Court Information
Ontario Court of Justice
Date: October 11, 2019
Court File No.: Hamilton 18-11469
Parties
Between:
Her Majesty the Queen
— And —
Michael Breau
Before the Court
Justice: J.P.P. Fiorucci
Heard: July 23rd and 25th, 2019
Reasons for Judgment Released: October 11th, 2019
Counsel
For the Crown: A. Burns
For the Defendant: J. Stephenson
Introduction
[1] On July 11th, 2018, Mr. Michael Breau was driving an SUV. He made a left turn at an intersection. Witnesses testified that Mr. Breau's vehicle came very close to hitting Mr. Robinson, a pedestrian who was crossing at this intersection. Mr. Robinson kicked the vehicle. Mr. Breau claims that Mr. Robinson also spat at his vehicle.
[2] Mr. Breau parked his vehicle, got out, and pursued Mr. Robinson, who had continued walking down the street. The two men, who did not know each other before that day, engaged in a verbal exchange of unpleasantries. It is not in dispute that Mr. Breau ultimately punched and pushed Mr. Robinson.
[3] Mr. Breau was charged with Assault Causing Bodily Harm to Mr. Robinson. The Crown alleges that Mr. Breau assaulted Mr. Robinson as retaliation for the kick to his vehicle and because he was angry.
[4] Mr. Breau entered a not guilty plea to the charge and submits that his use of force against Mr. Robinson is excused by the self-defence provisions of section 34(1) of the Criminal Code. Mr. Breau claims that Mr. Robinson made a verbal threat to him while reaching into his pocket, which made Mr. Breau believe that Mr. Robinson had a knife and would stab him. In the alternative, if I find that Mr. Breau committed an unlawful assault, the Defence submits that Mr. Robinson's injuries do not, in law, rise to the level of "bodily harm" as defined in section 2 of the Criminal Code.
Analysis
The Legal Principles
[5] Mr. Breau assaulted Mr. Robinson. The issue is whether he did so in self-defence. Section 34 of the Criminal Code sets out the constituent elements of self-defence:
- (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.
[6] In R. v. Bengy, the Ontario Court of Appeal stated that self-defence can be simplified into three basic requirements, applicable to all cases:
(i) Reasonable belief (34(1)(a)): the accused must reasonably believe that force or that a threat of force is being used against him or someone else;
(ii) Defensive purpose (34(1)(b)): the subjective purpose for responding to the threat must be to protect oneself or others; and
(iii) Reasonable response (34(1)(c)): the act committed must be objectively reasonable in the circumstances.
[7] Mr. Breau is presumed innocent and that presumption can only be displaced if his guilt is established beyond a reasonable doubt by the Crown. I must instruct myself in accordance with the criminal standard of proof set out by the Supreme Court of Canada in R. v. Lifchus. A reasonable doubt must be based on reason and common sense. It is logically derived from the evidence or absence of evidence. It is not sufficient to believe that the accused is probably guilty or likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so because such a standard of proof is impossibly high.
[8] In this case, the onus is on the Crown to establish beyond a reasonable doubt that the accused did not act in self-defence. If the Crown proves beyond a reasonable doubt that any one of the three elements in section 34(1) of the Criminal Code is absent, the defence of self-defence fails.
[9] Mr. Breau testified that he acted in self-defence to a threat of force from Mr. Robinson. In R. v. Reid, the Ontario Court of Appeal dealt with the issue of how to frame instructions to a jury on the principles enunciated in R. v. W.(D.) when the primary defence is self-defence. Moldaver J.A. suggested that a jury should be instructed along the following lines with respect to the first two principles in W.(D.):
If you accept the accused's evidence and on the basis of it, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty.
Even if you do not accept the accused's evidence, if, after considering it alone or in conjunction with the other evidence, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty.
[10] With respect to the first two principles in W.(D.), I have instructed myself in accordance with the framework set out by Moldaver J.A. in Reid. With respect to the third principle in W.(D.), even if I am not left in a reasonable doubt by the accused's evidence, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused. The burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt.
[11] I can accept all, some or none of a witness's evidence. A criminal trial is not a "credibility contest". The overriding consideration is whether the evidence as a whole leaves the trier of fact in a state of reasonable doubt about the guilt of the accused. The evidence favourable to the accused must be assessed and considered with the conflicting evidence offered by the Crown as a whole, not in isolation.
Has the Crown Established Beyond a Reasonable Doubt That Mr. Breau Did Not Act in Self-Defence?
[12] I have assessed and considered Mr. Breau's evidence with the conflicting evidence offered by the Crown as a whole. I do not accept Mr. Breau's evidence that he was acting in self-defence, nor does his evidence, in conjunction with the other evidence, leave me in a state of reasonable doubt that he was acting in lawful self-defence. I find that the Crown has established beyond a reasonable doubt that Mr. Breau did not act in self-defence.
[13] Mr. Breau's testimony was implausible and externally inconsistent with the testimony of the other witnesses in many respects. This has led me to reject his claim that he was acting in self-defence.
[14] Mr. Breau testified that when he made his left turn at the intersection, he stopped at the walkway because people were walking through. According to Mr. Breau, he stopped his vehicle to let Mr. Robinson and the other pedestrians go by, so he could not understand what would cause Mr. Robinson to kick his vehicle. Mr. Breau's evidence in this regard was wholly inconsistent with the evidence of Mr. Robinson, Mr. John Huynh, Ms. Natasha Claremont, and Mr. Nick Skuse, each of whom testified that the SUV came very close to Mr. Robinson when Mr. Breau made the left turn.
[15] Mr. Skuse testified that the SUV was making a left "and really got very, very close to hitting the pedestrians". He went on to say that "the pedestrians had to stop, or else they probably would have walked into the side of the vehicle". The evidence of Mr. Skuse and the other witnesses in this regard is plausible and explains Mr. Robinson's actions in kicking the vehicle. It provides an explanation for the confrontation that followed between Mr. Breau and Mr. Robinson. Mr. Breau's claim that his driving conduct was proper is completely at odds with the evidence of the other witnesses and is implausible. It is an example of Mr. Breau not giving his evidence in a balanced way.
[16] Mr. Breau claimed that, in addition to kicking his vehicle, Mr. Robinson also spat at the vehicle. According to Mr. Breau, he felt a spray of spit. I reject Mr. Breau's evidence on this point. I accept Mr. Robinson's evidence that he did not spit at Mr. Breau's vehicle. Mr. Robinson's evidence is consistent with the testimony of the independent witnesses, Mr. Skuse, Mr. Huynh, and Ms. Claremont. Each testified that they witnessed the SUV come close to Mr. Robinson and that Mr. Robinson kicked the vehicle. None of these witnesses saw Mr. Robinson spit at the vehicle. This is another external inconsistency which affects the credibility of Mr. Breau's evidence and contributes to my rejection of his testimony that he later acted in self-defence.
[17] Mr. Breau's evidence regarding the reason he pursued Mr. Robinson is also implausible. Mr. Breau testified as follows:
…I caught up with him and then went, "hey, buddy what's your name? You kicked my wife's car. I want to know what your name is". And so, he looked back and he didn't say anything, and I go, "can I have your name, I want to know your name in case there's damage to my car, you kicked my car and you spit, what-what are you doing?"
[18] Mr. Breau's testimony suggests that he cordially asked Mr. Robinson to identify himself so that he could have him pay for any damages to the SUV. He stated that he did so because he knew his wife would ask who had kicked her vehicle. According to the other witnesses, the tone of the conversation between Mr. Breau and Mr. Robinson was of a much different character. Mr. Robinson himself admitted that the two of them were yelling at each other, which was confirmed by the evidence of Mr. Huynh, Mr. Skuse and Ms. Claremont. This is another example of Mr. Breau not giving his testimony in a balanced way.
[19] Mr. Breau testified that when he got up close to Mr. Robinson, Mr. Robinson reached into his pocket with his left hand, looked at him and said, "get the fuck away from me or I'll kill you". According to Mr. Breau, this made him paranoid and scared that Mr. Robinson was going to stab him. Although he did not see a knife, Mr. Breau claimed that he feared he would be stabbed especially because Mr. Robinson "was acting all crazy like he was drunk or on something". That's when Mr. Breau gave Mr. Robinson "a shot and a push at the same time" and ran back to his vehicle.
[20] Mr. Robinson claimed that he had a big pot of food cradled in his two hands and denied Defence counsel's suggestion that he had his hand by his side. Mr. Robinson also denied Defence counsel's suggestion that he said, "if you don't get in your car, I'll fucking kill you".
[21] None of the other witnesses could make out the words being yelled by either Mr. Breau or Mr. Robinson. Mr. Huynh testified that he walked up ahead of Mr. Robinson after crossing the street. Mr. Huynh gave evidence that Mr. Robinson sped past him walking quickly and that he (Mr. Huynh) saw Mr. Breau come up behind Mr. Robinson and hit him from behind.
[22] When pressed in cross-examination, however, Mr. Huynh confirmed that Mr. Robinson remained "slightly" behind him and that he (Mr. Huynh) could only see him (Mr. Robinson) out of the corner of his eye. Mr. Huynh looked over his shoulder to see Mr. Robinson fall to the ground. Therefore, Mr. Huynh would not have been able to confirm whether or not Mr. Robinson reached into his pocket before being struck by Mr. Breau. Although he did not hear Mr. Robinson utter the alleged threat, Mr. Huynh was clear that he could not make out the words said by either Mr. Breau or Mr. Robinson.
[23] Mr. Huynh testified that he believed Mr. Robinson was carrying the plastic bag in his right hand, and that his other hand was empty. However, since Mr. Huynh walked up ahead of Mr. Robinson after crossing the street, he would not have been able to observe whether Mr. Robinson was carrying the plastic bag and its contents in both hands immediately before Mr. Breau struck and pushed him.
[24] Mr. Skuse saw Mr. Breau's arm come up and hit Mr. Robinson but from his vantage point, he could not see what part of Mr. Robinson's body was struck, nor could Mr. Skuse say what Mr. Robinson did or did not do prior to being struck, including whether or not he reached into his pocket or reached to his side.
[25] I accept the evidence of Mr. Robinson that he did not make a verbal threat to Mr. Breau. I reject Mr. Breau's evidence that Mr. Robinson reached into his pocket in the moments before Mr. Breau struck and pushed him. Mr. Huynh's evidence that Mr. Robinson sped past him walking quickly in the moments before being struck from behind supports the inference that Mr. Robinson was fleeing from Mr. Breau who was pursuing him, rather than turning back to threaten Mr. Breau.
[26] Mr. Breau's testimony regarding what happened after he struck and pushed Mr. Robinson to the ground is also externally inconsistent with the evidence of Ms. Claremont, and contributes to my rejection of his evidence that he acted in self-defence out of fear that he would be stabbed.
[27] Mr. Breau testified that after he struck and pushed Mr. Robinson, he ran back to his vehicle and took off because he did not want Mr. Robinson to stab him. Ms. Claremont took pictures of Mr. Breau at close range when he returned to his vehicle. One of the photographs depicts Mr. Breau pointing at the person taking the photograph, Ms. Claremont.
[28] The photographs taken by Ms. Claremont do not support Mr. Breau's claim that he was fearful and was hurrying to flee the scene to avoid being stabbed by Mr. Robinson. The photographs are consistent with Ms. Claremont's evidence, which I accept, that Mr. Breau was very angry and belligerent with her.
[29] According to Ms. Claremont, Mr. Breau yelled at her that "it was none of [her] fucking business" and then got into his vehicle and left. I accept Ms. Claremont's evidence in this regard.
[30] In direct examination, Mr. Breau testified that he made the following statements to Ms. Claremont: "what's his problem, what's going on, like, why did he do that?", and "what are you doing?". In cross-examination, Mr. Breau testified that he said to Ms. Claremont, "what did I do? What did I do? Why did he kick my car?".
[31] If Mr. Breau was in fact concerned that he was still in danger of being stabbed by Mr. Robinson, it is implausible that he would stop to ask Ms. Claremont why Mr. Robinson had kicked his car. If he was truly afraid that he was in danger, it would have made more sense for him to communicate his fear to Ms. Claremont and the reason for his fear.
[32] Mr. Breau was belligerent and angry with Ms. Claremont after striking Mr. Robinson, not fearful and eager to escape further danger as he claimed. Furthermore, Mr. Robinson was in no state to pursue Mr. Breau after being struck. Ms. Claremont described Mr. Robinson as covered in blood and sobbing.
[33] For the above reasons, I reject Mr. Breau's claim that he believed a threat of force was being made against him by Mr. Robinson, and that he struck and pushed Mr. Robinson for the purpose of defending himself from that threat of force. I do not believe Mr. Breau's testimony, nor does it leave me in a state of reasonable doubt on this issue. I find that Mr. Breau's assault was retaliatory aggression for Mr. Robinson having kicked his vehicle, rather than to defend himself against a threat of force from Mr. Robinson.
[34] I must go on to ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt that Mr. Breau is guilty.
[35] I have considered the evidence of Mr. Robinson in the context of the evidence as a whole. I identified some concerns with Mr. Robinson's testimony, but those concerns do not cause me to doubt the credibility and reliability of his evidence that he did not threaten Mr. Breau.
[36] Firstly, Mr. Robinson did not admit that he kicked Mr. Breau's truck with his foot, a fact which was obvious to each of the other witnesses who saw the vehicle come close to hitting Mr. Robinson. Instead, Mr. Robinson testified that his knee hit the truck because the vehicle came close to him. He even went on to say that he did not know why Mr. Breau got out of the truck to yell at him.
[37] I find this to be implausible. Mr. Robinson would most certainly have known that Mr. Breau got out of his vehicle because Mr. Robinson kicked the truck. On this issue, Mr. Robinson went so far as to maintain in cross-examination that he kicked the vehicle with his knee. When Defence counsel pressed further by suggesting that he kicked it with his foot, Mr. Robinson responded, "prove it…it's your job to prove it". Mr. Robinson was evasive and confrontational on this issue of kicking the vehicle. He failed make an appropriate concession on this point even when he was pressed in cross-examination.
[38] However, aside from the issue of kicking the vehicle, I find that Mr. Robinson gave his evidence in a balanced way and made appropriate concessions. Mr. Robinson admitted that he was upset and angry when he was almost stuck by Mr. Breau's vehicle, that he and Mr. Breau were both yelling at each other, and that more likely than not, he used profanities when he was yelling at Mr. Breau. Therefore, although I have found one aspect of Mr. Robinson's evidence to be implausible, the bulk of his evidence is confirmed by the evidence of the other independent witnesses.
[39] I accept Mr. Robinson's evidence that he continued walking down the street away from Mr. Breau and that he was struck from behind and pushed to the ground. As I previously stated, Mr. Huynh's evidence that Mr. Robinson sped past him walking quickly in the moments before being struck from behind supports the inference that Mr. Robinson was fleeing from Mr. Breau who was pursuing him, rather than turning back to threaten Mr. Breau.
[40] Mr. Robinson stated that he was cradling a "pot" in both his hands just before Mr. Breau struck and pushed him. Defence counsel pointed out that there was no pot at the scene when the police arrived, and that the photographs do not show a pot. What the photographs do show is a plastic bag with what appear to be Styrofoam containers inside. P.C. Wendy Kohout confirmed that she did not see a pot but did see a bag with some take out containers. P.C. Trevor Holmes observed that there were chicken wings scattered all over the ground at the scene.
[41] Although Mr. Huynh testified that he believed Mr. Robinson was carrying the plastic bag in his right hand, and that his other hand was empty, as I stated above, Mr. Huynh was walking up ahead of Mr. Robinson just before Mr. Robinson was struck. Therefore, Mr. Huynh would not have been able to observe whether or not Mr. Robinson was carrying the plastic bag and its contents in both hands immediately before Mr. Breau struck and pushed Mr. Robinson.
[42] I have considered the possibility that Mr. Robinson was indeed carrying the bag in his right hand, leaving his left hand free to reach into his pocket as Mr. Breau claimed. It is also plausible that Mr. Robinson was carrying the containers with both hands outstretched as he sped past Mr. Huynh fleeing from Mr. Breau.
[43] However, I find that it is unnecessary for me to resolve the issue of whether Mr. Robinson was carrying the plastic bag with the containers in one hand or both just before he was struck. The fact that Mr. Robinson did not have a pot in his hands, but instead had a plastic bag with food containers, does not cause me to reject his evidence that he did not verbally threaten to kill Mr. Breau. Again, in the moments before being struck, Mr. Robinson sped past Mr. Huynh walking quickly away from Mr. Breau.
[44] Defence counsel suggested that Mr. Robinson attempted to minimize his criminal record when he told Crown counsel prior to trial that he had "a couple of impaireds from the 70's". When a criminal record check was conducted, it revealed that the impaired driving related convictions were in 1991 and 1994. I accept Mr. Robinson's explanation that when he had his pre-trial conversation with Crown counsel, he simply could not remember the dates of his convictions. I note that Mr. Robinson disclosed the convictions to Crown counsel and was merely wrong about the dates of the convictions. Mr. Robinson's impaired driving related convictions are dated. Furthermore, I find that the nature of those convictions are of no probative value to Mr. Robinson's testimonial trustworthiness as a witness.
[45] When I consider the evidence in totality, I find that the Crown has established beyond a reasonable doubt that the accused did not act in self-defence, but rather committed an unlawful assault. The evidence of Mr. Robinson together with the evidence of the other Crown witnesses establishes that Mr. Breau was belligerent and followed Mr. Robinson who was walking down the street away from him after having kicked Mr. Breau's vehicle. Contrary to Mr. Breau's claim that he was fearful when he struck Mr. Robinson and remained fearful as he fled the scene, the evidence of Ms. Claremont confirms that Mr. Breau was belligerent and angry even after he struck Mr. Robinson. This offers support for Mr. Robinson's claim that he was struck from behind without having made any threats to Mr. Breau. I reiterate that Mr. Robinson gave his evidence for the most part in a balanced way, and I accept his evidence that he was struck and pushed from behind without having issued a threat of any kind to Mr. Breau.
[46] Accordingly, I find that the Crown has proven beyond a reasonable doubt that Mr. Breau did not believe on reasonable grounds that Mr. Robinson was making a threat of force against him as required by section 34(1)(a) of the Criminal Code. On that basis alone, the defence of self-defence fails.
[47] However, if I am wrong in relation to section 34(1)(a), I find that, on the basis of the evidence I do accept, as outlined above, the Crown has proven beyond a reasonable doubt that the force used by Mr. Breau was not used for the purpose of defending or protecting himself from a threat of force by Mr. Robinson, as required by section 34(1)(b) of the Criminal Code. The force Mr. Breau used was an act of aggression as retaliation for Mr. Robinson having kicked his vehicle and a culmination of the continued verbal exchange between the two men as Mr. Robinson was walking away from Mr. Breau.
Do Mr. Robinson's Injuries Constitute "Bodily Harm"?
[48] The Defence submits that Mr. Robinson's injuries did not amount to "bodily harm" as defined in section 2 of the Criminal Code, and as interpreted in the case law.
[49] Section 2 of the Criminal Code states:
"bodily harm" means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.
[50] Interference with comfort is enough to establish bodily harm, provided that the interference with comfort is more than merely transient or trifling. Transient is defined as "passing by or away with time; not durable or permanent; temporary, transitory; esp. passing away quickly or soon, brief, momentary, fleeting". Trifling is defined as, "of little moment or value; trumpery; insignificant, petty". Comfort is defined as "the condition or quality of being comfortable".
[51] As Esson J.A. of the British Columbia Court of Appeal noted, "[c]learly, as employed in s. 245.1(2) [now s. 267(b)], those words import a very short period of time and an injury of very minor degree which results in a very minor degree of distress".
[52] An injury does not have to interfere "in a grave or substantial way with the physical integrity or well-being of the complainant" in order to constitute bodily harm. Hence, "superficial injuries, consisting primarily of bruising and abrasions" have been found "to have interfered with the complainant's health and comfort", thus constituting bodily harm. Medical evidence is not required for a Court to make a finding of bodily harm.
[53] The Crown did not lead any medical evidence regarding Mr. Robinson's injuries. The evidence regarding his injuries came from Mr. Robinson's own viva voce testimony, the evidence of two police officers who attended the scene, and SOCO photographs which were made exhibits.
[54] In my view, the interference with Mr. Robinson's comfort was more than merely transient or trifling in nature. Mr. Robinson testified that he had to use his elbows to stop his fall "which left a bunch of bone splinters in there" that did not require surgery or hospital treatment. Without medical evidence to substantiate and particularize the extent of these bone splinters and to establish that they were indeed caused by his fall, I am not prepared to find that bone splinters were caused by the assault. However, I do find that Mr. Robinson suffered injuries in the areas of his left and right elbows, which is supported by the photographs that show cuts and breaks to the skin near both elbows.
[55] In addition, Mr. Robinson suffered significant abrasions, cuts and breaks to his skin on his left arm and hand. Those injuries are best depicted in photographs 9 and 10 of Exhibit 6 (SOCO photos) which show Mr. Robinson's bloodied left arm and hand. These injuries to the left arm and hand themselves, in my opinion, would constitute bodily harm. In addition, the photographs depict a small amount of blood from a cut to Mr. Robinson's right ear, which is accompanied by bruising in the ear.
[56] Cumulatively, these injuries amount to bodily harm. Mr. Robinson testified that he had little, minor cuts and nothing that required hospital care. He stated, "wipe it off and let it heal", and that they were "scrapes from the sidewalk and stuff like that". Mr. Robinson confirmed that he was sore "for not too long, a day, two days".
[57] The fact that Mr. Robinson's injuries were of short duration does not negate the fact that the injuries interfered with his comfort beyond what would be considered transient and trifling. Again, the cumulative effect of the evidence leads me to the conclusion that bodily harm has been established.
Conclusion
[58] Mr. Breau is found guilty of Assault Causing Bodily Harm to Paul Robinson, contrary to section 267(b) of the Criminal Code.
Released: October 11, 2019
Signed: Justice J.P.P. Fiorucci