Court File and Parties
DATE: December 15, 2021 Court File No.: 1200654
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN v. Ziggy Cox
Reasons for Judgment
BEFORE THE HONOURABLE JUSTICE B. BROWN
On Wednesday, December 15, 2021, at 60 Queen Street West, Toronto, Ontario
APPEARANCES:
K. Bunting, Counsel for the Crown Y. Obouhov, Counsel for the Defence
BROWN, J: (Orally)
Mr. Ziggy Cox is charged with three offences in relation to an altercation with the complainant, Mr. Marlon Gilbert, on October 18th of 2020 alongside the 401 Highway in the City of Toronto. Both parties were working as tow truck drivers at the time. Mr. Cox is charged with assault with a weapon, to wit: a two-way radio communication device, contrary to s. 267 (a) of the Criminal Code; threatening to cause death or bodily harm contrary to s. 264.1(1)(a) of the Code; and finally, dangerous driving, contrary to s. 320.13(1) of the Code.
The Crown proceeded summarily. There were no Charter applications. The Crown called the complainant, Marlon Gilbert, as a witness. The defence called PC Brittany Lewis, the investigating officer in the case, who gave very brief evidence.
The Crown put in evidence a videotape, which captured a large portion of the incident, together with a recording of a 911 call made by Mr. Cox, for which a transcript was also introduced in evidence. The defence argued that the complainant was the initial aggressor of the altercation. In an exchange with the court during submissions by the Crown, the defence also responded and is arguing that Mr. Cox acted in self-defence. The defence challenges the credibility of the complainant’s evidence. The defence has submitted that the Crown has not proven the charge of dangerous driving on the evidence in this case together with the other two charges. The Crown responded it has proven all three charges beyond a reasonable doubt.
Uncontradicted Evidence
The complainant and Mr. Cox knew each other and had previously worked together as tow truck drivers. At one point in time, they worked for the same employer. Their relationship was okay when they worked together, although Mr. Gilbert indicated that they had their ups and downs. On occasion when they worked together, Mr. Gilbert had mentioned to Mr. Cox that he was not in his designated spot to wait for calls.
Approximately four years ago, Mr. Gilbert started as the owner operator of his tow truck. The two men are similar in size, although Mr. Cox is perhaps a little taller than Mr. Gilbert.
Within the tow truck business, tow trucks have spots they park in to wait for calls. It is readily apparent that there is a benefit to a tow truck driver getting first to an accident scene and to be hired to take away a vehicle. For that reason, tow truck drivers endeavour to get to the scene first and to get the tow job.
Evidence of Mr. Gilbert
On the allegations October 18th, 2020, Mr. Gilbert was working alone, posted at his spot, as he was using his two-way radio and scanners to wait for news of a job. The two-way radios are used among tow truck drivers to communicate. As he waited, Mr. Gilbert heard of a need for a tow truck at 401 Eastbound Collectors, at the basketweave around Jane Street and the 401 Collectors lanes.
It was dark and raining at the time. He was located in the spot closest to the subject of the call. He was nearby at Weston Road and proceeded to the area. He noticed a truck come down the 400 ramp to get on the 401 Highway. He recognized Mr. Cox as the driver of the truck. Mr. Cox’s truck cut off Mr. Gilbert’s truck, pulling in ahead of him in the lane and Mr. Gilbert had to take evasive action to avoid a collision.
Mr. Cox did not signal before making this lane change. Mr. Cox did this, rather than continuing in his lane to merge into Mr. Gilbert’s lane further ahead. Although there were other vehicles in the area, there was no evidence that any other vehicle was affected by Mr. Cox’s driving. This driving was the subject of the dangerous driving charge.
Both trucks pulled up to the scene, with Mr. Cox immediately ahead of Mr. Gilbert. Mr. Gilbert testified that as he looked, he saw that Mr. Cox was smiling. Mr. Gilbert explained that Mr. Cox would smile when he had something like a “he does not care” smile. He would smile when he had done something wrong and he did not care. It was not a friendly smile.
Mr. Gilbert testified that Mr. Cox knew that Mr. Gilbert was upset at him and after parking on the site, Mr. Cox ran to get to the customer before Mr. Gilbert was there. Mr. Gilbert said to Mr. Cox, “You are going to hit my truck one day and it is not going to be nice”.
When Mr. Cox arrived at the scene and there was no one in the subject vehicle. Mr. Cox returned to his truck. Mr. Gilbert walked up towards Mr. Cox’s truck. Mr. Cox said to someone, not Mr. Gilbert, “Come, let us done him, long time he is asking for it.”
Mr. Gilbert thought he was speaking to someone in his truck. Mr. Gilbert interpreted this as meaning let’s deal with it now, it’s been a while. He’s asking for a beatdown. Mr. Gilbert tried to look and see who was in Mr. Cox’s truck and the person to whom Mr. Cox was directing the comment.
Mr. Cox then grabbed Mr. Gilbert from behind and spun Mr. Gilbert and then slammed him on the car that had been the subject of the call. Mr. Gilbert described it was Mr. Cox grabbing Mr. Gilbert’s arm from behind while Mr. Gilbert was looking to see the other person in Mr. Cox’s truck.
Mr. Cox lifted Mr. Gilbert and spun him around. He put Mr. Gilbert’s stomach on the car and Mr. Gilbert was surprised by what had just happened. He testified he tried to “fight myself off”.
Then Mr. Gilbert fell on the ground and Mr. Cox started hitting Mr. Gilbert with the two-way radio. The man who had been with Mr. Cox in the truck said “Ziggy, leave the man. He is not fighting back.” This man also said to Mr. Cox, you are going to get a charge over an accident, and Mr. Cox said he didn’t care.
Mr. Gilbert, at the time was down on the ground. Mr. Gilbert did not intend to fight. He was being pounded by the two-way radio held by Mr. Cox. At the time, Mr. Cox was with another man while Mr. Gilbert was alone.
At some point, the second man tried to pull Mr. Cox off of Mr. Gilbert. At one point, Mr. Gilbert was on his stomach close to the wheel of the truck as he was on the ground. Then Mr. Cox said, “Come. Let’s run the truck over him.”
At that point, Mr. Cox continued to hit Mr. Gilbert with the radio. At the time, most of Mr. Gilbert’s body, including his head, was under the truck and Mr. Gilbert tried to push himself out. Mr. Gilbert knew that if the truck ran over him, he could be dead because his upper body was under the truck.
At that point, Mr. Gilbert was scared for his life. That is when he pushed himself out from under the truck and he took the two-way radio, which was the weapon Mr. Cox had been using to hit him. Mr. Gilbert finally got up from under the truck and got the two-way radio from him.
At that point, Mr. Cox asked Mr. Gilbert to return the two-way radio to him. Mr. Gilbert responded no. Mr. Cox then said, “Let me get my knife.” And Mr. Cox went back to his truck. Mr. Cox then left the scene in his truck with the other male. Mr. Gilbert remained on scene as he knew the OPP was going to come to the location in relation to the subject car that was potentially for a tow.
Mr. Gilbert described the physical aspect of their exchange taking a good four minutes, almost five minutes. Mr. Gilbert knew the OPP would come to the scene and he did not want to have any problems.
A video was put in evidence which recorded the altercation. The red and white truck was the one driven by Mr. Cox and the white truck was Mr. Gilbert’s truck. The incident began at 9:08 p.m. Mr. Cox was wearing reflective work clothes as shown in this video. Mr. Gilbert was wearing a black hoodie and black pants as shown in the video. The man who was with Mr. Cox was also shown in the video.
The assault commenced at 9:09 p.m., and the video showed Mr. Cox wrestling Mr. Gilbert and swinging the body of Mr. Gilbert onto the hood of the car. It is important to note, relative to Mr. Cox’s 911 statement reporting the incident, that Mr. Gilbert did not touch and he did not push Mr. Cox before Mr. Cox began to physically assault Mr. Gilbert. That is clear on the video.
A portion of the altercation was not shown as Mr. Gilbert was at that time down on the ground and Mr. Cox was, according to Mr. Gilbert, pounding him with the two-way radio. Mr. Gilbert’s upper body was under the truck after that. The truck driven by Mr. Cox pulled away from the scene at 9:12 p.m., as depicted on the video.
Mr. Gilbert sustained injuries to his head as a result of being struck by Mr. Cox using the two-way radio. The injuries included a big cut to the back of his head on the right side. A photograph showed a cut behind his right ear and bruising in that area. Photographs also showed swelling to his forehead area and some bumps on his face. The clothes on Mr. Gilbert were also torn. Photographs were taken of the clothes, which were dirty from his thighs down to his feet. The clothing was clean before the altercation, according to Mr. Gilbert’s testimony. The sleeve of his sweater was also dirty from being on the ground, according to Mr. Gilbert.
The police seized the two-way radio, which had what appeared to be blood on it on various portions of it, including the front, sides, and bottom of the radio.
In cross-examination, Mr. Gilbert agreed that because Mr. Cox has arrived first at the scene he was entitled to the tow job. He denied that it was a significant amount of money for him to lose with this tow, testifying that we always lose tows because when it is for him, it is for him. There is no guarantee as to how much money a driver would make in a shift. He agreed that he stayed on the scene rather than just driving off. He wanted to talk to Mr. Cox about how he had driven to the scene and how he had almost hit his truck, that it was going to cause a problem one day. He denied that he was angry. After that, Mr. Gilbert did not have time to get back to his truck as Mr. Cox made the statement to his friend in the truck and then grabbed Mr. Gilbert right away.
Mr. Gilbert denied that he pushed or touched Mr. Cox. He asked, why would I push him? He denied that Mr. Cox was defending himself, maintaining that Mr. Gilbert was pushed, knocked down to the ground, and that was after Mr. Cox said, “Come on, let’s done him”. Mr. Gilbert also explained that he did not fight back because he is an owner/operator, not just a driver, so if he gets charged for something, he has more to lose than Mr. Cox. Mr. Cox is an employee of a tow truck driving company.
When the officer arrived on scene, Mr. Gilbert knew that the police first want to deal with the parties involved in a vehicle incident before they deal with tow truck drivers. He was not going to get into what had happened with Mr. Cox with the officer. Then the officer approached Mr. Gilbert about what had happened with Mr. Cox. Mr. Gilbert was surprised that she knew something had happened and she explained to him that Mr. Cox was at the police detachment. She told Mr. Gilbert he also had to come to the detachment. Mr. Gilbert had explained that he was not in a fight, that Ziggy was fighting with Mr. Gilbert, Mr. Gilbert was not fighting with Mr. Cox.
Mr. Gilbert denied that he told the officer that he did not want to get into it. Mr. Gilbert was shocked that after the altercation, Mr. Cox had gone to the police station. Mr. Gilbert thought Mr. Cox had run to the police station to save himself. Mr. Gilbert denied that he assaulted Mr. Cox.
Evidence of PC Brittany Lewis
The investigating officer, PC Brittany Lewis, received a call to attend the scene for a motor vehicle collision at 9:06 p.m. She arrived on the scene at 9:16 p.m. At that time, the only tow truck on the scene was that of Mr. Gilbert. After doing her investigation in relation to the motor vehicle collision, she received information that Mr. Cox was at the police detachment. At approximately 9:43 p.m., she learned that Mr. Cox had reported some information. She spoke to Mr. Gilbert on the scene at approximately 9:45 about that.
At the time, Mr. Gilbert was wearing a toque on his head, so she did not see any injuries to his head. She approached Mr. Gilbert to talk about the matter relating to Mr. Cox. Mr. Gilbert advised that there had been an altercation between them, but initially indicated he did not want to get into it. He said the guy that caused the problem was not there anymore. He also said he would have let it go, but Ziggy “goes running to you guys”.
Before the complainant took any steps to bring the allegations to the attention of the police, Mr. Cox after leaving the scene had attended the OPP detachment and called 911 to essentially report his side of the story. There was an omission of voluntariness by the defence.
As Mr. Cox did not testify in this trial, which is, of course, his right to remain silent, and the court draws no negative inference from that choice, the only potential evidence of self-defence arises from this 911 call and the video. In this 911 call, for which a transcript was prepared, Mr. Cox identified himself and gave his date of birth and phone number.
There was a series of questions and answers with the dispatcher. Mr. Cox indicated that the incident took place on the side of the highway between he and another tow operator. Mr. Cox said the guy, (presumably the complainant, Marlon Gilbert), “Stopped on me.” “Started pushing me because I beat him to the accident scene.”
He indicated that the guy’s blood was on the clothing of Mr. Cox. He indicated that the complainant is greedy and he wants every wreck, and if you beat him to the scene, he wants to push you around but Mr. Cox doesn’t take that from people.
Mr. Cox indicated, “I don’t take that from people.” He also said he is going to “eat his food every time and he deserves it.” He said he beat the complainant’s ass, that he really beat him up and his face is all bloody and he deserved every single bit that he got.
Mr. Cox also stated that the complainant has been bullying their drivers for so long, that he has stopped on him and tried to jump in his truck. He said he has had enough of it. Essentially, he said at the end of the call that someone pushed him and he defended himself.
Analysis
The defendant is presumed to be innocent. The Crown must prove his guilt beyond a reasonable doubt. The defendant has no burden to prove anything, to explain anything or to persuade the court of anything.
The principle of reasonable doubt also applies to the issue of credibility. The assessment of credibility is not a matter of choosing between competing versions or determining which is more credible or to be preferred.
Where the defendant has testified or called evidence from other defence witnesses, or where exculpatory evidence has been elicited from other witnesses in the trial or is in existence in the trial, that evidence is entitled to the benefit of the application of reasonable doubt in the assessment of its credibility and the fact-finding that follows. If that evidence is believed and it forms a defence, the defendant is entitled to an acquittal.
Even if that evidence is not believed, in the sense of believing it to be true, if that evidence, nonetheless, raises a reasonable doubt, the defendant is entitled to that doubt and an acquittal will follow. Even if that evidence is rejected, the Crown must still prove guilt beyond a reasonable doubt, based on all of the evidence in the trial.
The court considers the three-prong test for the assessment of evidence in the Supreme Court of Canada judgment of R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.). In this case the court starts first with the defence evidence. In this case, the evidence which the defence relies upon is the 911 audio call made by Mr. Cox.
Mr. Cox chose to remain silent, a right to which he is entitled. As indicated, he is not obliged to testify, and the court draws no adverse inference from his failure to give evidence. To the extent that the court examines the defence, the court must look to the 911 call, the video, the physical evidence, and the testimony in the trial.
In this case, the 911 audio call is to some extent exculpatory and self-serving. In other aspects, it is inculpatory. As noted herein, the audio call reflects the admission by Mr. Cox that he beat Mr. Gilbert. It was an intentional act, although he also made reference to prior dealings the two parties had before the subject incident. The audio call clearly reflects a defence version that the complainant, Mr. Gilbert, pushed Mr. Cox before Mr. Cox beat Mr. Gilbert. A review of the video of the scene clearly shows that there is no push by Mr. Gilbert towards Mr. Cox.
Overall, the court does not accept the version of the defence as stated by Mr. Cox in his 911 call that he was pushed first by Mr. Gilbert. The court does not have a reasonable doubt that Mr. Cox was pushed by Mr. Gilbert. Mr. Cox was not responding to being pushed and the court does not have a reasonable doubt in that regard.
The court considers whether the Crown has met the requisite standard of proof beyond a reasonable doubt with respect to the assault with a weapon charge based on all the evidence the court has before it in this trial.
The court also considers the threatening charge.
In this case, the defence has submitted that the evidence of the complainant is not credible. He submits that it is nonsensical for the complainant to testify that he did not care about missing out on getting a tow job. The defence also submitted that the action of the complainant in leaving his truck after parking it onsite, suggests he was looking for a physical confrontation with Mr. Cox, rather than the version of the complainant that he was just seeking to speak with Mr. Cox.
It is noteworthy that there is a lot of background noise, as indicated by Mr. Gilbert in his testimony, near the 401 Highway as vehicles travel by. Mr. Gilbert testified that he wanted to get in a position where he could speak with Mr. Cox and Mr. Cox could hear what he was saying.
The defence also submitted that the video in evidence does not capture the entire incident and it does not capture the audio of the exchange. The defence also questioned the action of the complainant in not approaching the uniform officer who arrived on the scene in relation to the vehicle being towed. As the complainant testified, the officers always focus first on the subject vehicle for their attendance.
The defence also submitted that the complainant was reluctant to report the incident. The defence submitted that the version of the complainant did not make sense and that the complainant was evasive and combative in giving his evidence.
Overall, the court found that Mr. Gilbert testified in a straightforward manner and that his evidence made sense. His evidence was largely consistent. He withstood a challenging cross-examination. The court would specifically note that the complainant was not evasive nor combative in giving his evidence, as the court watched and listened very closely to his testimony.
While Mr. Gilbert acknowledged that he lost the benefit of getting the tow, after Mr. Cox drove in the fashion he did to cut him off on the way to the scene to get there first, Mr. Gilbert’s greater concern was safety. Mr. Gilbert was concerned about the nature of driving of Mr. Cox to cut him off and potentially cause an accident just to get to the vehicle scene first.
This made sense to the court. It also made sense as Mr. Gilbert owns his own vehicle and if his vehicle is in an accident and is damaged to a significant extent, he potentially loses the right to work for a period of time. Mr. Gilbert testified that he did not want any physical altercation with Mr. Cox, as Mr. Gilbert is concerned with the licencing of his tow truck and whether he might lose his ability to have his tow truck business. As indicated, Mr. Gilbert was an owner operator, whereas Mr. Cox was an employee of another towing company.
Mr. Gilbert’s explanations made sense to the court to explain why he did not want a physical altercation with Mr. Cox on the scene. He also rationalized that despite what Mr. Cox had done to him he did not want to report the incident to the police as he did not want any trouble.
The evidence of PC Brittany Lewis was that after she was on the scene with Mr. Gilbert and she learned that Mr. Cox had reported the altercation at the detachment, she approached Mr. Gilbert. Initially, it was her evidence that Mr. Gilbert did not want to get into it. He then gave a statement saying the guy that caused the problem was not there anymore. Mr. Gilbert also told her that he would have let it go, but he, meaning Mr. Cox, “goes running to you guys”. She understood that to mean that Mr. Gilbert did not necessarily want police involvement until he learned that the other person had gone to the detachment.
It is understandable that in a business where tow truck drivers deal with each other on the highway on a regular basis, as explained by Mr. Gilbert, they do not want to have future problems. The court also found the testimony of Mr. Gilbert that he did not necessarily want police involvement as understandable, given that he and the other driver work with the police on the highway on a regular basis.
The court found the testimony of Mr. Gilbert to make sense. It was plausible and authentic. Mr. Gilbert was not a man looking for help from the police. He was just trying to do his job when he was beaten by Mr. Cox, who was there with another man. Mr. Gilbert did not want to complain to the police even though he was clearly bleeding and injured on the scene. The condition of his clothing was consistent with him having been down on the ground.
Of great significance is the fact that the video in evidence was consistent with the account of Mr. Gilbert as to the altercation. Although there was a portion of the altercation not shown when Mr. Gilbert was out of the view because he was down on the ground, the portions which recorded the parties confirmed important parts of the altercation, which were given in evidence by the complainant. The video in evidence is very strong and objective evidence, which is confirmatory of the complainant’s version.
In this case, the only direct viva voce evidence related to the allegations is the testimony of the complainant, Mr. Gilbert. His testimony is consistent as indicated with the portion of the video recording the incident to the extent that the positions of the parties are shown. The timing of the incident is also consistent with the testimony of Mr. Gilbert.
In addition, the court has the photographs of dirt on his clothing and what appears to be blood on the two-way radio as also consistent with the testimony of Mr. Gilbert. The photos of his injuries are also consistent with his testimony. The only evidence in this case with respect to physical injuries to anyone are the head injuries to Mr. Gilbert. There is no evidence from any source that Mr. Cox was injured in any way. This is purely a contextual piece of evidence. It is consistent however with the complainant’s version that this was a one-sided fight, that Mr. Cox wanted to beat him, and that Mr. Gilbert did not fight back. It is also consistent with what is shown on the video to the extent it captures the events.
Overall, the court finds that Mr. Gilbert was credible. His evidence is confirmed by various other pieces of physical evidence in this case, as stated herein. There is no evidence in the video, or the evidence of Mr. Gilbert that Mr. Cox was pushed before he beat Mr. Gilbert. Mr. Gilbert denied pushing Mr. Cox before the beating. Mr. Gilbert consistently maintained that he did not want to fight, that Mr. Cox had effectively declared prior to striking him that he was going to beat Mr. Gilbert and that is exactly what he did.
Mr. Gilbert’s evidence was reliable. The court finds the evidence of Mr. Gilbert to be an accurate account of what happened in the altercation between the two parties.
Analysis: Assault with a weapon and self-defence
There is no doubt that Mr. Cox used the two-way radio to strike Mr. Gilbert in the head with the two-way radio. That finding of fact is made by the court on the basis of the evidence of Mr. Gilbert, which the court accepts, the video, the blood on the two-way radio and the cuts to Mr. Gilbert’s head. The defence has raised the issue, after making submissions, when asked by the court, of self-defence.
Section 34 of the Criminal Code governs the law of self-defence and it states:
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 of the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances
- In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors
I’m not going to read them out at this point, but they’re set out in s. 34(2)(a) to (h) inclusive. Section 34(3) is not quoted as it is not relevant to this case.
Earlier this year, the Supreme Court of Canada considered this provision in R. v. Khill, 2021 SCC 37. The court considers self-defence in light of this judgment. For the defence in this trial, the court will consider whether the accused:
- Believed on reasonable grounds that force was threatened or being used against him or someone else;
- Whether he acted for the purpose of defending himself or the other person, and;
- Whether the accused’s actions were reasonable in the circumstances
As characterized by the Court in Khill at paragraph 18, the Crown bears the onus of proving beyond a reasonable doubt that the answer to at least one of these questions is “no”.
In Khill, the Court noted that the act must be reasonable in the circumstances and the fact finder must consider a wide range of factors to determine what a reasonable person would have done in a comparable situation.
The current provision in the Criminal Code came into force in March of 2013. A driving force to the amendments was a desire to simplify the law of self-defence. At that time, the offences in situations to which self-defence could apply were expanded. However, there was a greater degree of flexibility to the trier of fact, in being the requirement that the court assess the reasonableness of the accused’s response by reference to a non-exhaustive list of factors.
The key issue considered by the Court in Khill was the accused’s role in the incident and the extent to which the accused played a role in bringing about the conflict. In consideration of that aspect, the conduct of the accused sheds light on the nature and extent of the accused’s responsibility for the final confrontation that culminated in the act giving rise to the charge.
In considering the new provisions for self-defence, the Supreme Court of Canada in Khill, at paragraph 39 noted that the scope and application of self-defence was broadened, and that it employed a multi-factorial reasonableness assessment.
The Court also predicted in paragraph 44 that additional claims of self-defence will be placed before triers of fact. However, as noted in paragraph 46, based upon the requirement to consider enumerated factors, the provisions narrow the scope of self-defence in some factual circumstances and broaden it in others.
In that case at trial the Crown argued that the actions of the accused were rash and unreasonable, that he could have exercised a number of proven alternatives including calling 911, staying in his house, and bearing in mind that it was only a property offence. The defence had submitted on appeal that the s. 34(2)(c) criteria should be limited to unlawful, provocative, or morally blameworthy conduct on the part of the accused and not a broader type of conduct of an accused in a wider context in which the accused acted (See paragraph 26).
It is important to bear in mind, as set out in paragraph 66, that the court can consider any mistaken beliefs reasonably held by the accused and the subjective purpose of the accused under s. 34(1)(a) and (b), and the criteria in s. 34(2). It is noteworthy that s. 34(1)(c) is primarily concerned with the reasonableness of the accused’s actions, not his mental state.
The court now considers the components of s. 34(1) the Criminal Code. As stated above, the Crown bears the onus of proving beyond a reasonable doubt that the answer to at least one of these questions is no. The court will consider s. 34(1)(b) first.
The Motive
Did the accused do something for the purpose of defending or protecting themselves or another person from that use or threat of force? (s. 34(1)(b))
The purpose of the accused doing the act is relevant. It is a subjective inquiry. If there is no defensive or protective purpose, the rationale for the defence fails (See paragraph 59 of Khill). Accordingly, if the acts of the accused are done for the purpose of vigilantism, vengeance or some other personal motivation and not for a defensive purpose, self-defence is not available. While the situation may evolve from a different purpose, such as defence of property, it can transition into a situation of self-defence.
In the case at bar, it is clear from the evidence of the complainant accepted by the court and confirmed in areas by the video evidence in this case, that the complainant had not assaulted Mr. Cox prior to Mr. Cox assaulting the complainant. While there was no audio for this video, and accordingly the court did not hear what was said on the video, the court considers the evidence of the complainant, which the court has accepted.
This includes the statement that the accused, Mr. Cox, stated that he is going to “done him”, that he is going to do a “beatdown” to Mr. Gilbert. That shows Mr. Cox’s purpose, some kind of retaliation for past wrongs, for past conflicts, not to defend himself or his friend.
It is notable that the complainant was outnumbered two to one, although the second person was not involved in committing the assault as the events played out. There is no evidence that the situation ever evolved beyond that motivated by a purpose of simply wanting to beat the complainant, whether on some basis of addressing past wrongs or some other history between the two men to one where Mr. Cox was acting with a motive to defend himself or the man with him.
This was also consistent with the 911 call that Mr. Cox was in effect beating Mr. Gilbert based on a justification of past behaviour, and not on the basis of self-defence. (This assessment is based upon the court rejecting and having no reasonable doubt as to whether Mr. Gilbert pushed Mr. Cox and whether Mr. Cox was in any way acting to defend himself.)
The Crown has proven beyond a reasonable doubt that Mr. Cox beat Mr. Gilbert as an intentional act of simply of wanting to beat him and not for the purpose of defending or protecting himself or the other person with him from any use or threat of force by Mr. Gilbert. The absence of the requisite purpose that Mr. Cox acting in self-defence disentitles him for self-defence.
The Catalyst
Did the accused believe on reasonable grounds that force was being used or threatened against him or another person (s. 34(1)(a))?
While the court has found that the s. 34(1)(b) criteria of the requisite motive is absent, and thereby self-defence would not be available to Mr. Cox, the court will nonetheless consider relevant evidence and findings of fact as it would relate to this criteria in s. 34(1)(a). The court needs to consider the accused’s state of mind and perception of events that led him to act. For this element, the accused must subjectively believe that force or a threat thereof was being used against him or that of another. In the absence of that subjective belief, self-defence is not available to the accused.
This belief must be held on reasonable grounds, which objective component is based upon the perspective of an ordinary person who shares the attributes, experiences, and circumstances of the accused where those circumstances and experience are relative to their belief and actions. This is a blended or modified objective standard as stated in Khill paragraph 54. What would a reasonable person with those relevant characteristics and his experiences perceive? The court draws from the evidence of Mr. Gilbert, in terms of the background, relationship with Mr. Cox and the statement recorded on the 911 call.
The Supreme Court of Canada explained that this requirement operates to shield otherwise criminal acts from punitive consequences, and as a result the defence cannot depend exclusively on an accused’s perception of the need to act. Through the reasonableness requirement, community norms and values are incorporated in weighing the moral blameworthiness of the actions of the accused. Quoting now Justice Paciocco in his article:
“It is a quality control measure to maintain a standard of conduct that is acceptable, not to the subject, but to society at large.”
The Court in Khill opined that in assessing the modified objective standard, the court would consider prior violent encounters between an accused and victim, in the determination of whether the accused faced an imminent threat of death or grievous bodily harm (See paragraph 55).
Not all personal circumstances or beliefs of an accused influence their beliefs. Reasonableness is not to be considered through the eyes of people who are overly fearful, intoxicated, abnormally vigilant or members of criminal sub-cultures. Personal prejudices or irrational fears towards an ethnic group or identifiable cultures cannot inform an objectively reasonable perception of a threat, as racist beliefs are antithetical to equality and cannot ground the belief based on reasonable grounds. The Court also clarified that an honest but mistaken belief can be reasonable and is not in self-defence (See paragraph 57).
In conclusion, the Court stated that reasonableness is a matter of judgment, to brand a belief as unreasonable in the context of a self-defence claim is to declare the accused’s act as criminally blameworthy (See paragraph 58).
In this case, it is noteworthy that in the context of the night of the allegations, the complainant did not use any force against Mr. Cox, nor is there any evidence that Mr. Gilbert in any way threatened the use of force. The evidence in the 911 call is that Mr. Gilbert pushed Mr. Cox first.
The court has found as a fact that Mr. Gilbert never pushed Mr. Cox, nor did he use any physical force on Mr. Cox. The court would also find that he never in any way threatened Mr. Cox.
What is important in this case is whether there is any evidence that Mr. Cox had any belief, on reasonable grounds, that force was being used or threatened against him or another person by Mr. Gilbert. The court has rejected the defence version that Mr. Gilbert pushed him before he beat Mr. Gilbert. The court has no reasonable doubt that force was not being used on Mr. Cox before the assault.
There is no evidence of any threat, as indicated, by Mr. Gilbert to Mr. Cox on the scene. The court does not have any reasonable doubt with respect to whether Mr. Cox had a belief, on reasonable grounds, that force was being used on him or threatened against him or the other man on the scene. There is no evidence this court would find of a threat being made on the scene prior to the beating of Mr. Gilbert. The court does not have a reasonable doubt in this regard.
Mr. Cox cannot take advantage of self-defence based on the court’s consideration of the s. 34(1)(a) criteria.
The Response
Was the conduct of the accused reasonable under the circumstances?
It is an obligatory requirement that the court consider the enumerated criteria as circumstances as an inclusive list. No single factor is determinative. The court will not consider the criteria in this case as it is not necessary.
The Crown has proven beyond a reasonable doubt the absence of the s. 34(1)(b) or 34(1)(a) criteria required as the first two of the three-part test for this defence. Mr. Cox is accordingly disentitled from the availability of self-defence.
Based on the findings of fact made by this court, the court finds that Mr. Cox first threatened to assault Mr. Gilbert by stating, among other things, “let us done him” and indicating that he was going to do a “beatdown”. Secondly, Mr. Cox used the two-way radio as a weapon, holding it in his hand and striking Mr. Gilbert multiple times, including to Mr. Gilbert’s head. The court finds Mr. Cox guilty of threatening bodily harm, and moments later committing the offence of assault with a weapon.
Dangerous Driving
The evidence as to the driving by Mr. Cox upon which the Crown relies for the charge of dangerous driving does not constitute dangerous driving. Essentially, it is a lane change without signalling, a solitary move cutting off Mr. Gilbert’s vehicle.
While it might constitute an offence under the Highway Traffic Act, the court finds that it falls short of the criminal offence of dangerous driving. That is not to say, Mr. Cox, that what you did in cutting off Mr. Gilbert was safe or appropriate on the highway. In any event, as it relates to the charge of dangerous driving, Mr. Cox is found not guilty on the charge of dangerous driving.
Conclusion
In conclusion, the court finds Mr. Cox guilty of the charge of assault with a weapon and guilty of the charge of threatening to cause bodily harm, and not guilty of the charge of dangerous driving.
COURT ADJOURNED
Certificate of Transcript
Form 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act
I, Debbie Knight (Name of Authorized Person) certify that this document is a true and accurate transcript of the recording of R. v. Ziggy Cox in the ONTARIO COURT OF JUSTICE (Name of Case) (Name of Court) held at 60 Queen Street West, Toronto, Ontario (Court Address) taken from Recording 4811_102_20211215_094704__6_BROWNBE which has been certified in Form 1. March 10, 2022 (Date) (Signature of Authorized Person(s)) Debbie Knight, ACT# 1760322488 debbie@knighttranscripts.com 416-550-4710