R. v. Cunha, [2016] O.J. No.

3321
Ontario Judgments

Ontario Court of Appeal

J.C. MacPherson, P.D. Lauwers and C.W. Hourigan JJ.A.
Heard: May 19, 2016.
Judgment: June 21, 2016.
Docket: C59489

[2016] O.J. No. 3321 | 2016 ONCA 491 | 29 C.R. (7th) 105 | 131 W.C.B. (2d) 141 |
337 C.C.C. (3d) 7 | 2016 CarswellOnt 9749 | 351 O.A.C. 123
Between Her Majesty the Queen, Respondent, and Valter Cunha, Appellant

(48 paras.)
Case Summary

Criminal law — Defences — Self-defence — Reasonable apprehension of death or

grievous bodily harm — Appeal by Cunha from convictions for discharging firearm with
intent to wound and aggravated assault allowed — New trial ordered — Cunha responded
to call for help from neighbour by bringing neighbour into apartment, loading gun —
After hearing one of intruders say shoot him, Cunha entered common area where
complainant's associate was seen with shotgun and told complainant to freeze —
Complainant turned and Cunha shot him twice — Judge erred in rejecting self-defence by
parsing events second-by-second and finding Cunha's fear unreasonable and response
disproportionate — Cunha's actions to be considered in light of stress of situation, not
judged on standard of perfection — Criminal Code, s. 35.

Appeal by Cunha from his convictions for discharging a firearm with intent to wound and aggravated assault.
Cunha lived in one of two apartments in a house. Barros and two associates visited the apartment of the other
occupant, Silva, to purchase marijuana. Barros paid Silva $4,500 for what he thought was one-and-a-half pounds
of marijuana. When he discovered he only received a pound of marijuana, and Silva indicated Barros had been
short cash on his last purchase, a physical struggle broke out in the foyer of the house. Silva called for help.
Cunha, having dinner with his friend Fotopoulos, came to the foyer. They got Silva inside Cunha's apartment and
locked the door. Cunha loaded his handgun and approached the foyer through a different door. Cunha and
Fotopoulos heard someone say, "Shoot him". One of Barros' associates was seen carrying a shotgun. Cunha
stepped into the foyer where he found Barros in front of Cunha's open door. He told Barros to freeze, but Barros
instead started to turn to face Cunha. Cunha shot Barros once in the leg and once in the lower back. Fotopoulos
and Silva escaped through the back door of Cunha's unit. Barros limped out the front door. The trial judge
rejected the defence of self-defence, finding that Cunha lacked reasonable grounds to believe Barros was using
or threatening to use force against him, that he did not shoot Barros for the purpose of protecting himself, and
that his use of the gun to shoot Barros, who had his back to him, was disproportionate to the situation.

HELD: Appeal allowed.

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Cunha's convictions were set aside and a new trial was ordered. The judge parsed Cunha's reactions down to
the split-second and held him to a standard of perfection. In using his hindsight knowledge of the facts that
Barros was not armed and that his armed associate had left the building to determine the reasonableness of
Cunha's actions, the judge lost sight of the entire factual context. The judge failed to keep in mind that people in
stressful situations do not have time for subtle reflection. He also made errors in assessing the evidence that
Cunha pulled Silva into his apartment, that Cunha's front door was damaged during the incident, and that Cunha
saw Barros' hands clasped in front of him prior to shooting him. He erred in discounting the words that
Fotopoulos and Cunha heard as giving Cunha a reason to fear for his safety, simply because Cunha did not
know Barros.

Statutes, Regulations and Rules Cited:

Citizen's Arrest and Self-Defences Act, S.C. 2012, c. 9

Criminal Code, s. 34, s. 35(1)(d), s. 37, s. 244, s. 244(2)(a)(i), s. 268

Appeal From:
On appeal from the conviction entered on May 12, 2014, and the sentence imposed on October 27, 2014 by
Justice John MacDonald of the Superior Court of Justice.

Counsel

Michael Dineen, for the appellant.

Davin M. Garg, for the respondent.

The judgment of the Court was delivered by

P.D. LAUWERS J.A.

1 The trial judge convicted Valter Cunha of one count of intentional discharge of a firearm with
intent to wound, contrary to s. 244 of the Criminal Code, and one count of aggravated assault,
contrary to s. 268. Mr. Cunha admitted shooting Fernando Barros twice. Mr. Cunha testified and
asserted he was acting in self-defence. The trial judge rejected that defence.

2 The trial judge sentenced Mr. Cunha to five years' imprisonment, which is the mandatory
minimum required by s. 244(2)(a)(i) of the Criminal Code for a first offence, and to four and a
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half years for the aggravated assault, concurrent to the first conviction. He gave credit of one
year for pre-trial custody and 10 months for onerous bail terms.

3 For the reasons set out below, I would allow the appeal, set aside the conviction, and order a
new trial. I would not address the appellant's sentencing submission that the mandatory
minimum in this case is unconstitutional.

4 I begin with a brief description of the law relating to self-defence. I next consider the narrative
context, then the trial judge's approach, and conclude with the legal analysis.

(1) The Legal Elements of Self-Defence

5 On March 11, 2013, the Citizen's Arrest and Self-Defence Act, S.C. 2012, c. 9, came into
force, repealing the former ss. 34 to 37 of the Criminal Code and replacing them with a new s.
34 self-defence provision. At trial, the parties did not have the benefit of this court's decision in
R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, in which this court held that the new Criminal
Code provisions regarding self-defence do not apply retrospectively. However, the parties
submit, and I agree, there is no relevant difference, for the purposes of this case, between the
old provisions and the new.

6 At para. 28 of Bengy, Hourigan J.A. set out the elements of self-defence:

The test for self-defence was, therefore, simplified into three basic requirements,
applicable to all cases:
Reasonable belief (34(1)(a)): the accused must reasonably believe that force or threat
of force is being used against him or someone else;
Defensive purpose (34(1)(b)): the subjective purpose for responding to the threat must
be to protect oneself or others; and
Reasonable response (34(c)): the act committed must be objectively reasonable in
the circumstances.

7 As for the objective element of the defence, it is accepted that in considering the
reasonableness of the defendant's use of defensive force, the court must be alive to the fact that
people in stressful and dangerous situations do not have time for subtle reflection, as this court
noted in R. v. Mohamed, 2014 ONCA 442, 310 C.C.C. (3d) 123, at para. 29:

As Professor Paciocco notes at p. 36:

The law's readiness to justify "mistaken self-defence" recognizes that those in peril, or
even in situations of perceived peril, do not have time for full reflection and that errors in
interpretation and judgment will be made.

In a similar vein, Martin J.A. commented in R. v.

Baxter (1975), 27 C.C.C. (2d) 96, at p. 111, that

in deciding whether the force used by the accused was more than was necessary in
self-defence under both s. 34(1) and (2), the jury must bear in mind that a person
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defending himself against an attack, reasonably apprehended, cannot be expected to

weigh to a nicety the exact measure of necessary defensive action.

8 It is well established that self-defence can be invoked on the basis of reasonable mistakes of
fact, including whether the putative assailant was armed. As this court noted in R. v. Currie
[2002] O.J. No. 2191, 166 C.C.C. (3d) 190 (C.A.), at para. 43:

The Supreme Court of Canada in Cinous [2002 SCC 29] confirmed the principle
established in R. v. Pétel, [1994] 1 S.C.R. 3 that the existence of an actual assault is not
a prerequisite for a defence under s. 34(2). The question that the jury must ask itself is
not whether the accused was unlawfully attacked, but whether he reasonably believed in
the circumstances that he was being unlawfully attacked. The question for the trial judge
on the threshold evidential test is whether there is evidence upon which a jury acting
reasonably could conclude that the accused reasonably believed he was about to be
attacked and that this belief was reasonable in the circumstances.

9 It is also the law that a person who is defending himself, and other occupants of his house, is
not obliged to retreat in the face of danger. In R. v. Forde, 2011 ONCA 592, 277 C.C.C. (3d) 1,
this court considered the issue of retreat at some length, and concluded at para. 55: "a jury is
not entitled to consider whether an accused could have retreated from his or her own home in
the face of an attack (or threatened attack) by an assailant in assessing the elements of self-
defence."

(2) The Narrative Context

10 It is trite law that in assessing self-defence, the trier of fact must pay close attention to the
entire factual context. As I will explain, in this case, the trial judge failed to do so. He made
several palpable and overriding errors that led him to misapprehend what was really going on in
the encounter between the appellant and Mr. Barros.

11 It became clear in oral argument that the parties do not substantially disagree about the
facts and the sequence of events that led to the shooting.

12 The appellant lived in a house that was separated into two apartments. He occupied the
ground floor unit which was accessed by two doors on the main floor, the main door at one end
of the foyer and a French door at the other end. The door to the upstairs unit, occupied by the
appellant's friend Peter Silva, was right beside the main door to the appellant's unit.

13 On December 13, 2011, Mr. Barros and his two associates, Momokai Massaquoi and Cody
Rocha, went to Mr. Silva's residence to purchase marijuana. Mr. Rocha waited in the car while
Mr. Barros and Mr. Massaquoi went into the house. Mr. Barros and Mr. Silva exchanged money
for drugs, $4,500 for one and a half pounds of marijuana. Mr. Barros discovered that he had
only received a pound; Mr. Silva explained that he had withheld the half pound because during
their last drug deal Mr. Barros had underpaid by $1,500. Mr. Barros objected and when he tried
to get his money back a physical struggle broke out in the foyer of the house.

14 At the time, the appellant was having dinner with his friend George Fotopoulos. Mr. Silva
called for help, and the appellant and Mr. Fotopoulos came out to the front foyer through the
appellant's main door. They discovered the scuffle, got Mr. Silva inside the appellant's unit and
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locked the door. The appellant and Mr. Fotopoulos then went downstairs where the appellant
retrieved his registered handgun and loaded it. While downstairs, Mr. Fotopoulos heard a voice
saying "shoot him, shoot him". Although it is not clear where Mr. Cunha was when this
statement was made, the trial judge accepted that he heard it too. Mr. Cunha went back upstairs
and, instead of accessing the foyer through the main door, decided to enter it from the French
doors at the other end. As he was about to go into the foyer, he saw Mr. Massaquoi moving past
carrying a shotgun.

15 Mr. Cunha then stepped into the foyer, but Mr. Massaquoi was gone, apparently through the
main door to the appellant's unit that had been locked, but was now open. He found Mr. Barros
facing the main door to his unit and told him to "freeze". Mr. Barros, whose back was turned to
the appellant, did not freeze, but began to turn and Mr. Cunha shot him twice, once in the leg
and once in the lower back.

16 In the meantime, Mr. Fotopoulos exited the basement through the rear entrance, and Mr.
Silva exited the main floor through the back door of Mr. Cunha's unit. Neither had come to harm.
Mr. Barros limped out the front door. Eventually, the police arrived.

(3) The Trial Judge's Approach

17 The trial judge found the Crown had proven beyond a reasonable doubt that none of the
elements of self-defence applied to Mr. Cunha in the circumstances.

18 With respect to Mr. Cunha's belief that force or threat of force was being used against him or
someone else, and whether his belief was reasonable, the trial judge held:

I am satisfied beyond a reasonable doubt on the evidence as I have assessed it that Mr.
Cunha did not have reasonable grounds for believing and did not believe that Mr. Barros
was using or threatening force against him.

19 With respect to whether Mr. Cunha subjectively had a defensive purpose, the trial judge
found: "because Mr. Cunha did not believe that Mr. Barros was threatening to use force on him,
I am satisfied beyond a reasonable doubt that in shooting Mr. Barros, Mr. Cunha did not do so
for the purpose of defending or protecting himself from that alleged threat." He added:

In addition, I find it proven beyond a reasonable doubt that Mr. Cunha shooting at Mr.
Barros was not for the purpose of either defending or protecting the other person
threatened with the use of force, because the person, Mr. Silva, whom he might have
been defending, was somewhere else.

20 The trial judge concluded his analysis of Mr. Cunha's defensive purpose with the following
statement:

He shot an unarmed man in the back of his body twice without knowing whether the
person was a threat of any sort, and without believing that he was a threat, likely, I find,
because he was afraid that Mr. Barros might be armed, and because of that fear, Mr.
Cunha wasn't going to wait to find out if he was armed.
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21 As to whether Mr. Cunha's response was objectively reasonable, the trial judge found that:

[T]he act of firing at and wounding Mr. Barros was not reasonable in the circumstances. It
is not reasonable to shoot an unarmed man in the back of his body, when it is not known
whether he is armed, because he has begun to turn towards the shooter. As Mr. Cunha
stated, he fired a split second after saying "freeze" and that's a split second after Mr.
Barros, on Mr. Cunha's own version of events, began to turn.

22 The trial judge went on to say:

Mr. Cunha could have waited a very short period of time in order to see whether Mr.
Barros had a gun or other weapon in his hands before resorting to the use of devastating
force.

He found Mr. Cunha's use of force was "disproportionate".

23 The trial judge found Mr. Cunha did not shoot Mr. Barros "for the purpose of preventing Mr.
Barros from entering Mr. Cunha's unit, or for the purpose of removing Mr. Barros from the
property, or for the purpose of preventing Mr. Barros from doing anything to Mr. Cunha's
property." He found, in relation to s. 35(1)(d) of the Criminal Code, that Mr. Cunha's actions in
defending his property were not reasonable, and convicted him.

(4) The Analysis

24 I accept the appellant's argument that "the trial judge parsed the appellant's reactions down
to the split-second and held him to a standard of perfection, informed by his hindsight
knowledge that Mr. Barros was actually unarmed and that Mr. Massaquoi had already left the
house through the back door." This was an error in principle, since the trial judge lost sight of the
whole factual context and the tableau of the evidence.

25 This was plainly a case for the court to keep in mind that in considering the reasonableness
of the defendant's use of defensive force, the court must be alive to the fact that people in
stressful and dangerous situations do not have time for subtle reflection. However, the trial judge
held the appellant to a standard of perfection.

26 The trial judge found that the appellant subjectively feared for his life, for his friend, and for
his property. He stated: "I accept also that Mr. Cunha was probably feeling fear at that time,
including fear for his life and also fear for his friend Mr. Silva."

27 As noted above, self-defence can be invoked on the basis of reasonable mistakes of fact.
This includes mistaking whether the putative assailant was armed as was the case here. The
trial judge's finding that Mr. Barros was unarmed is not fatal to the appellant's self-defence
claim.

28 As I see it, the trial judge effectively imposed on the appellant an obligation to wait and see
whether Mr. Barros had a gun or other weapon before acting. Although the appellant had the
advantage over Mr. Barros at the moment when he ordered him to freeze, he would have lost
that advantage had he waited, and would have exposed himself to risk of serious harm if Mr.
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Barros had been carrying a gun. As this court noted in R. v. Quinn, 2014 ONCA 650 at para. 10:
"This was a fast-paced event that should have not be viewed on a frame-by-frame basis."

29 The problem with the trial judge's analysis is that it paid little regard to the overall evidence,
but focused excessively on whether Mr. Cunha was a credible witness. The trial judge found that
he was not credible because of several inconsistencies in his evidence, which led him to make
the following comment: "This causes me to conclude that Mr. Cunha's testimony is likely
incredible and unreliable unless it is confirmed by other credible or reliable evidence."

30 The blanket rejection of the appellant's evidence in the absence of corroboration lies at the
root of the trial judge's errors. With respect, such an approach is flawed. It boils down to saying
that the appellant must be lying except where other witnesses can confirm what he says. But
this goes too far - if the appellant is telling the truth in certain situations that another witness can
corroborate, then it does not necessarily follow that he must be lying in all other situations.

31 Proceeding from this flawed blanket credibility finding, the trial judge then relentlessly
rejected Mr. Cunha's version of events. This led him to make a number of troubling factual
findings that do not hold up to scrutiny against the flow of the narrative or the tableau of the
evidence that he did accept. I refer below to five instances in the trial judge's treatment of the
evidence.

32 First, the trial judge said that: "I find that Mr. Cunha did not pull Mr. Silva into his unit." The
problem with this statement is that it does not account for how Mr. Silva escaped from the
scuffle in the foyer, and ended up behind the locked door in the appellant's unit before exiting
safely from the rear door.

33 The second instance relates to the damage to the front door of Mr. Cunha's unit. Mr. Cunha
did not see anyone breaking through the door into his unit since he was elsewhere when it
happened. Mr. Cunha's evidence was that the door had been replaced a few weeks before
during renovations. There is clear damage to the door in the police photographs and Mr. Cunha
said that this damage occurred during the events in question. The trial judge considered
"whether to infer from that whether there was a forced entry into Mr. Cunha's premises on the
night in issue." He refused to draw the inference:

I find that Mr. Cunha's evidence about the condition of the door before the events in issue
is incredible and unreliable for all of the aforesaid reasons. Given that, the proven
condition of the door after the events in issue does not, on the whole of the evidence,
lead to a reasonable inference that the door was broken open in the events in issue.

34 However, the narrative demonstrates that the trial judge's conclusion on the state of the door
is unreasonable and inconsistent with the whole of the evidence.

35 When Mr. Cunha burst into the foyer intending to pursue Mr. Massaquoi, who was carrying a
shotgun, he found Mr. Barros there, with his back turned to him facing the now open main door
to his unit, which had previously been closed and locked. In the circumstances, it is highly
unlikely that anyone inside Mr. Cunha's unit opened the door, but much more likely that
someone in the foyer forced their way into it. Since Mr. Massaquoi and the shotgun were
nowhere to be seen when Mr. Cunha entered the foyer, it is likely that Mr. Massaquoi was the
one who broke open and damaged the door.
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36 Third, the way in which the trial judge assessed the shooting scenario is problematic. He
stated:

[...] as I've also held, [Mr. Massaquoi] was armed with a shotgun and was present in the
home to Mr. Cunha's knowledge, and was at or about the location when Mr. Cunha shot
Mr. Barros, at or about the time he shot him. In addition, Mr. Fotopoulos testified that he
heard someone who was neither Mr. Silva nor Mr. Cunha say "shoot him, shoot him", and
that that was said in the area above him, which was the main floor level of Mr. Cunha's
premises towards the westerly side of the building. Mr. Cunha states that he heard that.
With Mr. Fotopoulos' confirmation that that was said, I accept that Mr. Cunha heard that
said shortly before he shot Mr. Barros. I accept also that Mr. Cunha was probably feeling
fear at that time, including fear for his life and also fear for his friend Mr. Silva.

37 The trial judge also noted that Mr. Barros said that Mr. Massaquoi ran out to the car while he
wrestled with Mr. Silva. Mr. Fotopoulos, whose evidence was accepted by the trial judge, gave
evidence that as he looked out the basement door, he saw Mr. Silva run from the house to the
garage presumably being pursued by Mr. Massaquoi who, Mr. Fotopoulos stated, was armed
with a shotgun. Mr. Fotopoulos saw Mr. Silva lock himself in the garage, and Mr. Massaquoi
kicking at the garage door.

38 Against that backdrop, Mr. Cunha testified that when he came upon Mr. Barros in the foyer,
Mr. Barros "had his hands clasped in front of his chest" much in the way a person holding a gun
would be positioned. The trial judge found this to be "entirely incredible, unreliable and false
evidence." He based this on his assessment that Mr. Cunha could not have seen what he claims
to have seen since Mr. Barros' body blocked Mr. Cunha from seeing his hands. He added that
Mr. Cunha could not have seen the position of Mr. Barros hands as he was starting to turn
around because he shot Mr. Barros within a split second. The trial judge concluded that Mr.
Cunha did not "wait to see what was in his hands before shooting."

39 There was a conflict in the evidence between what Mr. Cunha said Mr. Barros was doing,
and what Mr. Barros said he was doing. Mr. Barros said he was picking up the money that Mr.
Silva dropped on the floor. The trial judge stated: "if this evidence is credible and reliable, it
would mean that Mr. Barros' hands probably were visible to Mr. Cunha, and Mr. Cunha probably
could see that Mr. Barros was unarmed." With respect, this does not make sense in light of his
earlier finding that Mr. Barros' back was blocking Mr. Cunha's view of his hands.

40 The trial judge went on to say: "As well, if Mr. Barros' hands, which were not clasped in front
of him, were at his sides, they were probably visible to Mr. Cunha and Mr. Cunha probably could
see that Mr. Barros was unarmed." This again is sheer speculation. Perhaps sensing this, the
trial judge stated that "these are not findings". He described them as "issues which I have
considered".

41 The trial judge then made the following comments:

Having entirely rejected as incredible and unreliable Mr. Cunha's testimony that Mr.
Barros' hands were clasped in front of him, and having some doubt about whether Mr.
Barros' was benignly picking money up off the floor as he claims, I can make no finding of
fact about where Mr. Barros' hands actually were for what they were actually doing in the
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moments before Mr. Cunha shot Mr. Barros, except for the finding that Mr. Barros' hands
were not clasped in front of him as Mr. Cunha said they were. (Emphasis added.)

42 There is, with respect, no reasonable basis for the trial judge to make a positive finding
about the position of Mr. Barros' hands after saying that he did not know where Mr. Barros'
hands actually were.

43 Fourth, the trial judge made inconsistent findings with respect to Mr. Cunha's state of mind.
Mr. Cunha admitted he did not know if Mr. Barros had a gun in his hands but he feared he might
have one. The trial judge noted "I am left with a reasonable doubt about whether Mr. Cunha felt
afraid that Mr. Barros might be armed." Having said this, however, he then went on to state the
following:

Nonetheless, I am satisfied beyond a reasonable doubt on the evidence as I have

assessed it that Mr. Cunha did not have reasonable grounds for believing and did not
believe that Mr. Barros was using or threatening force against him. As he testified, he
was not going to wait to see what he had in his hands.

44 Two paragraphs later in his reasons, the trial judge said:

He shot an unarmed man in the back of his body twice without knowing whether that
person was a threat of any sort, and without believing that he was a threat, likely, I find,
because he was afraid that Mr. Barros might be armed, and because of that fear, Mr.
Cunha wasn't going to wait to find out if he was armed.

45 In my view, the two preceding statements are not consistent with each other. If Mr. Cunha
"did not believe that Mr. Barros was using or threatening force against him," then there was no
reason for Mr. Cunha to fear that Mr. Barros might be armed. Neither statement can be read
together with the trial judge's statement: "I accept also that Mr. Cunha was probably feeling fear
at that time, including fear for his life and also fear for his friend Mr. Silva."

46 Fifth, the trial judge completely discounted any personal threat to Mr. Cunha. He noted that
"the words 'Shoot him, shoot him' were simply overheard by [Mr. Cunha] and were not said
about him, and the man with the shotgun was seen not present when he, Mr. Cunha, fired at
someone else, being Mr. Barros." The trial judge noted:

Mr. Barros was a person who was not known to Mr. Cunha. There was no history
between them which would have fed Mr. Cunha's apparent fear and which, if it existed,
could have made precipitous action necessary for defensive or protective purposes.

47 Overall, the trial judge failed to take account of the entire situation from Mr. Cunha's
perspective -- a frightened home owner suddenly confronted with armed men in his home. The
trial judge artificially separated out the sequence of events relating to Mr. Massaquoi, who was
carrying a shotgun, from the encounter a very short time later between the appellant and Mr.
Barros, and treated them as though they were virtually unrelated events. This is clearly
inconsistent with what happened, and failed to pay sufficient attention to the factual context and
to the entire tableau of the evidence. This was an error in principle in assessing self-defence.

(5) Disposition
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48 For the reasons set out above, I would allow Mr. Cunha's appeal, set aside the conviction,
and order a new trial. It is not open to this court to acquit Mr. Cunha, since the viability of self-
defence is an issue for the trier of fact. However, on these facts, this may well be a case where
the Crown decides it is appropriate to elect not to proceed with a new trial. In light of this
disposition, I would not grant leave to appeal sentence.

P.D. LAUWERS J.A.

J.C. MacPHERSON J.A.:— I agree.
C.W. HOURIGAN J.A.:— I agree.

End of Document