The Defence of Property in Criminal Law: R. v. Szczerbaniwicz
In R. v. Szczerbaniwicz, 2010 SCC 15, the SCC took its first crack at interpreting s. 39(1) of the Criminal Code of Canada. Section 39(1) provides a defence where the accused commits a criminal offence while defending his or her peaceable possession of personal property, as long as “he [or she] uses no more force than is necessary.” The application of the latter phrase to the facts of Szczerbaniwicz was one of the issues in contention. In addition to determining whether the defendant Szczerbaniwicz had used excessive force, the SCC had to grapple with the sub-issue of whether the trial judge had provided adequate reasons for his finding that Szczerbaniwicz had used excessive force against his wife.
At the Standing Court Martial, Lieutenant-Colonel Gary Szczerbaniwicz argued that he was not criminally responsible for assaulting his wife because he was protecting his Master’s diploma from being harmed. The two had gotten in a fight on a stairwell in Szczerbaniwicz’s home in Belgium. After his wife had intentionally knocked down the mounted frame containing the diploma and a second frame, Szczerbaniwicz applied force to his wife without her consent. She fell backwards, which resulted in bruising to her back and a broken finger. During his testimony, Szczerbaniwicz admitted that he was angry at the time of the assault, but maintained that he was defending his personal property from damage.
Competing Perspectives on the Facts
The majority and minority disagreed on the adequacy of the trial judge’s reasons based on their competing perspectives on the facts. Writing for the majority, Abella J. adopted the trial judge’s characterization of the facts, which was distilled in the following statement:
This is a case about a husband who lost his temper in an argument and pushed his wife with such force that she landed on the staircase and sustained extensive bruises. He used force because his wife threw to the floor a framed and easily replaced piece of paper of sentimental value.
This statement speaks to the underlying social issue of spousal abuse that may have coloured the majority’s perspective of the facts. The competing perspective adopted by Binnie J. in his dissent was more neutral because it did not overemphasize Szczerbaniwicz’s anger or the relative value of a “piece of paper”. These competing perspectives played a significant role in the determination of whether the trial judge had provided adequate reasons for finding that Szczerbaniwicz did not fulfill the elements of the defence.
Were Adequate Reasons Given by the Trial Judge?
Binnie J. disagreed with the majority’s finding that Lamont M.J. gave adequate reasons because the latter did not explain the “why” in regards to his decision. According to R. v. R.E.M., 2008 SCC 51, the SCC held that a trial judge must tell the parties “what” he or she has decided, and “why” he or she has made that decision; it is unnecessary to give a full account of the thought process used to get to the decision. These requirements imposed on reasons are designed to serve three functions: they tell the parties why the decision was made, provide public accountability to the decision, and permit effective appellant review. In R.E.M., Binnie J. warned against a formal approach to these two requirements. The trial judge does not have to engage in a “demonstration” because it would elevate “the alleged insufficiency of reasons to a stand-alone ground of appeal divorced from the functional test, a broad proposition rejected in [R. v. Sheppard, 2002 SCC 26]”. The functional, substantive approach to reasons was recently confirmed by the SCC in R. v. Dinardo, 2008 SCC 24.
The dissent is partly questionable on the ground that Binnie J. seems to have adopted a formalistic approach to assessing the adequacy of the trial judge’s reasons. Binnie J. held that the latter failed to describe “why” he found that Szczerbaniwicz used excessive force. It is arguable that Binnie J. adopted a formalistic approach because Lamont M.J. stated that he considered the following: the nature of the property in question, its value, its sentimental value to Szczerbaniwicz, the risk of harm to the diploma by his wife, alternative courses of action open to Szczerbaniwicz, and the consequences of Szczerbaniwicz’s actions on his wife. The recitation of these factors in Lamont M.J.’s decision indicates that his reasons were adequate. He fulfilled the “why” requirement by telling the parties the factors that he considered in coming to his decision. Based on R.E.M., Lamont M.J. was not required to go into an in-depth demonstration of “how” he considered those factors.
Despite the dissent’s shaky criticism of the “why” component of the trial judge’s reasons, Binnie J. did raise valid criticisms about the majority’s assessment of Lamont M.J.’s reasons. The latter overemphasized Szczerbaniwicz’s admission of anger in determining that he used excessive force. Of particular significance is Lamont M.J.’s statement that “…as a result of his angry state of mind, Lieutenant-Colonel Szczerbaniwicz lost his self-control for a short period of time, during which he physically manhandled his spouse, causing her to fall and suffer the bruising injury I have described.” Binnie J. correctly criticized his colleague for pejoratively describing Szczerbaniwicz as having “manhandled” his wife, and placing too much weight on his anger, in order to find that excessive force was used in warding off his wife. It is possible that an accused could be angry, and yet still have achieved the legal standard of a proportionate amount of force vis-a-vis possible injury or harm to personal property. Szczerbaniwicz did have the right to reasonable force to protect his personal property. The issue at hand is whether he was acting outside this right by using an excessive amount of force. If a push could never be justified, as implicit in the use of the word “manhandled”, then such a categorical approach should have been stated in Lamont M.J.’s decision. Along the same vein, Lamont M.J. should have stated in his reasons whether the wife’s injuries were themselves sufficient evidence of Szczerbaniwicz’s excessive force if he believed that such was the case. Binnie J. persuasively argued that the latter two propositions should have been included in the trial decision so that they could be tested by an appellant court. Recall that one of the functions of reasons is to permit effective appellant review. Lamont M.J.’s reasons incorporate these questionable propositions without stating them in the decision, and yet the SCC majority still found that his reasons were adequate.
While the dissent incorrectly adopted a formalistic approach to the adequacy of the trial judge’s reasons, its criticisms regarding the omission of certain propositions does indicate that the reasons were inadequate. In comparison, the majority sided too quickly with morality and failed to objectively assess the adequacy of the reasons. Society’s abhorrence for spousal abuse influenced the majority to simplify the legal complexities of Szczerbaniwicz to a angry reaction by a husband. While that may have been the case, the trial judge was still required to give adequate reasons and not simply work backwards in order to fulfill the procedural requirements.