Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20221021 DOCKET: C69485

van Rensburg, Coroza and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

Cole Willemsen Appellant

Counsel: Adam Weisberg and Samiyyah Ganga, for the appellant Dena Bonnet, for the respondent

Heard: August 23, 2022

On appeal from the conviction entered on May 6, 2021 by Justice John A. Desotti of the Superior Court of Justice, sitting without a jury.

George J.A.:

Overview

[1] In the early morning hours of July 1, 2019, the appellant struck the complainant, Kyle Hern (“Hern”), in the head with a closed fist after each were escorted out of Willie’s Beach Bar in Grand Bend. Hern’s head struck the curb, and he suffered extensive injuries including a blood clot, brain bleed, stroke, and partial paralysis, rendering him unable to walk, non-verbal and with no memory of the events.

[2] The appellant was charged with, and found guilty of, aggravated assault. He appeals his conviction advancing these five grounds: 1) the trial judge misapprehended evidence; 2) the trial judge erred by finding that the appellant did not act for a defensive purpose; 3) the trial judge erred in finding that the appellant’s actions were not reasonable in the circumstances; 4) the trial judge erred by not applying the principles in R. v. W.(D.), [1991] 1 S.C.R. 742; and 5) the verdict is unreasonable.

[3] For the reasons that follow, I would reject each of these grounds and dismiss the appeal.

Facts

[4] The appellant and Hern had a history. Before the night in question, at the same bar, the two had a confrontation described as follows in an agreed statement of facts filed at trial:

Approximately two weeks before July 1, 2019, [the appellant] and Hern happened to attend Willie’s Beach Bar in Grand Bend, Ontario on the same evening. Both parties had consumed alcohol. At some point during the evening [the appellant] and Hern were face to face inside the bar. [The appellant] verbally confronted Hern about his outstanding sexual assault charges. [The appellant] called Hern a “piece of shit” and Hern responded with verbal aggression, both parties exchanged aggressive words. [The appellant] then believed Hern was reaching towards him and used a closed fist to strike Hern in the upper body area for the purpose of pushing him back. Hern did not strike [the appellant]. Both parties were then expelled from the bar.

[5] The sexual assault charges noted in this passage refer to allegations that Hern sexually assaulted friends of the appellant’s younger sister. The charges were outstanding at the time, but have since been withdrawn given Hern’s injuries.

[6] On June 30, 2019, the appellant and Hern attended Willie’s Bar again, where the two were drinking heavily and had another confrontation. Early in the evening, the appellant was observed following Hern to the washroom and getting “in his face”, and “chirping” at him. The appellant was also heard using a racial slur (Hern is black, the appellant white), and telling Hern that he was going to “jump on [him]” and kill him. The appellant testified that he could not recall what was said during this incident, but denied uttering a slur or using racially charged language.

[7] Later in the evening, the appellant and Hern had another confrontation in the bar. While there was no physical contact, a witness described an escalating situation where the appellant kept getting closer to Hern and becoming louder. It ended with security removing the appellant from the building. After the appellant was removed, Hern went to an outside patio area where the two continued to yell at each other. A witness described Hern hanging over the patio railing, and said Hern and the appellant, who remained near the bar, were going “back and forth”. Because of his conduct on the patio, Hern was also escorted from the building.

[8] Once both were outside, the appellant and Hern had another brief altercation in the bar’s parking lot. This seemingly ended when the appellant put his hands up, indicating he did not want to fight, and began to walk away from the bar. After the appellant turned to walk away, four witnesses report that Hern was, while standing in the middle of the road, yelling “bitches”. It was not clear who Hern was talking to. The appellant believed it was him; two young women who were nearby thought it was them. In any case, believing that Hern was following him – and, according to his evidence, after twice turning to Hern in an attempt to stop him from doing so – the appellant turned around one last time and approached Hern. Both assumed fighting stances, at which point the appellant struck Hern in the head with a closed fist causing him to fall and hit his head on the curb. Hern was knocked unconscious for a period of time. He was then taken to the hospital by ambulance, but was not kept overnight. The next day Hern returned to the hospital which led to the discovery of the blood clot and determination that he had suffered a massive stroke.

[9] At trial, the appellant claimed that he acted in self-defence. He testified that he believed Hern was guilty of sexually assaulting two young women and, because of that, he had no respect for him. The appellant further testified that, before the altercation on the street, Hern yelled at him, challenged him to fight, and called him a “pussy”. He said he tried to just walk away and ignore him but became concerned that if Hern continued to follow him he would learn where he was spending the night (his grandmother’s home), which he wanted to avoid. On the ultimate decision to turn around that one last time and confront Hern, the appellant testified that he “decided that enough was enough.” He said there was “a possibility” he would be hurt, so he turned around and “engaged with” Hern. The appellant testified that Hern’s “hand went up” and that he punched him before it got “all the way up.”

[10] In response to a question about what he thought this would achieve, the appellant said, “I figured that, you know, once I, if I hit him I’d be able to, you know, it would be over and then I’d be able to walk away from him and it’d be fine”.

Decision Below

[11] The only issue at trial was whether the appellant acted in self-defence when he struck Hern. The trial judge identified the three elements of self-defence as set out in s. 34(1) of the Criminal Code: 1) the appellant must have subjectively believed, on reasonable grounds, that Hern was using, or threatening to use, force against him; 2) the appellant’s act must have been for the purpose of defending himself from that use of force; and 3) the appellant’s act must have been reasonable in the circumstances. The trial judge accepted the appellant’s testimony that after he turned around he reasonably believed Hern was about to strike him. However, on the second element, he concluded that the appellant’s purpose in striking Hern was not to defend himself but rather to defend the honour of his sister’s friends. On the third element, whether the appellant’s conduct was reasonable, the trial judge considered the appellant’s role in the incident as a significant factor, noting his aggressive behaviour inside the bar that night, and two weeks earlier. He also found that the appellant did not have to turn around and confront Hern as he had other options, including to just keep walking toward his grandmother’s home. Lastly, he found that the appellant was never in immediate danger and that his decision to turn back was critical to the events unfolding as they did. He concluded that, from the moment the appellant decided to turn around to confront Hern, self-defence was unavailable.

Analysis

[12] The first three grounds of appeal have to do with the trial judge’s self-defence analysis; the fourth ground concerns an alleged W.(D.) error; and the fifth asks whether the verdict is unreasonable. Although my conclusion on the third element of self-defence – which affirms the trial judge’s finding that the appellant’s conduct was unreasonable – is fatal to this appeal, I will address each of the grounds in turn.

A. Did the trial judge err in his self-defence analysis?

[13] The self-defence provisions in the Criminal Code adopt a general reasonableness standard. As mentioned, s. 34(1) directs a trial judge to consider three elements. As the trial judge’s finding that the appellant subjectively believed Hern was about to strike him is not being challenged, the two elements relevant for our purposes are, first, whether the appellant was acting for a defensive purpose, which in this case focuses on the appellant’s motive in turning around and confronting Hern, and second, even if the appellant believed that he struck Hern for a defensive purpose, whether doing so was reasonable in the circumstances. To determine the reasonableness of the appellant’s actions, the trial judge was required by s. 34(2) to consider several non-exhaustive factors, including whether there were other means available to respond to the use, or threat, of force, and the appellant’s role in the incident.

(1) Did the trial judge misapprehend the evidence by finding that the appellant confronted Hern because of the two alleged sexual assaults?

[14] The appellant submits that there was no basis upon which the trial judge could conclude that his motivation for turning around was to exact revenge for, or defend the honour of, his sister’s friends. He points to the fact that the only time the two men argued about the alleged assaults was approximately two weeks prior, and that no witness mentioned this as being a source of the conflict on the night in question. He also relies on his trial testimony, which was uncontradicted, that he confronted Hern because he continued to yell “bitches” and out of fear that he was going to be “hurt”.

[15] I disagree. The appellant’s argument is not so much about a misapprehension of evidence, but that the trial judge ought to have made a different finding based on the evidence that was before him. The evidence was clear that there was a general animus between the two and it is evident that the trial judge accepted that this animus (whatever its source), at least in part, motivated the appellant to turn around and confront Hern. Although the appellant testified about his motivation, the trial judge was entitled to reject such evidence, based on all of the evidence.

(2) Did the trial judge err by ruling that the appellant did not act for a defensive purpose?

[16] The appellant takes the position that, as this part of the analysis is subjective, an accused’s purpose may evolve as an incident progresses, or in this case, as it escalates. In other words, given the trial judge’s finding that the two squared off with each other – which necessarily meant one was about to strike the other – he had no choice but to conclude that the appellant’s punch was for a defensive purpose.

[17] I disagree. The appellant’s position, if accepted, would be to return to the compartmentalized approach Parliament sought to eliminate with the new self-defence provisions. Now, unlike before, judges must specifically avoid a “forensic apportionment of blows, words or gestures delivered immediately preceding the violent confrontation”: R. v. Khill, 2021 SCC 37, 409 C.C.C. (3d), at para. 83, which the trial judge did here. Taking into account the entirety of the circumstances, including the appellant’s consumption of alcohol and the animus he held toward Hern, the trial judge reasonably concluded that the appellant did not act for a defensive purpose.

(3) Did the trial judge err by finding the appellant’s actions were not reasonable in the circumstances?

[18] The appellant says the trial judge erred by, in effect, finding that he failed to retreat when he had no obligation to do so. He also argues that the trial judge’s conclusion that his actions were unreasonable contradicts his earlier favourable credibility finding (i.e., that the appellant had a reasonable belief that Hern was going to use force).

[19] I will address first the appellant’s concerns about retreat and, because they are related, speak to what it means to assess a “person’s role in the incident”.

[20] While there is no duty to retreat, the possibility of retreat is a relevant consideration when determining whether an accused’s actions were reasonable: Khill, at para. 90. Further, a person’s “role in the incident” includes actions that they could have taken to avoid bringing about the violent interaction: Khill, at para. 82.

[21] Under s. 34(1)(c), whether the act committed was reasonable in the circumstances, the trier of fact is directed to consider what a reasonable person would have done in similar circumstances, not what the accused before the court thought at the relevant time. This inquiry is not purely subjective: see R. v. King, 2022 ONCA 665, at para. 25, but rather asks what a reasonable person, in “the relevant circumstances as the accused perceived those circumstances”, would have done: R. v. Pilon, 2009 ONCA 248, 243 C.C.C. (3d) 109, at paras. 74-75.

[22] In answering this question, it is evident that the trial judge placed significant reliance on the appellant’s role in the incident (a factor listed at s. 34(2)(c)), which he did not limit to the events immediately preceding the punch. In my view, it was proper for the trial judge to take into account everything that had transpired between the appellant and Hern, including the confrontations earlier that night in the bar; what occurred two weeks prior; the initial source of the conflict (the alleged sexual assaults); and whatever else may have fuelled their anger. Consider Khill, where, at para. 82, Martin J. explains the meaning of the “role in the incident” factor:

[I]n choosing the broad phrase “the person’s role in the incident”, Parliament signalled that the trier of fact should consider the accused’s conduct from the beginning to the end of the “incident” giving rise to the “act”, as long as that conduct is relevant to the ultimate assessment of whether the accused’s act was reasonable. This expansive temporal scope distinguishes the “person’s role in the incident” under s. 34(2)(c) from other factors listed under s. 34(2), some of which are temporally bounded by the force or threat of force that motivated the accused to act on one end and their subsequent response on the other. For example, s. 34(2)(b) considers what alternatives the accused could have pursued instead of the act underlying the offence, such as retreat or less harmful measures, relative to the imminence of the threat. The question of proportionality under s. 34(2)(g) similarly juxtaposes the force threatened and the reaction of the accused. Both of these factors ask the trier of fact to weigh the accused’s response once the perceived threat has materialized. In this way, s. 34(2)(c) was intended to serve a distinctive, balancing and residual function as it captures the full scope of actions the accused could have taken before the presentation of the threat that motivated the claim of self-defence, including reasonable avenues the accused could have taken to avoid bringing about the violent incident.

[23] The reference in s. 34(2)(c) to “the person’s role in the incident” is sufficiently broad so as to capture the entire interaction between the appellant and Hern and not, as the appellant now argues, only what transpired once both were removed from the bar. This broad temporal frame allows a trier of fact to holistically consider the full context of the accused’s actions: Khill, at para. 83. Moreover, s. 34(2)(f) directs triers of fact to consider “the nature, duration and history of any relationship between the parties to the incident”, which the trial judge correctly did in this case.

[24] To the appellant’s specific complaint that the trial judge improperly focused on his ability to retreat, the issue was not whether the appellant should have retreated, but rather what he did to initiate the confrontation in the first place, and what he could have done to avoid it. As the trial judge said: “there was a simple means available to the accused to avoid the confrontation with the complainant by continuing to walk up Main St.” This was a factual finding based on the testimony of multiple eyewitnesses, a finding open to the trial judge that is owed deference on appeal.

[25] Further, to say that the trial judge’s favourable credibility finding is inconsistent with his ultimate conclusion that what the appellant did was unreasonable is to conflate the first and third prongs of the applicable test. After all, it can both be true that the appellant subjectively believed force was going to be used against him, and that his response to that threat was objectively unreasonable. I would, therefore, reject this ground of appeal.

B. Did the trial judge err by not applying the principles in R. v. W.(D.)?

[26] The appellant submits that while the trial judge referred to the principles in W.(D.), he failed to provide any reasons for why he did not believe him or why his testimony did not raise a reasonable doubt. In fact, he argues that the trial judge did not assess his credibility at all. The appellant refers to his evidence that he tried to walk away, with Hern continuing to follow him, and how on more than one occasion he had to turn around and face Hern in an attempt to stop him from doing so. The appellant also points to that part of his testimony where he says he felt threatened when this did not have its desired effect, which, he contends, was unchallenged.

[27] This concern is not so much with the proper application of W.(D.) but with what the appellant perceives to be the trial judge’s failure to sufficiently explain why any of his evidence was rejected. For two reasons, this argument must fail. First, while the trial judge’s reasons are not perfect, when read as a whole and placed in their proper context, it is evident that on the third prong of the self-defence test (reasonableness) the appellant’s testimony did not leave him with a reasonable doubt. Second, the trial judge clearly understood that, on the third prong of the test, he was to assess the appellant’s conduct on an objective standard. He found that the appellant acted unreasonably, which, again, was a finding available to him. This finding is not incompatible with the trial judge’s overall favourable impression of the appellant’s credibility nor with his acceptance of the appellant’s evidence that he believed Hern was going to use force against him. The trial judge’s determination that the appellant failed to satisfy the third prong of the self-defence test is entitled to deference. I see no reason to interfere.

C. Is the verdict unreasonable?

[28] The appellant’s argument in this regard largely repeats his position on the other grounds and continues his conflation of subjective motive and objectively reasonable actions.

[29] When a verdict is challenged as unreasonable, the question is whether the verdict is one that a properly instructed trier of fact could reasonably have rendered: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 37. Here, the trial judge accepted the evidence of independent witnesses who saw the appellant advance upon and initiate the final confrontation with Hern. While the trial judge found that Hern did assume a defensive stance upon the appellant’s approach, the verdict is entirely reasonable considering the context, including Hern’s level of intoxication; the history between the two; and the fact Hern had not, at least to that point, been physical with the appellant.

Disposition

[30] For these reasons, I would dismiss the appeal.

Released: October 21, 2022 “KMvR” “J. George J.A.” “I agree. K. van Rensburg J.A.” “I agree. S. Coroza J.A.”