DATE: May 13, 2025
ONTARIO COURT OF JUSTICE Toronto
BETWEEN: HIS MAJESTY THE KING — AND — MATHEW KINSELLA and ALEXANDRIA SKEFFINGTON
For the Crown E. Cherlet
For the Defendant Kinsella M. Juskey
For the Defendant Skeffington K. Vakili
Heard: January 27 – 31, April 1, 2025
REASONS for JUDGMENT
A. INTRODUCTION
1Mr. Kinsella is charged with three counts of assault causing bodily harm on each of Lars Bendsen, Lauge Nielson, and Jillian Nielson. Ms. Skeffington is charged with one count of assault causing bodily harm on Jennifer Longhurst.
2The charges arise from an extended, physically violent altercation between Mr. Kinsella, Ms. Skeffington and the four complainants. This altercation took place on October 2, 2022, just after the complainants had returned from an Oktoberfest celebration to the apartment building at 32 Trolley Crescent where they were staying. Their friend, Benny Bisogno, was also with them.
3At the time of the incident the two defendants lived in an adjacent building at 51 Trolley Crescent. The altercation largely unfolded in the street in front of the two buildings.
4The four complainants and three independent witnesses were called as witnesses by the Crown. Ms. Skeffington testified. Mr. Kinsella did not. No other defence witnesses were called.
5The two defendants do not deny striking various of the complainants. Nor do they deny that bodily harm resulted to some of the complainants. Rather, they argue that the Crown has failed to prove beyond a reasonable doubt that any of their actions were neither in lawful self defence nor in defence of each other.
B. ANALYSIS OF THE EVIDENCE
(a) Introduction
6The altercation between the parties took place over approximately five to seven minutes, first in front of 32 Trolley and finally in front of 51 Trolley.
7The four complainants (two married couples) had just returned by Uber to the apartment of Lars Bendsen and Jennifer Longhurst where they intended to spend the night. They had been at an Oktoberfest celebration.
8As for how it started and initially unfolded (part 1), there are only witness accounts. Part 2 of the altercation is captured on a 57 second video taken on a cell phone from a balcony on 32 Trolley. Part 3 of the altercation is quite brief and is not captured on video. There are only scant witness accounts as to what occurred during Part 3. Part 4 of the altercation is captured on a 49 second video taken by another cell phone from a different balcony at 32 Trolley. Part 5 takes place in front of 51 Trolley and culminates with the arrival of the police and is not captured on video.
9I shall not set out the testimony in detail. A transcript of the evidence is readily available as are the exhibits. Rather, I shall summarize the video evidence and the witnesses’ versions of events with emphasis on the salient aspects of their testimony and the issues in play.
(b) The video evidence
10There are four relevant videos; the two referred to above and two others - one that demonstrates that Ms. Skeffington left 51 Trolley, just adjacent to the Bendsen apartment building, at 00:28:42 with her two dogs, the other shows Mr. Kinsella, who lived with Ms. Skeffington, leaving the same building very quickly at 00:33:21.
11The two videos that show the altercation include sound and are clear and reliable. They are by far the most reliable evidence as to what occurred that evening.
12As for what occurred during what I have referred to as parts 1, 3 and 5 of the altercation, which are not seen on video, as I set out more fully below, the testimony of all the witnesses is so conflicting that I find it impossible to make many findings of fact that are material to the charges before the court.
13When the first video begins it clearly shows Mr. Kinsella poised to do battle and circling while his girlfriend, Ms. Skeffington, is being restrained by Ms. Nielsen. He seems intent on intervening on her behalf. Rather than strike any of the men who are trying to keep him away from the battling women, he seems concentrated on getting to Ms. Skeffington. It is only after he does get to her that he pushes Mr. Bendsen to the ground after Mr. Bendsen tries to remove Mr. Kinsella from the fray with his arms around Mr. Kinsella’s neck.
14After pushing Mr. Bendsen to the ground, Mr. Kinsella returns to rescue Ms. Skeffington who is again being assaulted by Ms. Longhurst. He then retreats as Mr. Bendsen and Ms. Nielsen move aggressively in his direction. Mr. Nielsen pursues him as well but much less aggressively. Mr. Bisogno can be seen trying to keep the parties apart. Ms. Skeffington continues to be involved in a confrontation with Ms. Longhurst, almost directly in front of the doors to 32 Trolley. At the very end of the video, we see Mr. Kinsella run in the direction of Ms. Skeffington and Ms. Longhurst, then veer to his right somewhat and violently push Mr. Nielson, sending him to the ground and into the back right quarter panel of an approaching vehicle. As Mr. Kinsella was running in the direction of Mr. Nielsen and Ms. Skeffington, Mr. Bendsen tried to kick him. Meanwhile the assault on Ms. Skeffington has temporarily ceased.
15After sending Mr. Nielsen to the ground and into the approaching car, Mr. Kinsella did not immediately proceed in the direction of Ms. Skeffington. Whether he ever did is impossible to say from the video as it ends abruptly shortly after Mr. Nielsen hits the car. There is no other evidence pertinent to this question.
16The second video, which I infer begins approximately 15 - 30 seconds after the end of the first video, shows Ms. Skeffington and Mr. Kinsella, with one of her dogs, walking towards their apartment building, retreating from the conflict. Ms. Nielsen is pursuing them. Mr. Kinsella yells “don’t touch her” three times. Ms. Skeffington turns and strikes Ms. Nielsen who fights back. Mr. Kinsella, together with Ms. Skeffington, throw Ms. Nielsen to the ground. Undaunted, Ms. Nielsen gets up and tries to fight back but Ms. Skeffington wrestles her to the ground. As this is occurring, Mr. Nielsen approaches and kicks Ms. Skeffington in the back of her legs. Mr. Kinsella and Mr. Nielsen then briefly exchange blows. Mr. Kinsella and Ms. Skeffington then continue to retreat to their building as the four complainants pursue them. During this encounter Mr. Kinsella can be heard asking why the complainants were attacking him and Ms. Skeffington.
(c) The complainants’ versions of events
Jillian Nielsen
17Ms. Nielsen first admitted to having consumed five or six drinks at the Oktoberfest celebration then said she did not know how many. In any event, she was feeling the effects of the alcohol upon her return to the apartment.
18Her recollection of events was extremely hazy or entirely absent, as she admitted in her testimony and in her statement to police. Much of her testimony was contradicted by the video evidence. There were several inconsistencies between her testimony and her statements to police and the Crown.
19I do not accept her absurd assertion that in so far as she pursued the defendants it was so that they would remain on the scene until the police arrived.
20As a result, I find her testimony as concerns the altercation to be incredible in part and entirely unreliable.
Lauge Nielsen
21Mr. Nielsen also drank that night and could not remember how much he had consumed. He is unclear as to exactly how the dispute arose. He recalls it was about Ms. Skeffington’s dogs. He suffered a significant blow to the head when he was thrown against the approaching car and his recollection of the material events is thus cloudy.
22In my view Mr. Nielsen’s testimony adds nothing to what the videos clearly demonstrate.
Jennifer Longhurst
23Ms. Longhurst consumed approximately five or six alcoholic beverages over the five hours she was at the Oktoberfest event. When asked if she was affected by the alcohol, she said that she was “tipsy” and that her party were “all in good spirits”. She had also had one or two drinks prior to going to the festival. There was an understanding among them all that they would take an Uber there and back partly because they knew they would all be too intoxicated for any of them to drive home.
24When she got out of the Uber after arriving home, she noticed Ms. Skeffington yelling something about her dogs. Ms. Skeffington was swearing at Ms. Longhurst and her friends.
25She said to Ms. Skeffington: “what the fuck is your problem; you need to calm the fuck down”. Ms. Skeffington then threatened to “take her down”.
26Ms. Longhurst responded, “what the fuck is your problem” and called Ms. Skeffington “a cunt” after which Ms. Skeffington punched her twice. She said that this all occurred three to four minutes prior to video #1.
27When Mr. Kinsella arrived on scene, he was trying to convince everyone to calm down.
28Ms. Longhurst initially testified that she recalled that when Mr. Kinsella threw Mr. Nielsen to the ground in the direction of the approaching car, he did so by picking him up. She admitted on cross-examination, after seeing video #1, that she was wrong about this.
29Mr. Kinsella later threw Ms. Nielsen into a wall after video #1 but before video #2. In her estimation, video #2 starts two to three minutes after the end of video #1.
30Mr. Kinsella threw Mr. Bendsen to the ground after video #2. Mr. Bendsen was knocked unconscious and was bleeding from his head.
31Ms. Longhurst fell to the ground after being tackled by Ms. Skeffington and lost consciousness towards the end of the altercation. She assumed it was Ms. Skeffington because she could see Mr. Kinsella when it happened.
32Ms. Longhurst denied that she and her friends were chasing the defendants as they retreated towards their building. Rather, she testified that she and her friends were “migrating” in the direction of 51 Trolley.
33I do not accept the testimony of Ms. Longhurst. I am convinced that she has come to believe that her testimony is an accurate account of what occurred, but I find it immensely unreliable, largely because of her failure to acknowledge that she and her friends were chasing the defendants and other discrepancies between her account and the videos. She also insists that Ms. Nielsen was thrown against a wall. This is contrary to the testimony of Ms. Skeffington (which, as I explain below, I accept) and Ms. Longhurst’s account on this matter finds no support anywhere else in the evidence. I also find, based on the balance of the evidence, that she was very intoxicated, so much so as to undermine the reliability of her account.
Lars Bendsen
34Mr. Bendsen recalls drinking beer at home before going to the event and then three litres of beer at the event. A toxicology test done at the hospital at 1:15 am, shortly after the altercation revealed that Mr. Bendsen was extremely intoxicated by alcohol at that time.
35As a result of the serious head injury he suffered towards the end of the altercation, as well as a more recent stroke, his memory of events was extremely hazy.
36Because of his head injury, extreme intoxication, and his professed lack of memory, I put no weight on Mr. Bendsen’s testimony.
(d) The independent witnesses’ versions of events
37Three independent witnesses testified during the Crown’s case: Andre Yip Hoi, Matthew Howard, and Andrew Marrese. All three were residents of the apartment complex and witnessed limited aspects of the altercation from their respective suites. In my view, apart from Mr. Howard’s testimony that Mr. Kinsella was calling the complainants “faggots” at the beginning of the fight, their testimony adds little to what can be determined from viewing the videos. Mr. Howard believed the complainants were chasing the defendants throughout the altercation. He also testified that Mr. Bendsen’s head injury occurred when Mr. Kinsella intervened as Mr. Bendsen was chasing Ms. Skeffington. According to Mr. Howard the way the complainants were stumbling and talking led him to believe they were drunk.
(e) Ms. Skeffington’s version of events
38Before discussing the credibility and reliability of Ms. Skeffington’s testimony it is important to recall that because this case turns in part on the credibility of Ms. Skeffington I must apply the rule in R. v. W.D., [1991] S.C.J. No. 26, which can be summarized as follows: if I believe the testimony of Ms. Skeffington, which on its face exculpates her, I must of course find her not guilty. Even if I am not convinced by her testimony, it may nonetheless, when examined in the context of all the evidence, raise a reasonable doubt. If it does, I must also find her not guilty. If it does not raise a reasonable doubt, I must examine the evidence that I do accept to see if it proves the criminal allegations against her beyond a reasonable doubt. If it does not, she must be acquitted. If it does, she must be found guilty.
39Ms. Skeffington testified that she left her apartment around midnight with her two dogs. She and her then boyfriend, Mr. Kinsella, had been watching television. She was sober at the time.
40As she was crossing the street, Mr. Bisogno started yelling at her telling her to get her dogs to “shut the fuck up”.
41Prior to what is depicted in video #1, she then saw Ms. Longhurst coming at her with her finger pointed as if to mimic holding a gun. Ms. Longhurst was “out of her mind drunk” and smelled “like a brewery”. Ms. Longhurst began to call her a slut, a whore, and a cunt as she kept approaching. She then felt a push from in front of her by Mr. Benson who was also very drunk. Ms. Broadhurst began to strangle her, so she slapped her in the face.
42During video #1 Ms. Skeffington was held from behind and thrown about by some of the complainants, including Ms. Longhurst. She was outnumbered and scared.
43As for what occurred after video #2, she recalls being pursued by the complainants. She pushed one of the female complainants and the two women fell against each other.
44As depicted in video #2 Ms. Skeffington’s blows delivered to Ms. Longhurst were delivered with the intention of protecting herself from Ms. Longhurst’s pursuit of her.
45At no time was any of the complainants thrown against a wall by anyone.
46She testified that Mr. Kinsella is not a violent person. They are no longer in a relationship.
47Ms. Skeffington’s testimony was delivered in a measured fashion. Her testimony was not undermined by cross-examination. It largely corresponds with the video evidence and that of the independent witnesses. I accept it.
C. THE LAW OF SELF-DEFENCE AND DEFENCE OF ANOTHER
(a) Introduction
48The relevant Criminal Code section regarding the law of self-defence and defence of another reads as follows:
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.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.No defence
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
49The most recent Supreme Court judgment concerning the proper interpretation and application of this section is R. v. Khill, 2021 SCC 37.
50At paragraph 37 Martin J. explains:
The structure of s. 34 is simplified and unified in that the same three basic components or questions arise in all cases of self-defence: first, under s. 34(1)(a), the accused must reasonably believe that force or a threat of force is being used against them or someone else; second, under s. 34(1)(b), the subjective purpose for responding to the threat must be to protect oneself or others; and third, under s. 34(1)(c), the accused's act must be reasonable in the circumstances. Section 34(2) sets out nine non-exhaustive factors that shall be taken into account when considering if the accused's act was reasonable in the circumstances under s. 34(1)(c).
51At paragraph 2, Martin J. said:
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.
52And further, at paragraph 4:
While the ultimate question is whether the act that constitutes the criminal charge was reasonable in the circumstances, the jury must take into account the extent to which the accused played a role in bringing about the conflict to answer that question. It needs to consider whether the accused's conduct throughout the incident 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.
53If there is an air of reality to self-defence or defence of another, the Crown must prove beyond a reasonable doubt that at least one of the three pre-conditions of self defence or defence of another has not been met. See R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3; and R. v. Randhawa, 2019 BCCA 371, leave to appeal refused, [2019] S.C.C.A. No. 78.
(b) The criminal liability of Ms. Skeffington
54Counsel for the Crown, Ms. Cherlet, concedes that if I accept the testimony of Ms. Skeffington, she must be found not guilty. As set out above, I do indeed accept her evidence and the charge against her is accordingly dismissed.
55Even without the Crown’s concession, and even if I had not accepted her testimony, I would have found that on the totality of the evidence the Crown has not presented evidence proving beyond a reasonable doubt that Ms. Skeffington’s physical contact with Ms. Longhurst was not in legitimate self-defence or defence of Mr. Kinsella.
(c) The criminal liability of Mr. Kinsella
56Ms. Cherlet does not dispute that there is an air of reality to self-defence and defence of another as concerns the three charges against Mr. Kinsella.
57As to what occurred between Mr. Kinsella and any of the complainants during phase 5 of this encounter (after the second video), there is insufficient reliable evidence to support any findings of fact as to how this occurred. The Crown has thus failed to prove beyond a reasonable doubt that the alleged assault on the pursuing Mr. Bendsen was not in legitimate self-defence or defence of Ms. Skeffington.
58Likewise, as concerns the alleged assault on Ms. Nielsen as depicted in video #2, applying the law as set out in Khill, supra, I am not convinced beyond a reasonable doubt that the force applied to Ms. Nielsen was more than was reasonable in all the circumstances to defend Ms. Skeffington. As concerns the alleged throwing of Ms. Nielsen into a wall, there is insufficient reliable evidence to support a conclusion that this ever happened at all.
59That leaves for consideration the alleged assault on Mr. Nielsen, depicted in video #1, where Mr. Kinsella pushed Mr. Nielsen to the ground as the car approached.
60As Mr. Kinsella did not testify, there is no direct evidence of his state of mind on the evening in question. There is, however, ample relevant circumstantial evidence available to the court.
Did Mr. Kinsella reasonably believe that force or a threat of force was being used against him or Ms. Skeffington?
61When Mr. Kinsella arrived on the scene, his girlfriend, Ms. Skeffington was being assaulted by several individuals, all of whom seemed to be part of one group. After he had intervened on her behalf, several of the group began to pursue him. It was clearly reasonable for Mr. Kinsella to believe that the assault on her would continue and that there was a threat of an assault on him.
Was Mr. Kinsella’s purpose in pushing Mr. Nielsen to either defend himself or Ms. Skeffington?
62It is difficult to determine whether, when Mr. Kinsella pushed Mr. Nielsen, he was motivated by a desire to protect himself or Ms. Skeffington, but, given the surrounding circumstances, i.e., the recency of the attack on Ms. Skeffington and the group’s pursuit of Mr. Kinsella, I have at least a reasonable doubt on this question.
Was Mr. Kinsella’s push of Mr. Nielsen reasonable in the circumstances?
63The focus of this aspect of the inquiry must remain on what a reasonable person would have done in comparable circumstances and not what Mr. Kinsella thought at the time. Khill, supra, at para. 65. While s. 34(1)(a) and (b) address Mr. Kinsella’s belief and subjective purpose, the reasonableness inquiry under s. 34(1)(c) is primarily concerned with the reasonableness of his actions, not his mental state. Khill, supra, at para. 66.
64The question of the reasonableness of Mr. Kinsella’s push of Mr. Nielsen is, without question, the most difficult aspect of this case. I am obliged to consider all nine of the enumerated factors in s. 34(2) as well as any other relevant circumstances.
65The threat to Mr. Kinsella and Ms. Skeffington was considerable. The two were vastly outnumbered by an intoxicated group who seemed intent on pursuit of him and continued aggression towards her.
66The threat was quite imminent. Mr. Kinsella could have run away, but Ms. Skeffington’s escape from her confinement was more problematic.
67Mr. Kinsella’s initial role in the incident was quite benign. It appears that he heard that his girlfriend was being harassed and came to her rescue. Before he resorted to violence Mr. Kinsella was verbally attempting to diffuse the situation.
68While Mr. Kinsella was clearly younger and more agile than the complainants, he and Ms. Skeffington were outnumbered.
69The most vexing of the listed factors is (g) “the nature and proportionality of the person’s response to… the threat”. Mr. Kinsella ran at full speed towards Mr. Nielsen and pushed him hard into the side of a vehicle that was heading towards him and that he must have seen coming. Of all the members of the drunken group, Mr. Nielsen had been the least active and the least threatening. On the other hand, one must keep in mind the long-understood principle re-articulated by Lauwers J.A. in R. v. Cunha, 2016 ONCA 491 at paras. 7 - 9:
As for the objective element of the defence, it is accepted that in considering the reasonableness of the defendant's use of defensive force, the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection, as this court noted in R. v. Mohamed, 2014 ONCA 442, 310 C.C.C. (3d) 123, at para. 29:
As Professor Paciocco notes at p. 36:
The law's readiness to justify "mistaken self-defence" recognizes that those in peril, or even in situations of perceived peril, do not have time for full reflection and that errors in interpretation and judgment will be made.
In a similar vein, Martin J.A. commented in R. v. Baxter, 27 C.C.C. (2d) 96, at p. 111, that
in deciding whether the force used by the accused was more than was necessary in self-defence under both s. 34(1) and (2), the jury must bear in mind that a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety the exact measure of necessary defensive action.
It is also the law that a person who is defending himself, and other occupants of his house, is not obliged to retreat in the face of danger. In R. v. Forde, 2011 ONCA 592, 277 C.C.C. (3d) 1, this court considered the issue of retreat at some length, and concluded at para. 55: "a jury is not entitled to consider whether an accused could have retreated from his or her own home in the face of an attack (or threatened attack) by an assailant in assessing the elements of self-defence."
70One must also consider that the complainants’ persistence in pursuing Mr. Kinsella and assaulting Ms. Skeffington raised the need for a response that sent them a strong message.
71After considering all the circumstances of this case and the prevailing jurisprudence, I am not convinced beyond a reasonable doubt that Mr. Kinsella’s push of Mr. Nielsen was unreasonable in the circumstances.
D. CONCLUSION
72The Crown has failed to prove any of the criminal allegations against either of the defendants beyond a reasonable doubt.
73The charges are dismissed.
Released on May 13, 2025
Justice Russell Silverstein