Ottawa, Ontario, August 23, 2006
Present: The Honourable Paul U.C. Rouleau
BETWEEN:
Applicant
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of the Disciplinary Court at Cowansville Institution (the Court) dated October 6, 2005. The Chairperson of the Court had found the applicant guilty of the disciplinary offence set out in paragraph 40(h) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act), that is, fighting with, assaulting or threatening to assault another person.
[2] At all times relevant to this application, the applicant, Mr. Antoine Zarzour, was incarcerated at the Cowansville Institution, a penitentiary administered by the Correctional Service of Canada.
[3] According to one of the guards, inmate Tymchuk said that Mr. Zarzour insulted Mr. Tymchuk on a number of occasions. Given Mr. Zarzour’s refusal to withdraw his remarks, Mr. Tymchuk physically assaulted him. During the evening of June 6, 2005, Mr. Tymchuk entered Mr. Zarzour’s cell and struck Mr. Zarzour on the head.
[4] A supervisor, who had been informed of the assault, inquired as to Mr. Zarzour’s condition. Mr. Zarzour told him that everything was fine, because he did not want to have [translation] "problems with people on the front line".
[5] Later that same evening, a little before 10:40 p.m., Mr. Tymchuk went into Mr. Zarzour’s cell a second time and told him: [translation] "I’m going to slice you if you report me". Mr. Zarzour claims that he then assaulted inmate Tymchuk using a broomstick so as to push him back into the corridor. An altercation followed until guards came down into the corridor to put a stop to the fight.
[6] On June 20, 2005, Mr. Zarzour was charged under paragraph 40(h) of the Act. For his part, Mr. Tymchuk received an inmate offence report.
[7] On June 23, 2005, Mr. Zarzour pleaded guilty to the offence of fighting with Mr. Tymchuk on June 6, 2005, at 10:40 p.m. Since he also said that he had acted in self-defence, the Court explained to him that self-defence was a defence and that the Court could not accept a plea of guilty if he was also alleging self-defence. Mr. Zarzour acknowledged that he had been the assailant and that he wanted to plead guilty in order to end the matter as quickly as possible. As he later explained to the Court: [translation] "I was afraid of retaliation from [Tymchuck] and then retaliation from his friends . . . it was to my advantage to plead guilty, and then just let the matter slide".
[8] When Mr. Zarzour pleaded guilty, the Correctional Service of Canada, with the Court’s consent, withdrew the report against Mr. Tymchuk.
[9] Mr. Zarzour subsequently filed a motion in writing, dated August 7, 2005, seeking to set aside his plea of guilty. On July 25, 2005, Mr. Zarzour met with two officers of the Correctional Service of Canada with regard to another disciplinary matter. One of the officers told him that Mr. Tymchuk [translation] "wanted to slice [him] and then gouge out [his] eyes".
[10] In this regard, Mr. Zarzour explained the following to the Court:
[translation]
So I said to him, "Listen, I said . . . I didn’t know that, how long have you known that?" "Well, he told us that when he went back in the hole [on] July 14." I said, "Yes, but why didn't you tell me that?" "There was no point, you pleaded guilty."
[11] The Court granted Mr. Zarzour’s motion seeking to set aside his plea of guilty and scheduled the hearing on the merits for September 22, 2005.
[12] In its decision delivered orally on October 6, 2005, the Court based its analysis of self‑defence on subsection 34(1) of the Criminal Code, R.S.C. 1985, c. C-46.
[13] In dismissing the defence of self-defence, the Court concluded that [translation] "in light of the facts in evidence, the Court cannot see how [the applicant] can say . . . [that] he was unlawfully assaulted when he declared himself to be the assailant in this incident". The Court stated that [translation] "the defence of self-defence can certainly not be accepted".
[14] Mr. Zarzour was therefore convicted of the offence under paragraph 40(h) of the Act.
[15] In his memorandum, Mr. Zarzour submits that the Court made two principal errors: first, by deciding that only subsection 34(1) of the Criminal Code applied to the defence of self-defence in this case, and, second, by separating the two incidents that took place on June 6, 2005, and therefore not taking into account, in this case, the first assault on Mr. Zarzour in assessing the applicability of the defence of self-defence.
[16] In Dasilva v. Canada (Attorney General), 2006 FC 508, at paragraphs 27-33, this Court decided that the standard of review applicable to the Independent Chairperson’s decision was that of reasonableness simpliciter. In Dasilva, supra, the principal issue was whether the applicant had been charged under the appropriate provision of the Act, that is, a question of mixed fact and law.
[17] With regard to the first issue, namely, whether the Court erred in determining that only subsection 34(1) of the Criminal Code applied to the situation, this Court is in agreement with Dasilva, supra. The standard of review of reasonableness simpliciter applies in this case.
[18] However, with respect to the second issue, namely, whether the Court erred in separating the two incidents that took place on June 6, 2005, the issue is rather one of assessing the facts and, consequently, the appropriate standard of review would instead seem to be that of patent unreasonableness (Forrest v. Canada (Attorney General), 2002 FCT 539, [2002] F.C.J. No. 713 (QL), at paragraphs 16-19).
The statutory basis of self-defence
[19] Mr. Zarzour submits, firstly, that the Court erred in deciding that only subsection 34(1) of the Criminal Code applied to the defence of self-defence in this case.
[20] In its decision, the Court asserted that [translation] "the defence of self-defence alleged by Mr. Zarzour is based on [subsection 34(1)] of the Criminal Code". In his submissions during the disciplinary hearing, Mr. Zarzour’s counsel stated the following:
[translation]
Self-defence: if you have been struck, and then you take means to stop the assault. Because that is what Antoine Zarzour did, he took a broom with a dustpan, and then he tried to get Tymchuk out of his cell . . . . [Emphasis added.]
[21] Subsection 34(1) of the Criminal Code applies where a person is "unlawfully assaulted" and is "justified in repelling force by force if the force he uses . . . is no more than is necessary to enable him to defend himself":
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34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. |
34. (1) Toute personne illégalement attaquée sans provocation de sa part est fondée à employer la force qui est nécessaire pour repousser l’attaque si, en ce faisant, elle n’a pas l’intention de causer la mort ni des lésions corporelles graves. |
This situation is similar to that described by Mr. Zarzour’s counsel.
[22] However, as the Court noted in its decision, Mr. Zarzour had declared himself to be the assailant during the incident that took place at 10:40 p.m. on June 6, 2005. Since subsection 34(1) specifically states that the person must be assaulted "without having provoked the assault", the Court therefore did not err in concluding that the defence of self-defence under subsection 34(1) cannot be accepted.
[23] However, the Court did not take into consideration the sections following section 34 of the Criminal Code which also deal with self-defence but in circumstances other than those provided for in section 34.
[24] For example, section 35 of the Criminal Code applies where a person has without jurisdiction assaulted another or has without justification provoked an assault on himself:
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35. Every one who has without jurisdiction assaulted another but did not commence the assault with intent to cause death or grievous harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if
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35. Quiconque a, sans justification, attaqué un autre, mais n’a pas commencé l’attaque dans le but de causer la mort ou des lésions corporelles graves, ou a, sans justification, provoqué sur lui-même une attaque de la part d’un autre, peut justifier l’emploi de la force subséquemment à l’attaque si, à la fois :
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(a) he uses the force
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a) il en fait usage :
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(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and
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(i) d’une part, parce qu’il a des motifs raisonnables d’appréhender que la mort ou des lésions corporelles graves ne résultent de la violence de la personne qu’il a attaquée ou provoquée,
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(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;
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(ii) d’autre part, parce qu’il croit, pour des motifs raisonnables, que la force est nécessaire en vue de se soustraire lui-même à la mort ou à des lésions corporelles graves;
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(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and
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b) il n’a, à aucun moment avant qu’ait surgi la nécessité de se soustraire à la mort ou à des lésions corporelles graves, tenté de causer la mort ou des lésions corporelles graves;
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(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose. |
c) il a refusé de continuer le combat, l’a abandonné ou s’en est retiré autant qu’il lui était possible de le faire avant qu’ait surgi la nécessité de se soustraire à la mort ou à des lésions corporelles graves. |
Even if we accept that Mr. Zarzour provoked the assault or assaulted Mr. Tymchuk first, Mr. Zarzour could still plead self-defence under subsection 35(1), especially since nothing indicates that Mr. Zarzour intended to cause death or bodily harm. Instead, he tried to defend himself from a violent act that could have caused death or bodily harm. In addition, he assaulted Mr. Tymchuk only because he feared that Mr. Tymchuk would assault him, and he stopped fighting as soon as the threat was no longer present, that is, when the guards intervened.
[25] Similarly, the Court did not take into consideration section 37 of the Criminal Code which also appears to apply to Mr. Zarzour’s situation:
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37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
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37. (1) Toute personne est fondée à employer la force pour se défendre d’une attaque, ou pour en défendre toute personne placée sous sa protection, si elle n’a recours qu’à la force nécessaire pour prévenir l’attaque ou sa répétition.
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(2) Nothing in this section shall be deemed to justify the willful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. |
(2) Le présent article n’a pas pour effet de justifier le fait d’infliger volontairement un mal ou dommage qui est excessif, eu égard à la nature de l’attaque que la force employée avait pour but de prévenir. |
[26] Neither section 35 nor section 37 of the Criminal Code refers to provocation or justification for the assault. It is not important in these two cases who started the fight or what caused it. The defence of self-defence can therefore be relied on in certain cases, regardless of who instigated or provoked the assault in question.
[27] It is also important to note that in R. v. Antley (1963) 42 C.R. 384, [1964] 1 O.R. 545, [1964] 2 C.C.C. 142, at paragraph 11, the Court asserted that it was not necessary for the accused to wait to be assaulted before defending himself. On the contrary, if the accused had reasonable grounds for apprehending an imminent assault from the victim, the accused was justified in using force to defend himself before the victim took action.
[28] In the same decision, the Court added that it was not relevant to determine whether the accused had attempted to obtain assistance from others before using force to defend himself. Where there is an apprehension of an imminent assault, instinctively an individual’s first reaction to a threat would be to attempt to protect himself (R. v. Antley, supra, at paragraph 13).
[29] Thus, in this case, it is not necessarily relevant to consider the fact that Mr. Zarzour assaulted Mr. Tymchuk first or that he did not attempt to call the guards to help him.
The two incidents of June 6, 2005
[30] This Court is in agreement with Mr. Zarzour’s submission that the Court erred in law by separating the two incidents and not taking the first assault on Mr. Zarzour into account.
[31] Despite the fact that there was an interval of more than an hour between the incidents, it is impossible to separate them completely to the point of not considering the first incident when Mr. Tymchuk entered Mr. Zarzour’s cell and assaulted him, since this incident is important in ascertaining Mr. Zarzour’s state of mind at the time of the second incident.
[32] In the case of self-defence, it is important to determine whether the accused truly apprehended an imminent assault. Previous threats, assaults or incidents are used to determine the state of mind of the accused:
. . . 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 . . . 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 . . . (R. v. Pétel, [1994] 1 S.C.R. 3).
[33] In this case, considering the first incident, it is reasonable to believe that Mr. Zarzour apprehended a second assault when Mr. Tymchuk entered his cell again around 10:40 p.m. The two incidents constitute a series of events that are impossible to separate in order to consider them in isolation.
For these reasons, this Court is of the opinion that Mr. Zarzour demonstrated that the Court’s decision was unreasonable with regard to the first issue, and patently unreasonable with regard to the second issue. The application for judicial review will therefore be allowed and the decision will be referred back to the Court for reconsideration.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2262-05
STYLE OF CAUSE: Antoine Zarzour v. Attorney General of Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 25, 2006
REASONS FOR JUDGMENT BY: Rouleau D.J.
APPEARANCES:
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Daniel Royer
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FOR THE APPLICANT |
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Dominique Guimond
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FOR THE DEFENDANT |
SOLICITORS OF RECORD:
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Labelle, Boudrault, Côté et Associés Montréal, Québec
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FOR THE APPLICANT |
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John H. Sims, Q.C. Deputy Attorney General of Canada
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FOR THE DEFENDANT |