell concluded that “the option chosen by [the appellant] of firing at the retreating men was grossly disproportionate to the threat that he faced at the point that he fired the gun” (R.S. ONSC, para 47). R.S. appealed his convictions of manslaughter, aggravated assault and careless use of a firearm.
On appeal, with Justice Nordheimer writing for a unanimous court, the ONCA disagreed with the trial judge’s findings. Notably, the ONCA stated that it was “remarkable” that the appellant was not asked about the direction in which he shot first (para 28). The ONCA stated this would have been critical to any determination of whether the appellant knew his attackers were running away (para 29). The ONCA went on to note there was a “very real potential for the force used by the appellant to have been reasonable at the commencement of the shots, but to have become unreasonable before the shots concluded, as the appellant developed the awareness of the actual state of affairs regarding the actions of his attackers” (para 39).
Due to a lack of evidence and what the panel considered to be the trial judge’s misinterpretation of the appellant’s testimony, the ONCA found “[t]here is simply no basis on the evidence for any conclusion that, prior to firing the first shot, the appellant was aware that his attackers were running away” (para 32). The ONCA panel also found, in considering the objectivity of the third element for self defence, that “the trial judge tested the actions of the appellant against a standard that is much too high for the proper application of self-defence” and in considering numerous contextual factors, noted that the reasonableness of that standard must be compared with the reality of the situation (para 35).
Consequently, the ONCA found that the trial judge had made a palpable and overriding error in her decision, and acquitted the appellant, as permitted by section 686 (2) of the Criminal Code.
I am in strong agreement with the majority of the ONCA decision. However, the weight the ONCA panel suggests should have been given to the direction the appellant shot at first, as an important factual finding, deserves further consideration.
The ONCA suggests that shots fired immediately to the north would have made it more likely that the appellant knew his attackers were running away, and that this would detract from a finding of self-defence, whereas shots fired to the west first would favour such a finding. With respect, given the circumstances, this kind of analysis would have placed too much weight on an unreliable factor. The appellant had just received a blow to the head, was likely in fight or flight mode, with flight abilities impaired, and was not likely to know who was the main attacker out of the group of five men. He was equally unlikely to know where they were located or what they were doing. It would have been a mistake to attribute any weight to what direction he shot in first, in the context of evidence that he was shooting and swinging at the same time (thus likely in shock or on guard for further attacks from elsewhere), and fired four shots within five seconds.
What sparks my interest even more in the ONCA decision is the statement that the reasonableness of the objective standard must be contrasted with the reality of the situation.
The ONCA hones in on factors relevant to the assessment in this case at paragraph 35, where it notes: the appellant had been struck by a bat, believed he had been shot, had reason to believe the men would continue the attack, had been previously shot at, was alone, and the exit was next to his attackers.
While I agree a consideration of contextual factors is necessary in a determination of whether someone acted in self-defence, it is easy to see how an analysis of the way in which lived realities make a belief of self-defence objectively reasonable can become complex and muddied.
Consider a situation where the attack to the appellant in the lobby was the first such attack on the appellant, but similar attacks had occurred in the past in the same neighbourhood, where the “Gators” were known to operate. Would the absence of prior attacks on the appellant change the ONCA’s decision? Would the appellant’s firing a gun after receiving a blow to the head from a bat, in a neighbourhood with a gang presence, be considered “grossly disproportionate” or proportionate on an objective analysis?
In R.S., the ONCA placed a lot of emphasis on the fact that the appellant had previously been a victim of gun violence and how that kind of experience would objectively influence a reasonable person’s actions. Had R.S. not been shot at twice prior, I expect that the ONCA would have been more persuaded by trial judge’s finding that firing the gun was “grossly disproportionate to the threat.” Otherwise, a finding to the contrary could have the unintended effect of justifying different forms of excessive force in neighbourhoods with a gang presence. We are left to wonder then, in a contextual analysis, how much weight may be placed on whether someone has been a former victim of violence, and what kind of violence is most persuasive, before the objective elements of “self-defence” is made out?
Consider another variation of the facts: the appellant had been shot at on two previous occasions, and on this occasion, he was approached by a group of five men who he recognized as his former attackers, and one of them had a bat. As the men approach, the appellant assumes that they are there to attack him once again, pulls out his gun and fatally shoots one of the men. Would a weighing of the contextual factors meet the objective standard for self-defence? Should this be considered self-defence?
These are important considerations. Based on discussions with Black men who have been both victims of and charged with gun crimes, this last hypothetical is not an uncommon situation. While there would be a need for Courts to be cautious of the George Zimmermans of the world and the ability for bias to seep into this form of argument, I believe it would be wise for lawyers to use the principles in R.S. as a starting point to broaden what is normally considered self-defence in cases like this.
If leave to appeal is not sought or granted in this case, I do not think it will be long before a similar case, makes its way to the Supreme Court of Canada. It will be interesting to have the highest Court’s take on these important considerations.