Court File and Parties

Date: September 17, 2014

Court File No.: 11-R2277

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Calvin Peacock

Before: Justice Jacqueline V. Loignon

Reasons for Judgment released on: September 17, 2014

Counsel:

• Ms. Chantal Lefebvre, counsel for the Crown
• Mr. Allan Brass, counsel for the accused Calvin Peacock

LOIGNON J.:

Overview

[1] The accused, Calvin Peacock, is charged with assault with a weapon and aggravated assault on Mr. Henry Otto, both offences having occurred October 28, 2011.

[2] There is no issue with respect to the injury suffered by the complainant, Mr. Otto, reaching the threshold of an aggravated assault, nor is there an issue that the golf club used constituted a weapon. There is also no issue as to date or jurisdiction. Though identification by Mr. Otto was not made on the first day of his evidence, he was able, later on, to identify Mr. Peacock. In any event, it appears that both were neighbors in and around the time of the offences.

[3] The Crown called the complainant, Henry Otto, as well as two residents from the apartment building where the assault took place. These were Mr. Kourouma and Mr. Barefoot. In addition, the arresting officer, a forensic officer from the Ottawa Police Service and a DNA expert all gave evidence. Defence called Mr. Peacock.

[4] During the trial, defence counsel brought two records applications. The first sought disclosure of police and medical records related to the complainant, but unrelated to the offence before the Court. Counsel relied on the then recent Court of Appeal decision in R. v. Quesnelle. The application was dismissed with the proviso that it may be renewed as a third party records application. Such an application was brought and met with success. Subsequent to a review of the records, the evidence resumed.

[5] The two issues to be decided by this Court are credibility, in accordance with the principles in R. v. W. (D.), [1991] 1 SCR 742, and whether the Crown has disproved self-defence beyond a reasonable doubt. I note from the outset that while the offences predate the amendments to the Criminal Code relating to self-defence, I will be applying the new provisions given persuasive, as well as binding jurisprudence from this Court and the Superior Court of Justice concerning retrospective application. (See R. v. Parker, 2013 ONCJ 195; R. v. Pandurevic, 2013 ONSC 2978)

The Law

[6] Section 34 of the Criminal Code of Canada sets out the circumstances in which an accused person may claim the benefit of self-defence.

34. (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person's role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

[7] In R. v. Pandurevic, supra at para 19, the court summarized the requirements of the above section as follows:

• a reasonable perception of force or a threat of force against the accused or another person;
• a defensive purpose for the accused's act; and
• an objective determination of the reasonableness of the accused's act.

With respect to the first aspect of this test, the language of the section does not require that the accused actually be in danger but rather that the accused hold a reasonable belief as to the force involved or threat of force. Because of the use of 'reasonable' this assessment must necessarily consider both the subjective perception of the accused, but also an objective assessment of this perception.

With respect to the second element, self-defence requires a limited purpose for the acts engaged in by the accused. More specifically, an accused may not claim the benefit of the section where the actions are to punish or to retaliate. As the Ontario Court of Appeal more eloquently put it, an accused cannot "use self-defence as a cloak or means to injure someone." [R. v. Flood, [2005] OJ No 3418 at para 32]

In reviewing the objective reasonableness of the accused's actions, the court must of course consider all of the factors set out in subsection 34(2). The law will also provide that persons engaged in self-defence are not expected to weigh the exact measure of force used to a nicety. Indeed, "individuals caught up in circumstances of self-defence are in the throes of frightening events in which their own well-being may be imperiled. 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." [See R. v. Ryan Parker, 2013 ONCJ 195 at para 38.]

[8] The court in R. v. Kong, 2005 ABCA 255, [2005] A.J. No. 981 (C.A.) at paragraphs 207-09, reviewed the subjective and objective elements in the previous s. 34 self-defence section. At para 209 specifically, the court stated the following:

The accused may be mistaken about the nature and extent of force necessary for self-defence provided the mistake was reasonable in the circumstances: R v. Nelson (1992), 71 CCC (3d) 449 at 468-9 (Ont. Court of Appeal). In deciding whether the appellant's use of force was reasonable, the jury is to look to the circumstances to consider what a reasonable person in the accused's situation might do given the threatening attack and the force necessary to defend himself against that apprehended attack: Baxter at 110. The objective measurement of proportionate force in self-defence cases requires a tolerant approach: Kandola at para 27.

Evidence

Daniel Kourouma

[9] Mr. Kourouma is an independent civilian witness who lived on the fifth floor of 1433 Mayview Avenue. On the date of the incident, he was watching a movie in his apartment when he heard a loud noise and a man yelling "help, call the police, help, help". The witness went down using the west side stairwell. He was alone. The witness described a white male dragging a black male out of an apartment. The black male was on the floor, was being beaten by the white male and there was blood all over the floor. His head was in the hallway and his lower body was still in the apartment. According to this witness, the black male was yelling "Help! Help! Call the police!" The witness returned to his apartment and called the police. He then left his apartment and went down one of the stairwells to meet police. He did not encounter anyone else at that time, nor did he see the altercation again.

[10] When asked to describe the assault in more detail, the witness stated that the white male was bent over the black one and that he was punching him with both hands that the punches were landing on the black male's upper body. The witness stated that he believed that the black male was trying to prevent himself from being hit. I do note that in his statement to police, he made reference to the parties holding each other but while testifying, he clarified that the black male was protecting himself. This having been said, he agreed that the black male was being dragged out and had no recollection of where his hands were. In other words, he was not certain if he was being dragged out by his hands or if the black male was holding on to the white male's legs. He never saw any weapons. He watched the assault for less than 30 seconds. This witness did not know either of the parties. He confirmed seeing the black male being dealt with by police and ambulance later on that night. Other than saying that the white guy was wearing blue jeans and was not tall, he could not provide a description of the assailant. The black male was described as wearing short pants and a sleeveless vest. Mr. Kourouma noted that he did not completely open the stairwell door when he watched the altercation, but nonetheless, had a clear view of what was happening.

[11] This witness was fair and balanced in his evidence; he did not speculate and freely recognized the limited amount of time that he observed the altercation, including the possibility that he may have missed portions of the altercation. For example, he did not disagree that it was possible that the complainant had his arms wrapped around the accused's legs rather; he simply stated that he did not see very much.

Allan Barefoot

[12] Mr. Barefoot is also a resident of the fifth floor at 1433 Mayview Avenue. He was at home in his apartment when he heard a male voice yelling "Call the police! Call the police!" He waited five minutes and then exited his apartment. He met Mr. Kourouma who said he was going to call the police. After doing so, both he and Mr. Kourouma went down the east stairwell. When on the fourth floor near the stairwell door, they both stood near the open door and saw a black male on the ground in a pool of blood with a white male standing over him jabbing at his head with a stick-like object about 5 feet in length. It seemed to be a long broom handle made of wood. His observations were for a few seconds only, perhaps 2 or 3. He estimated he was 5 to 6 feet away from the altercation and noted the artificial lighting in the hallway. Mr. Barefoot testified that once the individual hitting the black male made eye contact with him, that person fled down the hallway.

[13] When asked to clarify what he meant by "jabbing", Mr. Barefoot demonstrated more of a blow from above. He was not sure what the object was hitting, but thought that it was the male's head. He said that the male was motionless. The lighting was described as not being the best, though he did confirm the presence of artificial lighting in the stairwell and in the hallway. When describing where within the hallway the blows took place, Mr. Barefoot testified that the black male was on the ground with his head against the stairwell door and the door was open. He recalled there being blood all over the place.

[14] He described the black male as wearing pyjama pants and being in agony. The man with the stick was wearing a tank-top and old jeans or khakis.

[15] Mr. Barefoot was also a credible witness in that his recollection was relatively detailed and was provided to the Court in a forthright manner. His opportunity to observe, however, was very limited, being only 2-3 seconds. It really can only be called a "glance". In addition, there are significant contradictions as between Mr. Barefoot and Mr. Kourouma's evidence. While some may be easily explained in view of the different timelines and, therefore, different portions of the altercation they were witnessing, the divergences are still troubling. Indeed Mr. Kourouma sees nothing at all the second time he goes down the stairs and does not recall Mr. Barefoot being in the stairwell at all. He certainly did not note an open stairwell door with the complainant lying at the doorjamb.

Constable Troy Forgie

[16] This officer testified that he was dispatched to 1433 Mayview Avenue and was one of the first officers on scene. He encountered both the civilian witnesses as well as the complainant in the stairwell. The officer testified the complainant exhibited bizarre and threatening behavior. Given this behavior and his knowledge of the complainant through past dealings, including knowledge of a past gang affiliation, the officer felt compelled to use force by striking the complainant in the chest, knocking him back, grounding and handcuffing him.

[17] The officer noted that the screams he heard as the complainant came down the stairs were consistent with a person in pain. The officer noted a deep cut to the forehead as well as a cut on the top left side of the complainant's head.

[18] This officer retrieved a bag of clothing belonging to the accused in a stairwell in another apartment building. The information as to where to find the bag was from the accused. He also noted in court that the accused appeared to be much healthier than when he dealt with him previously. He seemed to have gained weight.

Detective Storozuk

[19] This officer was the forensic identification officer who processed the scene at unit 403. Photographs were taken and physical evidence was seized, including a broken golf club. Photographs of the apartment show an area clogged with large items including bicycles. There is a table in the center of the principal room littered with debris as well as scales. All who testified confirmed drug dealing taking place in this unit. The photographs show fixed red staining in the hallway, in front of unit 403 and inside the unit as well. The bulk of the staining, however, is outside of the apartment. The officer took photographs of the walls in the hallway that showed various indentations in the plaster. The broken golf club with the head of the club was put up against the indentations and generally seemed to correspond. The officer also noted that the walls in the hallways were not the same color throughout and there seemed to be a fair amount of patchwork.

[20] The officer testified that there was no lighting in the apartment and that the hallway itself was dark and, therefore, the scene was quite difficult to photograph. The officer testified that he could not tell the age or how long the fixed red staining had been attached to an item or area. He, furthermore, could not tell how the fixed red staining transferred. The officer did examine the head of the golf club and did not see either red staining, plaster or particle board on the head of the golf club. The officer could not say whether the fixed red staining he saw on the day of the incident in fact occurred on that day. The officer took various swabs of blood from the bathroom of the apartment, but not from the communal hallway because of an inability to tie those particular transfer stains to this incident.

[21] The broken golf club was located inside the apartment and photographed in two locations, namely, the shaft on the back rest of the sofa and the broken head portion between the wall and the sofa, on the floor. Officer Storozuk did not verify whether the lock to the apartment was functioning, nor did he recall noting damage to the door handle and frame.

Henry Otto

[22] Mr. Otto testified over three days, namely, May 7, 2013, December 18 and December 19, 2013. Mr. Otto's demeanor over these three days fluctuated significantly. On the first date of evidence he was rude, obstinate, and at times frustrated. His recollection as to the events of October 28, 2011, was extremely limited on his first day of testimony. He could only say that he was attacked from behind by a junkie. At first, he testified that it happened in his apartment and then that it was in the hallway. The description of his assailant was "a white native type of dude, a suburban kid, a junkie". He was unable to identify anyone in the courtroom related to the assault. He stated he was hit by an object, but couldn't say what it was, though he did state that it was a long object. He recalled being hit more than once and that it was on the left side of his head.

[23] Mr. Otto further testified that while he had a drinking problem prior to October 28, he had no prior brain injuries nor did he have any mental health issues. He simply stated that he was very moody. At various times in his evidence, Mr. Otto testified that he had no memory of what occurred on October 28. Later on in his evidence, Mr. Otto stated that he did indeed have or suffered a prior brain injury from a fall off a bus in 2002. He stated that this prior brain injury affected his memory.

[24] Mr. Otto stated that he was arrested in 2009, but denied having a hammer on the bus during that incident. Mr. Otto went on to discuss having been prescribed various antipsychotic medications, as well as a hospitalization at the Royal Ottawa Hospital. He then went on to discuss his illicit drug use, as well as the various medications he was prescribed.

[25] In his evidence on May 7, 2013, Mr. Otto testified that since the incident, he has memory problems. Throughout both examination-in-chief and cross-examination, Mr. Otto's frustration with the questioning became more than apparent. He advised the Court that, since the accident, he becomes easily annoyed and stated his annoyance repeatedly. Indeed, more than once the Court had to encourage Mr. Otto to stay on track so that his evidence could be completed as quickly as possible.

[26] Mr. Otto testified that after he moved to Mayview, he did not have any dealings with the police. He did testify as to having a few incidents where he was hallucinating while on his medication. He then stated that people would call the police when he hallucinated. During these hallucinations, he would see demons. He specifically denied having the nickname "Snake" or that he would scream that snakes were attacking him during his hallucinations. Finally, Mr. Otto testified that he was not violent during these hallucinations, nor did he threaten anyone.

[27] When Mr. Otto continued his evidence in December 2013, he seemed to recall more details from the incidents itself. His manner of testifying was also more focused and straightforward, although he did still at times become frustrated. With respect to the incident itself, Mr. Otto testified that he was hallucinating in the hallway of the fourth floor and that while holding a golf club, Mr. Peacock told him to go downstairs, to get off the fourth floor. He testified that that he did not go into his unit. Instead, he paced back and forth on the fourth floor hallway with his hands up on either side of his head. He testified that he was hit several times with a golf club by Mr. Peacock. He testified that he was attacked because Alexandra [a neighbor on the fourth floor] did not want security or police responding to the fourth floor for a person who was hallucinating given her drug dealing. Following the assault, he banged on various doors seeking assistance, telling people to call the police because he did not want to die.

[28] It is significant to note that Mr. Otto did not recall being hit with a golf club. Rather, he had been told by someone who had heard it from someone else that he had been struck with a golf club.

[29] On December 18, 2013, during the continuation of cross-examination, Mr. Otto made various admissions as to false statements to a detective explaining they were made out of anger. He also admitted to calling Ottawa Police when hallucinating. Minutes later, Mr. Otto disavowed ever having lied to the police.

[30] During this same portion of evidence, Mr. Otto admitted to having uttered threats against the accused. More specifically, following his first day of testimony, he phoned police saying that he wished to kill him, the accused. He stated "After May 17, I really wanted to kill him." That same day, a little bit later on in his testimony, he stated "I could easily kill your client right now". He further stated that his criminal record was as a result of anger. Indeed, he testified he would become angry and then simply burst.

[31] On this day of testimony, Mr. Otto confirmed that this was his second brain injury, but stated that he didn't really have any memory problems. Minutes later, he went on to say that his memory problems began in 2002, after his first brain injury.

[32] Mr. Otto attributed the onset of his hallucinations generally to the smell of crack in the apartment building. He then stated, "I know for sure if I didn't smoke drugs and hallucinated (sic) on the fourth floor, this probably wouldn't have happened." Mr. Otto further testified that he consumed alcohol as well as drugs on the date in question. He, furthermore, testified that on the date of the incident he was hallucinating, seeing snakes and demons. He further confirmed that these types of hallucinations had happened many times before at Mayview. Mr. Otto stated that he was frequently taken to the hospital by the police. On this day of testimony, Mr. Otto also confirmed carrying a knife and hammer as well as threatening a security officer in order to get himself admitted to a psychiatric unit. Mr. Otto testified that he believes people are generally out to get him.

[33] When describing the night in question, Mr. Otto stated he had consumed crack cocaine, had forgotten to take his prescription medication and had consumed beer. He also testified that, generally, he could not put the sequence of events together. He did, however, deny going inside the accused's apartment to attack him stating, "I don't have a problem with people." This statement was in stark contrast with the prior evidence as to believing that people are out to get him, as well as his criminal record detailing various assaults and instances of violence. Indeed, moments later, in the course of his evidence, he admitted to threatening people in the past.

[34] Mr. Otto did recall the accused telling him to go downstairs the night of the incident and acknowledged not reacting as a result of his belief that snakes were on him. He testified that he kept his hands near his ears because he thought the snakes were on him and that he was bleeding from a snake bite. Mr. Otto further admitted to banging his head on the accused's apartment.

[35] I agree with the Crown that just because Mr. Otto has memory issues and struggles with his mental health, that this does not mean that his evidence ought to be rejected out of hand. Notwithstanding, the Court cannot overlook the significant difficulties presented by his evidence. Of concern, of course, is the incorporation of details obtained from other people. Equally of concern, are the fluctuations in his evidence, especially during the course of cross-examination. Mr. Otto denied, then admitted, to having memory issues; he denied, then admitted, suffering from hallucinations; he denied, then admitted, seeing snakes during his hallucinations; he denied police attendances on the fourth floor and then admitted having phoned police himself; he testified that the hallucinations began as a result of the smell of crack and then admitted to having consumed crack and that alcohol also triggered the hallucinations; he denied various instances of violent behavior and then admitted them. In certain areas, the complainant's evidence sometimes reverted back to the denial and then returned to the admission. The sheer volume of inconsistencies means that this Court cannot accept Mr. Otto's evidence as reliable other than where it is confirmed or supported by other evidence.

The Accused

[36] Mr. Peacock began his evidence with an account of his knowledge of Mr. Otto. This was derived from information received from Alexandra Visitor, the other individual inside unit 403, as well as from his own experience. In that regard, Ms. Visitor told the accused of an incident where Mr. Otto attacked Leo, her then boyfriend, during one of his "episodes". Mr. Peacock himself saw the complainant exhibit bizarre behavior, including an instance where he jumped onto a taxi in front of the apartment building. He also recalled several times where Mr. Otto was screaming in the hallways, shouting, banging on doors, running up and down the hallway and running into stairwells. At times, he would have a terrified look on his face and would point to things as though others should be able to see something. He would also say "Get them off me get them off me, they're biting me, get him off me." Mr. Peacock was witness to a situation where another person was cornered in an apartment by Mr. Otto during one of his episodes. Mr. Peacock also recalled Mr. Otto being in a physical altercation with a crack dealer just outside unit 403. Mr. Peacock also generally knew of Mr. Otto's reputation of having been involved in gang activity in the past. Mr. Peacock related that he had been told not to sell any crack to Mr. Otto because of his volatile behavior. The difficulty with Mr. Otto, according to the accused, was that he was completely unpredictable.

[37] Mr. Peacock was staying at unit 403 with Alexandra Visitor in October, 2011. He assisted her with selling drugs though, because of his own consumption, he was not very good at it. With respect to the layout of the apartment, there was a window and a door. The door was not solid, however, and could be opened simply by body checking it, according to the accused. Apparently, the apartment had been broken into several times either for drugs or the stolen goods being fenced from the apartment. At the time of the incident, Mr. Peacock had been consuming crack cocaine, as well as other drugs intravenously, and as a result, was eating very little. He had lost a significant amount of weight. He estimated his weight at the time to be time at 155 to 160 pounds. Mr. Otto, in contrast, seemed to be capable of working, as the accused saw him on different occasions going to and from work wearing construction boots, work clothes and carrying a bag. In addition, he seemed periodically to have money, allowing him to purchase crack and other drugs.

[38] On October 28, 2011, he and Alex heard very disturbing screaming in the hallway. After some time, he went to the door, poked his head out and told Mr. Otto to stop screaming, to return to his apartment. He testified that, at that time, he was not swearing or being aggressive. When he looked down the hallway, Mr. Otto was standing in front of his apartment and when he spoke to him, Mr. Otto turned, looked at him and had a crazed, bug eyed look. He did not respond; he simply screamed. Mr. Peacock said "Henry, get in your apartment; just go in your unit." Mr. Peacock closed the door to the apartment and locked it. He could still hear screaming and Mr. Otto generally causing a commotion. He did not wish to attract the attention of security or police as police had been at the apartment one hour previous. During that police visit, he hid under a futon, allowing Ms. Visitor and another male in the apartment at the time to deal with them. He was wanted on two outstanding warrants of arrest and, therefore, wished to avoid police. Once police left, he and Ms. Visitor decided to remain inside for the night and not open the door for anyone. Hydro had been turned off sometime prior and, therefore, they remained inside the apartment in the dark.

[39] Shortly after having directed Mr. Otto back to his own apartment, Mr. Otto began to bang on their apartment door, screaming "911, 403, 911, 403". At this point, Alex was terrified and he himself scared. Both were trying to hold the door closed.

[40] Mr. Peacock testified that Mr. Otto seemed determined to get into the apartment. Ms. Visitor related to him that Mr. Otto was smacking the door with his head. Ultimately, Mr. Otto entered the apartment, though Mr. Peacock could not say how the door was opened. When he came to the door, he had blood on his face and was still bug-eyed. He was also still screaming. When Mr. Otto came through the door, he and Mr. Peacock began to physically struggle. No weapon was involved. Mr. Otto was still screaming while Mr. Peacock shouted "stop, stop, stop". Ms. Visitor shouted "stop" as well as "get out". As these words were uttered, Mr. Peacock fell from having become tangled in bicycles that were proximate to the entrance. Mr. Peacock fell onto his back while Mr. Otto fell or tripped headfirst into the bathroom.

[41] Mr. Peacock noted that the bathroom was sometimes used by crack purchasers to shoot up. As result, there were needles and sharps containers. Once Mr. Peacock got to his feet, he was able to push Mr. Otto into the hallway. No strikes were used, though it took some force to get him out and close the door behind. Throughout, Mr. Otto was still "out of his mind".

[42] Mr. Peacock described being very fearful at this point, feeling that his energy was completely spent. He felt sick, nauseous. Given the state of the apartment, including access to various weapons or objects that could be used as weapons, Mr. Peacock feared that the complainant would return to the apartment, putting him and Ms. Visitor at risk. The decision was made to leave the apartment to escape any further altercation with Mr. Otto. As they opened the door to leave, Mr. Otto was still there and tried to re-enter the apartment. Mr. Otto was not invited into the apartment. As soon as he entered the apartment, Ms. Visitor screamed, "get out, get out, stop". Again, Mr. Peacock struggled with Mr. Otto at the entrance to the apartment. Mr. Peacock fell to the ground in front of the couch. Mr. Otto kept on lunging and screaming. He was bleeding from his head and his eyes were wide open as he screamed.

[43] Mr. Peacock testified that, at this particular point, he believed that Mr. Otto could kill him. He did not know what his intentions were and he appeared to be losing his mind, screaming. He was not responsive to anything being said, nor did he focus on Mr. Peacock. He seemed to look through him. He kept on lunging, shouting. Mr. Peacock recalled then attempting to push Mr. Otto towards the doorway. At that point, he grabbed a golf club that was on top of the dresser.

[44] By this time, the situation had been going on for some time without security or police responding. Mr. Peacock testified that he did not have much strength left, that he was shaking and having difficulty breathing. He picked up the golf club in order to defend himself. Mr. Peacock began by pushing Mr. Otto with the golf club, chest level. He also struck the dresser by way of warning as he told him to get out. Mr. Otto, however, continued to advance on him. This is when Mr. Peacock struck him in the head with the golf club. Following this blow, Mr. Otto seemed to buckle to his knees. He then wrapped his hands around Mr. Peacock's left ankle. He was still yelling and shouting. Because he continued to fear for himself and Ms. Visitor, Mr. Peacock dragged Mr. Otto towards the exit, while Mr. Otto continued to wrap his arms around his ankles. Mr. Peacock recalled shouting, "get off me, get off me, Henry, stop". Ms. Visitor was also shouting something similar. At this point, Mr. Peacock felt very scared as he had no more strength left. He was unable to catch his breath and felt sick. As they exited the apartment, Mr. Peacock struck the fridge as well as the door jam. The golf club broke at that point, with the head falling to the ground. By this time, they were in the hallway. Mr. Peacock recalled hearing individuals in the stairwell. Mr. Peacock testified that he did not want to hit Mr. Otto, he simply wished for him to get off. Mr. Peacock recalled pushing his head down with his hand and then swatting him on the head with the broken shaft, all in an effort to get him to let go. He testified that the swatting was not effective. He either dropped or threw the broken shaft. He managed to get free and then ran down the hallway towards another stairwell. By this time, Ms. Visitor had already made good on her escape.

[45] Mr. Peacock testified that he left the scene because he still did not wish to be arrested on the outstanding warrants. Furthermore, he also knew he risked being arrested as a result of the drugs, drug paraphernalia and stolen goods in the apartment. Mr. Peacock felt that he had tried using a lesser degree of force, namely, his own physical force, which failed to remove Mr. Otto from the apartment. He felt that he could not stop him. At the time as well, Mr. Otto was bigger, in better health and in better shape than him. He felt that Mr. Otto had the potential to seriously harm or kill.

Analysis

[46] As I have already outlined above, Mr. Otto's evidence was fraught with contradictions and gaps. With respect to the events leading up to the assault, I do accept that he was hallucinating, that this involved snakes, that he was screaming in the hallway, and that at one point, he was banging on various doors on the fourth floor. I do not, however, accept his chronology of the events that followed, given his limited recollection and the issues as to reliability.

[47] While Mr. Kourouma and Mr. Barefoot were independent witnesses, they were witnesses to only portions of the events and, at least in the case of Mr. Barefoot, had a very limited opportunity to make observations. From their evidence, I do accept that Mr. Peacock dragged Mr. Otto into the hallway from his apartment. I also accept that Mr. Otto was struck by Mr. Peacock. I do not accept that he was struck with a 5-foot wooden pole in front of the stairwell, however.

[48] The Crown encourages me to conclude, based on their evidence, that Mr. Peacock was the primary aggressor. To do so would, in my view, be an error, given that both witnesses recognized only having seen a portion of what occurred. Indeed, their evidence is a fraction of the events that transpired that evening. There is also some suggestion that the physical evidence corroborates that the blows with the golf club were given while in the hallway. While the indentations suggest consistency with the shape of the golf club, Detective Storozuk could not ascertain when these were made and noted the general disrepair of the wall. He did not note any plaster or debris on the head of the golf club. Finally, he could not say when the fixed red staining transferred to the hallway. In any event, I do note that Mr. Otto is seen bleeding in the hallway outside of apartment 403, which would account for the location of some of the staining. In short, the physical evidence is inconclusive as to where the altercation took place.

[49] With respect to Mr. Peacock's evidence, it was given in a generally forthright manner. I do, however, note that, at times, Mr. Peacock was unable to testify with certainty as to certain events. He did not, however, mislead the Court as to his recollection, usually using language reflective of his uncertainty. Mr. Peacock did not have gaps in his recollection of the evening, rather, certain details escaped him, including who called whom and from what cell phone when he was contacted by police and Ms. Visitor. I do not put significant weight on this inability to recollect and do not find that it undermines his general narration of the events of that evening. I do not find that he painted an exaggerated picture of his weakened state or his belief as to Mr. Otto's volatility. If anything, this last aspect was supported by Mr. Otto's own evidence, as well as his criminal record.

Issue Number One: A Reasonable Perception of Force or a Threat of Force Against the Accused or Another Person

[50] Mr. Peacock spoke of his knowledge of Mr. Otto, his episodes and his assaultive past. He was, furthermore, witness to several instances of unpredictable behavior while in the throes of a hallucination. On October 28, 2011, Mr. Peacock described Mr. Otto as being the worst he had ever seen. The behavior in the hallway, in terms of the screaming and the banging on the door, was followed by an un-invited entry into unit 403, which was immediately followed by a physical struggle within the apartment. The removal of Mr. Otto from the unit temporarily put an end to the altercation between him and Mr. Peacock. However, the exit from the unit led Mr. Otto to again enter uninvited into the apartment. The same concerns at the time of the prior entry would, of course, still be relevant. In that regard, Mr. Peacock's assessment of the availability of various makeshift weapons is amply supported by the photographs of the apartment. The second entry into the apartment was immediately followed by another physical struggle. Mr. Peacock testified, and I accept his evidence on this point, that his physical condition at the time was significantly different than how he presented at trial. Namely, he was several pounds lighter and was in very poor physical health. Constable Forgie supported the significant change in appearance from the time he dealt with him and how Mr. Peacock presented at trial. Accordingly, I accept that his weakened physical state would have preyed upon his mind.

[51] In short, I accept Mr. Peacock's subjective perception of risk to himself and Ms. Visitor and, given the behavior being exhibited, the refusal to leave and stay gone from the apartment and the readily accessible potential weapons, Mr. Peacock's perception of the threat presented by Mr. Otto was objectively reasonable. In short, I find that Mr. Peacock had reasonable grounds to believe that force was being used against him or that a threat of force was being made against himself and Ms. Visitor.

Issue Number 2: A Defensive Purpose for the Accused's Act

[52] Mr. Peacock testified that his one and only purpose in striking Mr. Otto was to stop the threat to himself and Ms. Visitor. I accept this purpose. While there was some suggestion from the Crown that perhaps Mr. Otto was beaten by Mr. Peacock to silence him, to avoid the attendance of police, I do accept Mr. Peacock's assessment of the situation that Mr. Otto's erratic behavior caused him to welcome the attendance of police to deal with him.

Issue Number 3: An Objective Determination of the Reasonableness of the Accused's Act

[53] The backdrop to this particular assessment is as follows:

• Mr. Otto had a known history of hallucinations, erratic and unpredictable behavior, and physical aggression;
• Mr. Otto had been yelling for some time and Mr. Peacock began his interaction with him through voice commands;
• Mr. Otto banged his head against unit 403's door;
• Mr. Otto entered the unit uninvited and immediately began a physical struggle with Mr. Peacock;
• Mr. Peacock was in a weakened physical state generally at the time. Mr. Otto, though not significantly taller than Mr. Peacock, was healthier than him at the time;
• once Mr. Otto was removed, Mr. Peacock, he was physically spent and nauseous;
• there were no working telephones in the unit;
• there were many items within the apartment that could be used as weapons;
• there was only one exit to the apartment: the door used by the complainant;
• Mr. Otto reentered the apartment unit uninvited and began a second physical altercation with Mr. Peacock;
• Following this struggle, Mr. Peacock reached for the golf club. He swung it once as a warning shot and hit the dresser. He pushed Mr. Otto away with the golf club at the chest area. He swung at Mr. Otto and hit him in the head. Mr. Otto fell to his knees and then attached himself to Mr. Peacock's ankles. Despite repeated commands, he would not let go. Mr. Peacock dragged Mr. Otto from the apartment. This was confirmed through an independent witness. Mr. Otto continued to refuse to let go even once outside of the apartment. Mr. Peacock struck the door jam on the way out the apartment, breaking the golf club. He continued to hold the shaft, which he used to strike Mr. Otto a couple of times in the head area to get him to let go. These strikes are also confirmed by an independent witness.

[54] The threat presented by Mr. Otto and his conduct that night, engaging with Mr. Peacock physically and refusing to leave unit 403 was, objectively speaking, a real threat and not merely speculative. The threat presented by Mr. Otto was urgent. Indeed, Mr. Otto demonstrated significant determination in engaging Mr. Peacock and returning repeatedly to the unit. With respect to alternative means to respond to the threat, Mr. Peacock began his dealings with Mr. Otto verbally, engaged with him physically, in terms of pushing, grappling and wrestling, seeking a weapon, only once his physical capability to respond was compromised. He, furthermore, began his use of the weapon in a more benign fashion, hitting the dresser as a warning prior to making any use of it directly on Mr. Otto.

[55] Mr. Otto was a central figure in the confrontation. His repeated attendances at unit 403, even when it was clear he was not invited, was not wanted and had been physically ejected, caused the escalation of response by Mr. Peacock.

[56] While Mr. Peacock resorted to the use of a weapon, it was not without having attempted other less forceful means of dealing with Mr. Otto and having failed to remove the threat he continued to present.

[57] At the time of the incident, Mr. Otto and Mr. Peacock were approximately the same age and gender. However, Mr. Peacock's health was compromised by his repeated and constant drug use. As a result, Mr. Peacock was the weaker of the two.

[58] In the past, Mr. Peacock tried to avoid Mr. Otto because of what he knew of his prior history. There is, therefore, minimal interaction or personal history between the two prior to this occasion. Mr. Peacock did, however, witness Mr. Otto hallucinating and had, therefore, seen his erratic and aggressive behavior.

[59] The final relevant consideration is the proportionality of the blows to Mr. Otto using the golf club. Mr. Peacock certainly did not immediately resort to the use of a weapon, but rather, used it as a result of the continuing threat presented by Mr. Otto and his repeated assaults in the apartment. He testified that once his own physical energy was spent, he was concerned that he would no longer be able to defend himself or Ms. Visitor. He was concerned that Mr. Otto would reach for a weapon in the apartment, of which there were many. He had never seen Mr. Otto behave as badly as this and as time and the behaviour escalated, he feared for his life. Even after the first blow, Mr. Otto refused to leave, but rather held onto Mr. Peacock who had to drag him out. Even in these circumstances, he did not let go. Mr. Peacock hit him again, this time about twice with the shaft. I accept that, subjectively, Mr. Peacock felt that he had no choice but to resort to the use of a weapon and repeatedly strike Mr. Otto. Objectively, given the repeated entries and physical attacks in the apartment, as well as all of the other circumstances previously mentioned, Mr. Peacock's actions in the apartment were not excessive.

[60] With respect to the actions in the hallway where Mr. Peacock struck Mr. Otto with the shaft of the golf club, Mr. Otto was on the ground, but still holding onto Mr. Peacock. While he was no longer physically assaultive, he still had not ceased to interfere with Mr. Peacock. He had also previously shown his willingness to re-engage the accused. In those circumstances, a reasonable person would, in my view, use force to stop the threat. While one blow as opposed to two may have been sufficient, as force need not be measured to a nicety, and one may be in error as to the nature and extent of force required, but still claim the benefit of section 34, the actions in the hallway were proportionate in these circumstances. In coming to this conclusion, I am also relying on the evidence of Detective Forgie that when he dealt with Mr. Otto that night, given the conduct or behaviour exhibited and his prior knowledge of the complainant, he felt it necessary to use force to deal with Mr. Otto. Finally, I am also mindful of the comment from R. v. Kandola, supra, that a measure of tolerance must accompany any assessment of proportionality. Therefore, while I am aware that repeated blows with a weapon will, at times, be an excessive response, in this particular case, given all of the circumstances, it was not.

Conclusion

[61] For all of the foregoing, while I am satisfied that that the Crown has proven all of the elements of the offences themselves, I am not satisfied that self-defence has been disproven beyond a reasonable doubt. Mr. Peacock is acquitted of both counts.

Released: September 17, 2014

The Honourable Justice J.V. Loignon