ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
BRIAN HOLDER
Before Justice Robert Wright
Heard on November 18, 19, 20, 21 and December 1, 2025
Reasons for Judgment released on January 27, 2026
L. Liscio counsel for the Crown
P. Ketcheson counsel for the defendant Brian Holder
WRIGHT J.:
1Brian Holder stood trial before me on a single count that he caused bodily harm to John Latyshko in the course of unlawfully assaulting him. Mr. Holder admits that he caused bodily harm to Mr. Latyshko; he submitted that the Crown has not proven that he did not act in lawful self-defence when he did so.
2The Crown bears the burden of proving each of the essential elements of a criminal charge beyond a reasonable doubt. Where there is an air of reality to the defence of self-defence, the Crown bears the burden of negativing at least one of the three elements of self-defence on that same standard. The Crown faces a high burden; proof beyond a reasonable doubt requires credible and reliable evidence in order to displace the presumption that the person charged and before the court is innocent.
3Mr. Holder bears no burden to prove anything in his own defence. Nonetheless, Mr. Holder has proven one fact that was central to the conduct of this trial: that is that John Latyshko was an incredibly difficult neighbour. I heard this directly from Halyna Pryhara, who was Mr. Latyshko's upstairs neighbour and was dating Mr. Holder, and it is borne out by her conduct in the year prior to the assault through the lengthy history of complaints and steps she took to try to address his conduct with her condo board and the police.
4Ms. Pryhara had expressed some of the history with Mr. Latyshko to Mr. Holder. Mr. Holder had observed some of it himself. There is no dispute that on December 21, 2024, in the courtyard of the condo complex, Ms. Pryhara and Mr. Latyshko passed each other between the condo entryway and the parking area and exchanged words. There is similarly no dispute that within seconds of that exchange Mr. Holder exited the condo building and began striking and kicking at Mr. Layshko, grabbed him, punched him, knocked him to the ground, and then engaged with him on the ground for more than three minutes. All of this was recorded on CCTV from the condo complex.
5At the end of those three minutes, Mr. Latyshko's face was covered in blood. His nose was fractured. He had lacerations to his face and head and required stitches and treatment for concussion.
6The CCTV footage has no sound. The view from the video is somewhat blocked by trees in terms of what was occurring on the ground in the three-minute timeframe. Witnesses diverge on what was said between the parties in the moments before Mr. Holder engaged with Mr. Latyshko, what was said during the altercation, and what was occurring while the two men were on the ground. Mr. Holder's position is he was responding initially to a threat he had overheard made to Ms. Pryhara, and then to a threat made directly to himself.
7Mr. Holder elected to testify and call other evidence in his defence. Therefore, I am guided by the Supreme Court's framework from R. v. D.W., [1991] 1 S.C.R. 742. That framework exists to ensure that the burden of proof remains solely on the Crown to prove the charges beyond a reasonable doubt. Distilled as simply as I can:
(1) If I accept the defence evidence, then the accused must be acquitted;
(2) If I do not believe the defence evidence, I could still be left with a reasonable doubt because of it, and again I must acquit;
(3) Even if the defence evidence does not raise a reasonable doubt, I must consider all of the evidence including that adduced by the Crown to satisfy myself that the Crown has met its high burden and proven all of the essential elements of the offence beyond a reasonable doubt.
8Much turns on my findings of fact with respect to what was said by the parties. As such, the credibility and reliability of the witnesses is a central issue. Credibility relates to a witness’s truthfulness. Reliability relates to the account’s accuracy and whether the witness is mistaken in their memory or narrative.
9With respect to credibility, one of the most valuable means of assessing it is to examine any inconsistency between what the witness said in testimony and what he or she has said on other occasions. Inconsistencies may also arise where things are said differently at different times within testimony, including omitting certain details at one time while referring to them on other occasions.
10Inconsistencies vary in their nature and importance. Some are minor; some concern material issues. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the Court should be concerned.
11There are other factors that can affect an assessment of credibility. These include but are not limited to:
(1) whether the account is inherently logical;
(2) whether the account is inconsistent with other evidence;
(3) testimonial demeanour, although that must be considered with caution as testimonial demeanour can be affected by factors that are entirely unrelated to the witness’s truthfulness.
12Reliability relates to an account’s accuracy and whether the witness may be mistaken in their memory or narrative. Reliability of a witness’s evidence can be undermined by the circumstances under which the observations were made, for example, if the witness was in a state of high stress. The reliability of an account can also be undermined by a diminished recollection of the events over time, evidence of tainting by other sources of information, or other factors.
13As I assess the testimonial accounts in this case, I am mindful that I may accept some, none, or all of an account and can give different weight to the portions of evidence that are accepted.
14I will first summarize the evidence of the witnesses. I will then determine the following issues:
(1) The credibility and reliability of the witnesses in the framework I have just set out;
(2) What was said before and during the incident;
(3) Is there an air of reality to the defence of self-defence;
(4) Has the Crown disproven self-defence beyond a reasonable doubt.
Evidence
Lisa Walsh
15Ms. Walsh testified that she was living in the same condo complex as Mr. Latyshko and Ms. Pryhara, although neither was known to her. Her unit overlooks the courtyard.
16She is a flight attendant. She had come home in the early morning from a flight and gone to sleep. Her alarm was set for 1 PM, but she was awoken before her alarm by screaming and yelling below her window.
17She could not see from her bedroom. She went to the balcony. She had a clear view of two men laying on the ground, one on his back and the other on top, with a woman standing above them. The man on top was beating the other man, hitting him. The man on his back from bleeding from his face. They were yelling things like you deserve this, you are owed this, this has been a long time coming. She heard someone say something about 15 years coming. The male on the bottom was yelling for help and to stop hitting him. She heard nothing else from the man on the bottom except cries for help and that they were hurting him, killing him. She saw him get up from the ground and there was blood on the snow and on his face.
18Ms. Walsh yelled she was going to call 911. The woman below told her not to call the cops, that it was none of her business. The man on the bottom said yes, call the cops. Ms. Walsh ran inside, contemplated if she should call police, but then did so. She heard them yell that they were going inside. When she went back out onto her balcony, they were gone.
John Latyshko
19Mr. Latyshko testified that he was living with his father in his father's unit in the building. On December 21, 2024, he went out to get McDonalds. When he returned to the building, he was parked in the lot past the courtyard and was walking toward the entrance.
20He knew Ms. Pryhara “vaguely.” He passed her approaching the door and she was yelling and cursing at him. He denied having said anything threatening to her. He denied showing any weapon.
21He was distracted by the female as he approached the door. He had the McDonald's in his right hand and his keys in the other hand. A male came out the door to the building and proceeded to punch him in the face. Mr. Latyshko fell to the ground and the male jumped on him, beating him in the head and face. The male took his thumb and tried to blind him in his eye. The female kicked him in his right side. He could not remember what was being said to him but was sure it was threatening and yelling. His memory was refreshed from his statement and he recalled being threatened and told to call police and that this would not be the end of things and there would be more of this.
22While on the ground he was punched in the face and his head was knocked into the ground causing a concussion. He was unable to get the male off of him, or hit him back. He recalled yelling for help as loud as he could. Toward the end, the woman was pleading for the man to get off of him. He was let up and he gathered his things and went inside to call the police.
23He acknowledged that he had a knife in his pocket at the time. He testified that he didn't remember it at the time and did not take it out or use it. He was shown a photo of a knife in the snow and testified that it must have fallen out of his pocket in the struggle. He did not notice or try to retrieve it. He testified that the mechanism was of the knife loose, which is why the blade appears slightly exposed in the photo.
24He was shown the CCTV video from the building courtyard. He identified the woman as Ms. Pryhara. He refreshed his memory from his statement and testified she lived in the apartment directly above him and his father. He remembered seeing the male once before. He was under the impression that the male (Mr. Holder) was the partner of the woman. He recalled that he had seen him once before when Mr. Holder and Ms. Pryhara attempted to engage him on another occasion when they were at the picnic table in the courtyard.
25As they were all walking back into the building, they told him to call the police and threatened his family.
26In cross-examination, he acknowledged having more knowledge of Ms. Pryhara and Mr. Holder, and having more history with Ms. Pryhara's family. He had provided police quite a lot of information about Ms. Pryhara, her family, and her living arrangements, which he had not testified to in-chief. He agreed he had told police about months of history with Ms. Pryhara and issues between her unit and his.
27He also agreed he had sent communications to the Crown in anticipation of trial seeking to avoid any potential criminal liability for himself. He maintained that he was very afraid of Mr. Holder and Ms. Pryhara. He denied taunting them outside of court. He claimed he would not do so because he was afraid of them.
28He agreed that he had a prior issue with different neighbours but stated he did not remember if police were involved and did not believe he had been given an opportunity to give police his version of events in that incident.
29As it related to Ms. Pryhara, he denied having yelled or banged. His position was the noise came from Ms. Pryhara's unit and that they were running an illegal business. He testified to having video of this, but not having provided it to police because they didn’t ask. He acknowledged that Ms. Pryhara had called police once, after she had threatened him. He felt she and her family were harassing him. He agreed he was frustrated due to the noise from above and that he had banged back. He denied knowledge of a complaint made by her to the condo board, saying it was his father's unit and that his father would have dealt with the condo board. He agreed he had told police that every time he went to the condo management, things escalated.
30He admitted that he would call Ms. Pryhara “suka,” which he said in Ukrainian meant bitch or dog but not whore.
31He agreed there was a prior incident with her son, Maxim, in which he yelled through the window. He would not agree he threatened Maxim in this incident. He denied any interaction with police as a result of that incident. He would not agree police had been called five prior times; he testified it was only twice, one of which was this assault. He agreed Maxim appeared to be about 15-years old, but said had only seen him on the balcony.
32He agreed he felt neither police nor the condo board had acted to resolve his issues or his safety. He testified that Ms. Pryhara’s eldest son had tried to run him off the road and threatened him. He also said he had a fear of Mr. Holder who had threatened him in the past. He agreed he had not told the police about this prior incident at the picnic table. As a result of his, he was carrying the pocket knife, which he also carried for work in construction.
33He denied taking the knife out or using it. He did not remember it was there at the time. He denied that he was looking for the knife when he got up from the ground and was collecting his property. He maintained he was not aware it had fallen from his pocket. He identified the other item in his hand on the video as his keys.
34He agreed that when he passed Ms. Pryhara, she was yelling at him. It may have been about spitting on her car, which he had done in the past, but had not done on this occasion. He would not agree that he did not try to avoid her saying he was walking inside the building to get away from her. He testified that she was still yelling as he reached the door, and he turned and told her to "fuck off." He disagreed with suggestions that he called her suka or said"I will kill you suka."
35He also denied suggestions that he made threats to Mr. Holder before or during the incident. He disagreed that what was occurring once they were on the ground was Mr. Holder using his forearm to push him down, instead maintaining that Mr. Holder continued to strike him while they were on the ground.
36Once they were up, he agreed that Mr. Holder and Ms. Pryhara were telling him to go inside and saying to go ahead and call the police. Mr. Latyshko interpreted this as a dare, to go ahead and call police.
37He disagreed with suggestions that he had not wanted to call police, that it was his father who called, because he didn't want to get in trouble for possessing the knife. He agreed he was concerned about his own potential jeopardy when it came time to prepare for court, and that he had sought guarantees from the police/crown (which were not given). He also agreed he had inquired of the crown how he might get financial compensation.
Video and Photographs
38CCTV from the courtyard of the condo complex which an exhibit at trial is five minutes and 21 seconds in length. It shows the courtyard for the entirety of the incident. Much of what occurred is visible on camera, but the area where the two men ended up on the ground is partially blocked from view by a tree.
39Ms. Pryhara exits the building as Mr. Latyshko is walking along the path to the doorway. They pass each other. She appears to be speaking toward him. There then appears to be an exchange of words as Mr. Latyshko continues walking past her. He does not stop or slow down but continues toward the door. She stops, turns toward him to continue speaking, and then turns back toward the parking lot and continues walking away from him.
40Mr. Latyshko can be seen to be holding a paper bag and a water bottle in his right hand and a set of keys in his left hand.
41Seventeen seconds into the interaction Mr. Latyshko has arrived at the door. His head turns to the left over his left shoulder and he appears to be shouting something back at Ms. Pryhara. Mr. Holder exits the condo building. Mr. Latyshko is not looking at the door. Mr. Holder immediately reaches out toward Mr. Latyshko. His right arm swings in the direction of Mr. Latyshko's face in either a grabbing or punching motion. Mr. Holder grabs and kicks at Mr. Latyshko who appears to be trying to get away and drops the items in his hands. Mr. Holder pushes him across the path to where the trees are and then punches him several times. Mr. Latyshko is knocked immediately to the ground. Mr. Holder remains in a superior position to him through the next several minutes.
42The upper bodies of the two men are now partially obscured by the tree. However, Mr. Holder can be observed to move from a kneeling position to a standing bent position and his right shoulder, arm, or elbow can be seen at various points being drawn back and then thrust forward in what appears to be a striking motion.
43Ms. Pryhara returns to where the men have landed on the ground. She stands over, watching. She kicks Mr. Latyshko on the ground. She then pulls back on Mr. Holder's shoulder, as though trying to get him to get off Mr. Latyshko. Moments later, she appears to be using the phone in her hand to attempt to film what is occurring. Ten to fifteen seconds later she can be seen speaking up to someone off camera. She kicks Mr. Latyshko again. She then appears to bend over both men and may again be trying to pull Mr. Holder away. She then walks around to the other side of the trees.
44Mr. Holder and Mr. Layshko remain on the ground for several minutes and appear to be struggling. Mr. Layshko at times appears to has his knees curled up toward his body and is rolling around. Mr. Holder goes back into a kneeling position for a portion of this but then can be seen to be standing again, bent over Mr. Latyshko and grabbing his coat or his upper body.
45Mr. Holder eventually gets up off of Mr. Latyshko. He picks up the paper food bag and forcefully thrusts it into his hand while Mr. Latyshko is still kneeling on the ground. Mr. Holder and Ms. Pryhara move toward the door to the building but Mr. Holder then returns toward Mr. Latyshko, who is still on the ground, and can be seen to be pointing at him and yelling. Mr. Latyshko stands up and also seems to be yelling. He looks around and picks up his keys or phone while the men continue yelling at each other. Ms. Pryhara holds the door to the condo building open. Mr. Holder then stands in the doorway, but then returns toward Mr. Latyshko and continues to exchange words with him. Mr. Holder and Ms. Pryhara then stand at the door as a woman exits the building. They then wait at the open door until Mr. Latyshko enters the building in front and they follow him inside.
46Toronto police photographs of the scene depict in the courtyard. The snow and ground are disturbed near the tree next to the pathway. Significant blood is visible in the snow where Mr. Latyshko's head would have been while he was on the ground. On the pathway, where Mr. Latyshko's legs would have been while he and Mr. Holder were on the ground, is a 4-inch folding silver knife with a belt clip. The blade can be seen to be slightly exposed from the handle.
47Toronto police photographs taken at the hospital show Mr. Latyshko's injuries including multiple lacerations to his face and head on both sides, a cut above the bridge of his nose, swelling to both eyes, darkness and bruising to the left eye, and blood and lacerations around both ears.
Carl Freckleton
48Mr. Freckleton was called to give evidence of an interaction between Mr. Latyshko and Mr. Holder after the first day of court. He observed Mr. Latyshko to be staring at Mr. Holder, appearing agitated. He was saying are you going to attack me again, or something like that. He did not appear to be afraid of Mr. Holder.
Halyna Pryhara
49Ms. Pryhara testified to issues with the Latyshkos from the moment they moved into the building, around May of 2022. At first, she thought they were renovating, but the noise continued. By November of 2022 there was a meeting with condo management about the issues, but only Mr. Latyshko’s father was present for the unit below.
50She detailed an incident where she was out with Mr. Holder and her younger son Maxim called complaining that he had been threatened by Mr. Latyshko. Police were contacted as a result. She also testified to calling police approximately four more times over the course of two years. She had tried to get the community police involved as well. Nothing seemed to resolve the issues.
51Mr. Latyshko would call her suka, which she believed meant whore. There would be regular banging and screaming at all hours.
52On December 21, 2024, Mr. Holder had come to assist her with moving some things up to her walk-up unit to prepare for Christmas. They had both of their cars in the visitor parking area beyond the courtyard. She had an appointment to get to for 1 PM and Mr. Holder wanted to get home to his son, who was sick. They were planning to leave the unit immediately and go their separate ways.
53She saw Mr. Latyshko from her window in the parking area. She believed he had spat on her car and wanted to go check. There had been a history of spitting on her car, and she believed it had been Mr. Latyshko doing this. She and Mr. Holder were at her unit and had already been planning to go back out. She rushed down the stairs ahead of Mr. Holder and out toward the car.
54As she was exiting the building she encountered Mr. Latyshko. She asked him if he had spat on her car. He mumbled something she couldn’t hear. He seemed angry, aggressive. She asked him what he had said. He said, “I’m going to kill you suka.”
55She continued toward the car. She turned around when she heard the door opening and Mr. Holder was exiting the building. Mr. Holder said something, but she couldn’t hear what. She was shocked when she saw Mr. Holder punch Mr. Latyshko. She took her phone to record everything as she believed Mr. Latyshko would lie about what happened because of their history, but her phone was old, the memory was full, and it would not record.
56She described Mr. Latyshko as fighting aggressively. He was trying to punch Mr. Holder, but Mr. Holder was blocking the strikes. She was trying to break up the fight but could not get in as Mr. Latyshko was punching up. She was shown the video that showed her kicking and agreed she had kicked Mr. Latyshko. She said she was trying to get them to stop.
57She heard Mr. Holder yelling stop fighting, stop fighting, and testified that she was yelling this too. She was still trying to get her phone to record. She spoke to the woman from the balcony (Ms. Walsh). She was shown the video of her kicking Mr. Latyshko again and stated that this when she heard Mr. Holder say, “he has a knife.”
58She did not see a knife. She was trying to pull them apart. The fight was subsiding, but Mr. Latyshko was continuing to fight so Mr. Holder was holding him down. When shown the video that she kicked him again, she said she was in shock and frightened because she now knew there was a weapon. She was trying to pull Mr. Holder out to look for the weapon. She went around to the other side of the trees to try to see it. Mr. Holder was also looking around, moving Mr. Latyshko around, she thought in order to look for the knife.
59When they moved back toward the door to the building she maintained distance to keep her eyes on his hands. She wanted him to go into the building first in case he had the knife. She could not remember what Mr. Holder was saying during this period before they went into the building.
60In cross-examination, she agreed she had been trained and worked as a court officer. She was trained in use of force and de-escalation techniques. When a person has a weapon, she was taught to shout out to warn others and to issue commands to the person to drop the weapon. She agreed that she did not hear anything about a knife until after Mr. Latyshko was already on the ground.
61She maintained that she was unable to estimate Mr. Holder’s height or weight with any accuracy. She put him at approximately 6’ tall and eventually at eventually approximately 70 kgs.
62She would not agree with suggestions that Mr. Latyshko’s apartment behaviour and the lack of a solution had frustrated, annoyed or angered her. When it was suggested she had told Mr. Holder about these issues, she indicated that she only told him vaguely and that she didn’t want him involved. She would not give him details.
63She agreed that she did not see Mr. Latyshko with a weapon as they were passing. She agreed that he continued on past her, did not stop, and did not turn or follow her. She agreed that at no point in the altercation with Mr. Holder was Mr. Latyshko ever on top of him. She also agreed she never heard Mr. Latyshko threaten Mr. Holder; he was screaming something, but she didn't know what.
64She agreed she didn't ask Ms. Walsh to call the police, say he had a weapon, or indicate that they needed help. She also agreed that, despite her training as a court officer, including in first aid, she did not call police, even after seeing injuries. She testified that she didn't believe Mr. Latyshko needed medical attention. She needed to compose herself, she was in shock, and she had a hair appointment to get to. She agreed it would have been appropriate to call the police when she heard he had a weapon.
Brian Holder
65Mr. Holder testified that he first learned of Mr. Latyshko in the second half of 2023. Ms. Pryhara had mentioned trouble with her neighbour and that the condo board was taking a long time. What she described to him made him think that Mr. Latyshko was more than just a nuisance and that his behaviour was threatening and harassing.
66Mr. Holder was at her unit on one occasion in 2023 when officers came from 22 division for a report. He was also involved when community officers came. He was also with her in the summer in June of 2024 when her son Max phoned to say he was being threatened. Mr. Holder could hear screaming through the phone and told her she had better call 911.
67He first encountered Mr. Latyshko in May or June when he had come to help her with something at the unit. She went on the balcony and was filming Mr. Latyshko who gave her the finger.
68Later in the summer they were sitting at the picnic bench in the courtyard. Ms. Pryhara pointed out Mr. Latyshko as he was walking to his car and Mr. Holder said hi to him and asked why he was banging in the apartment. Mr. Latyshko just went to his car and left. When he returned, they were still at the bench. Mr. Holder said, “John, I want to talk to you about this,” but Mr. Latyshko just went inside the building.
69On the morning of December 21, 2024, Ms. Pryhara had asked Mr. Holder to come and help bring some things up to the unit for Christmas. Mr. Holder had his son staying with him, a teenager, and he had not been feeling well. Mr. Holder put him to sleep and told him he wouldn't be gone long.
70Mr. Holder and Ms. Pryhara returned to the building from shopping around 12:30 PM. Mr. Latyshko's car, which he would park in visitor parking, was not there. They unloaded the shopping to her apartment. He wanted to get back to his son and Ms. Pryhara had an appointment. Ms. Pryhara said, “look who just pulled in, look he is going to spit.” She said she was going out to film him. Mr. Holder told her to wait for him, but she did not. Mr. Holder had to tie his boots and ended up some seconds behind her.
71She was walking quickly. He ran after her after tying his boots. As he got to the door he could see Mr. Latyshko's frame, turning to his left, looking back. He heard, loudly yelled toward Ms. Pryhara"I will kill you suka." He heard this as he was coming through the door. Mr. Latyshko's face was a snarl. He was yelling and angry. He was holding a bag in his hand and clenching what looked like a knife in his left hand. He saw the knife after he heard Mr. Latyshko yell and he did a front kick and pushed him back. He couldn't see Ms. Pryhara.
72Mr. Holder was using his hand and right foot to push Mr. Latyshko back. He wanted to create space because of the threat he had heard. It was as he did this that he saw the knife, silver. He was anxious and fearing for Ms. Pryhara's safety. He also became concerned for his own safety when he saw the knife.
73Mr. Latyshko then said, “I will stab you fucker, don't touch me.” Mr. Holder grabbed him. He wanted to take him down. He was scared and nervous and continued to push Mr. Latyshko. He didn't know what he had on him, so he struck Mr. Latyshko. Mr. Latyshko was trying to fight back up so he pushed him down using his forearm and told him to stop fighting, to get down. He wanted to control him to make him stop moving. He stood up and was pressing him back down and looking for the weapon. He was using his forearm to hold him down and his hand to his face.
74Mr. Holder testified that he didn't hear Ms. Pryhara speak to Ms. Walsh because Mr. Latyshko was yelling. His focus was on Mr. Latyshko. He would stop striking him when he had him under control, but then Mr. Latyshko would move again, and he would strike him again until he stopped. He asked Mr. Latyshko why he was doing this, why he would threaten a 15-year old, why he was harassing them. Mr. Latyshko continued to try to reach under his body and Mr. Holder kept pressing down on his face with his hand.
75Ms. Pryhara was calling his name and tugging at him. At some point during the struggle, he said something about the knife, but he could not recall when.
76He turned Mr. Latyshko partly over, looking for the knife. He pulled on his jacket. He then was pulling Mr. Latyshko up and Mr. Latyshko was saying, “get the fuck off me.” Mr. Holder told him, “just shut your fucking mouth.” Mr. Holder picked up the brown paper bag and gave it to Mr. Latyshko. He moved away toward the door, but Mr. Latyshko was yelling and cursing at Mr. Holder and Mr. Holder was also now enraged. He pointed at him and told him, “that's enough, shut your mouth.”
77Mr. Holder went to the doorway and spoke to Ms. Pryhara about making Mr. Latyshko go through the door first. He didn't want them to have their backs to him inside. He hadn't seen the knife, didn't know where it was. They walked up the stairs after Mr. Latyshko and went up to the floor above him. She was late for her appointment and he had to go to his son. They did not discuss what had happened.
78He did not call police. He went home to see to his son and then planned to walk to a police division to report the altercation.
79In cross-examination, he acknowledged he was larger than Mr. Latyshko; 5'10" tall and 205 pounds. He had worked as a court officer for 20 years, and was trained in use of force, de-escalation, and dealing with people in crisis. When dealing with a weapon, he was trained to tell them to drop the weapon and voice out the existence of a weapon. He agreed that when he came out of the door he did not act to communicate or tell Mr. Latyshko to drop anything. He did not take any measure to understand Mr. Latyshko's presentation.
80He would not agree that he did not see a knife, but he acknowledged he could have been mistaken about what was in Mr. Latyshko's hand. He agreed he did not see what he thought was the knife until after he had kicked him back or delivered his first blow.
81Upon being shown the video, he agreed that Mr. Latyshko was walking away from Ms. Pryhara. That there was no physical interaction between them.
82He agreed that he maintained superior position at all times. He agreed that Mr. Latyshko could not move far at all at any point. He agreed he did not ask Ms. Pryhara or Ms. Walsh to call police. He never called EMS or offered first aid. He agreed that his words to Mr. Latyshko were about threatening a 15-year old boy and harassment, which were not happening on that date. He could not explain why he said these things instead of saying things about dropping the weapon.
83He was shown photographs of the location of the knife on the ground; he agreed that it was where Mr. Latyshko's legs would have been and that it is possible it fell out of his pants. He agreed he did not go back to the area to look for the knife. He agreed he never saw the knife open with a blade at any point. He agreed he had plenty of exit routes. He eventually agreed he had jumped to a conclusion that day.
Assessment of the Evidence: Credibility and Reliability of the Witnesses
84Ms. Walsh is an independent witness. She did not know any of the three individuals she observed in the courtyard that morning. She did not observe the commencement of the altercation, but she was able to see the end. She had an unobstructed view from her balcony.
85There were no material inconsistencies in her evidence. She was a careful, thoughtful witness, who was doing her best to remember details. She was candid where there were gaps in her memory, in particular about exactly what words were said, but she was able to recount the general meaning of what was being said and by whom.
86She was a credible and reliable witness, and I accept her evidence. With respect to what she overheard being said, it makes sense that she remembered what she heard as words like “15 years coming” because she did not have any knowledge of the context or history between Ms. Pryhara and Mr. Latyshko. As I will explain, I am satisfied that what was actually said was that he had threatened a 15-year old, but that Ms. Walsh simply gave different meaning to having overheard 15 years. While I do not accept that she is correct in recounting exactly what words she overheard, I do accept her evidence that Mr. Latyshko, the man on the bottom, was asking for help and asked her to call police and that they were hurting him, while Ms. Pryhara told her not to call the police and that it was none of her business, and that both Mr. Holder and Ms. Pryhara were yelling at Mr. Latyshko.
87Each of the three principle witnesses had a number of frailties in their evidence. The best evidence is the video from the condo courtyard, but it does not contain sound and portions of the altercation on the ground are blocked from the view of the camera.
88Mr. Latyshko had some significant issues in his evidence. He was internally inconsistent, inconsistent with his police statement, minimized details of his involvement, showed self-interest in several ways, and was evasive with counsel. I'll provide several examples:
(1) In his evidence in-chief, he testified that he vaguely knew Ms. Pryhara and didn’t know the man who attacked him. He did not provide details of the history, or where she lived in the building. In cross-examination, it quickly became clear he had significant knowledge of both her and Mr. Holder, and a lengthy involvement of dispute with her in the condo building. This had all been omitted from his evidence-in-chief.
(2) He was inconsistent between his police statement and his in-court testimony about the history between them, but then in cross examination agreed he would call Ms. Pryhara suka, and that he had spat on her car in the past.
(3) He was inconsistent about the prior involvement of police and attempted to minimize it.
(4) He was inconsistent about a dispute with prior neighbours that had similar elements to his dispute with Ms. Pryhara.
(5) He was inconsistent between his in-chief testimony and cross-examination about his own behaviour, agreeing in cross to some of what Ms. Pryhara had complained about, but having left all of this out in his examination-in-chief.
(6) He expressed reluctance to testify in the weeks leading up to court unless he was given protections by the crown. He reluctantly agreed in cross-examination that he had been concerned about potential culpability for the knife.
89This is a sample of the issues in his evidence but is by no means an exhaustive list. I have serious concerns with his credibility. In my view, it would be unsafe to act on his evidence except where it is confirmed or corroborated by other evidence.
90There are two such areas:
(1) The knife. I accept Mr. Latyshko's evidence that he did not take the knife out of his pocket and that it must have come out onto the walkway in the struggle. I accept this evidence for several reasons:
It is consistent with the video. I have had the opportunity to carefully view and review the video. It is apparent that what Mr. Layshko is carrying in his left hand as he approached the door are keys. He even raises that hand as he is reaching the door as if he is about to use the keys to enter the building.
It is consistent with the location and situation in which the knife was located by police. The knife was at the side of the path where Mr. Latyshko's legs would have been during the struggle.
Mr. Holder and Ms. Pryhara each confirmed that they did not see a knife in Mr. Latyshko's hand or around him during or after the struggle.
(2) That Mr. Holder continued to punch, knee, and strike Mr. Latyshko on the ground, and that his thumb or hand was gouging the area around Mr. Latyshko's eye, and his arm was choking Mr. Latyshko:
In my view, this is consistent with the video evidence. Mr. Holder can repeatedly be seen drawing his arm back and making striking type motions with his body. It cannot be seen what he is contacting, but I accept this portion of Mr. Latyshko's evidence as confirmed by the video.
Mr. Latyshko is also confirmed on this point by the photographs of his injuries, including the swelling, bruising and puffiness around Mr. Latyshko's eye. In my view, the injuries depicted are consistent with Mr. Latyshko's description of what was happening on the ground.
Ms. Walsh's evidence: in my view, it tends to confirm Mr. Latyshko's description of what was happening to him on the ground.
91This confirmatory evidence convinces me to accept these portions of Mr. Latyshko's testimony.
92Ms. Pryhara also had some significant frailties in her evidence. She was very evasive in cross-examination, her evidence was internally inconsistent, and portions of it were illogical and do not accord with common sense and human experience.
93For example, in reference to questions about whether she had told Mr. Holder why she was going out of the apartment ahead of him, she described herself as storming out and possibly not telling Mr. Holder why. When it was then suggested to her that she was angry as she “stormed” out, thinking Mr. Latyshko had spat on her car, she refused to acknowledge any anger explaining that she does not get emotional. This was a theme that she continued to repeat, refusing to acknowledge frustration, annoyance, or anger in what was happening with the condo board, the police and Mr. Latyshko regarding the noise complaints. This does not accord with common sense, human experience, or her own evidence.
94Another area of her evidence that does not accord with common sense, experience, or her own stated state of mind is her evidence that she didn't think to call police while in the courtyard after she heard there was a knife. She had previously called police for much lesser issues with Mr. Latyshko. On her evidence, she had gone downstairs to record any evidence that he had interfered with her car. Then he threatened to kill her, and Mr. Holder reported seeing a knife. This is far more serious than the prior incidents involving noise or the issue with her son. She was holding her cell phone in her hand. She worked for the Toronto Police Service. That she would hear Mr. Holder say he had a knife in these circumstances and not call the police defies common sense and is inconsistent with her own evidence of her present state of mind which was to catch Mr. Latyshko in the act of defiling her car.
95Her evidence is also inconsistent with Ms. Walsh's evidence, which I do accept. Ms. Walsh's evidence that Ms. Pryhara was also engaged in yelling at Mr. Latyshko, and that Ms. Pryhara told her not to call the police and to mind her own business makes sense, and accords with what appears to be happening in the video.
96Which brings me to the principal issue with Ms. Pryhara's evidence; it is inconsistent with the video in two significant areas, and her explanations for what is seen in the video do not accord with common sense and human experience:
(1) Her evidence that she was afraid he had a weapon and that she was looking for a weapon. What the video depicts is Ms. Pryhara standing over the two men on the ground at various intervals. She does not attempt to maintain any distance. She testified that she was shocked, and that she just stopped, but the video shows she did nothing of the sort. Rather, she got very close and kicked. After they have stood, she does not appear to be searching for a weapon. She does not appear to be focused on Mr. Latyshko's hands. She does not maintain any distance as Mr. Latyshko passes her and enters into the building. Her actions as can be seen in the video are inconsistent with her evidence that she was concerned about and looking for the purported knife.
(2) Her evidence that she wasn't angry. The video evidence is inconsistent with her on this. She clearly kicks Mr. Latyshko while he is on the ground several times during the altercation and can be seen bent over him, pointing her finger at him and shouting.
97I have significant concern about large portions of Ms. Pryhara's evidence, but there is one portion of her evidence that I do believe. I believe that she heard Mr. Latyshko say, “I will kill you suka.” This was as he was reaching the condo building door and he turned and said it over his left shoulder. I believe this to be true because it makes sense in the nature of their history, and because the video confirms that Mr. Latyshko is saying something that appears to be offensive back toward her. It is also confirmed by Mr. Holder’s testimony.
98But it is also clear from the video that Ms. Pryhara did not put much stock in this threat. She did not react to it. She kept walking toward the parking lot where her car was. She does not turn around until the condo door hits the wall as Mr. Holder is exiting.
99Mr. Holder's evidence is similarly inconsistent with the video evidence on several key points:
(1) His evidence as to the start of the altercation; in my view, his first motion to Mr. Latyshko as depicted on the video is an attempt to strike him, not, as he testified to, to grab for him.
(2) His evidence about his fear for Ms. Pryhara, that he didn't have a sightline of her when coming out of the building; the video contradicts this. It shows a clear line of sight to her and demonstrates that he would have to had to have known she was nowhere near Mr. Latyshko when Mr. Holder exited the building and began trying to engage Mr. Latyshko.
(3) His evidence about seeing a knife, or what he believed to be a knife, in Mr. Latyshko's hand. In my view, the video evidence is inconsistent with this. Mr. Holder does not look down toward Mr. Latyshko’s hands while engaging in trying to grab him. He doesn't try to grab him by the arm, or wrist, where the purported knife is.
(4) His evidence that he was looking for a knife while rolling Mr. Latyshko on the ground; in my view, this is also inconsistent with what can be seen on the video. The video shows continued motions of striking. And, as with Ms. Pryhara, his actions after the men are separated and standing are inconsistent with his stated concern about a knife. He does not keep Mr. Latyshko at any distance. He gets right up to him and hands him his food bag. He repeatedly advances back on him apparently shouting in anger. He stands by the condo door as Mr. Latyshko passes directly past him. He does not look around the area for any knife.
(5) His evidence that he was holding Mr. Latyshko down with his forearm; this is somewhat inconsistent with the video, where I can see continued striking motions. I do not doubt that there is a portion of time where he held him with his forearm, but the amount of time that Mr. Holder ascribed to this activity was significantly longer than what the video shows.
100Mr. Holder's evidence is also inconsistent with Ms. Walsh about what was being said on the ground. I accept Ms. Walsh's evidence as to the general tenor of what Mr. Holder and Ms. Pryhara were yelling at Mr. Latyshko. I do accept Mr. Holder's evidence that he referenced threatening the 15-year old child of Mr. Pryhara, not that this had been 15 years coming.
101Mr. Holder's evidence is also inconsistent with Ms. Pryhara about what was said after he exited the building. Mr. Holder says that Mr. Latyshko said, “I will stab you fucker, don't touch me.” Ms. Pryhara did not report hearing this important piece of evidence.
102I have concerns about accepting portions of Mr. Holder's evidence on the basis of its inconsistency with the video and these witnesses. In particular, I do not accept that Mr. Latyshko said to Mr. Holder “I will stab you fucker.” I do not accept that Mr. Latyshko had a knife in his hand. I do not accept that Mr. Holder did not know that Ms. Pryhara was nowhere near Mr. Latyshko when he overheard Mr. Latyshko say, “I will kill you suka.”
103On the basis of the evidence that I do accept, I make the following findings of fact:
Ms. Pryhara believed that Mr. Latyshko might have spat on her car. She stormed out of her condo and down the stairs ahead of Mr. Holder in order to confront him and photograph any evidence.
She accused Mr. Latyshko of spitting on her car. They exchanged words and cursed at each other.
As Mr. Latyshko approached the door, he said over his left shoulder, “I will kill you suka.”
Ms. Pryhara did not react to this threat. She continued away from him, and continued yelling at him behind her as can be seen on the video.
Mr. Holder overheard “I will kill you suka.”
Immediately upon exiting the building, Mr. Holder attempted to strike Mr. Latyshko in the face.
He then kicked and grabbed at him, pushing him back.
Mr. Latyshko was holding his food bag and a water bottle in his right hand and his keys in his left hand. As Mr. Holder pushed him back, he dropped these things.
Mr. Holder pushed Mr. Latyshko over to the tree area and began punching him, which knocked Mr. Latyshko to the ground. Mr. Holder punched him five or six times in this initial series.
Mr. Holder got on top of him and remained in a superior position to him through the next several minutes. He struck him approximately 10 more times in the first thirty seconds that they were on the ground. After that, he held him down and was pushing him down by the face, neck and head, causing Mr. Latyshko to feel that his eye was being gouged at and that he was being choked.
At no point did Mr. Holder say anything to Ms. Pryhara about a weapon or knife.
Ms. Pryhara returned to where the men were on the ground. She watched the first set of strikes. She kicked Mr. Latyshko on the ground. She pulled back on Mr. Holder's shoulder. She then attempted to film what was happening with her phone.
Ms. Walsh came out onto her balcony. She told them she would call police. Ms. Pryhara told her not to call the police and to mind her own business.
While Mr. Latyshko was being held on the ground Mr. Holder and Mr. Pryhara uttered words to the effect of you deserve this. Mr. Holder referenced Mr. Latyshko having threatened a 15-year old boy. Mr. Latyshko was calling for help, asked for police, and told them to stop hurting him.
Ms. Pryhara kicked Mr. Latyshko again. She pulled on Mr. Holder's shoulder and upper body to try to get him to disengage with Mr. Latyshko, but was unable to pull him off. She then walked around to the other side of the trees.
Mr. Holder pushed up to standing from Mr. Latyshko, bent over him and grabbed his coat. I do not accept that he was searching for a knife. It appears to me from a careful review of the video that he was trying to roll Mr. Latyshko toward him, I believe to see how bad his injuries were.
Mr. Holder disengaged from Mr. Latyshko who remained on the ground. He picked up the paper bag and forcefully shoved it into Mr. Latyshko's hand.
Mr. Holder and Ms. Pryhara moved toward the door to the condo, but it is clear that Mr. Latyshko said something to continue angering Mr. Holder because Mr. Holder then returned to Mr. Latyshko and yelled and pointed at him. Mr. Latyshko stood up and also continued yelling. He looked around and picked up his items. He did not look for the knife, which had fallen from his pocket in the struggle, as he did not know he had lost it.
Ms. Pryhara held the door to the condo building open. Mr. Holder approached the doorway, but then returned for another exchange of words toward Mr. Latyshko. Mr. Holder and Ms. Pryhara then stood at the door as a woman exited the building. They waited at the open door until Mr. Latyshko entered the building and followed him in. They were trying to get him into the building and told him to go before them.
Self-Defence
General Principles
104The law of self-defence is codified in s. 34 of the Criminal Code of Canada. Ss. 34(1) and (2) read 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.
105In R. v. Khill, 2021 SCC 37, the Supreme Court of Canada explained the three elements of a successful self-defence claim:
(1) the catalyst: the accused person must reasonably believe that force is being used against him or another person;
(2) the motive: the accused person’s subjective purpose for responding to the threat must be to protect himself or another; and
(3) the response: the accused’s act must be reasonable in the circumstances (Khill at para. 37).
106Where the is an air of reality to the defence, the burden is on the Crown to disprove self-defence beyond a reasonable doubt. The Crown is required to disprove any one of the three elements in s. 34(1) to satisfy its burden (Khill at para. 185).
107A defence has an air of reality when there is some evidence upon which a properly instructed jury, acting reasonably, could acquit on that basis: R. v. Cinous, 2002 SCC 29.
108The trial judge must act as a gatekeeper: the judge decides as a matter of law whether the evidence meets this threshold. If it does, the defence must be left with the trier of fact; if not, it is withheld.
109This has been described as a minimal evidential burden. The defence must point to “some evidence” supporting each essential element of the defence.
110For the purpose of assessing air of reality, I must assume the defence evidence is true and may not weigh credibility or likelihood of success. Limited, common‑sense weighing is allowed only to determine whether the defence requires unreasonable inferences.
111In my view, there is an air of reality to the defence arising on Mr. Holder’s evidence. If accepted, his evidence could at least raise a reasonable doubt on each of the three prongs of self-defence.
112In addition to Khill, I have reviewed and considered all caselaw and other materials provided by the parties. Although instructive and helpful with respect to applicable legal principles, each claim of self-defence must be assessed by applying the specific facts of the particular case to the law.
S. 34(1)(a) – Did Mr. Holder reasonably believe that force was being used against him or another person?
113This element of self-defence is assessed on a modified objective standard: the accused’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” (Khill at para 54).
114Mr. Holder testified that he reacted and engaged with Mr. Latyshko after hearing the threat to Ms. Pryhara. I accept that Mr. Latyshko did call back to her that he would kill her. But that finding alone does not answer this question.
115In my view, despite the uttering of threatening words, Mr. Holder did not reasonably believe that force was being used against Ms. Pryhara. Ms. Pryhara was metres away from Mr. Latyshko and they were moving in opposite directions. There was no ability for Mr. Latyshko to act on the threat; as Mr. Holder himself testified to, Mr. Latyshko would rant. Mr. Latyshko was engaging in the same sort of behaviour that he had regularly engaged in with Ms. Pryhara. There was no imminent threat of force.
116In the history between the parties, and Mr. Latyshko’s past behaviour toward Ms. Pryhara and her family, there had never been violence. Mr. Latyshko had made a threat to Ms. Pryhara’s son and not acted on it. Mr. Latyshko had been an incredibly difficult neighbour to them, but factoring in his past behaviour does not make it any more reasonable to believe that he was going to act on this threat.
117I do not accept Mr. Holder’s evidence that he did present a threat. I do not accept that Mr. Latyshko threatened to stab Mr. Holder. Rather, Mr. Holder began the physical engagement in circumstances where it was not reasonable to believe that force would be used against Ms. Pryhara.
118The Crown has disproven beyond a reasonable doubt that Mr. Holder reasonably believed that force was being used against him or another person.
S. 34(1)(b) – Did Mr. Holder strike, kick, grab and grapple with Mr. Latyshko to protect himself or Ms. Pryhara from the use or threat of force?
119The second element of self-defence is an assessment of the accused person’s motive for reacting to the catalyst. The motive must be to protect the accused or another person from the use or threat of force.
120A subjective analysis, outlined in Khill at para. 59, applies to this element:
The second element of self‑defence considers the accused’s personal purpose in committing the act that constitutes the offence. Section 34(1)(b) requires that the act be undertaken by the accused to defend or protect themselves or others from the use or threat of force. This is a subjective inquiry which goes to the root of self‑defence.
121I suspect that Mr. Holder’s motivation in attacking Mr. Latyshko was at least in part based on Mr. Latyshko using a derogatory slur toward Ms. Pryhara. However, Mr. Holder’s evidence on this point is sufficient to raise a reasonable doubt on this element. Whether it was reasonable for him to believe that there was a threat to Ms. Pryhara or not the Crown has not disproven that he acted in defence of her.
S. 34(1)(c) – was Mr. Holder's act reasonable in the circumstances?
122The final element of self-defence requires an assessment of whether Mr. Holder's response was reasonable in the circumstances.
123In considering this element, “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” (Khill at para. 65).
124In assessing the reasonableness of Mr. Holder's act, I have considered each of the applicable factors contained in s. 34(2).
(a) The nature of the force or threat
125In my view, the threat made by Mr. Latyshko was not meant to be taken seriously. It was just talk. Ms. Pryhara herself did not take it seriously; she kept walking away from him. There was no ability for Mr. Latyshko, who was metres away from her, to act with any speed on the words. And Mr. Holder could see that Ms. Pryhara was nowhere near Mr. Latyshko. The nature of the threat was remote.
(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
126I note that “…the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection:” R. v. Cunha, 2016 ONCA 491, at para. 7.
127Mr. Holder had many other options which did not require “subtle reflection.” There was no imminence. Mr. Holder acknowledged in testimony that he had been trained in de-escalation, but that he used none of that training on this day. He could have engaged Mr. Latyshko with words. He could have gone to Ms. Pryhara to offer a level of additional protection. Instead, he swung immediately at Mr. Latyshko.
(c) The person’s role in the incident
128The interpretation and breadth of the factor “the person’s role in the incident” was at the heart of the appeal in Khill. The majority adopted a broad interpretation of “role in the incident” and held at para. 84:
… 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.
129Accordingly, in assessing Mr. Holder's role in the incident, I must apply a broad perspective which includes the “reckless escalation of risk.”
130Mr. Holder’s actions here are the very definition of reckless escalation of risk. On his own evidence, which I do not accept, but which is instructive, he attacked Mr. Latyshko before having any belief that there was a weapon.
131Mr. Holder reacted with hotheadedness, attacked immediately, and continued that attack well after Mr. Latyshko had been completely subdued.
(d) Whether any party to the incident used or threatened to use a weapon
132I do not accept that Mr. Latyshko had a knife in his hand at any point or threatened to stab Mr. Holder.
(e) The size, age, gender and physical capabilities of the parties to the incident
133Mr. Holder was bigger than Mr. Latyshko. While constrained somewhat by a herniated disc and arthritis, he demonstrated his physical capabilities in completely overpowering Mr. Latyshko.
(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
and
(f.1) Any history of interaction or communication between the parties to the incident
134I have considered these two factors together as the evidence of them is intertwined. Mr. Latyshko had made a prior threat to Ms. Pryhara’s son, but there was no history of actual force. The threat to her son was not close in time to this event. The remainder of Mr. Latyshko’s behaviour made him a difficult neighbour, but does not amount to a prior threat. That he would regularly call Ms. Pryhara suka is offensive, but is again not a threat of force.
(g) The nature and proportionality of the person’s response to the use or threat of force
135In my view, Mr. Holder’s actions were entirely out of proportion to the minimal threat to Ms. Pryhara. Mr. Holder punched and struck Mr. Latyshko repeatedly and forcefully, even after he had him down to the ground. There were five to six initial strikes and approximately 10 further once he was on top of him. After that he pressed his thumb into Mr. Latyshko’s face and choked him with his arm. The amount and duration of the violence were excessive.
(h) Whether the act committed was in response to a use or threat of force that the person knew was lawful
136This factor is not applicable.
Overall Assessment of Reasonableness in the Circumstances
137As indicated, the third element of self-defence is an overall consideration of the reasonableness of Mr. Holder's act in the circumstances. As articulated in Khill, “the reasonableness inquiry under s. 34(1)(c) operates to ensure that the law of self-defence conforms to community norms of conduct,” (at para. 62). I have considered the applicable factors listed in s. 34(2) as well as the overarching reasonableness of Mr. Holder's actions and whether his acts conform to community norms.
138The majority in Khill held at para. 2:
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.
139In my view, it was not reasonable for Mr. Holder to respond to Mr. Latyshko’s remote threat to kill Ms. Pryhara with the forceful and dominant violence he used. The Crown has disproven beyond a reasonable doubt that Mr. Holder’s act was reasonable in the circumstances.
140I therefore find Mr. Holder guilty of assault causing bodily harm to Mr. Latyshko.
Released: January 27, 2026
Signed: Justice Robert Wright