While on the ground Larose’s friend handed him a 20cm knife; armed, he got up and saw that Hanna had been joined by his friend Marshall. At his trial, Larose testified that the two men rushed him and he stabbed Hanna twice in the chest and once in the gut. Hanna and Marshall backed away. At some point during the fight the knife was knocked to the ground and Larose went to retrieve it, as he did so, Hanna and Marshall moved towards Larose ultimately rushing him. Larose lashed out striking Hanna in the face and slicing Marshall’s neck. Both men sustained life threatening injuries and Larose fled.
At trial Larose argued that he had acted in self-defence. The trial judge found that there was no air of reality to Larose’s claim of self-defence and refused to leave it with the jury. The British Columbia Court of Appeal agreed with the trial judge: 2013 BCCA 12.
The trial judge reviewed the relevant factors in the case, accepting the case for the defence at its highest. Some of these facts were as follows:
- Neither Hanna nor Marshall was armed
- Larose was bigger than Hanna
- Larose picked up the knife intending to confront Hanna
- Hanna and Marshall did not attack Larose when he was on the ground
- Objectively, the initial assault could not cause serious bodily harm to Larose
- At the time of the second altercation Hanna had been stabbed three times and any reasonable person would know he was weakened
- Marshall engaged Larose after Hanna had sustained the slash to his face
- Marshall was unarmed
- Larose testified that he had retrieved the knife from the ground because he thought it unwise to leave it there, he did not say he feared grievous bodily harm or death.
On appeal Larose argued that it the trial judge had erred in not leaving the defence with the jury as it was “for the jury to decide what weight, if any, to give to the inferences drawn from the evidence” [para 27].
Chiasson JA held for the Court held:
In absolute terms, that [Larose] is correct, but it does not detract from the trial judge’s obligation to perform a limited weighing of the evidence [para 27].
The Court went on to explain that:
(…) when undertaking the limited review of the evidence, a trial judge is entitled to exercise common sense. That surely is at the core of determining whether there is an air of reality [para 28].
Some of those common sense findings in this case were as follows.
With respect to why Larose retrieved the knife the Appellate Court held that:
The judge was examining all of the circumstances, one of which is the reasonable proposition that the appellant did not need a 20 cm knife to deal with the situation he faced. The judge stated in para. 61 that while the appellant did not have to “weigh his options to a nicety”, it was necessary to rule out other options. On the evidence, the judge identified not taking the knife as an available option along with others, like walking away [para 42].
Similarly, the Court found a good deal of common sense in the trial judge’s finding that feeling uncomfortable, as Larose testified he did, is not a reasonable basis for the Appellant to believe that he could not preserve himself from the attack.
Chiasson JA further offered that:
The appellant states that the judge used the least significant meaning of the word "uncomfortable" and that the word can connote "the feeling of extreme fear". He contends that it was "for the jury to decide the degree and nature of [the appellant's] discomfort". The appellant's proposition accords neither with the dictionary definition of uncomfortable ("not physically comfortable": Concise Oxford English Dictionary, 11th ed. (Oxford: Oxford University Press, 2004)), nor with the common understanding of the word. The appellant did not testify that he had extreme fear or that he could not preserve himself without slashing Messrs. Hanna and Marshall or that this played any part in him not walking away when Messrs. Hanna and Marshall did so [para 50].
Ultimately, the Court of Appeal concluded that:
Although I have addressed each of the appellant's contentions concerning the judge's factual findings, the exercise illustrates the basic error of the appellant's approach. It is wrong to analyze each of these findings in isolation. Most of those identified by the appellant were but one factor in the judge's consideration of the various elements of s. 34(1) and (2) of the Criminal Code. Cumulatively, together with many other factors, these findings led the judge to conclude that the defence of self-defence did not have an air of reality in this case [emphasis added]; [para 51].