Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— And —
Fiago Heron Sr.
Judicial Officer and Counsel
Before: Justice A.D. Dellandrea
Heard on: May 31, 2018
Reasons for Judgment released on: June 6, 2018
Counsel:
- Mr. P. Renwick — counsel for the Crown
- Mr. A. Gerges — counsel for Mr. Heron
Introduction
1Mr. Fiago Heron Sr., also known as "Trevor" Heron, pleaded not guilty to two counts of possession of a weapon for a dangerous purpose, one count of assault with a weapon, and one count of mischief. The charges arise from an incident which occurred at the accused's family home on August 9, 2017. The Crown alleges that Mr. Heron attacked his son Fiago Heron Jr., also known as "Demar" first with a machete and later a bat, after being questioned by his son about a basketball net which had become the source of some controversy in the family. The Defence submits the complainant was in fact the aggressor in the attack and that the accused was acting in self-defence and that his conduct in repelling his son's attack with the chosen weapons is therefore excused by the operation of s. 34(1) of the Criminal Code.
2The Crown called 3 witnesses: the complainant, Demar Heron; the accused's wife, Mrs. Paula Heron, and the police officer who seized the weapons. The Defence called the accused, Mr. Fiago Heron Sr.
3The main issue in this case is credibility, and depending on my findings of fact, whether self-defence applies.
4The following background is not disputed:
5Demar Heron was the second of four boys in the Heron family. He was 26 at the time of the incident. While he retained a room for his belongings at the family home, he lived there only off and on; predominantly more off than on. It is likewise not in dispute that Demar and his father had a very strained relationship, which included a history of distrust and hostility between the parties. The accused had long suspected his son of being involved with drugs, and had called him out on this suspicion several times since Demar's teenage years. Demar testified that he basically had no relationship with his father, who he believed had no knowledge, interest or affection for him. Paula Heron was caught in the middle between her husband, Trevor, who clearly disapproved of Demar's suspected lifestyle, and her son, who she wanted to protect and insulate from what she described as his father's disaffection, anger, and judgment.
6Demar had bought and installed a basketball net for his little brother, Devante, to have at the family home on the day preceding the incident. He installed the basket on the small patch of grass near the family driveway for his brother to play. The accused had worked hard to grow and tend to the grass on the lawn in this area and took objection to the basketball net's placement in that location as it would likely damage his grass. He didn't want the net left on the grass, but instead insisted that it be moved each night to the side of the house until it was needed. Paula was stressed about this and anticipated that the net would create yet another source of conflict between Demar and his father. So when Demar arrived at the home on August 9th, she asked him to get rid of the hoop. Demar said he could see that the net had been scratched by having been moved by his father to the side of the house. It is not disputed that he entered the house to address the "net controversy" with his father.
7It is not disputed that Demar descended to the basement and that there he found his father in the area of his sitting room / bedroom sofa. What is disputed is the tone and mechanics of the transaction that followed.
Crown's Version of Events
8Demar said that his intention in descending was to ask Trevor why he had moved the net. He said he stood at the doorway and politely posed this question of the accused who was seated on the couch. He said there was a brief exchange about the grass, which he described as "stupid". He testified that it was then that the accused immediately reached under the sofa and produced a machete which he swung over his head and attacked him with, while stating: "I'm gonna kill this boy". Demar said the accused struck him with the first swipe of the machete, which landed on his gold chain on his neck, causing the chain to break. Trevor swung a second time and Demar was able to disarm him of the machete and punch him in the face. The two fell to the ground where they continued grappling with each other. Mrs. Heron, who testified that she was also present at this point, grabbed the machete and took it out of the room. Demar says that his father then retrieved a metal bat. He swung the bat in the direction of Demar and Paula was able to get between them and disarm Trevor of the bat. Once she did, the accused went upstairs and called the police.
9Paula Heron's version of events is quite similar to that of her son's. She confirmed the history of animus between the parties, and testified that Trevor armed himself suddenly with a machete and came at Demar with it once Demar had descended to the basement. She said she got out of the way and couldn't see exactly how he was pointing or swinging it at her son. She described seeing a swinging motion. She said she saw Demar disarm Trevor, the pair fall to the ground and then Trevor re-arming himself with a bat. She said she herself disarmed him of the bat, screaming, and once she did, Trevor went straight upstairs.
Defence's Version of Events
10The Defence position is that it was Demar who was the aggressor. The accused testified that Demar came down the stairs repeating the phrase: "hey ho" in a sarcastic and confrontational tone. The accused said that Demar started yelling and cursing at him about the net, to which he calmly responded that his son should speak to him more respectfully. He says Demar persisted to curse at him, then suddenly moved toward him where he was sitting on his futon. He stood to face him and the two broke into a fight. They fell to the floor where he described being repeatedly punched and kicked by his son. He said he found himself having an opportunity to break free, at which point he ran to his bed to retrieve a machete that he kept there. He said he approached Demar with it, with his hands down, in a non-aggressive posture, merely to scare him off. He said it worked. Demar backed away so he decided to set the machete down on the floor. The accused testified that only he and Demar were in the basement during the machete incident.
11The accused testified that once Demar had observed him placing the machete down, attacked again. He said Demar was "pounding on him kicking me in the ribs, body and head". However at some point he was again able to get loose and retrieved his second weapon: a metal bat, secreted in the same location behind his futon. He returned with the bat. He didn't wave it or do anything with it, just approached Demar with it. It was then that he said Paula entered the room, took the bat from him and the situation was diffused. He said he went upstairs and called police to come and evict Demar from his house. He denied using either weapon in an assaultive manner, or ever threatening or swearing at his son.
The Law
12The main issue in this case is credibility. The leading case is R. v. W.D. (1991), 63 C.C.C. (3d) 397 (S.C.C.). It begins by indicating that a judge, or a jury, need not firmly believe or disbelieve any particular witness or a set of witnesses. A judge can accept or reject some, all, or none of any particular witnesses' testimony.
13Further, I must apply the following test:
14First, if I accept the defence evidence then obviously the accused must be acquitted.
15Secondly, if I do not believe the defence witness, I could still be left with a reasonable doubt, and again I must acquit the accused.
16Thirdly, even if the defence evidence does not raise a reasonable doubt, I have to consider all of the evidence including the evidence adduced by the crown to satisfy myself that the Crown has met its high burden and proven beyond a reasonable doubt all of the essential elements of the offences against the defendant.
17As with every criminal trial, the Crown must prove its allegations beyond a reasonable doubt. In this case that means I must decide whether I am satisfied beyond a reasonable doubt that Mr. Heron took up the machete and the bat against his son Demar Heron on the date in question for the alleged criminal purpose of using these items in a manner dangerous to the public, or to assault his son, or alternatively, whether his admitted use of these objects were legitimate acts of self-defence.
18There is no burden on Mr. Heron to prove anything, or to disprove the allegations. It remains the Crown's obligation to disprove self-defence beyond a reasonable doubt. Although there are two opposite and competing versions of what took place, a trial like this is not a credibility contest. I cannot simply choose which witness is more credible. Rather, I must give Mr. Heron Sr. the benefit of any reasonable doubt. I need not even believe or accept Mr. Heron Sr.'s testimony to find him not guilty.
19In this case, the W.D. assessment overlaps with the consideration of the self-defence provisions of s. 34 (1) and (2) of the Criminal Code.
Self-Defence Framework
20Section 34(1) — A person is not guilty of an offence if:
(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use of threat of force; and
(c) The act committed is reasonable in the circumstances.
21Section 34(2) provides the list of factors which the court must consider in determining whether the act committed is reasonable in the circumstances. This list of non-exhaustive factors includes:
(a) The nature of the force or threat;
(b) The extent to which the use of force was imminent and whether there was other means available to respond to the potential use of force;
(c) The persons role in the incident;
(d) Whether any party to the incident used or threatened to use a weapon;
(e) The size, age, gender and physical capabilities of the parties;
(f) 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;
(f.1) any history of interaction or communication between the parties;
(g) The nature and proportionality of the person's response to the use or threat of force, and;
(h) Whether the act committed was in response to a use or threat of force that the person knew was lawful.
Application of Self-Defence Test
22To establish a successful claim of self-defence, 34(1)(a) requires that the accused establish that he honestly and subjectively believed that force is being used or threatened against them. In this case, Mr. Heron testified as to his subjective belief with respect to his interaction with Demar. The reasonableness of the accused's stated belief must then be assessed on a modified objective basis. The court must ask whether a hypothetical reasonable person, facing the same circumstances and endowed with the same general physical characteristics as the accused would have perceived themselves as being threatened or having force applied against them.
23On this issue, the accused testified as to his subjective belief that when Demar approached him, cursing disrespectfully at him about the basketball net, he "jumped up" and the two began to wrestle. He then described essentially a consent fight, albeit one which he testified was triggered by Demar's aggressive approach. The accused says they fell to the ground and the fight continued, with Demar gaining a distinct physical advantage over him, owing to his relative youth and strength, as well as from his own sense of fatigue after a long day of work. He said Demar was "pounding" him while on the ground. He testified that he somehow got away, grabbed his machete which happened to be closeby in a recessed area behind his bed, and simply held it at his side in an effort to scare Demar away.
24I accept some, but certainly not all of the accused's evidence with respect to how this dispute arose, and proceeded. I accept the accused's evidence that as he made his descent to the basement, Demar voiced his obvious irritation to his father about having moved, and perhaps even damaged, the brand new net which he had purchased for his brother. The only reasonable inference that could be made with respect to the nature of this initial exchange in the basement is that both parties were in a confrontational, if not aggressive mood upon encountering each other. The history of distrust, and unfortunate disrespect between the parties was palpable during their testimony, and sadly confirmed by Mrs. Heron. I do not accept the accused's evidence that he first said nothing in response to Demar's angered questioning, nor that he politely and calmly invited his son to please speak to him more respectfully. Hostile words were expressed by both parties, likely in equal measure.
25I accept the accused's evidence that by the nature of his words, his tone and his manner of entry into his father's bedroom, Demar's conduct caused the accused to subjectively perceive a threat of force being made against him. I accept that elements of s. 34(1)(a) are therefore satisfied on the basis of the evidence that I accept from the accused.
26Under s. 34(1)(b) I must now consider whether the act performed by the accused was committed for the purpose of genuine self-protection from the perceived threat or force, as opposed to an act of anger or vengeance. The accused testified that after a tussle on the ground during which he was being overpowered by Demar, there was a break in the action which permitted him to get up off the ground, run to his bed, and retrieve a machete from behind it with which he hoped to simply scare Demar away. He says it worked, that Demar backed off towards the doorway, at which point he decided to place the knife down on the floor.
27I do not accept the evidence of the accused on this issue of his own conduct with respect to his retrieval and use of the machete. His testimony on this issue defies credulity. On his own evidence, the accused acknowledges that Demar is much younger and stronger than him. I do not accept that if a fight had broken out in the way the accused described it, during which he was getting "pounded" about the head, ribs and body that the accused would have suddenly have been able to break free, and acquire a machete from a secreted location behind his bed, across the room. I find as a fact that the accused armed himself with the machete as Demar made his initial approach, in response to the confrontational tone which Demar took over the subject of the basketball net.
28Finally, s. 34(1)(c) requires me to consider the act committed for its reasonableness, by reference to the totality of circumstances, inclusive of the factors listed in s. 34(2). The list of factors in 34(2) is by no means exhaustive, and the elements previously considered under the old self-defence provisions such as "necessity" or "proportionality" of the defensive force remain relevant. I now turn to consideration of these elements.
Analysis of Section 34(2) Factors
29Nature of the force or threat. I do not accept the accused's evidence that the nature of the force or threat with which he engaged in was merely to hold the machete at his side, to scare Demar away. Once again, the accused's evidence on this issue does not accord either with reason, common sense or with his own version of the transaction. Were he to have been the subject of a totally unprovoked, spontaneous physical attack of the nature that he described at Demar's hands, it would defy common sense that he would merely stand passively with a weapon at his side, in the heat of such a conflict. Having rejected the accused's evidence on this issue I must consider the totality of the evidence to determine the nature of the force or threat used by him.
30Demar and Paula Heron each described the accused's actions with the machete. Demar testified that the accused swung the machete above his head and then down towards him, on two occasions. He says the first blow struck him directly on his chain necklace, at his collarbone. He said the chain broke from its impact. Then he says his father raised the machete and swung at him a second time, but he was able to back away, avoid the blow, then disarm his father. Paula Heron testified that she also observed the machete attack. I accept her evidence that she was present to make the observations which she related to the court. She said she was behind her husband when he "charged" Demar with the machete, and couldn't see his exact movements, only some swinging, then a scuffle, during which Demar knocked the machete from the accused's hand and she retrieved it from the floor. She did not see Demar being struck by the blade from her vantage point.
31Demar and Paula's evidence on the accused's use of the machete is largely consistent, save for Demar's description of the overhead swing, and of course the direct blow to his collarbone which landed on his chain. I find as a fact that the accused did take up the machete and charge at Demar while swinging it. I have a reasonable doubt, however, about the machete having raised over head, and striking Demar precisely on his gold chain, thereby breaking it. The nature of the conduct which I have found the accused engaged in nevertheless clearly establishes the elements of an assault with a weapon, subject to the balance of the analysis under s. 34(2) with respect to self-defence.
32The extent to which the use of force was imminent or whether there were other means of escape available. It is not disputed that Demar stood in the doorway to his father's room at the point of the initial verbal confrontation, from which I have found that the accused perceived a threat of force. On this factor I find that the accused could reasonably have perceived that there was no viable means of escape from his own room, save for travelling towards Demar.
33The person's role in the incident, and use of weapons: While I have found as fact that while the initial exchange of hostile words between Demar and the accused was mutual, I find that it was the accused who escalated the nature of the confrontation materially from one of words to one of weapons. The weapon initially selected by the accused must also be considered in the analysis: a machete with an 18" curved blade.
34Size, age, gender and physical capabilities of the parties: The reasonableness of Mr. Heron's conduct requires my consideration of these elements as well. Demar is unquestionably younger and somewhat stronger than the accused. However on my assessment of all of the circumstances, Demar's marginal physical advantage over the accused in this situation does not operate to make the accused's act in arming himself with, and wielding a machete at his son reasonable.
35Nature and proportionality of the person's response. My assessment of the availability of self defence in this case turns significantly on the factor enumerated in 34(2)(g), namely: nature and proportionality of the persons response to the use or threat of force. The only threat that Mr. Heron Sr. could reasonably have perceived from Demar's expressed irritation over the basketball net and physical approach into his room would have been of a heated argument, or at most, a pushing match. Demar was unarmed. He did not approach with his fists raised. He approached with an angered tone of voice. Mr. Heron Sr. took instant offence to his son's disrespectful tone, and reached for a machete which he had accessible in his bed. Both the nature and proportionality of the accused's conduct in retrieving and then charging Demar with the machete, together with all of the contextual circumstances, were not reasonable in the circumstances. Mr. Heron's actions simply cannot be justified on any reasonable basis as a need to defend oneself from what was essentially a verbal attack.
Findings on Counts
36I am satisfied the Crown has disproven beyond a reasonable doubt the argument of self-defence as it relates to count #2 the assault with a weapon with the machete. Based on my findings, it follows that I am satisfied the Crown has also met the onus of proof on count 1 – Possession of the machete for a dangerous purpose.
37With respect to Count 3, of Mischief to Property, I find that the Crown has not proven the accused's wilful intention to damage Demar's necklace beyond a reasonable doubt. For me to do so, I would need to find that the accused intended to directly strike the necklace with his machete for the purpose of breaking it. I do not make this finding.
38Finally, with respect to Count 4, the accused testified that after he placed the machete down, Demar started "pounding on me again". Once more, he indicated that there was a break during which he was able to get away, and this time retrieve a bat from the same location where the machete had been. He says that once he retrieved the bat, and moved toward Demar who was in the doorway. He testified that his wife appeared in the room at that point, and took the bat from him. He acknowledged in cross-examination that he could have simply held his position in the room rather than approach Demar with the bat.
39I do not accept the evidence of the accused on the sequence of events which followed the machete attack, and involving the metal bat. I find as fact that Demar did, in fact, disarm his father of the machete, and that once it fell to the ground, Paula cleared it from the room. It was then that the accused retrieved the second item from behind his bed, namely the bat and approached his son with the item. Demar was unarmed and the accused's use of this item in these circumstances was, for similar reasons to those I have articulated with respect the assault with a weapon, significantly disproportionate to any threat which he could reasonably have perceived in the circumstances, and therefore could not be justified by the provisions of self-defence in s. 34 of the Code. I am satisfied that the Crown has proven that in these circumstances the accused had the bat in his possession for a dangerous purpose, contrary to s. 88(1) of the Criminal Code.
Verdict
40In conclusion, I find Fiago Heron Sr. guilty of counts 1, 2 and 4 on the Information, namely the offences of Assault with a weapon, and the two counts of possession of weapon dangerous. I find him not guilty of count #3, the offence of Mischief.
Released: June 6, 2018
Signed: Justice A.D. Dellandrea