His Majesty the King v. Adam Robbins, 2025 ONCJ 456

ONTARIO COURT OF JUSTICE

CITATION: R. v. Robbins, 2025 ONCJ 456

DATE: 2025 01 22

COURT FILE No.: Owen Sound 20-1645

BETWEEN:

HIS MAJESTY THE KING

— AND —

Adam Robbins

Before Justice V.L. Brown

Heard on January 15, 16, 17, February 29, October 4, submissions November 8, 2024

Reasons for Judgment released on January 22, 2025

Michelle McKay................................................................................... counsel for the Crown

Rumsha Siddiqui.......................................... counsel for the defendant Adam Robbins

Brown J.:

1The defendant is charged with assault (s. 266) as against Jennifer Bernstein (“the complainant”).

The Facts:

2On the night of November 28^th, 2020 the parties met at a local bar, Smuggler’s, along with their friends. The complainant was with her friend, Mr. Hind. The defendant was out with his friends, Gabriel Sugarman, Cole (Colton) Hendricks, Jordan King, Dan King, and Clayton Lucier. The two groups had never met before that evening.

3The two groups proceeded back to the complainant’s home together, at her invitation. As supported by video evidence, the group was having a good time for 30-60 minutes, when the tone of the evening took an abrupt turn.

4A verbal conflict ensued between the parties, who ended up outside on the front lawn. It is not disputed that the defendant assaulted the complainant by punching her in the face [“the punch”]; she fell to the ground and was unresponsive for a moment.

5It is alleged that the assault was more extensive, including dragging the complainant from her home by the hair, over her front steps, across the lawn and over, then under, a metal dividing rail between her property and the next, punching the complainant 6 times in the head, kneeling on her neck so she could not breath, and hitting her with a pumpkin (jack-o-lantern), 1 - 3 times.

6The defendant claims he acted in self defence, and alleges that the complainant was the aggressor. She threw an object at him in the home, she knocked him over a coffee table and he fell. While outside, the complainant had hold of his clothing, and he warned her before punching her. There was only one punch, and then the defendant and his friends went to their vehicles to leave. The complainant got up and chased after them, grabbing the door handle of one of the vehicles as it was moving.

7Later that morning, around 4AM, the defendant and his friends re-attended down the street from the complainant’s home for a confrontation with the complainant’s friend, Mr. Hind, as arranged with Mr. Hind in advance. The complainant was also present, and held a knife. Upon seeing this, the males scattered.

8The Crown proceeded summarily and called the complainant, Jason Warwick, Amanda McKeevor, Dr. Sunil Mehta, Cliff Hind, and police constable Nathan Curry as its witnesses.

9The defence called the defendant, Daniel King and Clayton Lucier to testify. The defendant admitted date, jurisdiction and identity, along with text messages between the parties on November 29th and November 30th, 2020, as well as photographs of the complainant’s injuries. Within the text messages is an admission by the defendant that he assaulted the complainant; “u got knocked the fuck out by a 17 year old…I only threw one punch and you were out cold”. He conceded this in his evidence.

10The defence admits the assault insofar as the defendant punched the complainant in the face with his fist. The issue is whether he did so in self defence.

Crown position:

11The Crown submits that there is no reliable evidence upon which to assess self defence. The Crown conceded that the complainant’s own evidence was exaggerated and difficult to accept. However, the most compelling and independent evidence comes from the complainant’s neighbours, Jason Warwick and Amanda McKeevor, who observed more than a simple punch; they also observed the defendant to hit the complainant with a pumpkin, after she was already on the ground and “knocked out”.

12Aside from the defendant, his witnesses were not in a position to observe whether he hit the complainant with a pumpkin or not. The Crown submits that the medical evidence is not conclusive of the extent of the assault, except to show more than a single punch, supporting the complainant’s account.

13The Crown submits that while standing outside the home, the complainant had her hands at her sides and was not motioning to threaten the defendant. No force was actually being used against the defendant. Further, he had means of escape. As a result, the punch was not reasonable.

14The Crown submits that the defendant’s evidence was internally and externally inconsistent and that I cannot rely on it. In particular that this account of being knocked to the ground and grabbed by the complainant was not corroborated by his friends.

15Further, the defendant was evasive and tailored regarding the pumpkin, in an effort to cast himself in a good light, and that his later text exchange with the complainant revealed more of his true nature. Moreover, his report to PC Curry shows an intent to mislead about the altercation, specifically.

Defence position:

16The Defence submits that the complainant initiated an attack on the defendant.

17The evidence of Jason Warwick and Amanda McKeevor is unreliable given their vantage point, only observing a portion of the altercation, and other inconsistencies on the extent of the assault.

18Similarly, the evidence of the complainant is unreliable; she was intoxicated that night, evasive in her responses in cross examination, and her account simply implausible, and inconsistent with the other evidence.

19The defence submits that the defendant’s account of the evening is reliable in its details, candour, and consistency. His other supporting witnesses provided fair testimony.

20It was submitted that the defendant was reasonable in his belief that the complainant was using force against him, or was threatening to use force, by throwing and item at him in the house and physically pursuing him. He used a proportionate and reasonable amount of force by punching her once to protect himself from the ongoing and imminent threat. He had attempted to flee the confrontation by leaving the house, and then warning her, but the complainant persisted. Physically, the defendant was out matched by the complainant by 40lbs.

21The defence submits there is reasonable doubt, and that a dismissal should follow.

The Crown’s Evidence:

22The complainant was 39 years of age at the time of the assault, weighing 168lbs. She is a trained Personal Support Worker, but at the time she was a stay at home mother to her toddler son, Vander. She has two adult daughters, namely Jaida and Maya. Shortly before the assault, the complainant tragically lost her son, Damien; she was grieving the loss of her son.

23Clifford Hind is 44 years of age and works as a machinist and project manager for Magna International. He has known the complainant since he was 14 years of age, having attended high school together. He has not seen the complainant since shortly after this incident, so over 3 years ago, but they remain in contact.

24Amanda McKeevor and Jason Warwick were in a relationship at the time, and were cohabiting 2 houses away from the defendant, to the left of her home if viewed from the street. Ms. McKeevor had known the complainant her whole life and they attended high school together. Mr. Warwick similarly knew the complainant from high school. Ms. McKeevor and Mr. Warwick were not friends with the complainant and did not speak with each other, but they were civil. This remains the case.

25On the evening in question, Mr. Hind was visiting the complainant for the weekend, to support her after the loss of her son. During the afternoon of November 28th, 2020, he and the complainant were hanging out and consuming light alcoholic beverages throughout the day.

26The complainant’s mood was unstable, with signs of upset. The complainant and Mr. Hind, had gone out that evening to get her out of the house. They went to Jason’s Pub, and then Smuggler’s. While at Smuggler’s, the complainant met 3 males, one of whom (Colton) had gone to school with her son and had attended the visitation. She had not known him before that evening.

27The complainant invited Colton and the others back to her home to sign a memorial book for her son, and to reminisce about him. They stayed until last call, which due to the pandemic was 11PM. Thereafter, the complainant and Mr. Hind took a taxi to her home, with the 3 males following in a separate taxi. She had exchanged numbers with one of the males and texted her address.

28The complainant and Mr. Hind arrived home around 1110-1115PM. The 3 males arrived and she let them in. Things were fine, with the group talking by the dining table. About 10-15 minutes after the males arrived, 2 more males showed up. The complainant was not aware anyone else was coming. The new arrivals said their buddies were there, and the males she had met at Smuggler’s told her to let them in, and she did. The new arrivals were the defendant and another male she identified as the “jewish kid”. The complainant had never met them before.

29Mr. Hind’s evidence was that the group had travelled from Smugglers together in a red Pontiac driven by one of the males.

30The group continued to talk in the dining/kitchen area. Everyone was having a good time. The video evidence showed them all gathered in the kitchen; it was loud and those present were laughing. The complainant was loud and jovial, sharing an anecdote. The complainant could be seen speaking directly to the defendant at times, and he was smiling and laughing back.

31Mr. Hind broke off with a couple of the males, including the defendant, and talked about cars. Everyone was enjoying themselves. However, then Mr. Hind left the group to use the washroom, things took a dramatic and unforeseen turn.

32According to the complainant, the defendant started talking about his expensive watch, jewelry and car and boasted that she would never be able to afford much. When he allegedly said he was a cocaine dealer, the complainant asked him to leave. He appeared to be leaving when he turned and lunged at her. Colton and another male tried to pull the defendant back and out the door.

33She reports that the defendant grabbed her hair and dragged her outside, off of her stop which was a 1-1.5 foot drop, across the yard, flipped her over the metal guardrail between properties (a distance of about 10 steps from her door), back under the rail onto her yard. She described it happening really quickly with no opportunity for her to fight back.

34During all of this, he was calling her a “fucking stupid bitch” and a “cunt”. She was screaming.

35Colton tried to get the defendant off of the complainant. The defendant then came back on top of her and kneeled on the right side of her throat. He moved further down in her larynx area, and she could not breath.

36He delivered 6 punches to her head – her jaw, temple, and ear. She recalls her neighbour screaming and everything going black. When she came to, he hit her with something else. When she looked up, she saw her frozen jack o lantern, the defendant’s face, and he smashed it on her head. She lost consciousness again.

37When she came to, again, she was in a fog. She was in shock, pain, and confused. She believes he left quickly afterwards. Mr. Hind came and helped her up.

38Mr. Hind was not present for the verbal altercation in the home, nor did he observe the physical altercation outside. From his place in the upstairs bathroom, he heard a bit of a commotion, and it sounded to him like a herd of elephants went out the door. He heard the complainant raise her voice, but didn’t think anything of it, citing that she could handle herself.

39It wasn’t until he heard the neighbour yelling that he came downstairs and outside, at which time he observed the visiting males go to their vehicles and leave.

40He observed the complainant on the ground, moaning in pain, with bruising and tears. He saw scattered pieces of pumpkin. He had to help the complainant up from the ground. With his help holding her up, she was able to get back into the house.

41Amanda McKeevor and Jason Warwick reported hearing a ruckus around midnight. Amanda heard the complainant screaming in distress. She observed 4-6 males in a semi circle around the complainant. The complainant was screaming, and a male was being aggressive in his tone with her. The male was being arrogant and going on about his watch, his Gucci belt, and his vehicle. He was telling the complainant to, “shut the fuck up bitch”, and “you don’t know who I am, “I’ve got more money than you have fucking things in your house”. The complainant was telling them to leave.

42Amanda recognized the defendant as one of the males. She was familiar with him, and knew who his father was. She observed him punch the complainant in the ear with what she referred to as a full round house. She could hear the impact. The complainant fell hard and appeared unconscious, making no sound or movement.

43Prior to the punch, Amanda observed the complainant to be swaying back and forth with her arms at her sides; she was not moving aggressively towards the male.

44Amanda yelled out at the males, who called her a “rat goof”. They grabbed a wooden welcome sign and pumpkin from the complainant’s stoop and the defendant threw the pumpkin at the complainant.

45Amanda reported that the complainant got up slowly and the males started to scatter. The defendant got into a BMW. Others got into a red standard vehicle, with the complainant initially holding onto it and running along side it.

46Jason Warwick heard the ruckus and recognized the complainant’s voice, yelling that she did not care about his rings and Gucci belt. Jason wasn’t aware that it was the complainant who was punched until she got up and he could see her hair. He saw a male punch her with a big hook to the face, which “laid her out”; she was not moving or making any sound. He described it as a “Mike Tyson” punch.

47He described them smashing a pumpkin off of her and hitting her with a welcome sign. He hit her with the pumpkin 3 times. Then he got the welcome sign and hit her with “a couple of butt ends, then a big swing with the sign”. He recalls someone stating “I’m going to jail over this” at the time. They were laughing.

48The assault lasted 3-4 minutes according to Mr. Warwick.

49The complainant did not call police at the time, nor did she seek medical assistance. She managed to get to sleep at around 230AM, but woke up, angry.

50The defendant initiated contact with her afterwards, contacting her and Mr. Hind. Text messages starting at 328AM were entered as an exhibit. The defendant admitted to knocking her out. He was taunting in his messages and stated “enjoy drinking your food for the next month or three”. In the messages he admits only to one punch and that she was out cold. He stated he was fighting back when she came running at him; she assaulted him and he was defending himself.

51The complainant denies running at him, or anyone else.

52PC Curry reports that at 455AM on November 29, 2020 he was advised by dispatch that the complainant called in wishing to speak with him. They had seen each other briefly the night before when the complainant and Cliff were walking from Jason’s Bar to Smuggler’s as PC Curry was doing bar checks in the area. PC Curry did not recall the complainant’s level of sobriety during the encounter.

53PC Curry called the complainant and she advised him of the alleged assault. He made arrangements for the complainant to come to the station at 730PM that evening (he was working the night shift from 7PM – 7AM). He noted during the phone call that she sounded intoxicated. He had prior experience with her while both sober and intoxicated which informed his impression. She was slurring her words and admitted to drinking. However, he agreed that he did not have experience with her after being unconscious or being struck in the head. He does not know her to be a violent person.

54PC Curry offered EMS services to the complainant during their phone call. She declined.

55The next day Ms. McKeevor advises she spoke with the complainant when the complainant attended her house. She observed bruising on the complainant’s right neck under the jaw line, ears and jaw. The complainant denies attending Ms. McKeevor’s home.

56The complainant attended the hospital the next day around 5PM. Her injuries included bruising to her jaw, which she later had to have drained of the blood that was pooling there, her upper right thigh where she made contact with the guardrail, her ear, her left foot and ankle, right knee, and swelling and bruising to the left knee.

57Dr. Sunil Mehta is the emergency room physician at BrightShores Health Services who saw the complainant. He noted contusions on the complainant’s buttocks, abrasions, and pain in the abdominal area. Most notably, a large contusion on the jawline of the left side of the complainant’s face. Her neck was swollen with tenderness, and pain swallowing, which is consistent with a strangulation injury, but not conclusive; the swelling in injury related and could have been caused by a fall. Dr. Metha was unable to provide an opinion on the source of the swelling.

58Dr. Mehta examined the complainant to look for signs on blunt force trauma from a pumpkin strike, expecting to find swelling, bruising, and possibly skin disruption. In this case, he found the complainant’s scalp was normal.

59The complainant met with PC Curry as scheduled on November 29th, following her hospital attendance. During his investigation, PC Curry was able to confirm that the phone number that was texting with the complainant that morning belonged to Adam Robbins. As well, he spoke with Jaida McMillan Burrows, the complainant’s daughter, who was able to identify the defendant from the photo that was taken that night at the complainant’s home before the alleged assault.

60The complainant advised PC Curry that a male punched her in the face/head 6 times and at one point choked her. She advised that at one point he knelt on her neck.

61After speaking further with Amanda McKeevor and Jason Warwick, PC Curry formed the suspicion that the defendant was the perpetrator. He contacted the defendant at 0023 hours on November 30th. The defendant admitted to knocking out the complainant. He was read a primary caution. The defendant explained that he knocked her out. He was cooperative and turned himself in. At 0124 hours the defendant was arrested and released.

62PC Curry also spoke with Jordan King, one of the others present, who told him that the complainant came at the defendant with a knife.

63The alleged assault has left an impact on the complainant. Her voice has not returned to normal, and she can no longer sing as she did. As well, she has memory problems.

The Defence Evidence:

64The Defendant is 22 years of age. He recently completed a post secondary program of education and is working in the trades in various locations. At the time of alleged offence, the Defendant was 18 years of age and approximately 120lbs.

65Earlier in the evening of November 28, 2020, the defendant, Cole (Colton) Hendricks, Jordan King, Dan King, and Clayton Lucier were together at Gabriel Sugarman’s house. Some of the group wanted to go to a bar. They left sometime after dinner, departing in a red Pontiac Sunfire and a 4 door grey hatchback.

66The defendant and Jordan King were not of age, and did not go into the bar. Cole encountered the complainant and Mr. Hind outside of the bar and started talking to them. The group, including the complainant and Mr. Hind, then departed for the complainant’s home. Mr. Hind travelled in the trunk of Cole’s Pontiac Sunfire (although there was not need), with the complainant in the passenger seat, and the defendant in the back. Clayton, Daniel and Gabriel left at the same time and followed them to the complainant’s home. The Pontiac Sunfire parted in the driveway, with the second car on the side of the road in front of the house.

67While at the complainant’s home, the defendant likely had 1-2 beers. He had not been drinking earlier. The defendant spent some time discussing cars with Mr. Hind in the living room. They moved to the area of the doorway to the kitchen.

68Some 30-60 minutes after the parties’ arrival at the home, the complainant started making comments about his designer belt. She was aggravated, verbally loud and yelling. He defended himself verbally. The complainant threw a flower pot at him, then made her way across the kitchen to him, screaming.

69The defendant testified that the complainant became physical and pushed him into the living room. He walked backwards, trying to avoid her. He described being pushed into a table, and tripping over the baby gate at the front door. Mr. King was at the door. The defendant kicked the pumpkin which was on the step outside, breaking it. He does not recall any other items on the doorstep. He was distraught, and waited in the front yard by the vehicles for the others.

70The complainant exited the house, running directly at him, yelling. He described her holding him by the collar and stomach area of his sweater. The complainant was facing the street and the defendant facing the house. He warned her, stepped back and swung at her. He did not know her intentions at the time. The defendant assumes he “knocked out” the complainant, she certainly fell to the ground, but she was not down for very long and she got up and ran at him with a piece of pumpkin.

71The males then got into the vehicles. The defendant claims the complainant picked up a piece of pumpkin and ran at him a second time with it, and he swatted it out of her hand.

72He described events escalating quickly, events taking place over the course of only a few minutes. His goal was to get out.

73The defendant claims he swung at the complainant for his safety and in self defence. After the altercation in the house, he had no idea of her intentions, but felt it necessary to defend himself.

74He denies hitting the complainant with any objects, holding a “welcome sign”, kneeling on her neck on the ground or dragging her over the front lawn.

75Daniel King is 23 years of age. He is friends with the defendant, though they currently text only on occasion.

76Mr. King testified that the parties were all socializing and having a nice time at the complainant’s house. The complainant and defendant got into a verbal altercation about what the defendant was wearing. The complainant was quite upset; she was obnoxious, upset, mad, and retaliated. The defendant was yelling at the complainant. The complainant was screaming at him and pursuing him in his personal space. The defendant told the complainant to “back off”. Mr. King does not recall the complainant throwing any objects at the defendant or otherwise laying hands on him within the house.

77Mr. King suggested they leave (i.e. the males leave), and he and the defendant were on the way out. Once outside, he observed the defendant kick a pumpkin. The complainant exited right after them and pursued the defendant, “chirping” and taunting him. He continued to tell her to back off, and Mr. King observed her to be trying to attack him, and be physical. Mr. King observed the defendant strike the complainant once with a closed hand punch, and she hit the ground. He did not see the defendant strike her again. He did not observe the defendant strike the complainant with any objects (i.e. the pumpkin or a sign). The neighbours were yelling and the males went to the vehicles. Mr. King was not watching the defendant while running to the car, and his back was to the complainant.

78Mr. King was surprised and not surprised at the punch; it was “out of the blue” and the defendant is not violent, but she was pursuing him.

79Mr. King observed the complainant to try and get in the vehicle he was riding in, and he had to hold the door shut.

80Mr. Lucier is 23 year of age. He has known the defendant for 5 years and considers them friends. They are in contact, but not regularly.

81Mr. Lucier was with the defendant on the evening of November 28, 2020. Mr. Lucier was not drinking before arriving at the complainant’s home that evening.

82While seated at the kitchen table across from the complainant, he observed the defendant comment on his income from roofing, and that it seemed to upset the complainant, and “set her off”. He observed the complainant throw a glass at the defendant, missing him. She lunged at the defendant around the kitchen table. Mr. Lucier was shocked and nervous for his friend.

83The defendant’s response was to back away, panicking. The complainant chased him out of the kitchen, down the hallways, and out the front door onto the front lawn. Mr. Lucier, along with others, followed behind.

84Once outside, Mr. Lucier observed the defendant backing away from the complainant, the complainant lunged at him several times, and the defendant punch the complainant once while repeating “get away from me”. The complainant appeared unconscious on the ground. The neighbours started shouting and the males got in their vehicles and left.

85As they were leaving, the complainant was up and chasing the vehicle he was in, trying to open the door.

86Mr. Lucier does not recall anything about a pumpkin, or where he was situated on the lawn. Events transpired quickly, too fast to intervene; it was hectic. The defendant was visibly upset afterwards.

Legal Framework:

87The offence of assault is defined by the Criminal Code as:

265 (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

88The available defences are set out in ss. 27, 34 and 35 of the Criminal Code, which state:

27 Every one is justified in using as much force as is reasonably necessary

(a) to prevent the commission of an offence

(i) for which, if it were committed, the person who committed it might be arrested without warrant, and

(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or

(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

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.

(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

89This list is not exhaustive, but provides for a contextual analysis.

90In discussing the amended s. 34, the Supreme Court in R. v. Khill, 2021 SCC 37, summarizes the basic elements of all cases of self defence as:

1. the accused must reasonably believe that force or a threat of force is being used against them or someone else. The accused's response is not 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;

2. the subjective purpose for responding to the threat must be to protect oneself or others; and

3. the accused's act must be reasonable in the circumstances. The nature and proportionality of the accused's response to the use or threat of force is but one factor that informs the overall reasonableness of the accused's actions in the circumstances.

91The first two requirements address the belief and the subjective purpose of the accused. A belief that force is being against her must be a reasonable one, and the subjective purpose of the use of violence in response must be for protection (See R. v. Khill, 2021 SCC 37, at paras. 53 and 59).

92In this case, it is alleged that the complainant actually had hands on the defendant’s person via his clothing, and otherwise was physically pursuing the defendant, including lunging at him repeatedly. The requirement is not that actual force was going to be used against a defendant; the defence can still be made out when a person is mistaken in their belief (See: R. v. Khill, at para 66; R. v. Cunha, 2016 ONCA 491; and, R. v. Richter, 2014 BCCA 244. The relevant consideration is the whether the defendant truly held the belief, and whether it was objectively reasonable in the circumstances.

93Indeed, the Court of Appeal also recognized that in situations of peril, there is not the time for full reflection and errors will be made (R. v. Mohammed, 2014 ONCA 442 referencing R. v. Hebert, 1996 CanLII 202 (SCC), 1996 2 S.C.R. 272).

94The third requirement is concerned with the reasonableness, or proportionality, of the accused's actions. It requires determining if the act was reasonable through the perspective of a reasonable person with some of the defendant’s qualities and experiences (R. v. Khill, at para. 67).

95To raise the defence of self-defence, the court must first determine if there is an air of reality to it. The accused need only point to evidence giving an air of reality to each element of the defence (R. v. Wolf, 2019 SKCA 103, at para. 132).

96Once the accused has done so, the Crown bears the burden of proving that the defence of self-defence does not apply. The onus is always on the Crown to establish all elements of the offence beyond a reasonable doubt.

97A reasonable doubt is not an imaginary or frivolous doubt, or one based upon sympathy or prejudice, but is a doubt based on reason and common sense that is logically derived from the evidence or absence of evidence (See R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320 at para. 39). Where the trier of fact is unable to resolve the conflicting credible evidence, there is reasonable doubt (R. v. Challice, (1979) 45 C.C.C. (2d) 436 ONCA).

98Conversely, even when there is credible exculpatory evidence with no obvious flaws, the court may still find guilt beyond a reasonable doubt where the Crown’s evidence is strong and compelling (R. v. M. (O.), 2014 ONCA 503, 313 C.C.C. (3d) 5 (Ont. C.A.), at para. 40).

99Also, it is not enough for me to conclude that the defendant is probably guilty of an offence, and although I do not have to be absolutely certain of his guilt, the standard of reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” (R. v. Starr, 2000 SCC 40 at para. 242).

100In cases of self-defence, in order for the Crown to meet this burden, this means the Crown must disprove, beyond a reasonable doubt, at least one of the three constituent elements of the defence under s. 34(1) (R. v. McPhee, 2018 ONCA 1016, at para. 15; see also R. v. Randhawa, 2019 BCCA 15 at para. 34).

The Issues:

101There is no dispute that the defendant punched the complainant with sufficient force to “knock her out”. Therefore, on the facts of this case, the questions for determination are therefore:

1. Did the defendant subjectively believe that force, or threat of force, was being used against him;

2. Whether in punching the complaint, the defendant he was defending himself from use of force against him; and

3. If so, was punching her out reasonable in the circumstances.

102If the answer to any of the above questions is “no”, then the defence of self defence fails.

103In making this determination I must consider reasonable doubt through a modified R. v. W.(D.) 1991 CanLII 93 (SCC), [1991] 1 SCR 742, framework (R. v. Reid(2003), 2003 CanLII 14779 (ON CA), 65 OR (3d) 723 at pp. 740-4):

a. If I accept the defendant’s evidence and based on it, I believe or have a reasonable doubt that he was acting in lawful self-defence, I must find the defendant not guilty.

b. Even if I do not accept the defendant’s evidence, if, after considering it alone or in conjunction with the other evidence, I believe or have a reasonable doubt that he was acting in lawful self-defence, I must find the defendant not guilty.

Credibility assessment:

104In assessing credibility it is important not to hold either party to the standard of perfection, and not every lapse in memory or inconsistency will be equally important. Indeed, inconsistencies and lapses are to be expected in most cases as the passage of time inevitably affects memory, if nothing else.

105As stated in R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 (S.C.C.), at p. 134 “every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate”. This includes their perception, concept of time, and focus on the event rather than on peripheral matters.

106As both parties recognize, the accounts regarding the events of the night of November 28th and morning of November 29th, 2020 are largely conflicting. Further, no witness’ evidence is without difficulty.

107Most witnesses observed only portions of the altercation, from different vantages and at different points. Some conflict in the evidence is therefore to be expected.

108The issue for this court is firstly determining the relevant facts based on not just the conflicting evidence, but the credible conflicting evidence. The onus is on the crown to establish these facts beyond a reasonable doubt.

The Complainant:

109The complainant was evasive, sarcastic, and argumentative in her evidence. I understand she suffers from anxiety and PTSD, and that court on the best of days is stressful. At the time of trial, the complainant was also undergoing treatment for cancer and was not well during parts of her evidence. I draw no negative inferences about her credibility from her demeanor during the trial. However, it does give some insight as to how she responds to stressful circumstances, or when challenged, such as on the night in question.

110These observations are consistent with the description of others who know her. She is gently described as “outspoken”, and able to handle herself. She was described as obnoxious, and her loud nature could be observed in the video taken that evening, although the environment that night was generally loud.

111I find that the complainant’s ability to recall the events of that evening, including the assault, were impaired due to the passage of time, her intoxication, and memory issues. Indeed, she reported facts that were clearly wrong on the strength of more compelling and corroborated evidence.

112I do not accept the complainant’s claim that she was not intoxicated that night. Whereas she stated she felt only a little buzzed, she and Mr. Hind had been drinking since the afternoon, and he described their level increasing level of intoxication as 3.5 out of 5 upon leaving Smuggler’s, and growing more intoxicated at the complainant’s home.

113It is alleged on credible evidence that Mr. Hind travelled to the complainant’s home in the trunk of the Pontiac Sunfire, which may be some indication of his (and the complainant’s) level of intoxication.

114Ms. McKeevor described observing the complainant intoxicated frequently during that period in time, which may be understandable given she was grieving. Ms. McKeevor had the experience with the complainant to be able to determine whether she was intoxicated, and in her observation that evening, she was.

115PC Curry also had interactions with the complainant in his professional capacity while she was under the influence. To his observation during their phone call at 455AM that morning, she was intoxicated, to the point he asked her to come in the next day instead.

116To those who knew her, the complainant was intoxicated.

117As well, the complainant’s evidence regarding her memory was self serving and changeable. When recounting the assault, she stated she had no memory issues. However, when speaking about the extent of the assault and the long term impact on her, she disclosed that she in fact does have memory issues since the assault.

118As well, the complainant did not recall meeting the defendant at Smuggler’s and believed he arrived at her home after the fact, but according to the text Exhibits he had her number when they were departing Smuggler’s, and on the other credible evidence they all arrived together.

119The complainant’s evidence on important aspects of the assault are unreliable, at times incredible. She testified that she was punched 6 times, and that the defendant knelt on her neck, choking her. She did not get up except with the assistance of Mr. Hind, as the males were leaving.

120However, the universal evidence of all other witnesses (except Mr. Hind), was that she was standing when the defendant punched her, and then she fell to the ground, rising up to chase after the defendant and the other males.

121I also have concerns about her report about being hit in the head with a pumpkin weighing 12-15 pounds. There was no corresponding injury as would be medically expected, either at the time, or afterwards, and she made a point of documenting the progression of any injuries.

122The complainant also exaggerated her evidence in a way to make her injuries more extreme. She claimed the emergency room doctor told her she will never have her full voice back. In cross examination she changed her evidence to say her family doctor said it, and that the emergency room doctor said she may have permanent damage to her larynx and trachea. Dr. Mehta, whose credibility is not impeached, denied this.

123The complainant also tried to avoid negative impressions, by misrepresenting the status of her then criminal proceedings after trying to avoid the subject entirely.

124The complainant’s evidence is largely unreliable; I find I cannot rely on it regarding the material facts in issue.

Clifford Hind:

125Mr. Hind’s evidence was not helpful in determining the material facts; he did not witness the verbal altercation in the house or the assault. His evidence that he assisted the complainant from the ground after the assault is unreliable; all other witnesses uniformly report the complainant being on her feet chasing the males in their vehicles.

Amanda McKeevor and Jason Warwick:

126The Crown submits that the evidence of these two witnesses is strong and compelling. However, their evidence is not without some concern.

127Amanda McKeevor and Jason Warwick appeared to do their best in their evidence. They were residing two houses to the left of the complainant’s home (if viewed from the street). They were in the upstairs bedroom facing the street, and not towards the complainant’s home. However, they opened the window to see better.

128It was late at night at or after midnight, and it was dark out but for their porch light and that of their neighbours. They were unable to make out detail, but were able to observe silhouettes on the complainant’s lawn, identifying the complainant by her body shape, hair and her voice.

129The complainant was facing towards the street so her right side and back would have been towards the witnesses. Ms. McKeevor and Mr. Warwick would not have been in a position to view both of the complainant’s arms to know they were both at her side. As well, the complainant was standing beyond the large tree in her front yard, which would have obstructed some of Ms. McKeevor and Mr. Warwick’s view. As described by Ms. McKeevor there were also 4-6 males standing in a semi circle, which would create further obstacles.

130Indeed, Ms. McKeevor acknowledges there was a lot of commotion and a lot of moving bodies.

131It was not the birds eye view suggested by the Crown. While in a higher position, it was not a direct or clear view. It is also unclear to me how they would have a view of the complainant’s stoop, where the pumpkin was originally located, unless they were leaning out of the window as the frontage of their homes are flush.

132As well, due to the lighting, they were not able to make out details, including the complainant’s face, raising the question of how they could know the defendant had a pumpkin in his hands.

133What is most disturbing is Ms. McKeevor and Mr. Warwick’s evidence regarding the extent of the assault (the pumpkin and the Welcome Sign). Ms. McKeevor did not initially report the assault with the pumpkin. What is more concerning is that in their evidence at trial Ms. McKeevor and Mr. Warwick reported the complainant being assaulted with the Welcome Sign.

134While Ms. McKeevor’s explanation was that she did not want to be involved, that does not explain the fact that the Welcome Sign was only gifted to the complainant some six months after the assault, so sometime in 2021. They could not have observed an assault with the Welcome Sign, therefore calling into question not only the reliability of their evidence, but their credibility.

135In a bizarre bit of evidence, Mr. Warwick also testified that the males returned shortly after and went back into the complainant’s house for a little bit, which is clearly not the case, and by his description he was not confusing this with the males later return some hours later. No other witnesses observed the males return right after the assault, including Ms. McKeevor who was with Mr. Warwick, and the complainant and/or Mr. Hind would certainly have mentioned this in their evidence. Again, this raises both credibility and reliability concerns.

The Defendant:

136The defendant’s evidence was consistent and unchanging in cross examination. I find for the most part his evidence was credible and reliable.

137Although the defendant appeared to be incorrect about the presence of Mr. Hind during the altercation, this is a peripheral matter and it is understandable that there would be some such errors. Events happened quickly and chaotically, and not everyone was tracking where the other’s present were. I do not find that this error affects the defendant’s credibility and that he was honestly mistaken.

138The defendant was reluctant to offer some of the denigrating comments he made to the complainant, focusing on her behaviour, but ultimately he admitted to using profanity and was otherwise consistent in saying he was “defending” against the comments the complainant was making. He provided more detail in cross examination and agreed that he probably was swearing at her and told her to fuck off and leave him alone.

139The other defence witnesses confirmed he was yelling back at the complainant, telling her to back off. Other, more sanitary, language he used at trial was that he warned her he would “retaliate” before he swung at her. He admitted he did not recall exactly what he said, but it was to the effect of letting him go or he would punch her. The other defence witnesses confirm he was telling her to back off. Dan could not recall specifically what was said before punching her. Clayton also could not recall the words, but it was along the lines of “get away from me” and that he was backing away, warning her.

140However, the others were clear that the complainant was pursuing the defendant, and while outside she was trying to be physical with the defendant and lunging at him.

141The Crown raised as a credibility issue the defendant discussing the trial evidence with Kelly Swan, an acquaintance of Ms. McKeevor’s, as a breach of my order excluding witnesses. However, it was not anticipated that Ms. Swan would be a witness, and the order prohibited witnesses discussing their evidence with other witnesses. I draw no inferences from this.

142The Crown suggested that the final resting place of the pumpkin was inconsistent with the defendant’s evidence which would have the pumpkin landing in the driveway, and not the lawn. However, the defendant’s evidence was that it scattered in front of him on the lawn, he did not recall where. Further, Mr. King confirmed it broke on the lawn, but at the Crown’s suggestion conceded it could have gone on driveway. This is not an inconsistency with either the evidence of the defence witnesses or the photographic evidence.

143In his conversation with PC Curry the night after the assault, it is alleged that the defendant reported that he punched the complainant because she pulled a knife on him. However, at trial, he did not recall saying that, and agreed that would not make sense (the complainant did not have a knife at the time of the assault, but had one later when the males returned). I cannot find this is an inconsistency; the report was not taken verbatim regarding the knife, and there certainly would be a notation that a knife was involved at some point that morning. PC Curry had no independent recollection of what was recorded in his notes to be able to provide clarity.

Daniel King and Clayton Lucier:

144Mr. King and Mr. Lucier also appeared to do their best in their evidence. Both recognized the impact of the passage of time on their memories, and did not attempt to fill in memory gaps or guess at what happened.

145Mr. King concedes that his memory was not the best as events were 4 years ago and he was drinking a bit. He was fair when asked about the complainant’s level of intoxication, admitting that he didn’t know what she was like normally and that his assessment was based on her being loud and obnoxious. He was frank about when he was uncertain, and that there may have been other options other than punching the complainant.

146Mr. Lucier also recognized the impact of time on his memory, but felt it was not impaired by alcohol that evening.

147I find that the evidence of Mr. King and Mr. Lucier is credible and reliable; the mere fact that it conflicts with the complainant’s evidence is not reason to dismiss it; indeed, it conflicts with the evidence of the defendant on certain points. While obviously friends with the defendant, there is no evidence to suggest they fabricated their evidence to support him.

148At the beginning of the altercation inside the house, Mr. Lucier was seated across the table from the complainant, and thereafter followed behind. Mr. King was also present and preceded the defendant out of the house. Given their respective locations in relation to the altercation, as well as being present during both the verbal and physical conflict, they were in a good position to observe up close what happened.

Discussion and Analysis:

149The Crown submits that the Judge does not have an easy job assessing the conflicting evidence. Indeed, several witnesses only witnessed parts of the altercation, from different vantages, and no two accounts are the same. However, the court is not required to know exactly what happened or to reconcile all inconsistencies. What is required is that the Crown establish the material facts beyond a reasonable doubt on reliable evidence.

150I find the following material facts have been established on the credible and reliable evidence, beyond a reasonable doubt:

(1) The parties were engaged in a verbal exchange in the kitchen. As attested to by Mr. Lucier who was also seated at the table across from the complainant, something set her off.

(2) The complainant threw an object at the defendant. Mr. Lucier confirmed this in his evidence, and he was in a good position to observe this. Mr. King did not see this, but that could have been due to his vantage point.

(3) The complainant pursued the defendant while in the home;

(4) I find that the complainant continued to pursue the defendant outside of her home; she left her home under her own power that evening. I accept the evidence of the defence, and the Crown third party witnesses that the complainant was on her front lawn arguing with the defendant. She was intoxicated, but she was standing in front of the defendant, facing the street. Contrary to her statement that if she had the ability to do so she would have gone into the house, the complainant was committed to the conflict with the defendant and was voluntarily engaged with him in that moment.

(5) I find that the defendant struck the complainant with his right fist to her left jaw area with sufficient force to knock her to the ground and she was momentarily unresponsive.

151Beyond that, and except as set out herein, it would be unsafe for me to make further material findings of fact given the conflicting credible evidence.

152On the material issue of the extent of the assault, which goes to whether there is an air of reality to the claim of self defence, alternatively the proportionality of the response, I cannot resolve the evidence. I have reasonable doubt about whether the defendant struck the complainant a second time or assaulted her in some other manner beyond the punch.

153I have grappled with this issue especially in light of the circumstantial medical/physical evidence from which an inference may be drawn that the assault possibly, if not probably, exceeded a single punch. In addition to the obvious contusion to the complainant’s left jaw from the punch, the medical records note contusions on both knees, right upper thought, right lower leg, leg lower leg and ankle, buttocks, rear thighs, right arm and left wrist. There were some abrasions to the left side of her face. The complainant also reported pain and bruising to her upper chest and neck area.

154The location of the injuries, both front and back strain explanation by a single fall to the ground, but they also do not reflect several key aspects of the assault alleged by the complainant, Ms. McKeevor and Mr. Warwick, including multiple hard punches to the head or other parts of her body, and being struck in the head or other parts of her body 1-3 times with a blunt object such as a pumpkin or welcome sign.

155As conceded by Dr. Mehta, a hard fall could also explain some of the injuries, in particular he was asked about the observations of the complainant’s neck. The evidence is uniformly that the complainant fell hard, which is another exculpatory inference that can be drawn from the medical/physical evidence. Such plausible exculpatory inferences must result in reasonable doubt (R. v. Villaroman, 2016 SCC 33).

156It is also possible that the complainant fell more than once; Mr. Hind’s evidence about assisting the complainant from the ground only makes sense if she fell again after chasing the cars. However, neither the complainant, nor Ms. McKeevor and Mr. Warwick, indicated this in their evidence and it would be speculation.

157While it is probable that more than a punch was rendered, that is insufficient to meet the high burden required for a finding to be made.

158I also have significant doubt about whether the defendant struck the complainant with a pumpkin or welcome sign:

(1) The complainant testified that she received the Welcome Sign some six months after the assault. She was not questioned on whether she owned a different sign on the date of the assault, and she did not offer any evidence herself of other property damage or use of a sign;

(2) The only witnesses to testify about the use of the Welcome Sign were Ms. McKeevor and Mr. Warwick. Ms. McKeevor did not advise police of this in her statement, which would be consistent with the evidence that the Welcome Sign was only received after the assault;

(3) Similarly, this calls into question what they observed, or testified, about the defendant hitting the complainant with a pumpkin. From their vantage point, it is difficult to understand how they could have observed anyone take the pumpkin from the door steps, or what objects were being held in the darkness;

(4) Also, according to the complainant, Mr. Hind’s car was in her driveway, with the Pontiac Sunfire behind it, which would have further obstructed with the view of the stoop, along with the tree (the google maps photo shoes that the parking spot closest to the home is right by the door and steps).

(5) The physical/medical evidence also does not support the complainant and Crown witnesses’ evidence that she was struck in the head with a pumpkin. There was no injury, swelling, bruising or other sign of trauma to her scalp as one would expect after being hit hard with an object of that weight.

(6) The pumpkin shards are also plausibly explained by the defendant’s evidence that he kicked the pumpkin upon exiting the home. Mr. King was able to observe the kick as he was already at the door when the defendant exited. Mr. Lucier was not in a position to see the pumpkin kick as he exited after the defendant; these are not inconsistencies.

159While it is available to the court to reject the defence evidence on the strength of credible contradictory inculpatory evidence, as set out above, I have serious concerns about Ms. McKeevor and Mr. Warwick’s ability to observe an assault with the objects as they have reported, or their credibility in doing so. While what they reported may be true, their evidence is not so strong given these concerns to reject the otherwise credible exculpatory evidence of the defence. Therefore, the Crown has not established an assault with the pumpkin or Welcome Sign beyond a reasonable doubt.

160I now turn to my analysis of the self defence claim as it relates to the punch.

Is there an air of reality to the claim of self defence?

161I find there is an air of reality to the claim of self defence. As set out above, there is evidence before the court, the source of which I find to be credible and reliable, which would support the requirements of self defence. In particular the evidence that the complainant continued to pursue the defendant and was attempting to engage him physically, as he retreated. He may not have warned her that he would punch her specifically, but there is evidence that he did implicitly warn her by telling her to get away from him.

162The onus is therefore on the Crown to disprove each of the elements of self defence beyond a reasonable doubt.

Did the defendant reasonably believe force, or threat of force, was being used against him?

163This element of self defence has at times been called “the catalyst”. This element is assessed on a modified objective standard: the defendant’s beliefs are considered from the "perspective of an ordinary person who shares the attributes, experiences and circumstances of the accused where those characteristics and experiences were relevant to the accused's belief or actions" (R. v. Khill, supra, at para. 54).

164I find that I have reasonable doubt regarding this element. That is, I have doubt that the defendant did not reasonably believe the complainant was going to be physical with him for the following reasons:

• There was credible evidence that the complainant was the aggressor in initiating the confrontation. She threw an object at the defendant, and thereafter physically pursued the defendant.

• The complainant did not stop when the defendant left her home; she continued to pursue him onto the lawn. Even on the observations of Ms. McKeevor and Mr. Warwick, the complainant was outside, standing, and until the punch was thrown by the defendant, there was no physical interaction between them that would have prevented her from going back in the home. This contradicts her testimony that she never approached him and would have stayed in the home.

• The complainant was being verbally aggressive; both parties were.

• The other defence witnesses we also concerned for the defendant, and noted that the complainant was trying to be physical with him. Mr. King could not recall if there was actual touching, but he had the clear impression the complainant was trying to be physical, possibly trying to grab him or put her fingers in his face. Mr. Lucier testified that the complainant was physically chasing the defendant and lunging at him multiple times while on the front lawn.

165Even accepting that the complainant may not have had hold of his hoodie, given the other defence witnesses’ concerns about the complainant’s behaviour towards him, I find that the defendant had reasonable grounds to believe that the complainant intended physical force against him.

Did the defendant act for a defensive purpose?

166Otherwise known as the motive, the defendant’s actions in punching the complainant must have been done for his protection from harm, or threat of harm. This is a purely subjective inquiry into mind of the defendant at the time.

167On this question, I have reasonable doubt. Although the defendant did not know the complainant’s intentions, the defendant perceived that she was acting physically towards him and cautioned her several times, even as he punched her. He felt the need to defend himself after the complainant had already acted violently in throwing an object at him. It was reasonable to expect further violence from the complainant, especially given her intoxicated state. Even Mr. Lucier was shocked at what was transpiring.

Was it reasonable for the defendant to punch the complainant in the circumstances?

168In considering this element, the Supreme Court of Canada stated that "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" (R. v. Khill, supra, at para. 65). So, the question is whether it was reasonable for an 18 year old 120lb teenager to punch a 168 lb, mid-thirties, outspoken, angry, and intoxicated woman, who he perceived was coming at him, lunging at him, hard once to the head? I find I have reasonable doubt that he was not.

169Although s. 34(2) provides a list of non-exhaustive considerations it is not a checklist, and not all considerations will bear equal importance or weight. The whole of the circumstances must be balanced.

Nature of the force or threat:

170On the credible evidence before the court, the complainant was threatening a physical confrontation with the defendant. She threw an object at him, and even upon him leaving her home she continued to pursue him outside, and was seen lunging at him. Even though the defendant did not know her intentions, it was his perception that she was trying to be physical with him, and her behaviour caused the defendant to continue backing away.

171There is conflicting evidence about whether the complainant had actual hold of the defendant, but for this element of self defence to be successful, the threat of force is sufficient, and on the facts before the court this is made out.

Imminency of the threat and other means of response:

172The Crown suggested that the defendant could have fled the scene. While there is no duty to retreat, this is a relevant consideration (See R. v. Willemsen, 2022 ONCA 722 at para 20).

173There may be several options available in any given moment, retreat being among them, and they may all be reasonable. The Ontario Court of Appeal also recognizes that, “people using defensive force in stressful and dangerous situations are not expected to weigh their responses to a nicety” (See: R. v. Cunha, 2016 ONCA 491, at para. 7; and, R. v. R.S., 2019 ONCA 832 (Ont. C.A.), at para. 36.

174As well, people are not held to a standard of making the best decision possible when facing perceived imminent harm, and they may not know how much force to use to defend themselves (See R. v. Bélanger, 2003 CanLII 47856 (Q.C.C.A.) at para. 15)).

175In this case, the defendant was not familiar with the home and he had no independent means to leave as he had travelled with his friends who had the car keys. It was late, dark, and he had no where to go. His friends were of no assistance, and simply watched.

176He did leave the house, but the complainant followed. He was before her and the threat was imminent. He had not where to go, and was waiting for his friends so he could leave. Event transpired quickly without time to make a more calculated plan, with the only other possible plan being to walk in an unfamiliar neighbourhood in the dark. Therefore, I have reasonable doubt that there was a better alternative.

Role in the incident:

177The majority of the Supreme Court of Canada adopted a broad interpretation of "role in the incident", stating at para. 84 that:

"... the phrase "role in the incident" includes acts and omissions, decisions taken and rejected and alternative courses of action which may not have been considered. It captures the full range of human conduct: from the Good Samaritan and the innocent victim of an unprovoked assault, to the initial and persistent aggressor, and everything in between (see, e.g. R. v. Lessard, 2018 QCCM 249). Thus "role in the incident" encompasses not only provocative or unlawful conduct, but also hotheadedness, the reckless escalation of risk, and a failure to reasonably reassess the situation as it unfolds. As the Crown submits, this does not mean that the reasonableness assessment is "unbounded" or overly subjective. The inquiry is broad, not vague."

178The credible and reliable evidence before the court is that the both the complainant and the defendant were using profanities and engaging verbally with each other. However, on the established facts, the defendant had not been physically violent or threatening towards the complainant until the punch.

Whether either party used or threatened to use a weapon:

179The defendant did not threaten to use a weapon in that moment, but the complainant had only moments early thrown an object at the defendant, and the situation was fluid and unfolding rapidly.

Size, age, gender and physical capabilities:

180The video evidence shows the complainant and the defendant together, but the recording was unsteady and in constant movement, so it was difficult to determine a difference in stature except to say it appears the defendant is taller than the complainant, but I am unable to say to what degree.

181The defendant was of a slight stature, weighing almost 50lbs less than the complainant.

182There was no evidence about the parties’ physical capabilities, and neither was questioned about their relative strength, although Mr. Hind knew the complainant to be able to hold her own, and she had already acted out with violence by throwing an object.

Relationship between the parties prior to the assault:

183There was no prior relationship between the parties whatsoever. In the hour leading up to the punch, everyone was getting along well until the verbal exchange. There has been no contact between the parties since that evening/morning.

184The only observations and knowledge the defendant had about the complainant was her large, outspoken personality, and that instead of avoiding conflict with him when she had the opportunity, she was committed to it, if not pursued it.

185Based on the facts I have found, the complainant acted in a manner that was objectively aggressive and unnecessary and threatening. The complainant’s intoxication made her behaviour even more unpredictable.

Nature and proportionality of the response:

186There has been much ink spilled on proportionality, including whether a defendant has an obligation to flee, as discussed above. However, the case law is clear that a defendant is not, “required to measure his response to a nicety” (R v. McPhee, 2018 ONCA 1016, at para. 24; see also R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 CCC (2d) 96).

187As the Court of Appeal observed in R v. Cunha, 2016 ONCA 491, at para. 25: "the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection."

188The defendant attempted to retreat as his first recourse. He left the complainant’s home. He had no safe retreat except his friends’ vehicles. He was not the driver and did not have the keys. Once the drivers were in the vehicles, the males left.

189The defendant’s male companions were of no assistance to him.

190Even when the males were in the vehicles (after the punch), this did not deter the complainant and she continued to pursue them.

191On the facts the Crown has established beyond a reasonable doubt, the defendant struck the complainant only once, which was effective in pausing the complainant’s pursuit momentarily. The amount of force used was no more than reasonably necessary to stop her pursuit and threat of force.

192Therefore, on the totality of the credible evidence, the Crown has not met its burden in this matter, and I therefore dismiss the charge against the defendant.