ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
KHALID JAMAL MOSES
Before Justice David A. Harris
Heard on January 6, 2023
Reasons for Judgment released on March 30, 2023
Kevin Kim counsel for the Crown
Jessica Zita counsel for the defendant Khalid Jamal Moses
INTRODUCTION
1Khalid Jamal Moses was charged that on December 19, 2021, in St. Catharines, he did in committing an assault on R.H., wound, maim, disfigure or endanger the life of R.H., thereby committing an aggravated assault contrary to section 268(1) of the Criminal Code.
2This is an indictable offence.
3Mr. Moses waived the reading of the election and elected to be tried in the Ontario Court of Justice.
4He entered a plea of not guilty and the trial began.
5R.H. testified for the Crown.
6Mr. Moses testified in his own defence.
7In addition, I was shown a video recording of the alleged incident. Both counsel agreed that I should view this again and rely on it in reaching my decision in this case.
8Further, I was shown several photographs of R.H. and a medical report summarizing her injuries.
9Everyone agreed that Mr. Moses struck R.H. with a bottle.
10It was also agreed that as a result of this she suffered injuries that meet the criteria making out an aggravated assault.
11The only issue before me is whether Mr. Moses was acting in self-defence when he struck R.H.
12Amendments to the Criminal Code provisions regarding self-defence came into effect in March 2013.
13The statutory requirements for self-defence are now set out in the current section 34 of the Criminal Code.
14It is not the burden of the defence to prove Mr. Moses meets those requirements. It is the Crown's burden to prove beyond a reasonable doubt that he did not act in self-defence.1
15It is not enough for me to believe that he probably or likely did not act in self-defence. Proof on a balance of probabilities is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities."2
16This is a tough standard and it is so tough for very good reason. As Cory J. said in R. v. Lifchus:
The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted.3
17Mr. Moses testified in this case.
18Accordingly, the principles in R. v. W. (D.)4 are applicable.
19However, there are limits on this. The issue in this case is not simply what happened. The ultimate issue before me is whether what happened was an objectively reasonable response to the assault by R.H. on Mr. Moses.
20I believed Mr. Moses at times. There were other times when I would say that his evidence left me with a reasonable doubt about what happened. However, there were also times when I did not believe him and I was not left with a reasonable doubt. Unfortunately for Mr. Moses, the times when I believed him did not lead me to have a reasonable doubt as to whether his actions were an objectively reasonable response to the assault on him.
21I make similar comments with respect to R.H. I believed her at times but there were times when I did not believe her.
22In reaching these conclusions, I was satisfied that both Mr. Moses and R.H. actually believed everything that they said in their evidence. To that extent, their credibility was not in question.
23I cannot say the same thing about the reliability of parts of their evidence. Both said things that were inconsistent with what I saw on the security video. I will discuss these further later in these reasons for judgment.
THE LAW REGARDING SELF-DEFENCE
24section 34 of the Criminal Code provides that:
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 or threat of force; and
(c) the act committed is reasonable in the circumstances.
25Crown counsel rightly conceded that R.H. was using force against Mr. Moses and that he struck her with the bottle for the purpose of defending or protecting himself.
26The issue here is whether this act of striking her with the bottle was reasonable in the circumstances.
27In determining this, I am required by section 34(2) of the Criminal Code to consider several non-exhaustive factors.
28Section 34(2) provides that:
(2) 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:
(a) the nature of the force or threat;
(b) 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;
(c) the person's 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 to the incident;
(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 to the incident;
(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.
29In October 2021, in R. v. Khill,5 the Supreme Court of Canada revisited the law of self-defence.
30The Court stated at paragraph 2 that:
The contours of our law of self-defence are tied to our notions of culpability, moral blameworthiness and acceptable human behaviour. To the extent self-defence morally justifies or excuses an accused's otherwise criminal conduct and renders it non-culpable, it cannot rest exclusively on the accused's perception of the need to act. Put another way, killing or injuring another cannot be lawful simply because the accused believed it was necessary. Self-defence demands a broader societal perspective. Consequently, one of the important conditions limiting the availability of self-defence is that the act committed must be reasonable in the circumstances. A fact finder is obliged to consider a wide range of factors to determine what a reasonable person would have done in a comparable situation.6
31The Court elaborated on this at paragraphs 64 and 65, stating that:
64 Through s. 34(2), Parliament has also expressly structured how a decision maker ought to determine whether an act of self-defence was reasonable in the circumstances. As the language of the provision dictates, the starting point is that reasonableness will be measured according to "the relevant circumstances of the person, the other parties and the act". This standard both casts a wide net of inquiry covering how the act happened and what role each person played and modifies the objective standard to take into account certain characteristics of the accused -- including size, age, gender, and physical capabilities (s. 34(2)(e)). Also added into the equation are certain experiences of the accused, including the relationship and history of violence between the parties (s. 34(2)(f) and (f.1)).
65 Nevertheless, the trier of fact should not be invited to simply slip into the mind of the accused. The focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time.7
32I am instructed to:
… avoid treating the assessment of the reasonableness of the act under s. 34(1)(c) as equivalent to reasonable belief under s. 34(1)(a). Beyond honest but reasonable mistakes, judges must remind juries that the objective assessment of s. 34(1)(c) should not reflect the perspective of the accused, but rather the perspective of a reasonable person with some of the accused's qualities and experiences.8
33On the other hand, I am mindful that I must not expect a person defending himself against an attack to weigh to a nicety the exact measure of necessary defensive action.9
34I will now address each of the factors enumerated in section 34(2).
A. The Nature of the Force or Threat;
35R.H. committed an unprovoked assault on Mr. Moses. To use the vernacular, she sucker-punched him.
36In R. v. Khill, supra, the Supreme Court noted that
provocation or the absence of provocation is no longer a preliminary requirement that funnels the accused through one door or another, but rather simply a factor to be considered. The trier of fact is therefore "freer ... to treat provocation as an ongoing consideration that can influence the final determination of reasonableness rather than a mere threshold consideration that expires in influence once it is determined which self-defence provision is to be applied" (Paciocco (2014), at p. 290).10
37Her first punch was followed by one or two more. Then her friend Shane11 intervened and pushed Mr. Moses.
38Mr. Moses testified that the punches were very hard and that he was scared.
39R.H. testified that she was not very strong as a result of previous injuries and that her punches were weak.
40I noted in the video that none of the punches appeared to knock Mr. Moses off balance or affect him significantly. I would not describe them as hard punches. He was not injured.
41The punches certainly surprised him.
42R.H. testified that she and Mr. Moses had seen each other in the club earlier that night. Mr. Moses subsequently approached her on the dance floor and glared at her. Mr. Moses testified that he did not approach her or glare at her. He was not aware that she was even in the building. Her account is inconsistent with what I saw on the video. Mr. Moses did not approach her. He did not glare at her.
43Shane pushed Mr. Moses away from R.H. He did not cause any injury to Mr. Moses.
44The nature of the force is, however, merely one factor to be weighed among others under section 34(2). The same can be said about each and every other factor too.12
B. 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;
45In this case the use of force was actually occurring at the time that Mr. Moses hit R.H. with the bottle.
46Crown counsel argued that there were other means available to Mr. Moses to respond to the ongoing assault but he did not avail himself of these. More specifically he could have raised his hands to protect himself or he could have backed away from R.H. and Shane. Further, he could have called upon his friend or his girlfriend for assistance.
47I disagree with the last two suggestions. Mr. Moses testified that he did not know where either of his friends were and they are not visible in the video until after everything is done. Further, I do not see how they could have made any difference had they been called upon to assist Mr. Moses.
48On the other hand, retreat was a possible option here.
49Under section 34, there was no duty to retreat. However, the possibility of retreat is a relevant consideration when determining whether his actions were reasonable.13
50Mr. Moses testified that he had tried, unsuccessfully, to move away from his attackers.
51He said that when he was hit on the right side of his face, he moved back. He was again punched on the right side of his face and he again tried to move away and make some space. He was struck even harder and again tried to create space. This did not work. The punches were pretty hard. He was scared. He lifted up his hand and connected. He did not even think about the fact that he was holding the Hennessy bottle in his right hand. He had been drinking from the bottle.
52His account is inconsistent with what I saw on the video.
53From the video it is clear that at most between six to eight seconds elapsed between the first punch and Mr. Moses swinging the bottle.
54There was no meaningful gap between the various punches or before Shane moved forward with his arms out in front of him pushing Mr. Moses back.
55Mr. Moses did not move back before he was pushed back.
56He did not retreat or try to retreat until after he swung the bottle.
57While he testified that he lifted his hand up and connected with R.H., the video shows otherwise. He swung his hand in a three-quarters overhead motion similar to someone throwing a ball – or someone swinging a club.
58One cannot see the bottle while he is swinging it but it is clearly visible in his hand immediately afterwards. He is holding it in a manner that would make it very difficult if not impossible to drink from it.
59He is holding it like one would hold a club.
60In saying this I must clarify that I am simply trying to describe how Mr. Moses was holding the bottle. His right arm was fully extended straight down at his side. He is holding the bottle by its neck. The body of the bottle is below his hand, between his hand and the floor.
61There was absolutely no evidence to even suggest that Mr. Moses was carrying the bottle as a weapon. He had no reason to expect that he would have any need to do this.
62He does not appear to raise his hands to block any punches and protect himself. He was asked during cross-examination if he did this and I have noted that he was not answering this question.
63Everything happened very quickly here leaving Mr. Moses with very little time to assess what was happening. He could have taken at least a few more seconds time to assess the situation before swinging the bottle. He did not do this.
64He did not attempt to push R.H. away.
65He did not attempt to punch her.
66These would all have been other means available to him to respond to her assault.
C. The Person’s Role in the Incident;
67This was perhaps the central issue in R. v. Khill, supra where the Supreme Court said:
In choosing the broad phrase "the person's role in the incident", Parliament signaled that the trier of fact should consider the accused's conduct from the beginning to the end of the "incident" giving rise to the "act", as long as that conduct is relevant to the ultimate assessment of whether the accused's act was reasonable. This expansive temporal scope distinguishes the "person's role in the incident" under s. 34(2)(c) from other factors listed under s. 34(2), some of which are temporally bounded by the force or threat of force that motivated the accused to act on one end and their subsequent response on the other. For example, s. 34(2)(b) considers what alternatives the accused could have pursued instead of the act underlying the offence, such as retreat or less harmful measures, relative to the imminence of the threat. The question of proportionality under s. 34(2)(g) similarly juxtaposes the force threatened and the reaction of the accused. Both of these factors ask the trier of fact to weigh the accused's response once the perceived threat has materialized. In this way, s. 34(2)(c) was intended to serve a distinctive, balancing and residual function as it captures the full scope of actions the accused could have taken before the presentation of the threat that motivated the claim of self-defence, including reasonable avenues the accused could have taken to avoid bringing about the violent incident.14
68In our case, I am satisfied that Mr. Moses’ role in the incident has been fully canvassed by me in my comments under the other headings.
D. Whether Any Party to the Incident Used or Threatened to Use a Weapon;
69Mr. Moses was the only person who used a weapon or threatened to use a weapon here.
70The bottle appears to be a standard 750 ml. bottle.
E. The Size, Age, Gender and Physical Capabilities of the Parties to the Incident;
71Mr. Moses is a 25-year-old male who is 6 feet 2 inches tall. I was not told his weight but he appeared to be fit.
72I was not told R.H.’s age or her weight. She was a woman who was 5 feet 11 inches tall. She testified that she suffered from fibromyalgia and was weak as a result of a car accident that occurred in 2016.
73I was not told the age, height or weight or physical capabilities of Shane. I was only told that he was male. His appearance on the video is very brief and it is difficult to determine his exact size and build. He was strong enough to push Mr. Moses away from R.H.
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;
74Mr. Moses and R.H. described their prior relationship differently.
75Both testified to meeting briefly at a Hallowe’en party in 2020. Both agreed there was little interaction between them at that time.
76She alleged that there was an incident of non-consensual touching in April 2021. He testified that they did not spend any time together in April 2021. Her evidence was only admitted as narrative to put her attitude towards Mr. Moses into context so that I might understand her thinking leading up to her assault on Mr. Moses. Crown counsel made it clear that he was not relying on this as evidence of something that had in fact happened.
77I am proceeding on the basis that there is no evidence of any such event before me.
78R.H. testified that sometime after April 2021 she had messaged an Instagram account that she thought belonged to Mr. Moses, but that he then blocked her. He testified that he did not have an Instagram account.
79I accept that Mr. Moses did not receive any messages from R.H. via Instagram.
80Both testified that they went to the club Nitro in St. Catharines on December 19, 2021.
81She testified that at some point she came face to face with him in the club. This triggered her PTSD. She ran to the bathroom. She later returned to the dance floor. At some point Mr. Moses came near her. He did not say anything but he glared at her. She panicked and punched him a number of times.
82Mr. Moses testified that he did not know that R.H. was at the club. He did not see her. He certainly did not approach her on the dance floor or give her a dirty look. He only found out that she was his assailant after the fact.
83As I indicated earlier, I am satisfied that what I saw on the video is consistent with Mr. Moses’ evidence and inconsistent with that of R.H.
F.1 Any History of Interaction or Communication between the Parties to the Incident;
84This is covered in paragraphs 74 to 83 above.
G. The Nature and Proportionality of the Person's Response to the Use or Threat of Force;
85In R. v. Khill, supra, the Supreme Court stated that:
The question of proportionality under s. 34(2)(g) similarly juxtaposes the force threatened and the reaction of the accused. Both of these factors ask the trier of fact to weigh the accused's response once the perceived threat has materialized.15
86In this case, the punches thrown by R.H. did not cause any injury to Mr. Moses. They did not knock him over. Shane only pushed him away. This too did not injure Mr. Moses or knock him over. The manner in which Mr. Moses swung the Hennessy bottle, striking R.H. on her head was disproportional to the threat he was facing.
H. Whether the Act committed was in Response to a Use or Threat of Force that the Person knew was Lawful.
87This is not a factor here. The assault by R.H. on Mr. Moses was not lawful.
ANALYSIS
88I am satisfied beyond a reasonable doubt that the following are the facts in this case.
89Mr. Moses and R.H. had met briefly on one occasion at a Hallowe’en party in 2021. There was no other contact or communication between the two of them.
90Both of them went to Nitro, a club in St. Catharines on December 19, 2021.
91Neither of them knew that the other was there.
92There was no contact or communication between them at the club prior to the incident leading to the current charge.
93R.H. saw Mr. Moses, ran at him and punched him in the head two or three times.
94This was an unprovoked attack.
95Her friend Shane intervened pushing Mr. Moses away from R.H.
96Mr. Moses was not knocked off balance or otherwise affected significantly by any of these blows. He was not injured.
97Before Shane succeeded in pushing Mr. Moses away, and within seconds of R.H.’s first punch, Mr. Moses swung a Hennessy bottle that was in his right hand in a three-quarters overhand motion and struck RH on her head with the bottle.
98He struck her with sufficient force that it caused significant injuries to her.
99He made no attempt to retreat.
100He made no attempt to raise his hands to protect himself from her punches.
101He made no attempt to push her away.
102He made no attempt to simply punch her in order to deter her from her assault.
103Everything happened very quickly here leaving Mr. Moses with very little time to assess what was happening. He could have taken at least a few more seconds time to assess the situation before swinging the bottle. He did not do this.
104He simply reacted and in the circumstances he over-reacted and used disproportional force.
CONCLUSION
105After considering all of the above factors, I am satisfied beyond a reasonable doubt that Mr. Moses’ actions were not reasonable in the circumstances. The self-defence provisions are not applicable here. I find him guilty of aggravated assault.
Released: March 30, 2023
Signed: Justice David A. Harris
Footnotes
- R. v. Mulder, [1978] O.J. No. 515 (Ont. C.A.), at paras. 5 and 9.
- R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 (S.C.C.) at para. 242.
- R. v. Lifchus, [1997] S.C.J. No. 77 (S.C.C.) at para. 13.
- R. v. W. (D.), [1991] S.C.J. No. 26 (S.C.C.).
- R. v. Khill, 2021 SCC 37, [2021] S.C.J. No. 37 (S.C.C.).
- Ibid, at para. 2.
- Ibid, at paras. 64 and 65.
- Ibid, at para. 67.
- R. v. Cunha, 2016 ONCA 491, [2016] O.J. No. 3321 (Ont. C.A.) at para. 7; R. v. R.S., [2019] O.J. No. 5367 (Ont. C.A.) at para. 36; R. v. Paul, [2020] O.J. No. 1667 (Ont. C.A.) at para. 25.
- R. v. Khill, supra, at para. 43.
- I have referred to Shane by his first name only because that is all that I was given during the testimony of R.H.
- Ibid, at para. 104.
- Ibid, at paras. 82 and 90; R. v. Willemsen, [2022] O.J. No. 4634 (Ont. C.A.) per George J.A. at para. 20.
- R. v. Khill, supra, at para 82.
- R. v. Khill, supra, at para. 82.