500-10-005951-155 and 500-10-006177-164
Duval Hesler, Vauclair, Hogue
Applications for leave to appeal a conviction and a sentence. Granted. Appeals of a conviction and a sentence. Dismissed.
The appellant stabbed the victim during a fight that started when the victim tried to enter the appellant’s home by hitting the screen door with a plank of wood. The appellant seeks leave to appeal the verdict on the grounds that there are palpable and overriding errors in the assessment of the evidence and that the analysis on self-defence is wrong. He would also like to appeal his 8-year prison sentence because the trial judge refused to grant him credit of one and one-half days for each day spent in pre-sentencing custody.
As the judge concluded that the appellant was unlawfully attacked by the victim, the actual debate concerns the assessment of self-defence. Self-defence under the former s. 34(1) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.), which applies here, fails because the fact that a person stabbed another person in the head indicates that the person who committed that act intended to cause the victim serious bodily harm, at the very least. In this regard, the judge could apply “common sense inference” to determine that issue, meaning that people generally know the foreseeable consequences of their acts and commit them so that these consequences materialize. Moreover, there is nothing to support a finding that the injury was [translation] “inadvertent”. With respect to self-defence under the former s. 34(2) Cr. C., the evidence establishes that the appellant had no reasonable apprehension of death or any serious bodily harm whatever, and that he could have removed himself from the situation other than by inflicting serious bodily harm.
Given that the appellant had breached the conditions of his release, the judge was prevented by s. 719(3.1) Cr. C., as it was worded at the time, from granting him enhanced credit. However, the appellant is eligible for such a credit for pre-sentencing custody under the new s. 719(3.1) Cr. C. The debate on the constitutionality of a provision now repealed is unnecessary, especially where its repeal is favourable to the appellant. Even though the judge did not err by refusing the enhanced credit, given that it was prohibited under the Act, the Court must intervene since the appellant may now claim the credit. The sentence, however, does not need to be reconsidered because the judge, even by refusing the enhanced credit, deducted an extra 2.5 months when calculating the length of pre-sentencing custody.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca