Court Information

Ontario Court of Justice (East Region)

Her Majesty the Queen v. Ryan Parker

Before: Justice David M. Paciocco – Ottawa, ON

Counsel:

• Mr. Kevin Phillips for the Crown
• Mr. Richard Addelman for the Accused

Heard: March 27, 2013

Released: April 15, 2013

Reasons for Decision

Paciocco J.

Introduction and Charges

[1] Ryan Parker is charged with three offences alleged to have occurred on 16 January 2012. The charge that occupied most of the Crown's efforts is that Mr. Parker assaulted Jason Lanthier causing him bodily harm. It is conceded by Mr. Parker that he did cause Mr. Lanthier bodily harm by striking him. He did so in circumstances where consent is not in issue. Mr. Parker claims, however, that he assaulted Mr. Lanthier in self-defence and is therefore not culpable. If the defence of self-defence fails, Mr. Parker will therefore be convicted of assault causing bodily harm. If the defence of self-defence fails he will also be convicted of the third count being tried before me, of breaching probation by failing to keep the peace. If Mr. Parker's assault was culpable, his actions constitute a breach of the peace and hence violate the probation order that was in force against Mr. Parker on 16 January 2012. Mr. Parker was also charged before me with possession of marijuana contrary to the Controlled Drugs and Substances Act, but the Crown led no evidence to support this charge. The Crown agrees that an acquittal is required for this offence and I will do so when pronouncing my decision at the end of these reasons.

The Self-Defence Defence: Which Version of the Law Applies?

[2] This case was tried on 27 March 2013. The accused invokes the defence of self-defence found in subsection 34(1) of the Criminal Code of Canada, which was in effect on 16 January 2012, the time of the alleged offence. That provision was the correct statutory defence to select from those in force at the time, since Mr. Parker did not provoke the assault he says he defended against and it is evident Mr. Parker did not intent to kill or cause grievous bodily harm to Mr. Lanthier. [1] Subsection 34(2) was repealed, however, on 4 March 2013 when the Citizen's Arrest and Self-Defence Act, Bill C-26, came into force. This statute replaced the various self-defence provisions then in the Criminal Code of Canada with a single, comprehensive self-defence rule enacted as a new section 34 of the Criminal Code of Canada. Even though the objective of these amendments was to simplify the law, there is a realistic possibility that in particular cases the new section 34 defence can produce different results than the now-repealed provisions. Some of the things that were firm preconditions in some self-defence situations are now simply factors to be considered in arriving at a more generic assessment of reasonableness, including proportionality and provocation. Other factors not featured in some self-defence claims are now factors requiring consideration in assessing reasonableness. What defence, then, should be applied, the old or the new?

[3] It is clear that even though the provision relied upon by Mr. Parker is no longer the law it is available to Mr. Parker. Even leaving aside the fact that abolishing a defence retroactively would violate Rule of Law principles protected by section 7 of the Charter, it is a clear principle of law that new legislation that affects the existence or content of a defence is subject to the presumption against retrospective application: R. v. Dineley 2012 SCC 58. There being no indication, clear or otherwise, that Parliament intended retroactive abolition of the previous law of self-defence, I will consider whether subsection 34(1), in force prior to 4 March 2013, provides a defence to Mr. Parker.

[4] A more controversial question is whether I should consider current section 34, as well. Even though it was not raised by Mr. Parker, if the current version of the defence is available to him, I am obliged to consider that defence if it has an "air of reality." In R. v. Evans [2013] B.C.J. No. 500 (B.C.S.C.) it was held that the new self-defence provisions do not apply to events occurring prior to 4 March 2013. Evans relied upon the presumption against retroactivity to arrive at this point. Citing R. v. Dineley the Evans Court noted that substantive changes to the law do not apply retroactively absent a clear indication from Parliament to the contrary. Since the new section 34 has effected a substantive change to the content of the defence and there is no clear indication Parliament intended it to apply retroactively, the defence found in the section applies only to events occurring after its passage.

[5] With respect, I have reservations about this outcome. Parliament has declared, through the passage of section 34, what level of force contemporary Canadian society now considers justifiable. A justification, such as self-defence, "challenges the wrongfulness of an action which technically constitutes a crime" and exists because "the concept of punishment often seems incompatible with the social approval bestowed on the doer": R. v. Perka, [1984] 2 S.C.R. 232. There is, in my view, no public interest in convicting someone of an act that is considered and declared by Parliament by the time of trial to have social approval and not to be wrong, even if that declaration occurred after the event in question. It is important to remember that the principles against retroactivity that have long applied in criminal cases are related to the Rule of Law. They were intended to protect individuals from abusive state powers. These principles have been embraced, according to Bentham, "in the true spirit of liberty." Jeremy Bentham, 1 Works 326 (Bowring ed. 1843) cited in Jerome Hall, General Principles of Criminal Law (2d ed), (Indianapolis: The Bobbs-Merrill Company Inc., 1960). Since defences are used in criminal cases to prevent deprivations of liberty, the foundational rationale for non-retroactivity is in my view undermined when it comes to new defences. To put things more simply, it would defeat the objectives of the presumption against retroactivity to apply it to new defences in criminal cases and it would result in actions, considered justifiable and legal at the time of trial, to be condemned and punished by conviction. The Charter, of course, is silent on this issue, but it does provide in section 11(i) that accused persons receive the benefit of subsequently enacted, more generous sentencing regimes. Although this provision does not address changes in defences, the values it reflects are indistinguishable from the principle I am describing; accused persons should receive the benefit of the law in place at the time of their alleged offence, as well as the benefit of new substantive provisions in effect at the time of their trials that protect their liberty interests. In my view, there is no realistic basis for presuming in such cases that Parliament must have intended to apply those rules only in the future. Instead, Parliament can and should be taken to intend that when a new defence is created, accused persons yet to be tried for previous alleged offences should have access to that defence where it operates more generously for them than the prior law. For this reason I will consider both defences in this case, now repealed subsection 34(2) and the current defence of self-defence now found in section 34.

The Evidence

[6] The facts of this case are bizarre and disturbing. On 16 January 2012, when the assault occurred, Mr. Lanthier and Mr. Parker were friends or "buddies," as Mr. Lanthier puts it. They had known each other through a mutual circle of friends for 10 years, and had been seeing each other regularly as friends in the month before the incident. In the days before the confrontation they socialized together several times, either sharing drinks or playing pool. On the day of the alleged offence, Mr. Lanthier invited Mr. Parker to share a bottle of vodka Mr. Lanthier had won at a raffle. The two went to play pool at "Dooley's" in the early evening hours, with the vodka in tow. They returned to the car periodically and shared shots from the bottle. Mr. Lanthier managed to become quite intoxicated. Mr. Parker also imbibed but was less affected.

[7] Sometime later the two ended up at the "Clock Tower Pub" along with Ms. Crystal Bastien, Mr. Parker's then girlfriend. Mr. Lanthier and Ms. Bastien gave modestly different accounts of the events leading up to the assault but those differences are immaterial. What matters is that both agree that Mr. Lanthier was inebriated, that Mr. Parker was also affected by alcohol but to a lesser extent, and that everyone was having a good time when they arrived together at 123 Augusta St., the apartment building where Ms. Bastien lived.

Video Evidence

[8] The Crown's assault case is based primarily on surveillance videos captured in the lobby of 123 Augusta St., where the confrontation occurred as the parties were entering. Although none of the videos capture the entire incident, they are of sufficient quality to provide an accurate depiction of the movements they do capture. The videos constitute original evidence: R. v. Nikolovski, [1996] 3 S.C.R. 1197. The video evidence, shown from three separate angles, depicts the following:

[9] Mr. Parker and Ms. Bastien can be seen from all three angles entering the lobby alone, prior to Mr. Lanthier. They are face to face, close together, even touching. Mr. Parker is walking forward, smiling and speaking to Ms. Bastien who is walking backwards. It is evident that Mr. Parker is in a good mood. The two are moving slowly towards the inside glass doors that separate the outer lobby from the hallway containing the elevator to Ms. Bastien's apartment. Before they get to the inside glass doors, only seconds after they entered, Mr. Lanthier can be seen entering the lobby. He walks swiftly towards Mr. Parker and leans forward as he moves across the lobby. Suddenly, and without apparent warning, Mr. Lanthier reaches down and wraps his arms around Mr. Parker's shins, from behind. He then picks up Mr. Parker hurling him forward onto the hard tile floor of the lobby. Mr. Parker braces himself with his arm as he crumples to the floor before Mr. Lanthier lets go of Mr. Parker's legs. This tackle manoeuvre begins at 12:04:42. As Mr. Parker falls to the floor, Mr. Lanthier begins to climb onto the back of Mr. Parker's legs, but he is on top only momentarily. As soon as Mr. Lanthier begins to climb onto Mr. Parker's back, Mr. Lanthier is immediately flipped over, obviously by Mr. Parker. By 12:04:48 Mr. Parker is clearly on top and the assault that Mr. Parker is being prosecuted for commences.

[10] The complete bodies of the two men are obscured in each of the videos from that point forward. The first video angle played in Court, entitled "August Lobby 2," shows the mailbox area on the right side of the lobby as seen from the outside door. While they are on the ground, this video angle catches only the bottom half or so of the two men. It nonetheless shows Mr. Parker, easily identifiable by the distinct running shoes he was wearing, immediately gaining the top position. From the time he is over Mr. Lanthier, Mr. Parker's legs flail violently. Mr. Parker's legs keep flailing until he is observed getting up at 12:05:24, some 36 seconds after he gained the top position. For the first half of that period, Mr. Lanthier's feet move modestly. For the last 18 seconds that Mr. Parker is on top, Mr. Lanthier's feet seem inert and relaxed. The only apparent movement in Mr. Lanthier's legs during this period is when his two legs move in unison to his left. When Mr. Parker gets up, Mr. Lanthier is left lying totally still.

[11] The second video angle shown in Court entitled "Augusta Lobby 1," shows Mr. Parker's right arm coming into periodic view as the two men are on the ground. It is obvious that he is repeatedly punching down towards Mr. Lanthier's head area as he is over him. This video angle also reveals that at 12:05:06 Mr. Parker moves from being directly parallel to Mr. Lanthier – head to head and feet to feet - to a position where his legs are off to Mr. Lanthier's left side. He is still over Mr. Lanthier but Mr. Parker is now bracing himself on his hip on the floor. Mr. Parker remains in this general posture until he gets up more than 15 seconds later. Finally, this video shows Mr. Parker stride off after rising, but not before pausing to punch forcibly the mailbox wall next to where Mr. Lanthier is still lying. His demeanour appears angry. He walks out of camera range.

[12] The third video angle entitled "August Lobby 3," was not shown in its entirety in Court. Only the portion depicting the active conflict was played. This video is shot from inside the elevator area, looking through the glass wall and doors into the outer lobby area where the conflict occurred. This is the video that provides a clear view of Mr. Lanthier vaulting an unsuspecting Mr. Parker into the air and it discloses the forceful and violent landing of Mr. Parker. It also shows Mr. Lanthier beginning to climb on top of a prostrate Mr. Parker. It shows the immediate flip, at 12:04:48, in which Mr. Parker ends up on top. Mr. Lanthier is not easily visible after that. Nor are the heads of the two men.

[13] This video angle shows Ms. Bastien turning from the two men in the first few seconds after the take-down. She can be seen hovering over the men for a short time and then turning and moving through the glass doors towards the inside of the building. By 12:05:03 she has returned, stands over the two men, and leans down. Initially she bends over to the left side. It cannot be seen clearly what she is grabbing at but she appears to be interceding. She steps back. She then moves over the men again, this time clearly grabbing Mr. Parker's right arm. She struggles with him. While she is grabbing at his right arm, Mr. Parker is cocking it and throws at least three strong punches in the direction of Mr. Lanthier's head. Ms. Bastien manages to loop her arm under Mr. Parker's and pulls up. He rises and as she steps back Mr. Parker gets up and turns to walk away.

[14] For more than 20 minutes after the confrontation depicted in the videos, Ms. Bastien can be seen pacing and hovering near Mr. Lanthier. This begins immediately after Mr. Parker walked out of view. In her testimony, Ms. Bastien said that initially Mr. Lanthier's eyes were open but he was not responsive to her. She has a cellphone to her ear and walks towards the outside entrance and back again. Her evidence is that she was calling Mr. Parker, who had walked out the front door after he punched the mailbox. Ms. Bastien said she could not recall whether she reached him. After a few minutes she can be seen by a security camera going over to Mr. Lanthier and trying to pull him up. Up until that point there is no movement in Mr. Lanthier's feet. Ms. Bastien testified that she tried to get Mr. Lanthier's head against the wall after concluding from sounds he was making that he was going to throw up. She did not want him to choke. Mr. Lanthier's body ended up with his head against the wall, with his legs still in the area where the confrontation had occurred. Those legs remain largely motionless. Ms. Bastien disappears from the scene and is observed a short-time later returning with a cloth object which she places near his head. She testified the object was a towel she had retrieved after observing Mr. Lanthier vomit all over himself as she was trying to get him up. A few minutes later Mr. Parker returns. He does not go over to Mr. Lanthier, but paces around as Mr. Lanthier continues to lay still. Ms. Bastien testified that Mr. Parker made no attempt to say anything to Mr. Lanthier. Shortly after arriving, Mr. Parker goes inside the glass doors, entering the building. He is out of the picture for some time before coming back without his coat. He and Ms. Bastien come into view periodically and he remains in the front lobby pacing as the police arrive. Mr. Lanthier is still motionless. It is not disputed that he was ultimately transported to the hospital by paramedics.

Witness Testimony

[15] In addition to the video, the Crown offered not only the testimony of Ms. Bastien, some of which I have referred to, but also testimony from Mr. Lanthier. I will begin by evaluating Mr. Lanthier's evidence.

Mr. Lanthier's Evidence

[16] Unfortunately Mr. Lanthier could offer little of utility, in spite of what I find to be his best efforts to do so. He testified that he suffers memory loss related to the event and I believe him. He says this is a result of the injuries he sustained, which is highly probable. Mr. Addelman, for Mr. Parker, suggests that the memory problems were caused by the alcohol Mr. Lanthier consumed. That may have contributed. In the end it does not matter what caused his memory loss. What is important is that Mr. Lanthier was unable to offer valuable direct evidence about the actual confrontation. He said that the last things he remembers are arriving at the building after travelling in Mr. Parker's car, entering the lobby with Mr. Parker and Ms. Bastien, and laughing while standing at the elevators. In fact, he is wrong on all counts. Circumstances cause me to conclude that the party arrived by cab as Ms. Bastien testified; Mr. Parker and Ms. Bastien clearly entered the lobby before him; and Mr. Lanthier never got to the elevators inside the glass doors. He was injured in the lobby entrance. Even on matters Mr. Lanthier believes he remembers from the hours immediately surrounding the confrontation, his memory is demonstrably deficient.

[17] Mr. Lanthier testified that the next thing he remembers is the paramedics coming, although he said he does not have clear memories until he was released from the hospital eight hours later. Even his estimate as to when his memory cleared is wrong. It is not contested between the parties that Mr. Lanthier gave a police statement at the police station after his release from the hospital. Yet despite his current belief that his memory was fine when he left the hospital, Mr. Lanthier testified that he could not remember giving this statement. Moreover, it is evident from the interview that Mr. Lanthier was not clear-headed at the time he met with the police. He exhibited confusion before me over some of the answers he had provided to the police, on matters he would have no reason to mislead about, such as how long he had known Mr. Parker before the confrontation.

[18] The only thing of value Mr. Lanthier could offer was confirmation of his injuries, which he did with the aid of photographic evidence. Those photographs show that Mr. Lanthier suffered multiple traumatic injuries to his face and the side of his head as a result of the confrontation. Both eyes were blackened. The right side of this face was visibly swollen. His left bottom lip was cleaved through and stitched inside and out. He also had visible bruising above his right ear under his hair. This evidence, coupled with the video, show that he was subject to numerous direct blows to the head by Mr. Parker.

Ms. Bastien's Evidence

[19] The only eyewitness to the events capable of offering useful information who testified was therefore Ms. Bastien. Ms. Bastien, who had access to the video evidence while testifying, offered evidence on a number of points.

[20] First, she confirmed that no anger or conflict occurred prior to the altercation. Everyone was having a good time. I accept her evidence on this as it is in keeping with the apparent mood between her and Mr. Parker as they entered the lobby, and from the smile on Mr. Parker's face. Mr. Parker is not someone who had been in a recent conflict before the physical confrontation inside the lobby.

[21] Second, Ms. Bastien testified that when she initially observed Mr. Lanthier's attack and the ensuing wrestling, she concluded the men were just playing. I accept that this assessment was honestly held by her. It is a rational assumption to have made at the time given there was no apparent hostility between the men before the confrontation occurred and she saw the take-down. While it was shockingly dangerous, it was a wrestling manoeuvre. Mr. Lanthier did not charge Mr. Parker. He walked swiftly up to him and lifted him. He does not strike Mr. Parker when he is down. He clambers onto Mr. Parker's legs. He does not drive himself forward. Mr. Lanthier lifts his torso up as he is on Mr. Parker's legs. The event could reasonably appear to be drunken, dangerous rough-housing, not an attack. In the end, though, Ms. Bastien's opinion about Mr. Lanthier's intention is unimportant. What matters is how Mr. Parker or someone sharing Mr. Parker's vantage point would reasonably view things.

[22] Ms. Bastien offered testimony on other matters. She testified that after the take-down the two men were punching and kicking and kneeing each other. She also testified that when she came back after initially going through the inside glass doors, she tried to break the two men up as they were both going at it at the time. She denied her efforts were focused on Mr. Parker. She offered confirmation from the video when she first leaned over the men, saying her hand was "lower than Ryan [Parker]." When asked when she observed Mr. Lanthier stop moving she said when Ryan got off of him.

[23] In light of the video evidence, even with its limits, I cannot accept Ms. Bastien's evidence on these matters. The scene they show is not reconcilable with the one she describes. She either does not remember matters accurately, or she has been selective in her evidence.

[24] First, I reject her testimony that the two men were engaged in a fight while she was over them, trying to break them up. It is clear from the video evidence that Mr. Lanthier stopped moving at least 18 seconds before Mr. Parker ceased his attack. He was incapable of returning force. His legs are still, his feet relaxed. On the one occasion his feet move to his left, the nature of the movement is consistent with the legs being dragged in that direction by Mr. Parker's movement. I am convinced that is what occurred given how dead those legs were before and after. Even if Mr. Lanthier made that movement himself, it is simply not consistent with the legs of a person who was "going at it" at the time, to use Ms. Bastien's expression.

[25] I am also certain that at no point, even during the first 18 seconds when there is modest movement in Mr. Lanthier's legs, that he was engaged in the kind of fighting Ms. Bastien described. It can be said with certainty from the videos that there is none of the kicking or kneeing on Mr. Lanthier's part that Ms. Bastien described. His legs are visible the whole time in more than one angle and show no such movements. Although Mr. Lanthier's arms cannot be seen in the video, his lack of body movement is also inconsistent with him punching Mr. Parker. Mr. Lanthier was on his back at the time, with no leverage. Common sense alone suggests that one would expect more movement on his part if he was throwing anything more than modest or tokenistic punches. The two of them were not engaged in the fight Ms. Bastien described.

[26] Her description of the fight does do harm to Ms. Bastien's credibility. I was concerned by the way she described the punches thrown by Mr. Lanthier. When she first described the blows, her evidence described the two men punching each other's stomachs and faces but then she said that since Mr. Lanthier is shorter, he was punching into Mr. Parker's stomach. Mr. Lanthier would have had a difficult time doing that. During the period before Mr. Lanthier's feet go limp and his legs stop meaningful movement, the video evidence discloses that Mr. Parker is on top of Mr. Lanthier with both of his legs in the air. It is obvious that he was resting his torso on Mr. Lanthier, making stomach punches most unlikely at the only point where Mr. Lanthier would have been physically capable of punching.

[27] I also reject Ms. Bastien's description of her efforts to break up a fight between two men. When she sought to confirm her testimony that she was trying to stop two men from fighting each other she described how her hand is lower than Mr. Parker. The suggestion is clearly that she was reaching down to where Mr. Lanthier was. Nothing in the video confirms that and my impression is otherwise. What can clearly be seen, however, is that as the violence is ending, she is unsuccessfully attempting to grab Mr. Parker's right arm as he repeatedly punches at Mr. Lanthier's head area. Her focus is him and him alone while he flails away violently. Ms. Bastien made no mention of this when describing her efforts to break up the fight she described. She either misremembers things, or she tried to create an inaccurate impression about what happened.

[28] I need not decide whether Ms. Bastien was honestly mistaken on these points, or whether she framed her evidence in an effort to give support to Mr. Parker's self-defence claims. I am inclined, however, to the latter view. Not only does her problematic narration of events lean in that direction notwithstanding her evidence that at first she thought the men were play-fighting, I was troubled by her initial attempt to deny having spoken to Mr. Parker during a Court break, even though she had spoken to Mr. Parker for some time. Ultimately, I need not decide whether Ms. Bastien was being dishonest or honestly unreliable. It is enough to conclude that her evidence about the actual conflict is unhelpful. In rejecting her evidence I have cautioned myself not to draw any adverse inferences against Mr. Parker because of the manner in which she testified or because of the exchange that occurred between them during the Court recess. I have no reason to believe he did anything nefarious or inappropriate relative to her evidence, either before Court or when they were speaking together.

Legal Analysis: Self-Defence

The Burden of Proof

[29] In these circumstances, can the defence of self-defence grounded in subsection 34(2) in force at the time of these events, or as framed under current section 34, succeed? There is no legal burden on Mr. Parker to prove self-defence under either provision. Since self-defence has an obvious air of reality in this case, the onus is on the Crown to disprove self-defence. This can be done by demonstrating beyond a reasonable doubt, on the evidence, that one or more of the requirements for each of the two versions of the defence have not been satisfied. I will begin with the law in force at the time of the incident, subsection 34(1).

Subsection 34(1) of the Criminal Code

[30] Subsection 34(1) provides:

34(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to defend himself.

[31] A common description of the elements of subsection 34(1) is that it has four elements; 1) an unlawful assault, 2) the assault was not provoked, 3) lack of intent to kill or cause grievous bodily harm, and 4) the force used be no more than is necessary for self-defence: See R. v. Kong 2005 ABCA 255, 2005 A.J. No. 981 at para. 178 per Wittman J.A. (dissenting) reversed 2006 SCC 40, [2006] S.C.J. No. 40, where the Court adopted Justice Witmann's dissent.

[32] There is agreement between the parties before me that the first three of these four requirements is met in Mr. Parker's case. Regardless of whether he was rough-housing or attacking Mr. Parker, Mr. Lanthier unlawfully assaulted Mr. Parker by taking him down without Mr. Parker's consent in circumstances that bear no legal justification. The assault was unprovoked and, as indicated, the evidence does not support the conclusion that Mr. Parker intended to kill or cause grievous bodily harm to Mr. Lanthier. Only the fourth requirement is in issue.

The Necessity Requirement

[33] With respect to requirement 4, that the force used must "be necessary to enable [the accused person] to defend themselves," I share the view of R. v. Ioannone 2002 BCPC 330, [2002] B.C.J. No. 1979 (B.C. Prov. Ct.) that:

"Force which is no more than necessary has two elements. First, the harm sought to be prevented by force used in self-defence cannot be prevented by less violent means. Second, the injury caused by or which might reasonably be anticipated from the force is not disproportionate to the injury it is intended to prevent."

Both components are inherent in the concept of necessary force.

[34] In evaluating these necessity components the law of self-defence as it existed prior to 4 March 2013 required "subjective/objective" evaluations to be undertaken with respect to the force used: See R. v. Cinous dealing with this issue in the context of subsection 34(2). In the context of subsection 34(1) this means that the accused must subjectively believe that force is necessary and not disproportionate, and it must be objectively reasonable for a person in the position the accused was in to believe these things: R. v. Baxter (1975), 33 C.R.N.S. 22 at 38-39 (Ont.C.A.) per Martin J.A., R. v. Cadwallader, [1966] 1 C.C.C. 380 at 387-388.

[35] It is clear from subsection 34(2) that if the accused uses force for a purpose other than repelling force, there can be no defence. After all, what subsection 34(2) justifies is "repelling force by force." As stated in the charge of the trial judge, quoted with approval by the Ontario Court of Appeal in R. v. Flood, [2005] O.J. No. 3418 at para. 32 (Ont.C.A.), namely, "you can't use self-defence as a cloak or means to injure someone." Similarly, if someone acts in anger to retaliate, rather than to defend themselves, there can be no defence. This condition of the defence is ordinarily subsumed within the subjective component of the necessity requirement; if someone is using force to retaliate or as a tactical excuse to injure, it cannot be said that they subjectively believe that force is necessary in self-defence. In my view, this purpose requirement is central enough that it should be made overt in the analysis, and not left to implication as part of the necessity component.

[36] In this case Mr. Parker offered no direct evidence of his subjective beliefs as he chose not to testify. I draw no adverse inferences from that decision, but am left to infer what his subjective state of mind was relating from the objective circumstances in the case. I have only circumstantial evidence to work with in determining whether he believed self-defence was necessary such that it was his purpose, and whether he believed the force he used was necessary to achieve that self-defence.

[37] It is important in making the necessity and proportionality requirements to appreciate that judges are not to examine whether the consequences caused by self-defence are proportional to the risk. In other words, it would be an error to convict Mr. Parker because the injuries he caused to Mr. Lanthier exceeded the risk he faced. The question is whether the degree of force he used could reasonably have been perceived by him to be necessary to achieve self-defence: R. v. Kong S.C.C., affirming the decision of Wittman J.A. in the Alberta Court of Appeal.

[38] Finally, the law is clear that accused persons are not expected to "weigh to a nicety" the exact measure of force needed to achieve self-defence: R. v. Antley, [1964] 2 C.C.C. 142 at 147 (Ont.C.A.). Individuals caught up in circumstances of self-defence are in the throes of frightening events in which their own well-being may be imperilled. They do not have the benefit of the removed, clinical evaluation that a judge can conjure after-the-fact in a courtroom and should not be held to it.

Application to the Facts

[39] In this case, notwithstanding these admonitions, I am convinced beyond a reasonable doubt that the Crown has disproved that the assault on Mr. Lanthier meets the necessary force requirements of subsection 34(1). The degree and nature of the force he used was neither necessary nor proportionate. In coming to this decision I bear in mind the nature of the assault Mr. Parker endured. I recognize that he was vaulted into the air, unexpectedly. He was flirting with Ms. Bastien at the time and was unprepared for the violent takedown that occurred. I also bear in mind that in the split-second it took to upend him, and while Mr. Lanthier was climbing onto his legs, it would be unfair to expect Mr. Parker to reason that since Mr. Lanthier had no apparent reason to endanger him, he must be engaged in drunken rough-housing and could simply be told to stop. It was not unreasonable for Mr. Parker to conclude that he was being attacked, if that is what he was in fact thinking. It was therefore reasonable for him to conclude that he was entitled to use force to remove the threat. It was not, however, reasonable for him to use the kind of force he employed. I have considered that Mr. Lanthier is a husky large man, a clear physical match for Mr. Parker, but Mr. Lanthier was drunk, and Mr. Parker knew he was drunk. Mr. Parker easily assumed control over Mr. Lanthier as soon as the confrontation began. He did so by climbing on top of him immediately after hitting the ground. He rolled Mr. Lanthier over almost effortlessly, significantly diminishing the threat of a continued assault. I accept notwithstanding that it may have been reasonable for Mr. Parker to begin striking Mr. Lanthier with his fist to the head to ensure that he had the upper-hand required to protect himself from further violence from Mr. Lanthier. Yet Mr. Parker went far beyond what could reasonably have been required to achieve this. While Mr. Lanthier may have struggled back while pinned down in the early throes of the confrontation it is evident from the video evidence that his efforts were ineffective, even tokenistic, from the outset. What ultimately removes this case entirely from compliance with the necessity prerequisite is what occurred once Mr. Lanthier ceased responding entirely. Mr. Parker continued to punch him savagely. Even in the kind of emotional state of self-preservation Mr. Parker may have been in, I have no doubt that a reasonable person would have realized that Mr. Lanthier was incapable of returning force long before Mr. Parker quit hitting him. Mr. Lanthier was lying limp, not for a few seconds but for 18 seconds. Long before the assault ended, Mr. Parker had no reason to believe he was in danger of further assaultive behaviour, certainly not to the point where it might be necessary to continue to beat an unresponsive, motionless adversary. I am convinced beyond a reasonable doubt that no reasonable person in Mr. Parker's position would have concluded that it was necessary in self-defence to keep hitting a semi-conscious man.

[40] Nor did Mr. Parker believe that the force he was exerting throughout was necessary for self-defence. I am convinced beyond a reasonable doubt that he was aware that Mr. Lanthier was incapacitated long before the assault ended. Mr. Parker moved off of Mr. Lanthier onto the side of the man and was up and over him with a clear view of Mr. Lanthier. He would have felt no resistance. Yet he continued the assault long after. Even when Ms. Bastien tried to restrain Mr. Parker, a clear signal that he should stop, he kept attacking. Subjectively Mr. Parker did not believe the force he used was necessary.

[41] Indeed, I am satisfied beyond a reasonable doubt that by the end, he was acting out of anger, not out of self-defence. This is evident not only from the nature of the assault he engaged in. It is also evident from Mr. Parker's actions in shaking Ms. Bastien off so he could continue the attack on Mr. Lanthier, and in his act of punching the mailbox before he stomped out of view. Mr. Parker was a furious young man, overwrought with Mr. Lanthier for tripping him as he did. I am convinced that Mr. Parker continued his attack on Mr. Lanthier long after it was needed in order to punish Mr. Lanthier for his actions. I appreciate that it may be hard for the law to expect those who have been attacked to maintain a rational reaction to the assault on them, but the law privileges reasonable self-preservation, not an emotional loss of control. Mr. Parker reacted with an emotional loss of control and went much farther than necessary. This case is not about niceties. It is about excessive force. In the end, the force he used was not for the purpose of self-defence. He is not entitled to self-defence under subsection 34(1).

Current Section 34 of the Criminal Code

[42] The new law is no kinder to Mr. Parker. Section 34 of the current law of self-defence imposes two relevant inquiries that invite the same analysis just employed. Subsection 34(1)(b) requires expressly that the act of accused persons be "for the purpose of defending themselves." As indicated, Mr. Parker did not employ the force used in the later stages of his attack for the purpose of defending himself. He used it to punish Mr. Lanthier, disentitling himself to the defence.

[43] Subsection 34(1)(c) of the current law also requires that the act be "reasonable." A trial judge is required to consider all of the circumstances in making that assessment, including the 9 factors listed in subsection 34(2). I have examined them all. The most relevant factors from that list include nature of the force being defended against; the physical size and capabilities of the parties; the nature, duration and history of the relationship between the parties prior to the incident; and the proportionality between the force and the response. I am satisfied beyond a reasonable doubt that given the nature of the force used by Mr. Lanthier in the context it was employed, the force used by Mr. Parker was unnecessary, disproportionate and unreasonable.

Decision

[44] I am therefore finding Mr. Parker guilty under Count 1 of assault causing bodily harm to Jason Lanthier on 16 January 2012, contrary to section 267(b) of the Criminal Code of Canada. Mr. Parker is not guilty under Count 2 of the offence of possession of marijuana under the Controlled Drugs and Substances Act. Mr. Parker is guilty of, without reasonable excuse, breaching the probation order issued in the Ontario Court of Justice on 20 January 2012 by failing to keep the peace and be of good behaviour, contrary to subsection 733.1 of the Criminal Code of Canada.

Released: April 15, 2013

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The Honourable Justice David M. Paciocco

Footnote

[1] The definition of grievous bodily harm accepted in R. v. Paice 2005 SCC 22, [2005] S.C.J. No. 21 at paras. 36-41 would have required Mr. Parker to intend significant hurt or injury to Mr. Lanthier that would interfere with Mr. Lanthier's wellbeing in a very serious or very severe way.