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Information No. 15-1704

Citation: R. v. Babineau, 2016 ONCJ 310

Ontario Court of Justice

Her Majesty the Queen

Paul Babineau

Before: The Honourable Justice D.A. Harris

Date: April 19, 2016

Location: Milton, Ontario

Crown: M. McGuigan

Defence: R. Brooks (Counsel for Paul Babineau)

Item	Date
Transcript Ordered	April 19, 2016
Transcript Completed	May 11, 2016
Ordering Party Notified	May 11, 2016

Harris, J. (Orally):

Charge and Plea

Paul Babineau is charged with an assault causing bodily harm to Everett Baldwin on May 7, 2015, in Oakville. Crown counsel elected to proceed summarily. Mr. Babineau pled not guilty and we held a trial.

Evidence Called

Certain facts were agreed to by counsel. Danielle Ableman, Rebecca DaRosa and Everett Baldwin were called by the Crown as witnesses. Paul Babineau testified on his own behalf.

Undisputed Facts

Many of the facts in this case are not in dispute. It is clear that Mr. Baldwin was driving his car on the Queen Elizabeth Way on May 7, 2015. Mr. Babineau was driving his motorcycle in the same area. The two became involved in what I describe to be a mutual display of road rage.

Mr. Baldwin eventually exited the Queen Elizabeth Way at Trafalgar Road in Oakville. Mr. Babineau followed him. Mr. Baldwin pulled over onto the shoulder of the exit ramp and got out of his car. Mr. Babineau pulled over and stopped behind the Baldwin vehicle and got off his motorcycle. An altercation took place between the two men at that location. In it, Mr. Babineau punched Mr. Baldwin in the face fracturing a bone in his cheek and chipping a tooth on the other side of his mouth.

Conflicting Accounts

According to Mr. Baldwin he did not threaten or menace Mr. Babineau in any way. According to Mr. Babineau, Mr. Baldwin ran at him clearly intending to assault or attack him. He, Mr. Babineau, threw one punch in order to defend himself. Counsel for Mr. Babineau argued that Mr. Babineau was acting in self-defence and therefore not guilty of any offence by virtue of section 34 of the Criminal Code of Canada.

Issues Before the Court

The issues before me then are:

The credibility and reliability of the witnesses; and
Whether the Crown has proven beyond a reasonable doubt all of the essential elements of the alleged offence including that Mr. Babineau's actions were not in defence of himself.

Legal Framework

In reaching a conclusion, I am mindful of the instructions from the Supreme Court of Canada in Regina v. W.D., 1991 CanLII 93 (SCC). If I believe the testimony of Mr. Babineau and if I am satisfied that his actions fell within the self-defence provisions of the Code then I must find him not guilty. Even if I do not believe Mr. Babineau, if his evidence leaves me with a reasonable doubt about an essential element of the offence, I must find him not guilty. If I do not know whom to believe it means I have a reasonable doubt and if I am satisfied that his actions fell within the self-defence provisions of the Criminal Code then I must find him not guilty.

Finally, even if his evidence does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept I am not satisfied that the Crown has proven all of the essential elements beyond a reasonable doubt, I must acquit.

Now, while doing this analysis I must keep in mind that Mr. Babineau, like any other person charged with a crime, is presumed to be innocent unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely, while it is nearly impossible to prove anything with absolute certainty, and the Crown is not required to do so. However, I must remember that the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities. With that I refer to Regina v. Starr, 2000 SCC 40, a decision of the Supreme Court of Canada at paragraph 242.

This is a tough standard and it is so tough for very good reason. As Justice Cory said in Regina v. Lifchus, 1997 CanLII 319 (SCC), at paragraph 13:

The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt is one of the principal safeguards which seeks to ensure that no innocent person is convicted.

Observations on Conduct

Before I enter upon an analysis of the evidence with respect to witnesses I will make something very very clear. I was, to say the least, not impressed by the behaviour of either Mr. Baldwin or Mr. Babineau on the day in question. At the very least, both lost their temper. At the very least, both behaved in a fashion that was dangerous and quite likely to provoke hostility in the other person. As I saw it, neither man took reasonable steps to defuse the situation once it got out of hand. So, quite frankly, by the end of the case I did not like either Mr. Baldwin or Mr. Babineau very much. I point out, however, that this abominable behaviour by both men was not a factor in my assessments of their respective credibility.

Analysis of Mr. Babineau's Evidence

After considering all the evidence I found that I did not believe Mr. Babineau nor did his evidence leave me with a reasonable doubt. My reasons for this are as follows:

Inconsistencies with Rebecca DaRosa's Evidence

First of all, his evidence was inconsistent on certain key points with that of Rebecca DaRosa. Mr. Babineau described the Baldwin vehicle as being one of two vehicles that were, I would use the word dawdling along at the speed limit of a hundred kilometres an hour in the two left lanes on the Queen Elizabeth Way. Mr. Babineau indicated that he passed these two vehicles by using the high occupancy vehicle lanes. I will refer later to the fact that even on his own admission he was not using those lanes legally.

Mr. Baldwin testified that he was travelling in the middle lane of the three regular occupancy lanes. He passed another vehicle to the right of that vehicle. He was not dawdling. He was travelling faster than this car. He then went to move to the left and suddenly realized that there was another vehicle there. He almost hit the motorcycle that was being driven by Mr. Babineau coming up behind him and Mr. Baldwin then swung back.

According to Rebecca DaRosa, Mr. Baldwin passed her on the right. She was travelling 110 kilometres an hour and Mr. Baldwin was clearly going faster in order to pass her. Mr. Babineau came by following them. Neither Mr. Baldwin nor Mr. Babineau were dawdling along in any lane at that point. Ms. DaRosa indicated that the motorcycle appeared to be chasing the car.

Pattern of Aggressive Driving

Now I note that Mr. Babineau testified that he was trying to get around and away from Mr. Baldwin. Mr. Baldwin testified that Mr. Babineau got around him and then pulled in front of him and brake checked him, that he raced up to pass him or drove beside him whenever Mr. Baldwin slowed down. I note here that Ms. DaRosa indicated that on at least one occasion Mr. Babineau pulled in front of the Baldwin vehicle and braked hard enough to cause Mr. Baldwin to brake too. I note that she also testified that she observed Mr. Baldwin at one point pass Mr. Babineau, pull over in front of him and brake hard enough to cause Mr. Babineau to brake.

Implausibility of Babineau's Account

I note further that the evidence of Mr. Babineau on other key points was inconsistent with what I would refer to as simple common sense. Mr. Babineau testified that Mr. Baldwin almost killed him. This, to my thinking, indicates that Mr. Babineau was aware of the imbalance of power that exists between a car and a motorcycle on a high speed, actually on any highway. However, he did not back off. He did not take action to separate himself from Mr. Baldwin. On the contrary, he followed Mr. Baldwin, he passed him. On those occasions when he passed him he passed him in the HOV lane and in the portion of the HOV lane closest to the Baldwin car. On his own evidence, the best places to drive in a lane when on a motorcycle would include one stretch that would be close to the Baldwin vehicle and one that would have been on the other side of the HOV lane. If he was trying to get away the far side would be the one that one would logically be in.

Mr. Babineau indicated on a number of occasions while giving his evidence that he was in a hurry to get to work. On the other hand, he followed Mr. Baldwin off of the Queen Elizabeth Way at the Trafalgar exit even though this was not the fastest or most direct route to his work. He pulled over behind Mr. Baldwin's car on the shoulder of the exit ramp reportedly so that he could yell at him. I note that if all he wanted to do was yell at Mr. Baldwin he could have done that as he drove by in the travel portion of the lane but he did not. He stopped. I will also note one other thing that he did not do. The evidence made it clear he went into the HOV lane two or three times to pass Mr. Baldwin. He did so because that was the only open area. He did not use that as an opportunity to attempt to get away and create separation between himself and Mr. Baldwin. Rather he pulled back in front of the other vehicle.

Unsubstantiated Claims

Mr. Babineau testified that he tried to slow down but that whenever he did that Mr. Baldwin slowed down. There was no mention of that in the evidence of either Mr. Baldwin or that of Ms. DaRosa. There was evidence that Mr. Babineau slowed as Mr. Baldwin did. Mr. Baldwin slowed down to 60 or 70 kilometres an hour as he approached Trafalgar Road and made his way across to the exit ramp but it would appear that it was traffic that made both men slow down.

Temporal Impossibility

Mr. Babineau testified that he was caught off guard as Mr. Baldwin came running at him before he could even stop his motorcycle. Yet he supposedly managed to shut the motorcycle down, get off, and throw a punch in self-defence. Quite frankly, I am satisfied that the events could not have happened in the manner described here by Mr. Babineau. He simply did not have time to do all the things he claimed to have done if Mr. Baldwin came barreling out of his car and at Mr. Babineau in the manner described by Mr. Babineau.

Inconsistency with Danielle Ableman's Evidence

Finally, I note that his evidence is inconsistent on key points with that of Danielle Ableman. According to Mr. Babineau when Mr. Baldwin came running at him Mr. Babineau punched him in self-defence but Mr. Baldwin's momentum was such that it carried him forward and knocked Mr. Babineau to the ground with Mr. Baldwin on top. Danielle Ableman saw two men hitting and pushing each other but the one who was dominating, in other words Mr. Babineau, was standing and bending over the other one and punching.

Analysis of Mr. Baldwin's Evidence

So as I said earlier, I did not believe Mr. Babineau nor did his evidence leave me with a reasonable doubt. That is not the end of the matter, however. Before I can convict I must still be satisfied based on the evidence that I did accept, that the Crown has proven all the essential elements of the offence beyond a reasonable doubt. In that regard, I believed Mr. Baldwin to the necessary degree. I did not particularly like him, as I stated before. However, I believed him. His evidence on the key points was internally consistent and consistent for the most part with the evidence of Ms. DaRosa and Ms. Ableman. His evidence as to his attempts to get off the Queen Elizabeth Way and away from Mr. Babineau was also consistent with his expressed desire to avoid any confrontation. His decision to stop on the shoulder of the exit ramp was, to my thinking, ill-advised compared to other options open to him but it too is consistent with someone who wanted to end conflict rather than escalate it.

I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Babineau assaulted Mr. Baldwin and did thereby cause him bodily harm and that at the time Mr. Babineau was not acting in self-defence.

Analysis of Self-Defence Claim

In any event, I am also satisfied beyond a reasonable doubt that even on Mr. Babineau's evidence, the provisions of section 34 of the Criminal Code do not apply here. The relevant provisions of section 34(1) read that:

A person is not guilty of an offence if: (a) they believe on reasonable grounds that a threat of force is being made against them and; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves from that threat of force and; (c) the act committed is reasonable in the circumstances.

Crown counsel has noted that the evidence of Mr. Babineau was that Mr. Baldwin was attacking him. He used the force necessary to stop him. He knew what was coming. Someone running at him was going to attack him. There was no spoken threat, no threatening gesture, no weapon, and there was not reasonable grounds to believe that a threat of force was being made against him. I agree.

The key point, as I see it, however, is found in (c) that: "The act committed was reasonable in the circumstances".

Section 34(2) provides that a list of factors which must be considered in determining whether the act committed was reasonable in the circumstances. I point out that it is clear from the wording of the section that the list, while extensive, is not meant to be exhaustive. It comes close however.

Factor 1: Nature of Force or Threat

I am to consider the nature of the force or threat. I have already described that. Mr. Baldwin was running at Mr. Babineau. He was clearly angry. The behaviour between the two men made it clear that they were both angry with each other at the time. However, there was no spoken threat, no threatening gesture, and no weapon present at the time.

Factor 2: Imminence and Alternative Means

I am to consider the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force. According to Mr. Babineau he had barely come to a stop if even come to a stop as he saw the door come open and all of this happened. All he needed to do at that point was drive off. There were certainly other options in between those two other than deciding that, "He was about to hit me so I hit him back first."

Factor 3: Role in the Incident

I am to consider the person's role in the incident. I note that ultimately Mr. Babineau was the one that created this particular confrontation. He was the one that followed Mr. Baldwin off the road — first of all, off of the Queen Elizabeth Way and then off of the exit ramp.

Factor 4: Use or Threat of Weapon

I am to consider whether any party used or threatened to use a weapon and note that neither did.

Factor 5: Physical Characteristics

I am to consider the size, age, gender, and physical capabilities of the parties to the incident and I indicated earlier that I noted that both were big men. I would say based on the evidence and my own observations Mr. Babineau was more fit then Mr. Baldwin but I would also say that it was not to such an extent that it would be so obvious as to be a factor in this analysis.

Factor 6: Relationship and History

I am also to consider the nature, duration, and history of any relationship between the parties to the incident including any prior use or threat of force and the nature of that force or threat and any history of interaction or communication between the parties to the incident. I have already gone through the nature of any relationship between the two men. Other than this one incident of mutual road rage there is no other history.

Factor 7: Proportionality of Response

Finally, I have to look at the nature and proportionality of Mr. Babineau's response to the threat of force and I note that in this particular case it was a matter of throwing one punch.

Conclusion on Self-Defence

For the reasons I have just gone through I am satisfied that the act committed was not reasonable in the circumstances and, as I say, the defence of self-defence would not have applied in any event.

Accordingly, I enter a finding of guilt. Do you wish to deal with sentence today?

Sentencing Hearing

MS. MCGUIGAN: I think I should, in fairness, given that it is an assault cause bodily harm, just be certain that there's nothing else Mr. Babineau would add by way of victim impact statement and….

THE COURT: You mean Mr. Baldwin?

MS. MCGUIGAN: Thank you, sir, Mr. Baldwin. Was there any wish for a pre-sentence report?

MR. BROOKS: There is. I, I'd like a pre-sentence report, Your Honour.

THE COURT: June 14 or 15?

MS. MCGUIGAN: I know I'm already before Your Honour on June 14 so that would be a good day for myself.

MR. BROOKS: That, that works for me as well, Your Honour.

MS. MCGUIGAN: That's courtroom 2, I believe.

THE COURT: It is. Okay, I'm going to put the matter to June 14 next, 10:00 a.m., courtroom 2, marked for sentence. I will order the preparation of a pre-sentence report. Any victim input can be filed at that time. Anything that anybody else — that either of you wishes to file you could file at that time. I think by now I do not need to tell you that as long as you clear it with the other person I will not object if it is provided to me in advance especially if there is anything extensive.

MR. BROOKS: Understood.

THE COURT: Okay, I will see everybody on June 14 then.

MR. BROOKS: Thank you, Your Honour.

MS. MCGUIGAN: If I can be excused?

THE COURT: Certainly.

Adjournment

WHEREUPON THESE PROCEEDINGS WERE ADJOURNED.

Certificate of Transcript

Form 2 – Certificate of Transcript

Evidence Act, Subsection 5(2)

I, EVA ANDERSON, certify that this document is a true and accurate transcription of the recording of R. v. GERNON, Thomas in the Ontario Court of Justice held at 491 Steeles Avenue East, Milton, Ontario taken from Recording No. 1211-16-20160419-085644-6-HARRISDAV.dcr which has been certified in Form 1.

Date: May 11, 2016

Signature of Authorized Person: _____