May 10, 2010
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.
2 Comments
I like this blog, and generally find the analysis thoughtful. But in my opinion it should be more clear that when the authors make statements like "the dissent incorrectly adopted a formalistic approach to the adequacy of the trial judge's reasons", what is really meant is the author disagrees with the approach taken, not that it is 'incorrect' in the normal sense of the word. I've seen similar presumptuous language in other articles.
In my opinion, using the word "incorrect" without any qualification indicates to the reader that the dissent's reasoning was wrong as measured against some concrete standard, rather than in the mind of the person making the statement. Flatly calling the approach "wrong" also implies that the author has more authority on the matter than the dissenting Supreme Court Justice who heard the arguments, read the reasons, did the research, and is, after all, a Supreme Court Justice.
In particular, I think a lay reader (and given this is the internet, I suspect this is a majority of readers) could come away thinking that the dissent's approach was "wrong" in the ordinary, conclusive sense of that word, instead of just being less persuasive to the author and not adopted by the Court.
I don't think the fact this was a dissent changes the appropriateness of using "wrong" in this way. The fact that this reasoning was not adopted by a majority does not make it "wrong", it just makes it not the law. Were the approaches taken by L'Heureux Dube in her great dissents "wrong" as well? The effect of an approach not being taken by a minority should be viewed more narrowly for its legal effect, not as a pronunciation on wrongness or correctness as those terms are normally used.
A dissent's approach not being adopted by the Court does not make that approach "wrong" in the factual sense any more than a "not guilty" ruling makes an accused factually innocent. The concepts do not fully overlap.
Hi, thanks for the feedback! I appreciate your support of The Court. I think if you give the post a second read, you'll note that the last paragraph does not specifically cite any of the Justices as making those comments. Typically, I will state which Justice made certain comments so that it is clear whether a part of a post is part of the majority or minority decisions. I make the assumption that where I do not specifically refer to a Justice, readers will understand that it is my personal view on the case as this is a blog. I try to avoid referring to myself in the first person in order to maintain some degree of formality to my style of writing. Further, it must also be appreciated that editors at The Court do not merely summarize cases. If we did that, we would simply be replicating what anyone could find in a headnote. Our goal is to present insight on the cases rather than just summarize the state of the law. Obviously, when we do take a particular position on a decision, there will be those that disagree with us. There is nothing wrong with disagreeing over how a case was decided because debate leads to developments in the law.
As for the criticism of the unqualified use of the word "incorrect", the third and fourth last paragraphs do in fact qualify the use of the word "incorrect" in the last paragraph. The SCC held in R.E.M. that a judge does not have to go into an in-depth description of how he or she arrived at "why". Since the minority does criticize the trial judge for failing to give an in-depth description, then it would be reasonable to argue that the former was "incorrect" to adopt such an approach. To require an in-depth description would be a formalistic approach, which was rejected in R.E.M. As well, I was not arguing the minority's approach was "wrong" just because it was the minority that made that argument. I argued that the minority was "incorrect" because I judged its reasoning as such, and not merely because of its status as the "minority." It must also be noted that I did agree with the minority that the majority overemphasized the defendant's anger, even though, as you allege, I am siding against the minority merely because it is the minority.
I avoid and would caution against the use of words such as "wrong" and "right" when engaging in legal critique. Those words import morality into the law, which is arguably not the best standard to critique legal developments. Words such as "correct" and "incorrect" are objective words that do not suffer the same impediment. I did not use the word "incorrect" to mean that the minority's decision was "wrong". That word was used to indicate that the minority's reasoning on that particular point was inconsistent with the previous SCC decision in R.E.M.