Background
Duite Simms was tried by a jury on three charges arising from alleged intimate-partner violence. The jury acquitted him of one count of assault and one count of sexual assault but convicted him of assault contrary to s. 266 of the Criminal Code for events on October 9, 2022. He received a 60-day conditional sentence followed by 24 months of probation.
Simms denied hitting the complainant. He testified, however, that she punched and kicked him and that he intentionally used his martial-arts training to deflect her blows and protect himself. Neither party initially sought a self-defence instruction. During deliberations, the jury asked whether an intentional application of force could occur in self-defence or instead would be considered accidental. With both counsel’s agreement, the trial judge answered that a person acting in self-defence would not have intentionally applied force.
The Court’s Holding
The Court of Appeal unanimously allowed the appeal. It held that Simms’s testimony supplied an air of reality to self-defence because, if believed, it could permit a properly instructed, reasonable jury to acquit. His denial that he hit the complainant did not eliminate the defence: his evidence that he intentionally made physical contact while deflecting blows could constitute an application of force undertaken for protection. The trial judge therefore had a duty to instruct the jury on self-defence even though the defence had not expressly relied on it.
The judge also misdirected the jury by stating that a person acting in self-defence would not intentionally apply force. Self-defence can justify an intentional use of force when the statutory requirements are met. The error was particularly serious because it appeared in an answer to a jury question showing that the issue mattered to the deliberations. Defence counsel’s agreement with the answer did not relieve the judge of responsibility for correctly instructing the jury.
The curative proviso in s. 686(1)(b)(iii) did not apply. The error was not harmless, because the jury might have found that Simms intentionally applied force while acting defensively, and the case against him was not overwhelming. The Court set aside the conviction and ordered a new trial.
Key Takeaways
- A trial judge must instruct a jury on any defence supported by an air of reality, whether or not the accused expressly invokes it.
- Self-defence may justify an intentional application of force; defensive force is not necessarily accidental.
- An incorrect answer to a jury question can be especially prejudicial because the question reveals an issue affecting the jury’s deliberations.
- Counsel’s failure to object—or agreement with an erroneous instruction—is relevant but does not determine whether appellate intervention is required.
Why It Matters
The decision underscores that the evidential threshold for putting a defence to the jury is distinct from deciding whether that defence will ultimately succeed. Courts assessing an air of reality must consider the entire record, assume the supporting evidence is true, and leave credibility and weight to the jury.
It also emphasizes the need for precise recharge instructions. Where jurors ask about the relationship between an offence’s intent element and a justification such as self-defence, the answer must distinguish intentional conduct from whether that conduct was legally justified.