Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Brittany Zeus
Before: Justice S.W. Konyer
Heard on: February 27-28, March 23, April 24, 2018
Reasons for Judgment released on: May 15, 2018
Counsel
Mr. A. Midwood — counsel for the Crown
Mr. D. McFadden — counsel for the accused Brittany Zeus
Judgment
Introduction
1Brittany Zeus was tried before me on charges of dangerous driving causing bodily harm to Mason Mullen and possession of marijuana. On July 16, 2016, Ms. Zeus was involved in a dispute with Mr. Mullen and several of his friends in a parking lot at the Armour Hill lookout in the city of Peterborough. Although I heard conflicting testimony about how Ms. Zeus' car and Mr. Mullen's body came into contact, there is no dispute that he was dragged along the pavement under her car for a short distance, resulting in injuries which constitute bodily harm.
2Ms. Zeus was arrested later that same evening. At the outset of this trial, she admitted that she was in possession of a small quantity of marijuana at the time of her arrest. She therefore concedes that I should find her guilty of the possession offence.
3Further, the defence has conceded that all of the elements of the offence of dangerous driving causing bodily harm are made out, but argues that Ms. Zeus' actions were justified because she acted in self-defence. Accordingly, I must first decide whether there is an air of reality to Ms. Zeus' claim that she acted in self-defence. If I find there is no reality to her claim, that is the end of the matter and she will be found guilty. If there is an air of reality to her claim of self-defence, then I must decide whether the Crown has proven beyond reasonable doubt that Ms. Zeus did not act in self-defence. These decisions will rest, in large part, on my determinations about the credibility and the reliability of the witnesses who testified.
4In order to decide these issues, I will first summarize the relevant evidence. Next, I will assess the credibility and reliability of the witnesses who testified at trial in order to make findings of fact about what happened in this case. I will then review the law of self-defence, and apply that law to the facts.
Summary of the Evidence
5At trial I heard testimony from Mr. Mullen and three of his friends – Jamie Lynn MacLeod, Chloe Paudash and Jordan Desroches. In addition, I viewed a cell phone recording made by Ms. MacLeod which captures some audio and video of the events. I also heard testimony from a crime scene officer who attended Armour Hill after the incident, as well as one of the officers involved in Ms. Zeus' arrest. Ms. Zeus testified in her own defence, and also called Caitlin Currie, an independent witness who happened to be at the lookout when these events unfolded.
6The events of July 16 had their origins in another incident that occurred at the same location two nights earlier. On July 14, 2016, Ms. Zeus was at the Armour Hill lookout with two friends playing Pokemon Go. Several people driving large, loud pickup trucks in an aggressive manner arrived during their game. Ms. Zeus and her friends yelled at the other group, complaining about the noise and pollution. This drew a response. Chloe Paudash, her younger sister Breanna, and others confronted Ms. Zeus and her friends. A yelling match ensued. Chloe Paudash testified that Ms. Zeus pushed her sister, while Ms. Zeus said that she was the one who was pushed. Ms. Zeus also said that a number of people in the group shouted derogatory comments about her sexual orientation. Although she did not know any of these people herself, she knew that they were friends with Jamie Lynn MacLeod. Ms. Zeus had recently been involved in a romantic relationship with Ms. MacLeod, and assumed that this was the basis for the insults that were used. Ms. MacLeod was not present during the July 14 incident.
7Chloe Paudash testified that Jordan Desroches was one of about nine people in her group on July 14 at Armour Hill. She also agreed that the initial confrontation arose because Ms. Zeus and her friends were complaining loudly about the manner in which people in her group were driving. She denied making or hearing any comments about Ms. Zeus' sexual orientation.
8For his part, Mr. Desroches denied being part of the group at Armour Hill on July 14, though he did acknowledge that he and several friends have loud trucks which they frequently drive at this location. He agreed that he and his friends get complaints about the noise caused by their trucks and their manner of driving "all the time".
9Chloe Paudash also said that Mr. Mullen was part of the group that was involved in the dispute at Armour Hill on July 14. Mr. Mullen, however, denied being present.
10It is common ground that the July 14 dispute ended when Ms. Zeus and her two friends left Armour Hill. Ms. Zeus said that although they had arrived in two vehicles, they all left in her vehicle because the other driver suffered an anxiety attack during the confrontation. When Ms. Zeus and her friends returned to Armour Hill later that night, they found that her friends' car had been broken into and a phone charger stolen. They suspected that members of the other group were responsible.
11It is clear from the evidence as a whole that rumours swiftly began circulating about the theft, which apparently included an accusation that Mr. Mullen was responsible. Mr. Mullen was upset when he heard about the rumours, since he was not even present. It was believed that Ms. Zeus was the source of the rumours about Mr. Mullen. These rumours circulated not just amongst the people who were at Armour Hill with Chloe Paudash on July 14, but also amongst a wider circle of their friends.
12This circle included Jamie Lynn MacLeod, who had recently been involved in a brief relationship with Ms. Zeus. As a result of the rumours, Ms. MacLeod communicated with Ms. Zeus on the afternoon of July 16 by text message. In her testimony she described this conversation as civil, and said that she asked Ms. Zeus to meet her at Armour Hill to discuss the earlier incident.
13Ms. MacLeod arrived on Armour Hill with two other friends, Megan Armstrong and Tyson Revoy, neither of whom testified at trial, and neither of whom were said to be present during the July 14 incident. When they arrived, they saw that Ms. Zeus was already present, alone, in her vehicle. Shortly after arriving, Ms. MacLeod began recording the events on her cell phone, and the recording captures the events which unfold over the course of approximately seven minutes after her arrival. Ms. MacLeod shifted the focus of her camera repeatedly over the course of the incident, however, so the audio-video recording is not a complete record of these events.
14Immediately after their arrival, Ms. Armstrong exited their car and engaged in a verbal confrontation in the parking lot with Ms. Zeus. Although not everything can be heard on the cell phone recording, her tone was loud and angry, and it is clear that she was upset with Ms. Zeus over the apparently false allegations being made about her friends. Ms. MacLeod took no active part in the confrontation, while Ms. Revoy can be heard on the recording expressing displeasure at "being in the middle of this shit". For her part, Ms. Zeus quickly turned towards her car and walked away from Ms. Armstrong, stating "I'm gone, peace out, I gotta go smoke a bowl", a reference to her desire to leave and smoke some marijuana.
15Before she reached her car, however, a number of vehicles pulled in and came to a stop in quick succession. In her testimony, Ms. MacLeod described the occupants of these vehicles as "Megan's friends". The video shows that the Armstrong and Zeus vehicles were roughly facing one another at a distance estimated at 6 meters, parallel to one edge of the parking lot. The other four vehicles – 2 cars and 2 pickup trucks – parked in a rough arc between the Armstrong and Zeus vehicles, facing towards the same edge of the parking lot. The noise made by these vehicles as they pull up and stop is jarring on the recording played in court.
16As described earlier, the first vehicle to arrive after Ms. Zeus had three occupants – Megan Armstrong, Tyson Revoy and Jamie Lynn MacLeod. After Ms. Zeus withdrew from her conversation with Ms. Armstrong, the next vehicle to arrive contained a female identified as J.C. Windsor. As her vehicle pulled in, Ms. MacLeod can be heard to exclaim "oh, fuck". Ms. Windsor immediately exited her vehicle, approached Ms. Zeus and began to shout. As the other vehicles arrived in rapid succession, Ms. MacLeod can be heard laughing and shouting "one's in trouble, we're all in trouble." Ms. MacLeod denied the suggestion that she had lured Ms. Zeus to Armour Hill with the knowledge that there was any plan to confront her. By the time all of the vehicles are parked, a total of 12 people were present in the group involved in the confrontation with Ms. Zeus.
17For her part, Ms. Zeus confirmed that she received a call and texts from Ms. MacLeod on July 16 in the late afternoon as she was finishing her shift at work. She understood from their conversation that Ms. MacLeod wanted to meet to discuss the rumours swirling about the July 14 incident. Ms. Zeus said she agreed to meet to discuss the situation, and also because she wanted to see Ms. MacLeod again. In cross-examination, she agreed with the suggestion that she understood from the whole of her communication with Ms. MacLeod that there was likely to be a confrontation with her at Armour Hill. Nevertheless, Ms. Zeus maintained that she went to Armour Hill expecting to meet only Ms. MacLeod. When she was confronted instead by Megan Armstrong, she briefly engaged in conversation to explain her side of the story but quickly realized the conversation was going nowhere so she decided to leave. As she was in the process of leaving, the other vehicles arrived.
18Mr. Mullen said that he drove to Armour Hill on July 16 in his car along with Chloe Paudash. He was aware through other people that Ms. Zeus was making allegations that he had vandalized her friend's car two nights earlier, and he went there this night to ask her why she was accusing him. He did not know Ms. Zeus at the time. He said he was with Chloe Paudash and a number of other people, when Chloe received a phone call and then told him to drive to Armour Hill to meet Ms. Zeus. He denied knowing that anyone else was going to Armour Hill at the same time, and he did not remember anyone else being present. When shown the video, however, he identified the two pickup trucks that arrived simultaneously with his car as belonging to his other friends Jordan Desroches and Chris O'Brien.
19Chloe Paudash testified that on July 16 she was hanging out with a large group of friends including Mr. Mullen and Mr. Desroches when she received a phone call from Ms. MacLeod. She was told that Megan Armstrong and Ms. Zeus were in an argument at Armour Hill, and she was also told that Ms. Armstrong wanted a ride to a concert that the group had plans to attend that evening. She said that she drove to Armour Hill with her sister Breanna Paudash, Mason Mullen and Tyler Wood for the purpose of picking up Ms. Armstrong to go to the concert. She denied that she and her friends went to Armour Hill for the purpose of confronting Ms. Zeus about the supposedly false rumours she was spreading.
20Mr. Desroches said that he had met up with his group of friends for coffee, and that they were all hanging out around their vehicles in the parking lot of a Tim Horton's restaurant in downtown Peterborough, which is part of their usual routine. When he saw his best friend, Mr. Mullen, leave in his vehicle, he jumped in his pickup truck and followed, as is their custom. He said he had no idea where Mr. Mullen was headed until they all arrived at Armour Hill. He too denied that he knew of any plan to confront Ms. Zeus.
21Once all of the vehicles pulled to a stop in the parking lot of the lookout, people quickly spilled out, and the scene immediately became loud and chaotic. Although not everything can be seen or heard on the video, it clearly shows groups of people taking turns engaging in verbal confrontations with Ms. Zeus in the area immediately in front of her vehicle.
22Mr. Mullen said that he approached Ms. Zeus and asked her why she was accusing him of being involved in the July 14 theft. He has little memory of the events that followed, other than a recollection that Ms. Zeus was angry.
23Chloe Paudash said that she was surprised to discover that Ms. Zeus was still at Armour Hill when she arrived to pick up Megan Armstrong. She recalls that they argued, that she heard Ms. Zeus mention Mr. Mullen's name and that this upset her. She approached Ms. Zeus at one point and asked her why she was mentioning Mr. Mullen. She also said that Ms. Zeus was very angry, and that she screamed at people to get out of her way or she'd run them over. Although a good deal of shouting can be heard on Ms. MacLeod's recording, I was unable to make out these words. She said that Mr. Mullen was in the process of walking away from Ms. Zeus' car when she started the car, sped at Mr. Mullen and struck him, causing him to fall on the hood. She then braked abruptly, causing Mr. Mullen to fall off the hood, and quickly accelerated again, squealing her tires. Mr. Mullen was trapped under her car and dragged by the car. She said that Ms. Zeus accelerated even more, while looking out the driver's side window at Mr. Mullen as he was dragged.
24Mr. Desroches also said that Ms. Zeus was yelling before she got in her vehicle. He also said that Mr. Mullen was walking away towards his own vehicle when she started her car and "lunged" forward, striking Mr. Mullen and knocking him onto the hood. Her acceleration was rapid, causing the tires to squeal. She then braked suddenly, causing him to roll off the hood before she "pinned it again" and ran over Mr. Mullen, dragging him under her car.
25Ms. MacLeod said that Ms. Zeus shouted "I'm going to fucking hit anyone in my way" before getting in her car. She said that Mr. Mullen had walked away, towards a rock wall at the edge of the lookout parking lot when Ms. Zeus drove at him. She said that Mr. Mullen ended up on the hood of her car, and that she lost sight of the car as Ms. Zeus drove between the vehicles belonging to Tyson Revoy and J.C. Windsor.
26Ms. Zeus testified that she was terrified by the time she got back into her car. Her fear was based on a number of factors, including the unexpected confrontation with people other than Ms. MacLeod, the multiple vehicles rushing to the scene and surrounding her, and the people piling out of the vehicles who took turns approaching and yelling at her. She said that at different points someone dumped a drink on her car, someone else appeared to throw something at her or her car, and that people continuously yelled at her about the previous incident, calling her "psycho". Her fear was also informed by the physical attack she suffered on July 14 involving members of this same group. She was scared that a physical confrontation of some sort was likely to ensue if she remained. She said she thought to herself "oh shit, what is gonna happen?"
27Ms. Zeus agreed that no one in the group of people explicitly threatened her in any way, and she also agreed that no one brandished a weapon or threatened to use a weapon. She also agreed that she took some aggressive actions towards members of the group. For example, after Mr. Mullen and other males confronted her near her vehicle, she yelled at them, raised a fist and attempted to "chest bump" Mr. Mullen. She denied the suggestion that she was unafraid and was simply angry at Mr. Mullen and the others. Although she admitted being angry as well as afraid, she said that she acted aggressively to intimidate the group in the hopes that they would leave her alone.
28Ms. Zeus agreed that she told people she was leaving and told them to get out of her way or she would run them over. She said she uttered these words not because it was her intention to do so, but as a further attempt to convince people to leave her alone so that she could simply leave. When she got into her car, however, people in the group did the exact opposite. Mr. Mullen stood directly in front of her car. Tyler Wood lay down near the front of her car. Joel Telford, another member of the group, threw something at her car, and then stood in front of her car and "mooned" her.
29Ms. Zeus said that she started to drive her vehicle slowly. Mr. Wood and Mr. Telford moved out of her way, but Mr. Mullen stepped towards, rather than away from her car and hopped onto her hood in a seated position. The video confirms this, and also shows that as Ms. Zeus continued to drive, people in the group shouted at her and that Mr. Wood and Mr. Telford ran at her car and attempted to kick the side of it. At this point, Ms. Zeus testified that she panicked. At some point she applied the brakes, and then accelerated. She knew that Mr. Mullen jumped or fell off her hood, and knew that he had become caught under her vehicle. This happened at the same time as she was maneuvering between the group of vehicles that had surrounded her car in order to leave the scene. Everything happened very quickly, and at no time was it her intention to run over Mr. Mullen with her car. She continued to panic and fled the scene, and was chased across the city by Mr. Desroches in his pickup truck. She did not stop after she knew that Mr. Mullen had been run over because she was afraid the other members of the group would hurt her.
30The video shows that Ms. Zeus accelerated at a moderate pace after starting her car. Mr. Mullen, like the others, had time to easily step out of her path once she began moving. From my view, the video is consistent with Ms. Zeus' claim that Mr. Mullen deliberately hopped onto the hood of her car once she began moving. It certainly does not show that Mr. Mullen was struck forcefully and flung onto the hood. After he is on the hood, the video shows two other males running towards and kicking at the car, which speeds up and moves out of the camera's view. The video does not show how Mr. Mullen became dislodged from the hood, or how he came to be underneath the car. It is apparent, however, that these events happened quickly, in a matter of seconds.
31Afterwards, Mr. Desroches chased Ms. Zeus for some distance, eventually using his truck to force her car off the road onto a front lawn in a residential neighbourhood. He got out of his truck and was trying to remove Ms. Zeus from her vehicle when the homeowner intervened and chased him off. Ms. Zeus also drove away, and then called police to report that she had been involved in an accident. She was told to stop driving and wait for police, which she did. The responding officer said that Ms. Zeus was upset and crying when he arrived. He also noted liquid on the hood of her vehicle, consistent with the actions of one of the males who she said dumped a drink on her hood at Armour Hill. After she was arrested, a small quantity of marijuana was found in her car.
32Ms. Zeus was transported to the Peterborough police station. She was later interviewed by detectives. At trial, it was conceded that her statement to police was voluntary, and Ms. Zeus was cross-examined on portions of that statement. She agreed that she never told the police at that time that she had been assaulted on July 14. She also agreed that she told police only that she asked people to "get out of her way" before starting her car. She never told police that she also said "or I will run you over". Although she agreed with the suggestion that she was both scared and angry during the July 16 incident, Ms. Zeus denied that she struck Mr. Mullen with her vehicle out of anger. She also agreed that she did not take other steps to protect herself, such as locking her car doors once she was inside the vehicle, using her cell phone to call the police at that time, honking her horn to get people to move, or reversing her vehicle rather than driving forward.
33Cst. Prodonick was one of the officers who responded to the scene at Armour Hill. He observed torn red fabric along a set of tire tracks in the parking lot. These stretched for a distance of 35 feet along the tire tracks. Mr. Mullen was wearing a red hoodie, which was shredded as he was dragged along the pavement by Ms. Zeus' car.
34Caitlin Currie testified for the defence. She does not know any of the other people in this case, but she arrived at the Armour Hill lookout with her partner at about 8:30 p.m. on July 16. On arrival, she noticed a group of about 15 people. She parked on the opposite side of the lot, but was able to observe the group in her rear view mirror. The group attracted her attention because of loud yelling and aggressive behavior on the part of several males. From what she observed, she believed that Ms. Zeus was trying to get to her car, while other people were blocking her path. She described several males as acting aggressively towards Ms. Zeus, who appeared to be calmer. She became concerned for Ms. Zeus's safety, and was about to intervene when Ms. Zeus drove off. She too said that it appeared as though Mr. Mullen hopped onto her hood when Ms. Zeus began to move her car. She said he then fell off the hood as she continued to drive. She got out of her vehicle after Ms. Zeus drove off, and attempted to assist the injured Mr. Mullen.
Findings of Fact
35I find that the civilian witnesses who testified for the Crown lack credibility. The claim made by Ms. MacLeod, Mr. Mullen, Ms. Paudash and Mr. Desroches that there was no plan to confront Ms. Zeus at Armour Hill on July 16, and that they all ended up at that location at the same time by coincidence is simply preposterous. I find that Ms. MacLeod lured Ms. Zeus to Armour Hill on July 16 for the purpose of a surprise confrontation by her circle of friends. This is the only logical explanation for why the other vehicles arrived simultaneously moments after the initial confrontation began. This is why Ms. MacLeod reacted with apparent glee to the confrontation – because things were unfolding as planned.
36I find that Mr. Mullen and his friends intended to confront Ms. Zeus about the rumours she had apparently been spreading. They intended to surprise her, to outnumber her, to intimidate her, and to instill fear in her. All of which is precisely what occurred. I believe Ms. Zeus when she says she was terrified on July 16 when she found herself surrounded by a large angry group of people. Any reasonable person in her shoes would have been afraid for their safety. Ms. Currie's concerns for Ms. Zeus' safety were well-founded and entirely reasonable.
37I also believe Ms. Zeus that she was verbally and physically attacked by members of this same group at the same location two nights earlier. I accept her evidence that she was called derogatory names in reference to her sexual orientation, and I believe her that she was pushed. I do not believe the testimony of Ms. Paudash on this point. Her credibility as a witness is fatally damaged, in my judgment, by her patently false testimony about the events leading up to the July 16 occurrence. It would be dangerous, in my view, to rely on any uncorroborated testimony from her in this case. I find that Ms. Zeus' fear on July 16 was informed by the fact that she was attacked in the manner she described on July 14. I am not troubled by the fact that she did not mention being pushed when she told the police about these events after her arrest on July 16. She explained to the police how the events of July 16 had their roots in the earlier occurrence. At the time, she was being questioned in relation to a charge of dangerous driving causing bodily harm to Mr. Mullen. The fact that she did not mention being pushed by a female two nights earlier is of no real consequence, and does not, in my view, mean that she was not pushed. I believe Ms. Zeus' testimony about the events of July 14.
38On the night of July 16, it is clear that Ms. Zeus repeatedly attempted to leave as the confrontation escalated. She turned to leave when she was confronted initially by Ms. Armstrong. She clearly wanted nothing to do with the confrontation that escalated once the larger group arrived, and she continually made efforts to leave, just as she and her friends had withdrawn from the conflict two nights previously. I find that Ms. Zeus' intention when she got in her car on July 16 was to leave. She was scared, and wanted to leave before the situation escalated into violence. I find that the words she uttered prior to getting in her car were an effort on her part to convince the people surrounding her to let her leave in peace.
39I also find as a fact that when Ms. Zeus started to drive forward, that she did so slowly. She did not accelerate forward rapidly at Mr. Mullen, and the video makes this clear. He could easily have stepped out of her path, just as Mr. Wood and Mr. Telford did. Instead, I find that Mr. Mullen deliberately chose to hop onto the hood of Ms. Zeus' moving vehicle, likely as a prank or a continuation of the efforts to intimidate her. I believe Ms. Zeus that she panicked as a result, as other people yelled at her and rushed towards her vehicle. I also believe Ms. Zeus that it was her intention to simply leave a potentially dangerous situation before it escalated into violence.
40The fact that no one had brandished a weapon or explicitly threatened to harm Ms. Zeus does not, in my view, mean that the situation she found herself in was not dangerous. She was lured to a location where she was alone and unexpectedly surrounded by a large and hostile group. Some members of the group had been involved in a violent confrontation with her two nights before, and the events of July 16 were in many ways a continuation of that earlier incident. She was surrounded, taunted, mocked, and her efforts to leave were hampered. This was a situation where the potential for violence literally hung in the air. I share Ms. Currie's assessment that Ms. Zeus was in danger as she tried to get in her vehicle.
The Law of Self-Defence
41Self-defence acts as a justification for actions that would otherwise be unlawful. In this case, the defence concedes that Ms. Zeus' conduct in continuing to operate her vehicle once Mr. Mullen was seated on the hood constitutes dangerous operation within the meaning of s.249 of the Criminal Code. The defence claims, however, that her actions were justified under the self-defence provisions of the Code. The first issue I must decide is whether there is an air of reality to Ms. Zeus' claim of self-defence. If there is, then the Crown, which always bears the onus in a criminal trial, must disprove or negative self-defence beyond reasonable doubt. If there is no reality to the self-defence claim, then I must find Ms. Zeus guilty of dangerous driving causing bodily harm.
42If there is an air of reality to self-defence in the circumstances of this case, then I must go on to consider the defence. Self-defence is now codified in s.34 of the Criminal Code. There are three basic requirements: the accused must have a reasonable belief that force or a threat of force is being used against her; the accused's response to the threat must be for a defensive purpose; and the act committed in response must be objectively reasonable: see R. v. Bengy, 2015 ONCA 397, at para. 28. As it applies to the facts of this case, the requirements of s.34 may be framed as three questions:
- Did Ms. Zeus reasonably believe that a threat of force was being made against her?
- Did she operate her vehicle in a dangerous manner for the purpose of protecting herself from that threat?
- Were her actions objectively reasonable in the circumstances?
43In considering the third question – the reasonableness of her actions – I am directed by s.34(2) to consider the relevant circumstances of Ms. Zeus, the other parties to the altercation, and the act itself. This section also requires me to consider a non-exhaustive list of factors, including:
- The nature of the force or threat;
- 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;
- The person's role in the incident;
- Whether any party to the incident used or threatened to use a weapon;
- The size, age, gender and physical capabilities of the parties to the incident;
- 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;
- Any history of interaction or communication between the parties to the incident; and,
- The nature and proportionality of the person's response to the use or threat of force.
44Although the reasonableness of her actions must be considered objectively, the law of self-defence has always recognized the need to account for situations of stress. This has not changed under the new framework. As the court of appeal recently held"[a]s for the objective element of the defence, it is accepted that in considering the reasonableness of the defendant's use of defensive force, the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection": see R. v. Cunha, 2016 ONCA 491, at para. 7. Likewise, in R. v. Mohamed, 2014 ONCA 442, the court held at para. 29 that "[t]he law's readiness to justify 'mistaken self-defence' recognizes that those in peril, or even in situations of perceived peril, do not have time for full reflection and that errors in interpretation and judgment will be made."
45Finally, the existence of an actual assault or attack is not required in order for self-defence to be available, so long as the accused's belief in a threat of force was reasonable. The accused's belief may even be mistaken, so long as it is reasonable: R. v. Cunha, supra, at para. 8.
Application of the Law to the Facts of This Case
i) Is there an air of reality to Ms. Zeus' claim of self-defence?
46A defence will have an air of reality where a properly instructed jury, acting reasonably, could acquit the accused on the basis of the defence. For the purpose of applying the air of reality test, I must accept as true the evidence which Ms. Zeus relies upon in support of her claim of self-defence: see R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 47-54. In applying the test, it is not my role to assess witness credibility or to determine whether the defence is ultimately likely to succeed.
47Ms. Zeus testified that she felt threatened and afraid by the entire atmosphere that existed at the Armour Hill lookout before she got into her car. Specifically, she was afraid that some member or members of the group that had surrounded her would attack her physically. In light of all the circumstances, and assuming that her evidence about being assaulted by some of the same people in similar circumstances two nights before were believed, in my view a jury could properly find that Ms. Zeus' belief was reasonable. There is an air of reality to the belief component under s.34.
48She also testified that she operated her vehicle in an attempt to escape that threat of violence. I have to accept her evidence as true for the purpose of the air of reality analysis, and her testimony on the point satisfies the purpose component under s.34. That is, she drove to escape from the threat that she believed existed when she was surrounded in the Armour Hill parking lot.
49In my view, a reasonable jury could also find that her actions were reasonable in the circumstances. She did not drive in a reckless manner until after Mr. Mullen jumped on her car and others ran at her. It would be open to a jury to find that her conduct in taking flight, in the circumstances, was a reasonable response to the threat.
50It follows that I am satisfied that there is an air of reality to Ms. Zeus' claim that her actions are justified as self-defence. I must now decide whether the Crown has proven, beyond reasonable doubt, that Ms. Zeus did not act in self-defence. I will consider each of the three elements of self-defence as codified in s.34.
ii) Did Ms. Zeus reasonably believe that a threat of force was being made against her?
51Ms. Zeus subjectively believed that a threat of force was implicit in the circumstances that existed when she was surrounded on July 16 by Mr. Mullen and his group of friends. I must determine whether the Crown has proven that her belief was not reasonable.
52In my view the Crown has failed to do so. Ms. Zeus was alone, and surrounded by a group of twelve hostile young men and women. The inescapable conclusion is that she had been lured there to be confronted for supposedly spreading false rumours. The people confronting her were hostile, and part of the same group that had been involved with Ms. Zeus and her friends two nights earlier. I believe Ms. Zeus' testimony that she had been pushed and mocked for her sexual orientation during the earlier encounter. As a matter of common sense, this makes her claim that she felt threatened during a similar hostile encounter with members of the same group more reasonable. Further, an independent witness who saw and heard the confrontation on July 16 grew concerned for Ms. Zeus' safety. From what I saw and heard on the cell phone recording, those concerns were warranted.
53The fact that weapons were not brandished, or that threats were not explicitly uttered does not mean that the atmosphere was not threatening. Any reasonable person in Ms. Zeus' shoes at the time would perceive a realistic risk of violence in those circumstances. I find that Ms. Zeus' belief that a threat of force was being made was reasonable.
iii) Did Ms. Zeus operate her vehicle in a dangerous manner to protect herself from that threat?
54I find that the dangerous operation occurred only after Mr. Mullen seated himself on the hood of Ms. Zeus' vehicle. She had started her car and begun driving for the sole purpose of escaping the threatening situation that had quickly developed in the parking lot. Her driving became dangerous when she continued to accelerate after Mr. Mullen was seated on her hood, and in failing to stop once he became caught under her car.
55Ms. Zeus said that she simply panicked, that she was afraid that the hostile crowd at Armour Hill would hurt her if they caught up to her once Mr. Mullen sat on her hood. The video shows that people gave chase to her car as she began driving, and the entire incident happened very quickly. I believe Ms. Zeus' testimony that she continued to drive to protect herself by making good her escape from Armour Hill. It follows that the Crown has not disproven this element of self-defence.
iv) Were Ms. Zeus' actions reasonable in the circumstances?
56Since there is an air of reality to self-defence in this case, the onus is on the Crown to prove beyond reasonable doubt that Ms. Zeus' actions were not reasonable in the circumstances. Those circumstances include the fact that Ms. Zeus was alone, surrounded by a hostile group of twelve people, that she was acting in a state of fear that had been instilled in her by the deliberate actions of that group. The circumstances also include the fact that members of this group had previously assaulted her and expressed an animosity towards Ms. Zeus on the basis of her sexual orientation. She also had a reasonable basis for believing they had caused damage to a vehicle belonging to her friend. The relevant circumstances for considering the reasonableness of Ms. Zeus' actions must include the fact that she was reacting to this hostile situation in a state of fear and panic.
57I agree with the Crown that her failure to take other steps to protect herself from the potential for harm is a relevant consideration. It is true that other options existed. Ms. Zeus could have locked herself in her car, honked her horn, called 911, or put her car in reverse. Each of those options, however, risked provoking a reaction from the crowd that had confronted her. Reversing would have required her to divert her attention from this same group of people. She took reasonable steps to make her intention known – that she was going to leave in her car. In response, Mr. Wood lay down in front of her car, while Mr. Telford mooned her. Both quickly moved, however, once she started the engine. It would have been reasonable for her to assume that the path forward would remain clear. In my view, Ms. Zeus was not required to mentally sift through each potential course of action available to try and protect herself, and then choose the one that posed the least risk of provoking an intervention that could lead to harm coming to a member of the group of aggressors. She was afraid, quite justifiably. As the court of appeal held in Cunha, supra"people in stressful and dangerous situations do not have time for subtle reflection."
58When she began to drive away in an effort to extricate herself from the dangerous situation created by the larger group, Mr. Mullen unexpectedly propelled himself onto the hood of her car. That she panicked as a result is understandable. That Mr. Mullen suffered serious injuries is truly regrettable. But neither of those things mean that her response to the threat he and others posed was unreasonable.
59I have considered the factors set out in s.34(2) of the Criminal Code. I have taken into account the fact that the nature and imminence of the threat were not known to Ms. Zeus. What she did believe, reasonably, was that the situation could quickly turn violent. She played no role in provoking the situation of hostility, and would have been unable to defend herself had violence erupted. The only reasonable choice available to her to protect herself from that very real threat was to leave. The Crown has not proven that the means she employed to make her escape was unreasonable. I am left with a real doubt as to whether Ms. Zeus acted in self-defence. Accordingly, the charge of dangerous driving causing bodily harm is dismissed.
60Ms. Zeus is, however, found guilty of possession of marijuana, given the concessions made at the outset of the trial. I will now hear submissions on penalty for this offence.
Released: May 15, 2018
Signed: Justice S.W. Konyer