DATE: 2024·09·06 COURT FILE No.: Information Number 4810 998 24 48119133
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
MIREILLE PARDIEU
Before: Justice David Porter
Reasons for Judgment
Heard on: May 27, 28, 29, 31 and July 9 and 26, 2024 Released on: September 6, 2024
Counsel: P. Clement / P. Kaur.......................................................................................... for the Crown M. Salih............................................................................................................. for the Accused
Overview
1Mireille Pardieu (“Ms. Pardieu”) is charged that on or about the 16th day of August in the year 2023 at the City of Toronto in the Toronto Region did unlawfully cause the death of Fadumo Hassan and thereby commit manslaughter, contrary to section 236 of the Criminal Code of Canada.
2The charge relates to an incident captured on security cameras in which Ms. Pardieu and Ms. Hassan engaged in a fight in a parking lot outside 275 Shuter Street. In the course of the fight, Ms. Pardieu eventually gained the upper hand, and restrained Ms. Hassan by lying on top of Ms. Hassan for several minutes which resulted in her death.
3Evidence was heard on May 27-29, 2024 at a preliminary inquiry charging Ms. Pardieu with murder in relation to the death of Ms. Hassan. After the Crown advised that it was not seeking a committal for trial on the charge of murder, but only a committal for trial on the charge of manslaughter, the Crown elected to lay a new information charging manslaughter in relation to the death of Ms. Hassan. The information charging murder was withdrawn.
4Ms. Pardieu elected trial in the Ontario Court of Justice, and it was agreed that the evidence heard on the preliminary inquiry would apply to the manslaughter trial. The defence called Ms. Pardieu as its only witness on the trial, along with a police photo of the scene.
5The parties agree that the unlawful act alleged in this case, as the foundation for the charge of manslaughter, was an alleged assault by Ms. Pardieu on Ms. Hassan. The defence submits that the Crown has failed to prove beyond a reasonable doubt that the assault was not made lawful by the defence of self-defence in s. 34 of the Criminal Code. The defence submits if there was no unlawful act, then there must be an acquittal on the charge of manslaughter.
6The Crown concedes that there is an air of reality to the defence of self-defence but the Crown submits that it has proven beyond a reasonable doubt that the defence fails. The Crown submits that the defence of self-defence fails because the act of Ms. Pardieu in lying on her back on Ms. Hassan for a total of 4 minutes and 12 seconds, from 12:20:01 until 12:24:13, including for 1 minute and 13 seconds from 12:23 until 12:24:13 after Ms. Hassan had stopped kicking with her legs, was not reasonable in the circumstances, so the defence fails under s. 34(1)(c) of the Criminal Code.
7The sole issue in the case is whether the Crown has met its onus of disproving the defence of self-defence beyond a reasonable doubt. If the defence of self-defence is not disproved beyond a reasonable doubt, Ms. Pardieu is entitled to an acquittal on the charge of manslaughter. See R. v. Hodgson, 2024 SCC 25, at paras. 70 and 83.
The Evidence of the Forensic Pathologist Dr Carolyne Lemieux and the Toxicology Report of Nadia Pace
8The post-mortem examination report of Dr. Carolyne Lemieux, a forensic pathologist, was admitted on consent. Dr. Lemieux concluded that the immediate cause of death of Ms. Hassan was “complications of chest compression”, and that “other significant conditions contributing to the death but not causally related to the immediate cause were the toxic effects of cocaine and ethanol”.
9A toxicology report of Nadia Pace that analyzed blood taken from Ms. Hassan as part of the post-mortem examination was admitted on consent. Blood was drawn from Ms. Hassan at 1:16 p.m. on August 16, 2023 less than an hour after the altercation between Ms. Pardieu and Ms. Hassan ended. Ethanol was detected in her blood at a concentration of 128mg/100 ml. of blood (over the legal limit for operating a motor vehicle of 80 mg/100 ml of blood).
10Cocaine with a concentration of .0073 mg/L was found along with Benzoylecgonine with a concentration of 4.8 mg/L was found in her blood. Cocaethylene was also detected. The toxicology report stated:
“The reported blood concentrations of cocaine and benzoylecgonine have been associated with the recreational use of cocaine. Cocaine and cocaethylene are susceptible to degradation during storage”.
11The parties agreed in an Agreed Statement of Facts as follows:
“The blood sample that was taken from Ms. Hassan likely did not contain a preservative. As a result, the cocaine that was present in the blood sample would have continued to degrade over time. However, it is not possible to quantify the extent of this degradation. The fact that the cocaine would have continued to degrade means that the actual amount of cocaine in Ms. Hassan’s body would have been greater than the amount detected. The date and time of the toxicology analysis of the cocaine was September 26, 2023 at 10:55 PM.”
Benzolyecgonine is an inactive breakdown product of cocaine. Anything above 1 mg is considered to be high. The fact that Ms. Hassan had 4.8 mg. of Benzoylecgonine in her system suggests that she either ingested a large amount of cocaine or that she ingested many doses of cocaine over a period of time. The time of the most recent ingestion is unknown, but it could have been anywhere from 24 hours before the sample was taken, to within the hour.”
12In her testimony, Dr. Lemieux testified that the combination of cocaine and alcohol in the blood at the same time creates cocaethylene which was detected in Ms. Hassan’s blood. She testified on May 31 at p. 43 as follows:
“Cocaethylene and cocaine are known to elicit stimulant effects on the cardiovascular system, which can include narrowing of blood vessels or vasoconstriction, which can limit oxygenated blood arising to the heart, which would, in this case, are looked at as contributing effects have been ascertained as contributing effects as chest compression is also markedly limiting oxygenated blood arising to the body due to limiting respiratory function”.
13She described the effects of cocaine and alcohol in Ms. Hassan as “a significant contributing contributor in death” (page 44).
14She stated at p. 45:
Q: You’re not able to say whether or not death would have necessarily occurred in the absence of the deceased having consumed cocaine and ethanol in this case?
A: If toxic substances had not been identified and I cannot say whether Ms. Hassan – it would be pure speculation to know whether or not she may have been unresponsive after a period of approximately four and a half minutes of chest compression that was documented in the video.”
Q: “You can’t say whether or not she necessarily would have died from the chest compressions had it not been for the consumption of cocaine and ethanol?
A: “Correct. It would be speculation, hence why it’s a contributing factor”.
The Evidence of Ms. Pardieu
15Ms. Pardieu testified that she is 28 years of age and had arrived in Toronto from Montréal in May 2023. She had a grade 9 Education in Montréal, but was homeless, worked as a sex trade worker, and was addicted to crack cocaine in August 2023. She testified that she had no friends or family in Toronto. She made money by selling her sexual services and used it to purchase crack to support her addiction.
16On the night before August 16, 2023, she had stayed at a church at the corner of Dundas and Sherbourne Street in Toronto smoking crack. She stayed up all night. She had run out of money to purchase crack. In the late morning of August 16, 2023, she decided to walk towards 275 Shuter Street where she had an existing client, to sell sexual services to obtain money to buy more crack.
17As she turned the corner from Dundas Street onto Seaton Street, Ms. Hassan came up behind her and said “Hey”. Ms. Pardieu had never seen Ms. Hassan before and did not know her. Initially Ms. Hassan seemed okay, but soon she asked Ms. Pardieu if she had any cigarettes or crack to share and Ms. Pardieu said “no”. Ms. Hassan asked her where she was going and she said she was going to Shuter Street to see a client. Ms. Hassan asked her if she could go with Ms. Pardieu and Ms. Pardieu said “no” because she did not know her. Ms. Hassan said that she knew people at 275 Shuter as well and was going to come anyway.
18As Ms. Pardieu walked down Seaton Street, she was followed by Ms. Hassan and testified that she felt scared by this because she did not know Ms. Hassan or know why she was following her. Ms. Pardieu was wearing large headphones to listen to music. At one point, Ms. Hassan asked if she could try the headphones and Ms. Pardieu said “no” and asked her to leave her alone.
19Ms. Hassan followed Ms. Pardieu down Seaton Street and began to ask her for help, asking her for crack, and asking if she could have her headphones to sell to get money to buy crack. Ms. Pardieu testified that she just wanted to get away from Ms. Hassan.
20Ms. Pardieu testified that she had smoked a small amount of crack before leaving the church and was still under the influence of crack to some extent. She acknowledged that when she is on crack it amplifies her emotions and likely made her more scared than she otherwise would have been.
21Ms. Pardieu testified that she was scared as a result of the persistence of Ms. Hassan. She knew that the Moss Park area, where she was, was dangerous and she had heard of people being beaten up, stabbed or shot in the area which she also knew was populated by people with addictions to crack, crystal meth and alcohol. She did not know Ms. Hassan and she did not feel safe because she thought Ms. Hassan might have a knife, and she was looking for crack, which made Ms. Pardieu feel unsafe.
22Surveillance video filed in evidence showed Ms. Pardieu approaching 275 Shuter Street, followed by Ms. Hassan, as Ms. Pardieu walked towards the entrance to 275 Shuter Street. She testified that Ms. Hassan continued to harass her about getting her headphones to sell for money to buy crack. Ms. Pardieu told her to leave her alone. She perceived Ms. Hassan to be acting in an unpredictable way because she appeared to be withdrawing from a crack high and desperate to get her next fix.
23Ms. Pardieu testified that she tried to enter 275 Shuter Street from the lobby, but was stopped by the security guard. She tried to enter quickly through the door to make sure that Ms. Hassan did not follow her, but the security guard stopped her from closing the door behind her to stop Ms. Hassan from following her into the building.
24She testified that she pointed to Mrs. Hassan and told the security guard that she had been following her and she wanted to get away from her.
25The security guard would not let her enter and told her that she needed to use the intercom and connect with a resident of the building who could let her in if she wanted to enter the building.
26She testified that she tried to explain to the security guard that she wanted to get away from Ms. Hassan but he did not want to listen to her and insisted that she had to get permission from a resident of the building by using the intercom system to enter.
27She testified that Ms. Hassan asked her to use her cell phone. Ms. Pardieu wanted Ms. Hassan to leave her alone and told her to “fuck off.” She acknowledged in cross-examination that she was close to “Jonesing” (ie. suffering the effects of withdrawal from crack).
28An Agreed Statement of Facts of the evidence of the security guard, Mishaal Jamil, was filed in evidence. It corroborated Ms. Pardieu’s evidence on this exchange and, in particular, corroborated her evidence that she told Mr. Jamil that she was trying to get away from Ms. Hassan.
29Ms. Pardieu testified that she left the lobby and, when she left, Ms. Hassan was still in the lobby trying to dial numbers at the intercom. Ms. Pardieu’s evidence on this point is corroborated by Brian Huntley, a person delivering food from a food bank to a resident at 275 Shuter. He saw Ms. Pardieu and Ms. Hassan in the lobby of 275 Shuter and saw Ms. Pardieu leave, while Ms. Hassan appeared to be trying to connect with a resident in the building by dialling on the intercom. According to Mr. Huntley, when she was unsuccessful, she left.
30Ms. Pardieu testified that she walked towards the parking lot to get some space, and get away from Ms. Hassan with the hope that she would leave the lobby, and that Ms. Pardieu would be able to return, and speak to the security guard herself in the hope that he would let her in to finally see her client. She did not know the intercom number for her client to get him to come and let her in. In the past, she had just followed others into the building to go see her client, who she knew lived on the 14th floor.
31When Ms. Pardieu started to return to the entrance to 275 Shuter Street by walking across the parking lot, Ms. Hassan was still there. Ms. Pardieu tried to walk past her, but Ms. Hassan walked directly to her and demanded her headphones. Ms. Pardieu turned her back to Ms. Hassan. Ms. Hassan then grabbed Ms. Pardieu’s arm and Ms. Pardieu turned around and pushed her onto the ground. As Ms. Hassan got up and ran towards her, Ms. Pardieu walked backwards. They then engaged in mutual flailing of the arms at each other. Ms. Pardieu testified that she was scared of Ms. Hassan and was just trying to defend herself.
32Ms. Hassan then grabbed Ms. Pardieu’s head and pushed her head towards the ground holding it down. Ms. Pardieu then destabilized Ms. Hassan by pulling her feet and they struggled with Ms. Pardieu holding her legs. Ms. Pardieu testified that she was scared of Ms. Hassan and thought she might have a knife or other weapon.
33At 12:20, Ms. Pardieu got Ms. Hassan on the ground and turned on her back and lay on top of Ms. Hassan. Ms. Hassan continued to kick as Ms. Pardieu tried to grab her legs to stop Ms. Hassan from kicking her. She testified that Ms. Hassan was kicking and scratching her. Ms. Pardieu testified that she put her herself on top of Ms. Hassan to keep her on the ground to make her stop kicking and scratching her. Ms. Pardieu told Ms. Hassan to stop kicking her.
34She stated in cross-examination that she felt she had to keep Ms. Hassan on the ground to stop her from getting up and continuing to fight her.
35Ms. Pardieu testified that she did not hear anyone saying anything to her during this struggle. The video shows that there was a man in a white shirt who stood watching them during this struggle. The video shows that he did nothing to intervene, Ms. Pardieu testified that she did not even see him as she was in her own little bubble.
36Ms. Pardieu testified that Ms. Hassan said “let me go” and Ms. Pardieu responded “let me go first”. Ms. Pardieu testified that she thought Ms. Hassan would let go of her, but she continued holding onto Ms. Pardieu and trying to kick her, so eventually Ms. Pardieu held her leg to try to avoid having Ms. Hassan kick her.
37At some point, Ms. Hassan said that she would let her go and she would leave the headphones, but Ms. Pardieu thought she was tricking her because Ms. Hassan kept holding onto her and trying to kick her to be able to go up on her feet. She thought that if Ms. Hassan was able to do this, she would harm her. In order to stop this from happening, she continued to hold Ms. Hassan on the ground by lying on top of her.
38Ms. Pardieu testified that she was very tired and her heart was really pounding and she was sweating from the exertion of the fight and was having a hard time catching her breath. While Ms. Hassan was smaller, she was very strong. Ms. Pardieu was feeling tired and out of breath as a result of the exertion in the fight.
39Ms. Pardieu testified that she heard Ms. Hassan wheezing, and perceived that she was also having a hard time catching her breath. She acknowledged that Ms. Hassan was having more trouble catching her breath than she was.
40She testified that she did not think that she was causing Ms. Hassan any harm as all she was trying to do was maintain her on the ground. She stated “the only thing I was doing is try to keep her on the ground because she was kicking me, fighting me, scratching me in my face.” (July 9, p. 48). She testified that while Ms. Hassan was not landing kicks with her feet, she was trying to reach her with her feet and was kicking high in the air to try to get at Ms. Pardieu. Ms. Pardieu testified Ms. Hassan was trying to attack her. Ms. Pardieu told her to stop kicking her.
41Ms. Pardieu felt that Ms. Hassan was tricking her, since although she said that she would let Ms. Pardieu go, she was still holding onto her. Ms. Pardieu grabbed Ms. Hassan’s shoe, and threw it away, and then stood up to get off Ms. Hassan, knowing that Ms. Hassan would not be able to quickly run after her and would have to retrieve her shoe in order to do so.
42Ms. Pardieu testified that Ms. Hassan never told her that she could not breathe.
43The video confirms that at 12:23 Ms. Hassan stopped kicking, and at 12:23:52, Ms. Pardieu reached towards Ms. Hassan’s leg, pulled it towards her, and grabbed Ms. Hassan’s shoe and threw it away. She testified at this point Ms. Hassan was wheezing, but still breathing. She acknowledged in cross-examination that Ms. Hassan was having more difficulty breathing than she was, but she was also out of breath and tired from the fight.
44At 12:24:13, Ms. Pardieu started to get up, gathered her belongings and walked away.
45The video shows Ms. Pardieu walking away, and turning around briefly to look at Ms. Hassan. She testified that she looked back to see if Ms. Hassan was following her and saw that she was not. She saw people standing where Ms. Hassan was and assumed they were talking to her and that she was fine. She had expected Ms. Hassan to get her shoe and run after her.
46Ms. Pardieu testified that at the end of the fight Ms. Hassan had been wheezing, but she did not think she was really injured in any way as she had not punched her, stabbed her, or done anything that caused Ms. Hassan to bleed.
47When Ms. Pardieu was arrested later that day, she was charged with assault, and concluded that Ms. Hassan had filed the complaint. It was only several days later that she was charged with murder which shocked her. As she testified, “I know I didn’t kill her, like she was okay. I just maintained her on the ground” (July 9, p.53).
48Ms. Pardieu testified she felt very sad when she learned that Ms. Hassan had died because she did not intend to harm her and all she was trying to do was protect herself.
Evidence of Anthony Hall
49Anthony Hall was a resident of 275 Shuter Street who saw the altercation between Ms. Pardieu and Ms. Hassan from his 8th floor apartment. He recalled hearing the smaller woman underneath the larger woman asking the larger woman to let her go (May 27, p.73). The larger woman (Ms. Pardieu) said to the smaller woman (Ms. Hassan) “I’m not letting you up because I know you’re going to start fighting me as soon as I let you up. (May 27, p.74). This evidence corroborates Ms. Pardieu’s account of the incident.
Evidence of Shaylene Upshaw
50Shaylene Upshaw was a resident of 275 Shuter Street who testified that she observed the altercation involving Ms. Pardieu and Ms. Hassan on August 16, 2023. She is the only witness to attribute to Ms. Hassan a statement during the altercation that she could not breathe. She stated in her evidence that when Ms. Pardieu was on top of Ms. Hassan. Ms. Hassan stated “okay, now I’m sorry, get off, I can’t breathe, get off” and the defendant is saying “if I get off, are you going to leave me alone, if I let you go, will you leave me alone, and she’s just kind of repeating that” (May 27, p. 43).
51Ms. Pardieu denied that Ms. Hassan ever said she could not breathe.
52I have concluded that Ms. Upshaw’s evidence is not reliable on this point. Her description of the incident is inconsistent with the video evidence in several respects.
53First, she described the beginning of the fight as follows: “the defendant was just walking through the parking lot minding her own business. Then out of nowhere, the victim came and jumped on her, almost like a piggyback” (May 27, p.42). The video shows that Ms. Hassan did not jump on Ms. Pardieu “like a piggyback”, but rather grabbed her arm.
54Secondly, Ms. Upshaw has inconsistent versions of certain aspects of the incident. With respect to the conduct of persons in a Red Cross van seen arriving in the parking lot, she says at May 27, p. 60: “A Red Cross van had pulled up when there is still enough time to give her CPR, they got out, they checked her pulse, then they hopped back in and drove away, so that was a clear sign she needed help and they were Red Cross”.
55She had a different version in-chief at May 27 p. 44:
“I was very upset about that. There was a couple of things, like a van appeared to come like they were going to help, but they just looked at her and then drove off, like a Red Cross van. I feel like a lot of things failed here.”
56I find that her emotional response to the incident has caused her to embellish aspects of her account. I do not accept her evidence that she heard Ms. Hassan say that she could not breathe.
Emergency Response
57Al Ally works as a special constable for Toronto community housing. He received a report of a female injured in a fight outside 275 Shuter Street. He arrived at 275 Shuter Street at about 12:29 p.m. and saw Ms. Hassan on the ground with vital signs absent. He began CPR at 12:30 and continued until Toronto Fire arrived at 12:35 and took over.
58Subsequently, EMS paramedics arrived and took over the medical intervention including Advanced Life Support intervention including the intubation of Ms. Hassan to provide air directly into her lungs. Drugs were administered to get the heart starting to beat and at 12:50 there was a return of spontaneous circulation. However, Ms. Hassan was not able to breathe on her own.
59According to the post-mortem report, Ms. Hassan was taken to St. Michael’s Hospital where imaging studies showed that “she had sustained an irreversible hypoxic-ischemic brain injury, and no acute traumatic injury. She deteriorated and died on August 25, 2023.”
Summary of the Evidence
60I have considered the evidence of Ms. Pardieu in the context of the totality of the evidence in this case. I find Ms. Pardieu to be a generally credible and reliable witness. Her evidence is internally consistent and in numerous respects confirmed by both the video evidence, and the evidence of other witnesses. She was not evasive in answering questions in cross-examination. She candidly admitted facts which were unhelpful to her defence. For example, she admitted that she never saw a weapon in the possession of Ms. Hassan, and candidly admitted that she herself was likely affected by withdrawal from crack at the time of this incident.
61I accept her evidence concerning the sequence of events, her motivation throughout the entirety of the fight with Ms. Hassan, and in particular that at no point did her motivation change from one of attempting to defend herself to engaging in conduct which she believed would be harmful to Ms. Hassan. I accept her evidence that she did not perceive Ms. Hassan to be being harmed or injured by her act of continuing to restrain Ms. Hassan by lying on top of her.
62In particular, I accept her evidence that at 12:23:52 when she removed Ms. Hassan’s shoe, and threw it away, she did so with the belief that Ms. Hassan continued to be in a position to be able to get up and chase her. This belief was also reflected in the fact that, as she walked away, she turned back to look at Ms. Hassan which I accept was to see if Ms. Hassan had got up and was starting to come after Ms. Pardieu. I accept that at no point in the altercation did she perceive that she had harmed Ms. Hassan, or that by continuing to restrain Ms. Hassan by lying on top of her, that Ms. Hassan would be harmed or injured.
The Law of Self-Defence
63Section 34 of the Criminal Code states:
Defence – use or threat of force
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.
Factors
(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.
Section 34 (1)(a) – The Catalyst: Did the Accused Believe on Reasonable Grounds that Force Was Being Used or Threatened Against Them
64In R. v. Khill, 2021 SCC 37, the Supreme Court of Canada has defined the requirements of the current law of self-defence. The majority states at para 40:
“Under the new law, what is relevant is reasonably apprehended “force” of any kind, including force that is the product of negligence. The accused’s response under the new law is also no longer limited to a defensive use of force. It can apply to other classes of offences, including acts that tread upon the rights of innocent third parties, such as theft, breaking and entering or dangerous driving. Replacing “assault” with “force” also clarifies that imminence is not a strict requirement, consistent with jurisprudence interpreting the old provisions since Lavallee (imminence remains a factor under s. 34(2)(b). The accused need not believe that the victim had the present ability to effect a threat of physical force, as is required in order to establish an assault under section 265(1)(b) of the Criminal Code ….”
65In interpreting the requirements of s. 34(1)(a), the Court stated in R. v. Khill that the accused must subjectively believe that force or threat of force was being used against their person or that of another. The accused’s actual belief must be held on reasonable grounds. The reference to reasonableness incorporates community norms and values in weighing the moral blameworthiness of the accused’s actions. The reasonableness of the accused’s belief is assessed on a modified objective standard. The accused’s beliefs are assessed from the perspective of an ordinary person who shares the attributes, experiences and circumstances of the accused where those characteristics and experiences are relevant to the accused’s belief or actions: R. v. Khill, supra, at paras 53-55. An accused’s mental disabilities may be considered in the reasonableness assessment; R. v. Khill, supra, at para.55.
66However, the personal circumstances or experiences of the accused that influence their beliefs should not undermine the Criminal Code’s most basic purpose of promoting public order. Reasonableness is not considered through the eyes of individuals who are overly fearful, intoxicated, abnormally vigilant or members of criminal subcultures: R. v. Khill, at para. 56.
67In summary, the question is not what the accused thought was reasonable based on their characteristics and experiences, but rather what a reasonable person with those relevant characteristics and experiences would perceive. An honest but mistaken belief can nevertheless be reasonable and does not automatically bar a claim to self-defence: R. v. Khill, supra, at para. 57.
68In oral submissions, the Crown conceded that the evidence established that Ms. Pardieu believed on reasonable grounds that force, and a threat of force, was made against Ms. Pardieu by Ms. Hassan. I accept this concession as I accept Ms. Pardieu’s evidence that, based on Ms. Hassan’s conduct in following her, persistently harassing her to have her headphones to sell to obtain money to buy crack, and the instigation of the fight by Ms. Hassan, who grabbed Ms. Pardieu’s arm, Ms. Pardieu believed on reasonable grounds that force was being used against her and that, from the totality of Ms. Hassan’s conduct a further application of force from Ms. Hassan would occur if she was not successfully restrained.
Section 34(1)(b): The Motive
69The Court states in R. v. Khill, supra, at paras. 59 and 61:
“The second element of self-defence considers the accused’s personal purpose in committing the act that constitutes the offence. Section 34(1)(b) requires that the act be undertaken by the accused to defend or protect themselves or others from the use or threat of force. This is a subjective inquiry which goes to the root of self-defence ….
The motive provision thus ensures that the actions of the accused are not undertaken for the purpose of vigilantism, vengeance or some other personal motivation.”
“Initial steps taken to defend one’s property may transition into a situation of self-defence. Likewise, separate defences may rightly apply to distinct offences or phases of an incident …. At the same time, great care is needed to properly articulate the threat or use of force that existed at a particular point in time so that the assessment of the accused’s action may be properly aligned to their stated purpose.”
70I find that Ms. Pardieu’s motive throughout the incident was to defend her person against the actual physical attack, and reasonably anticipated threat of further force, which Ms. Pardieu reasonably perceived from Ms. Hassan.
71I accept Ms. Pardieu’s evidence that she was legitimately fearful of Ms. Hassan throughout the incident. Ms. Hassan was unknown to her. She appeared desperate as she was urgently seeking crack, and appeared to be in a state of withdrawal from the recent consumption of crack. Her conduct escalated in relation to Ms. Pardieu from following her, asking for her headphones to sell to get money for crack, to physically attacking her in the parking lot. The incident occurred in the Moss Park area which Ms. Pardieu reasonably perceived as an area of high crime.
72She reasonably believed that Ms. Hassan may have a weapon such as a knife which she could use to injure Ms. Pardieu. Early in the fight, Ms. Hassan gained the upper hand, and is seen on the video with her hands on Ms. Pardieu’s head holding her down, which precipitated Ms. Pardieu destabilizing Ms. Hassan and getting her on the ground and lying on her back on top of Ms. Hassan. I accept that throughout the altercation Ms. Hassan continued to grab Ms. Pardieu and scratch Ms. Pardieu’s face and, as her hands were continually being used, that Ms. Pardieu reasonably believed she continued to be at risk of harm in the event that Ms. Hassan had a weapon.
73I accept that throughout the incident until she stood up, Ms. Pardieu acted out of a subjective motivation to defend her person against the ongoing attack, and threat of further force, which she reasonably believed Ms. Hassan represented.
Section 34(1)(c): The Act Committed Must be Reasonable in the Circumstances
74In determining whether the accused’s act was reasonable in the circumstances the inquiry is directed to what a reasonable person would have done “in the relevant circumstances as the accused perceived those circumstances”: R. v. Willemsen, 2022 ONCA 722, at para. 21.
75It is an objective assessment which “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” R. v. Khill, supra, at para. 67.
76In discussing the requirement in s. 34(1)(c) that “The act committed is reasonable in the circumstances” the Court stated in R. v. Khill, supra, at paras. 66-67:
“As observed by Doherty J.A. at para. 58 of his reasons the “relevant circumstances of the accused” in s. 34(2) can also include any mistaken beliefs reasonably held by the accused. If the court determines that the accused believed wrongly, but on reasonable grounds, that force was being used or threatened against them under s. 34(1)(a), that finding is relevant to the reasonableness inquiry under s. 34(1)(c). However, while s. 34(1)(a) and (b) address the belief and the subjective purpose of the accused, the reasonableness inquiry under s. 34(1)(c) is primarily concerned with the reasonableness of the accused’s actions, not their mental state.
Courts must therefore 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.”
77In its recent decision in R. v. Hodgson, 2024 SCC 25, in which the Court considered the defence of self-defence to a charge of manslaughter, the court summarized the requirement of s. 34(1)(c) as follows at para.76:
Third, s. 34(1)(c) requires that “the act committed is reasonable in the circumstances” and s. 34(2) provides a list of nine non-exhaustive factors for the court to consider in making this determination. Parliament expressly structured how a decision maker ought to determine whether an act of self-defence was reasonable in the circumstances. What is called for is an assessment of the overall reasonableness of the accused’s conduct according to the statutory factors. Reasonableness is measured according to “the relevant circumstances of the person, the other parties and the act” (Criminal Code, s. 34(2); see also Khill, at para. 64). When a factor is relevant it becomes a mandatory consideration, as s. 34(2) provides that the fact finder “shall” consider all factors set out in paras. (a) to (h) that are relevant in the circumstances of the case (Khill, at para. 68). This objective determination, with its focus on what a reasonable person would have done in comparable circumstances, strikes the appropriate balance between respecting the security of the person who acts and the security of the person acted upon. It also underscores that the law of self-defence “cannot rest exclusively on the accused’s perception of the need to act” (Khill, at para. 2; see also paras. 62 and 65)”.
78The enumerated factors in s. 34(2) must be considered in this determination. However, the factors listed are not exhaustive: R. v. Khill, supra, at para. 68. The majority in R. v. Khill stated at para. 69-70:
“Once a factor meets the appropriate legal and factual standards, it is for the trier of fact to assess and weigh factors and determine whether or not the act was reasonable. This is a global, holistic exercise. No single factor is necessarily determinative of the outcome.
As previously explained, Parliament’s choice of a global assessment of the reasonableness of the accused’s otherwise unlawful actions represents the most significant modification to the law of self-defence.”
79As the Court noted in R. v. Khill, supra, at para. 42:
“It is now for the trier of fact to weigh these factors and determine the ultimate success of the defence. The discretion conferred on triers of fact means they are now free to grant the defence in the absence of what was previously a condition for its success. For example, while the previous s. 34(1) required as a preliminary condition that the force used be “no more than is necessary”, under the new framework, the nature and proportionality of the accused’s response to the use or threat of force is but one factor(s. 34(2)(g)) that informs the overall reasonableness of the accused’s actions in the circumstances.”
Section 34 (2)(a): The Nature of the Force or Threat
80The force to which Ms. Pardieu responded was a personal attack, by Ms. Hassan who a reasonable person would perceive as unpredictable, desperate to obtain money to buy crack, likely showing the effects of intoxication from alcohol, and likely showing the signs of the desperation of a crack addict coming off a crack-induced high.
81A reasonable person, with the experience of Ms. Pardieu in the Moss Park area of Toronto, would perceive the threat of additional harm, possibly involving a weapon, as a realistic threat having regard to the fact that crimes of violence in that area were common, and Ms. Hassan was demonstrating signs of desperation to get money to buy crack. A reasonable person would perceive the threat posed by Ms. Hassan, given her unprovoked attack on Ms. Pardieu, to be significant given her desperation for money for drugs and the persistence of her demands of Ms. Pardieu that she surrender her headphones for Ms. Hassan to sell for money for drugs.
82Furthermore, early in the altercation Ms. Hassan got the upper hand, and had control of Ms. Pardieu by holding Ms. Pardieu down with her hands on Ms. Pardieu’s head. This placed Ms. Pardieu in an extremely vulnerable position, to which she responded by getting Ms. Hassan on the ground and restraining Ms. Hassan by lying on top of her.
Section 34(2)(b): The Extent to Which force Was Imminent, and Whether Other Means Were Available to Ms. Pardieu to Respond to the Potential Use of Force
83On the evidence in this case, there was an unprovoked attack by Ms. Hassan on Ms. Pardieu. Ms. Pardieu had no realistic choice but to respond immediately to defend herself. The actual force used by Ms. Hassan was substantial and the implicit threat of further force was real. As early in the fight, Ms. Hassan had the upper hand, holding Ms. Pardieu down, by forcing her head towards the ground, Ms. Pardieu had no realistic choice but to respond to try to gain control of Ms. Hassan. This was reasonable in the circumstances.
Section 34(2)(c) Ms. Pardieu’s Role in the Incident
84Ms. Hassan was the aggressor. Ms. Pardieu was not. Ms. Pardieu did nothing to provoke the attack by Ms. Hassan. Ms. Pardieu had told Ms. Hassan to leave her alone, or go away, several times in the minutes prior to the incident as Ms. Hassan followed Ms. Pardieu to 275 Shuter Street and as Ms. Hassan tried to get into the building with Ms. Pardieu. However, Ms. Hassan persisted in harassing Ms. Pardieu and asking for her headphones to sell to get crack.
85Ms. Pardieu tried to walk past Ms. Hassan to go back to 275 Shuter, after having left the immediate area briefly in the hope that Ms. Hassan would be gone, only to have Ms. Hassan initiate a physical attack on Ms. Pardieu. Ms. Pardieu was entitled to try to return to 275 Shuter in the hope of seeing her client. She had no opportunity to escape the attack suddenly made by Ms. Hassan. In my opinion, Ms. Pardieu was blameless in the circumstances that lead up to Ms. Hassan attacking her.
Section 34(2)(d): Whether Any Party to the Incident Used or Threatened to Use a Weapon
86Neither Ms. Pardieu nor Ms. Hassan had a weapon, or used a weapon. However, as noted above Ms. Pardieu had a reasonable honest belief that Ms. Hassan may have a weapon, and given Ms. Hassan’s desperate, unpredictable behaviour, would use it. In my opinion, a reasonable person with Ms. Pardieu’s experiences could easily have formed the same opinion of the risk Ms. Hassan posed.
Section 34(2)(c): The Size, Gender and Physical Capabilities of the Parties.
87Ms. Pardieu was 27 years old, 5 feet 8 inches tall, and weighed about 225-235 lbs. at the time of the incident. Ms. Hassan was 29 years old, 5 feet 8 inches tall, and weighed 147 lbs.
88According to Ms. Pardieu, whose evidence I accept, Ms. Hassan was strong. Ms. Pardieu experienced this is in particular when Ms. Hassan grabbed Ms. Pardieu’s arm and subsequently held Ms. Pardieu down by holding her head.
89Ms. Pardieu was out of shape, overweight, and fatigued from the exertion exercised in the fight with Ms. Hassan.
90Undoubtedly, Ms. Pardieu was much heavier than Ms. Hassan. She used her weight to restrain Ms. Hassan by pinning her to the ground.
Section 34(2)(f): Prior Relationship Between the Parties Including any Prior Use of Force or Threat of Use of Force and Section 34(2)(f.1) The History of Interaction Of Communication Between the Parties to the Incident
91Ms. Pardieu had never met Ms. Hassan before. She knew nothing about her. There was therefore no prior use of force or threat of force by Ms. Hassan.
92However, the fact that Ms. Hassan was totally unknown to Ms. Pardieu was a factor in causing Ms. Pardieu to be fearful of Ms. Hassan. A reasonable person would be alarmed by being approached by a person entirely unknown to them, who followed them, asked for their property to sell to get crack, who appeared desperate for crack, and who ultimately attacked them without provocation. A reasonable person would be afraid of such a person and uncertain of how the force from such a person could escalate.
93Ms. Pardieu repeatedly told Ms. Hassan to go away and leave her alone prior to the attack, to no avail. Ms. Hassan refused to go away and instead precipitated the attack on Ms. Pardieu.
Section 34(2)(g): The Nature and Proportionality of the Person’s Response to the Use or Threat of Force
94The response by Ms. Pardieu to Ms. Hassan’s attack, after Ms. Hassan had her held down by the head, was to de-stabilize Ms. Hassan, and to lie on top of her for a total of approximately 4 minutes and 13 seconds. For the first approximately 3 minutes, Ms. Hassan continued to kick up and back at Ms. Pardieu, as shown on the video. Ms. Pardieu testified that Ms. Hassan continued to scratch her face and grab her throughout the struggle. Ms. Pardieu testified that Ms. Hassan’s breathing was laboured, and that she was wheezing, until Ms. Pardieu got up. I accept that Ms. Pardieu heard Ms. Hassan wheezing, although its duration is unclear.
95I also accept that at 12:23:52, when she grabbed Ms. Hassan’s leg and threw away her shoe so that she could not run after her, Ms. Pardieu believed Ms. Hassan continued to be a threat to her. In my opinion, this is highly probative evidence that Ms. Pardieu believed that her act of lying on her back on top of Ms. Hassan for slightly more than 4 minutes had not harmed Ms. Hassan, and certainly had not caused her to die.
96The Crown submits that once Ms. Hassan is seen on the video to have stopped kicking, at 12:23 she is no longer a threat, and that Ms. Pardieu’s continued act of lying on Ms. Hassan for 1 minute and 13 seconds was clearly disproportionate to the threat Ms. Hassan posed to Ms. Pardieu.
97Ms. Pardieu testified that Ms. Hassan continued to hold on to her even after she stopped kicking. According to Ms. Pardieu, Ms. Hassan said at that time “I’m going to let you go now. I’m going to leave the headphones” but she was continuing to hold on to Ms. Pardieu, so Ms. Pardieu thought Ms. Hassan was trying to trick her. Ms. Pardieu grabbed Ms. Hassan’s shoe and threw it away to stop Ms. Hassan from pursuing her after Ms. Pardieu got up.
98The act alleged to be disproportionate in this case is the act of Ms. Pardieu, who weighed 225-235 lbs., lying on Ms. Hassan for slightly more than 4 minutes, including for slightly more than 1 minute after Ms. Hassan can be seen on the video to have stopped kicking.
99It is significant in my opinion that the forensic pathologist could not say that this amount of chest compression would have been fatal in the absence of the cocaine and ethanol present in Ms. Hassan’s blood. In other words, the chest compression itself, without the added influence of cocaethanol on Ms. Hassan was not proven to be sufficient to cause death. There was no evidence lead of what the effect would be from chest compression of that duration in a person without cocaethanol in the blood. As previously noted, Dr. Lemieux, the forensic pathologist, testified that it would be “pure speculation” to say whether, after a period of chest compression of approximately 4 and a half minutes, Ms. Hassan would have been unresponsive, if she had not had ethanol and cocaine, and therefore cocaethanol, in her blood.
100Ms. Pardieu had no knowledge that lying on another person as she did could cause their death. She was shocked when, after initially being charged with assault of Ms. Hassan, she was later charged with her murder.
101In my opinion, a reasonable person, with the attributes, experiences and circumstances of Ms. Pardieu would not perceive the act of lying on another person, even for 4 minutes and 13 seconds, as an inherently dangerous act. Indeed, it was only when combined with the cocaethanol in Ms. Hassan’s body that it was fatal. In my opinion, a reasonable person would not know this. A reasonable person in these circumstances would not know the level of cocaine and alcohol in Ms. Hassan’s blood, and would not know that it could render a non-fatal chest compression fatal.
102A reasonable person would consider this act of lying on top of their assailant to be a reasonable act to restrain their assailant from continuing her attack, but not an act likely to cause her harm or death. A reasonable person in the circumstances of Ms. Pardieu would consider that lying on Ms. Hassan was a reasonable non-lethal measure designed to stop Ms. Hassan’s attack without exposing her to harm.
103In these circumstances, if Ms. Pardieu was mistaken in her belief that Ms. Hassan continued to be a threat until 12:23:52 when she removed Ms. Hassan’s shoe, it was in my opinion an honest mistake which was reasonable as I accept that Ms. Hassan continued to grab on to Ms. Pardieu at that time. In any event, this was a rapidly changing interaction in which Ms. Pardieu was held down by Ms. Hassan until Ms. Pardieu got the upper hand by getting Ms. Hassan on her back, and Ms. Pardieu was able to lie on top of her. Ms. Pardieu used no other violence such as punching or kicking Ms. Hassan, choosing instead to restrain her. An accused is not required to weigh the exact measure of defensive action to a nicety, or be held to a standard of perfection in his or her response to force or a threat of force: R. v. McPhee, 2018 ONCA 1016, at para. 24.
104In my opinion, in the circumstances of this case, the act of Ms. Pardieu in restraining Ms. Hassan by lying on her for slightly more than 4 minutes was not a disproportionate response to the force used by Ms. Hassan and the threat of force from Ms. Hassan. A reasonable person would not perceive restraining another person by lying on them to expose that person to harm or death. It was only proven fatal in this case when combined with cocaethanol in Ms. Hassan’s blood, which both Ms. Pardieu and a reasonable person would be unaware of. In particular, a reasonable person would not know that the presence of cocaethanol could render a non-fatal chest compression fatal. Accordingly, a reasonable person could reasonably act as Ms. Pardieu did. I conclude that, on this factor, the force used by Ms. Pardieu was not disproportionate.
105This reasoning is supported by the recent decision of the Supreme Court of Canada in R. v. Hodgson, supra. In that case the accused’s defence of self-defence was successful at trial, resulting in his acquittal of manslaughter, and the acquittal was restored in the Supreme Court of Canada after a successful Crown appeal to the Nunavut Court of Appeal.
106In that case the accused applied a choke hold to the victim to defend himself from an assault by the victim, who the accused was helping to remove from a residence. The choke hold resulted in the victim’s death.
107Unknown to the accused, the victim had an enlarged heart, and had consumed alcohol and cocaine which a defence forensic pathologist testified were contributing factors in his death: R. v. Hodgson, supra, at para.10. This evidence was significant in the trial judge’s conclusion that she had a reasonable doubt as to whether the choke hold was disproportionate. As summarized by the Supreme Court at para 13:
108While indicating that proportionality was the factor causing the most concern, the trial judge found that Dr Chiasson’s evidence raised the possibility that the choke hold may have been only fatal because of factors specific to Mr. Winsor which were not known by Mr. Hodgson. Given her doubt as to whether Mr. Hodgson’s use of a chokehold was disproportionate in the circumstances, the trial judge found Mr. Hodgson was not guilty of manslaughter.”
109The acquittal at trial was restored by the Supreme Court of Canada on Mr. Hodgson’s appeal.
Section 34 (2)(h): Whether the act committed was in response to a use or threat of force that the person knew was lawful
110This factor has no application in this case.
Conclusion
111The Crown has conceded that there is an air of reality to the defence of self defence in this case. The onus is therefore on the Crown to negative the defence by proving that at least one of the 3 requirements of self defence in s. 34(1) of the Criminal Code has been negatived beyond a reasonable doubt. In my opinion, the Crown has not met this onus.
112I have considered the defence of self-defence in the context of the totality of the evidence. In my opinion, the evidence clearly established that Ms. Pardieu believed on reasonable grounds that force was being used against her by Ms. Hassan, and furthermore that Ms. Hassan represented a threat of further force in the circumstances of the attack initiated by Ms. Hassan and Ms. Pardieu’s reasonable fear that Ms. Hassan may have a knife and use it against her.
113I am also satisfied that throughout the incident Ms. Pardieu was acting exclusively for the purpose of defending herself from Ms. Hassan’s physical attack engaged in by Ms. Hassan to get Ms. Pardieu’s headphones to sell for money to buy crack.
114The main issue in this case was the Crown’s claim that the defence failed because Ms. Pardieu’s act of lying on Ms. Hassan for more than 4 minutes was not reasonable in the circumstances. Applying the law as articulated by the Supreme Court in R. v. Khill, supra, the Crown has failed to satisfy me that it has proven beyond a reasonable doubt that the act was not reasonable in the circumstances.
115In my opinion, based on the evidence in this case, the fatal result of the chest compression was dependent on the existence of cocaethanol in Ms. Hassan’s blood. A reasonable person would not have known this was in her blood or, if it was, that the act of lying on another person for slightly more than 4 minutes may prove fatal. In the circumstances of this case a reasonable person could reasonably have concluded that lying on the person attacking them, for the sole purpose of restraining them, and preventing a continuation of the attack was a reasonable response unlikely to cause serious injury or harm to their attacker. Accordingly, I find that the act committed was reasonable in the circumstances under s 34(1)(c).
116The Crown has not met its onus of satisfying me beyond a reasonable doubt that the act of Ms. Pardieu was not lawful self-defence pursuant to s. 34 of the Criminal Code. There was therefore no unlawful act as the predicate offence for a conviction for manslaughter.
117I therefore find Ms. Pardieu not guilty of the charge of manslaughter.
Date: September 6, 2024
Justice David Porter