Ontario’s highest court has allowed a teenage boy to claim self-defence in the shooting death of a man who was running away from him.
The teenager, who cannot be identified, had been carrying a gun for his protection because he had been shot at twice, including once from a car, by someone who called out his name. He feared for his life.
The Ontario Court of Appeal’s 3-0 ruling acquitting him on Tuesday “reinforces the notion that we really do have to be careful about how we assess extremely stressful and quick-moving events,” the teenager’s lawyer, Gary Grill, said in an interview.
A spokesman for the Ontario Attorney-General’s Ministry would not say whether it intends to appeal.
The killing in the spring of 2012 sheds light on gun violence that has occurred with increasing frequency over the past several years in Toronto.
Seventeen at the time — but with an undiagnosed cognitive disability that gave him the reasoning abilities of a 10-year-old — the teenager was attacked by five people, including two members of a gang known as the Gators, in his apartment lobby in the neighbourhood of Jane Street and Woolner Avenue just before 10 p.m. One attacker struck him over the head from behind with a baseball bat, knocking him to the floor and causing his gun to fall out of his pocket.
The teenager picked up the gun and, as the five attackers began to run, he fired four shots in five seconds. A bullet struck Jaivoan Cromwell, the man who had hit him with the bat, in the back, killing him, and grazed and injured another man. Police charged the youth with second-degree murder and attempted murder. Two years later, Ontario Superior Court Justice Maureen Forestell convicted him of manslaughter and aggravated assault, ruling that the force he used was grossly disproportionate to the threat, since the men were running away and the shots were not fired as warnings. She added, however, that she was not satisfied he intended to kill them. He was released under a community-supervision order after two years in custody, Mr. Grill said.
The appeal court said Justice Forestell had tested the youth’s actions “against a standard that is much too high for the proper application of self-defence,” requiring him “in less than five seconds, to process what had happened, evaluate the potential threat and essentially react in a reflective and measured fashion.”
The reality, it said, was that the youth thought he had been shot when struck with the bat, and had reason to believe the attack would continue and he might be killed. Having been shot at twice before, he reasonably believed his life was in danger, the court said, in a ruling by Justice Ian Nordheimer. And he was alone against five men, one of whom had a baseball bat. The closest exit was behind him — where his attackers had come from.
The teenager’s cognitive disability did not figure into the decision, as it became known only during sentencing, and would have required a ruling from the appeal court on whether it could hear fresh evidence.
Mr. Grill, a criminal-defence lawyer for nearly 25 years, said the case shows what some young people are up against in Toronto: “I can tell you that there are trials and tribulations and facts of life that some children face in certain neighbourhoods in our city, that would be completely divorced from the imaginations of other children who live in our city. And the two will never meet.” He said better social and educational support services might have identified his client’s disability, and helped prevent what happened.
Sean Fine