Cases

SCC Case Information

Summary

33189

LCol. Szczerbaniwicz, G. v. Her Majesty the Queen

(Federal Court) (Criminal) (As of Right)

Keywords

Criminal Law.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.

Criminal law - Conviction of common assault - Whether the military judge erred in law in failing to apply the directions of the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742, with respect to the issue of reasonable doubt - Whether the military judge erred in law in failing to properly assess the relevant facts with respect to the defence under s. 39(1) of the Criminal Code.

The events took place on August 16, 2006, in Belgium, where the Appellant was then posted. The marriage of the Appellant and the Complainant had broken down and they had been separated for approximately two months. The Complainant was visiting (mainly to spend time with her daughter) and arrived the previous evening. When the Complainant’s arrangement for accommodations fell through, he offered that she stay at his residence.

The Appellant and the Complainant’s versions of the short period of time during which the Appellant physically handled the Complainant are very different. The conversation became heated and the Complainant took a diploma off the wall and threw it to the floor. The Appellant yelled and came down the stairs and pushed her so that she fell backwards and landed on the floor on her elbow. The incident occurred on the first landing of the staircase, connecting two flights of stairs at right angles.

At trial, the defence conceded that the Appellant intentionally applied force to the Complainant without her consent and that he knew she was not consenting. As indicated by the trial judge, all the elements of the offence of assault were established. The trial judge found an air of reality to the defence of defence with claim of right under s. 39(1) of the Criminal Code and determined that the defence was engaged. The trial judge found that the Appellant’s actions were motivated by his desire to protect his personal property, but that the Appellant’s use of force was excessive. The Appellant was found not guilty of the charge of assault causing bodily harm, but found guilty of the lesser and included offence of assault. On appeal to the Court Martial Appeal Court, the appeal was dismissed. Lutfy J.A. dissenting held that the trial judge did not undertake the required W. (D.) analysis and did not properly consider the defence with claim of right pursuant to s. 39(1) of the Criminal Code.