Ontario Court of Justice

Date: 2015-05-06

Court File No.: Regional Municipality of Durham 998 14 A11791

Between:

Her Majesty the Queen

— AND —

Paul Mattachioni

Before: Justice J. De Filippis

Heard on: 29 April 2015

Reasons for Judgment released on: 6 May 2015

Counsel:

Mr. T. Boodoosingh — counsel for the Crown

Mr. S. Fraser — counsel for the Defendant

De Filippis J.:

Charge and Guilty Finding

[1] The defendant was charged with assault causing bodily harm, contrary to section 267 of the Criminal Code. After hearing from four witnesses, I found the defendant guilty. These are my reasons.

[2] The defendant waived proof of date, jurisdiction and identity and conceded that the injuries to the complainant amount to bodily harm. Moreover, much of the evidence is not in dispute. I will summarize that evidence and the position of the parties before reviewing the contentious trial testimony.

Undisputed Facts

[3] The complainant, Mr. Michael Humphrey, is employed as a delivery driver for a take out Chinese food store in the Town of Whitby. On the day in question, he had returned to the store after making a delivery. He parked his car in the laneway to the east of building. The defendant was there. Both argued over the fact that this is not a designated parking spot. The complainant entered the store to pick up another delivery order and placed it in his car. He walked back to get other orders and met the defendant at the door. They resumed their argument and the complainant grabbed the defendant by the coat at chest level to move him out of the way. The defendant said "Don't touch me". The complainant entered the store, followed by the defendant. The complainant turned to face the defendant and was punched in the mouth.

[4] Mr. Alex Campbell was waiting to pick his food order. The store is a small place with large glass windows and a "full glass door". He confirmed that the laneway is an awkward place to park and obstructs other motor vehicles. After the complainant parked there he saw him argue with the defendant. He also saw the defendant block the entrance to the doorway.

[5] Mr. Malcolm Hu is the son of the store owner and currently in university. At the time he was working at the cash register and taking phone orders. He saw the parties at the door, engaged in a "bit of shoving", before they entered the store. The parties continued to argue. After the complainant was punched in the face, the defendant, who had previously placed a food order, told Mr. Hu that he could "shove the food up his [i.e. the complainant's] ass".

[6] It is clear from this non-contentious evidence that the complainant and defendant confronted each other after an argument about where the complainant parked his car. There was a struggle at the door as the complainant attempted to enter the store. Once he had done so, the defendant followed and after more argument, the complainant was punched in the face. The Defence position is that this is a case of self-defence during a consent fight. The Crown argues that this is an assault that began as a "road rage incident" in the laneway.

Contested Evidence

Crown Witnesses

[7] The Crown witnesses differ about certain details and whether there was a struggle inside the store. The complainant testified that during the initial argument, he told the defendant to mind his own business. The defendant told him to "go fuck himself" and the complainant responded with similar offensive language. He added that they were "nose to nose" in argument and that this was accompanied by "a little grabbing of coats…I was trying to get into the restaurant and he was in the way, in front of the door". He denied "throwing the defendant aside" on entering the store and said there was no physical contact between them afterwards. However, they continued to argue in the store and he was punched in the face. He immediately called police and testified that, as he did so, the defendant called him a "coward". The complainant said he lost two teeth and one was chipped. The treatment process lasted nine months with three extractions, root canal and the installation of a bridge.

[8] According to Mr. Hu, the complainant was trying to get inside as the defendant held the door open with one arm and blocked the entrance with the other. The complainant approached the counter (where Mr. Hu was at the cash register) and the defendant followed. The complainant turned to face the defendant and was punched directly in the mouth. Mr. Hu added that the complainant "braced" his arm but was too late to block the blow. He saw nothing to suggest the complainant was the aggressor. Mr. Hu conceded that he was on the telephone taking a food order when he made the initial observations of the parties arguing in the doorway but said he had completed that transaction by the time he witnessed the defendant punch the complainant.

[9] Mr. Campbell testified that when the complainant first came into the store, he said to Mr. Hu, "it looks like this guy wants to start something". After placing a food order in his car, the complainant tried to re-enter the store but was blocked from doing so by the defendant. Mr. Campbell heard the complainant say, "I've got to do my job" and "I have to get in". He also heard the defendant say (several times), "Don't touch me". The parties continued to argue as they entered the store. Mr. Campbell saw the following happen in quick succession: The defendant pushed the complainant with both hands to the chest. The complainant pushed the defendant with one hand to the chest. The defendant swung his arm and punched the complainant to the side of the face (at the mouth). Mr. Campbell added that the complainant then "went to the phone to call 911" and, as he did so, the defendant said, "I told you not to touch me, if you touch me again, I'll rip your fucking head off".

Defence Evidence

[10] The defendant has been unemployed for several years and, until recently, was in receipt of disability payments. He said he was "upset, but not angry" with the complainant because the latter had parked in the laneway. He testified that at the initial confrontation, the parties pushed each other after the complainant had grabbed him by the waist. The defendant said, "don't fucking touch me". At this point the defendant had opened the door to the store and as the parties entered, the complainant "grabbed" the defendant and "threw" him aside. The defendant explained that, "I just reacted when he threw me" and punched the complainant in the side of the face. He admitted telling Mr. Hu he could "shove the food up his ass" and explained that he no longer wanted to eat it after seeing the complainant go into the kitchen, bleeding from the mouth. Nevertheless, after waiting 30 minutes for the police to arrive, he asked for his food order. When told it had been cancelled and a new order would take some time, he left.

[11] The defendant described his action as "a smack, not a hard punch" and added, "I don't think I knocked out his teeth...I've seen him there [i.e. the Chinese food store] before…every time I go there, he's missing teeth". When asked if he was suggesting the complainant faked his injuries as a "cash grab", the defendant said, "it seemed like he wanted to be punched in the face".

Legal Framework

Standard of Proof

[12] The criminal law standard of proof is set out in the often cited decision of the Supreme Court of Canada in R v. W.D., 63 C.C.C. (3d) 397. A criminal trial is more than a credibility contest between different versions of events. To support a finding of guilt, each element of the offence must be proven beyond a reasonable doubt. In a case where the Defence adduces evidence to the contrary, that standard is not met if it (i) is believed, or (ii) is not believed, but leaves the trier of fact in reasonable doubt, or (iii) does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond a reasonable doubt, that the defendant is guilty. This does not mean the Defence evidence is to be viewed in isolation; on the contrary, it is to be assessed in context of the entire case: F v. R.D., [2004] O.J. 2086 (O.C.A).

Self-Defence Under Section 34

[13] The Criminal Code excuses the use of force in certain circumstances. Section 34(1) provides that:

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.

[14] The first element requires that the person must have a subjective belief in a threat of force and it must be objectively reasonable. The second element is primarily subjective. Determining the reasonableness of a person's actions is an objective assessment. Presumably, the modified objective standard applies; that is, what would a reasonable person do standing in the shoes of the accused?

[15] Section 34(2) sets out nine (non-exhaustive) factors to be considered with respect to the third element:

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.

[16] Section 34(1) creates one rule with three elements – a perceived threat, a connection between the offensive act and the perceived threat and a use of force or other act that is reasonable. The first two elements reflect an air of reality test. Proportionality is woven throughout the factors listed with respect to the third element.

Analysis and Findings

Crown's Case

[17] There is no question that the Crown evidence proves the defendant is guilty as charged. The three witnesses confirm that after a brief and minor struggle between the parties, the defendant punched the complainant in the face, causing him to bleed and break three teeth. This evidence was not seriously or successfully challenged. In this regard, I am not troubled by the fact that Mr. Campbell disagrees with the complainant and Mr. Hu about whether there was any physical contact between the parties inside the store. I prefer the testimony of Mr. Campbell that there was such contact (and appreciate that this accords with the defendant's testimony). He had the best opportunity to observe. The Crown evidence shows that there is no reason for the defendant to have thrown a punch and that it constitutes an assault. This, of course, does not end the inquiry as it does not account for the defendant's evidence.

Self-Defence Claim Rejected

[18] Even if I accepted the defendant's version of events, I could not conclude that his actions were reasonable in the circumstances. He said he used force after the complainant "threw" him aside. The context in which this would have been done is not in dispute: The complainant could not enter the store because the defendant was in the way. Having forcibly moved the defendant, the complainant was no longer a threat. In punching the complainant in the face, the defendant was not defending himself – as he pointed out he simply reacted. In my opinion, it was an over-reaction that cannot be excused. In any event, I reject the defendant's version of events.

Post-Incident Conduct

[19] After being punched, the complainant held his mouth and said his teeth had been knocked out. According to Mr. Campbell, the defendant immediately replied, "I told you not to touch me, if you do it again, I'll rip your fucking head off". The complainant added that the defendant called him a "coward" as he telephoned the police. Moreover, the defendant agrees with Mr. Hu that he said his food order should be "shoved up [the complainant's] ass". These statements reflect ongoing rage, point to the defendant as aggressor, and undermine the claim of self-defence.

Credibility Assessment

[20] Quite apart from these observations, I was not impressed by the defendant's evidence about the punch and injuries. He testified the complainant seemed to want to be punched in the face. There is nothing to support this observation. Perhaps it was a flippant comment. He also doubted the complainant's teeth were knocked out and added, again, perhaps flippantly, that he is always missing teeth. Defence counsel did not suggest to the complainant that the injuries were feigned and he did not argue this point. I assume that counsel did not know this testimony would be given by his client. In any event, even if the evidence is sincere, and not a reflection of ongoing animus, it shows a man with an unreliable perception of what happened.

Conclusion

[21] I reject the defendant's testimony with respect to the points in issue. I am satisfied the evidence called by the Crown proves he is guilty.

Released: May 6, 2015

Signed: "Justice De Filippis"