R. v. Smith

R. v. Smith

Because the accused voluntarily accepted a challenge to fight and thereby provoked the assault, his subjective belief of imminent grievous bodily harm was not objectively reasonable and his use of force (biting) was excessive; therefore the defences under ss.34 and 37 do not apply and the Crown proved assault causing bodily harm beyond a reasonable doubt.

Citation
2003 NSPC 15
Parties
Crown: R.; Accused: Kevin Andrew Smith; Complainant: Sean Fahie
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
11 June 2003
Procedural Posture
Criminal Assault Causing Bodily Harm / Trial Decision Conviction Entered
Outcome
Guilty — conviction entered for assault causing bodily harm
Legal Topics
Assault Causing Bodily Harm, Self Defence (criminal Code Ss.34, 37), Provocation, Credibility Assessment, Causation, Consent Vitiation (jobidon)
Source Language
English
Criminal Law Self Defence Evidence Assault Causing Bodily Harm Self Defence (criminal Code Ss.34,37) Provocation Credibility Assessment Causation +1 more

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Parties

R.

Crown

Kevin Andrew Smith

Accused

Sean Fahie

Complainant

Procedural Posture

Criminal Assault Causing Bodily Harm / Trial Decision Conviction Entered

Legal Issues

  1. 1 Whether the accused established self-defence under Criminal Code ss.34 and 37
  2. 2 Whether the accused provoked the assault and thus foreclosed s.34(1) protection
  3. 3 Whether the accused had a reasonable apprehension of death or grievous bodily harm (s.34(2))

Ratio Decidendi

Because the accused voluntarily accepted a challenge to fight and thereby provoked the assault, his subjective belief of imminent grievous bodily harm was not objectively reasonable and his use of force (biting) was excessive; therefore the defences under ss.34 and 37 do not apply and the Crown proved assault causing bodily harm beyond a reasonable doubt.

Court Disposition

Guilty — conviction entered for assault causing bodily harm

Orders

  • Accused found guilty and conviction entered on the record for assault causing bodily harm