Court File and Parties

Date: 2016-06-07

Court File No.: Brampton 15-4836

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Christopher Eggleton

Before: Justice P.A. Schreck

Heard on: May 9, 2016

Reasons for Judgment

Counsel:

• J. Graham, for the Crown
• The defendant Christopher Eggleton, on his own behalf

SCHRECK J.:

[1]

Christopher Eggleton is charged with assault causing bodily harm in relation to his father. He admits that he assaulted his father and takes no issue with the fact that bodily harm resulted, but maintains that he acted in self-defence.

[2]

Mr. Eggleton represented himself at trial. Very early on in the proceedings, it became apparent to me that he suffers from a mental illness. I was advised by Crown counsel that if Mr. Eggleton were to be found guilty, the Crown would seek to have him found not criminally responsible pursuant to s. 16 of the Criminal Code. There is no issue that Mr. Eggleton was fit to stand trial. While some of what he said during the trial was indicative of delusional thinking, he was fully aware of the nature of the allegations and the purpose of the proceedings.

[3]

Like anybody else charged with a criminal offence, persons who are mentally ill are presumed innocent unless and until the Crown has proven their guilt beyond a reasonable doubt. They are entitled to the same evidentiary and procedural protections. Those involved in their trials, including counsel and judges, should not make unwarranted assumptions about how mentally ill people behave.

I. EVIDENCE

A. The Case for the Crown

(i) Earle Eggleton

[4]

As stated earlier, Mr. Eggleton's father, Earle Eggleton, is the complainant in this matter. To avoid confusion, I will refer to them by their first names throughout the following summary of the evidence.

[5]

Earle testified that in November 2014, he was living in Mississauga with Christopher, who was 34 years of age at the time. In the early evening on the day in question, the exact date of which is unclear, he was sitting in his living room when Christopher asked to borrow his van in order to pick up his girlfriend. According to Earle, Christopher drove "like Mario Andretti" and had burned out the brakes on the van, so he refused to allow him to borrow it. Christopher then "went wild" and began swinging his arms towards the floor, as if to punch it, while shouting. Earle, who had just had "a couple of beers", then threw an empty beer bottle at Christopher, who was about 20 feet away. The bottle missed Christopher, hit a wall and then rolled along the floor. It did not break. Earle explained that he threw the bottle because he had been having difficulties with Christopher for a long time and as a result, he lost his temper and "just lost control".

[6]

According to Earle, Christopher then said "You threw a bottle at me". Earle tried to get up from his chair, but before he could do so Christopher approached him and struck him. Earle was unable to say how many times he was struck because he was "knocked out" and could only remember the first blow. He later explained that he was probably more stunned than unconscious.

[7]

After the assault was over, Earle attempted to get up but was unable to do so because he was dazed and disoriented. By this time, Christopher was on the telephone with somebody whom Earle believed to be his step-daughter and Christopher's step-sister, Sabrina Caldwell.

[8]

Earle testified that at some point, Curtis, a friend of his other son, Ryan, arrived at the apartment. Earle could not recall what Curtis said or did, but thinks that he may have stood between Christopher and Earle. A few minutes later, Ms. Caldwell arrived together with her boyfriend. At some point, Christopher left the apartment.

[9]

Earle testified that he thought that the assault had caused his tooth to puncture the inside of his mouth. One tooth had been knocked out and there was bleeding where it had been. He also had an abrasion above his right eyebrow and was bleeding from behind his ear. Earle did not initially seek medical attention. However, his cheek became swollen to the point that it was huge and became infected, so he went to a clinic where he was prescribed antibiotics. When the infection still did not subside, he went to a hospital where the antibiotic dosage was increased. Seven or eight days later, he began to feel better.

[10]

A photograph of Earle's face taken by Ms. Caldwell was tendered as an exhibit. Earle did not know when the photograph had been taken, but testified that he did not think that it accurately depicted his injuries the day after the assault because he recalled the swelling being much larger. The photograph had in fact been taken the day after the assault.

[11]

Earle did not contact the police following the incident. For reasons that were not made clear, he spoke to the police a few weeks later and at that time told them what had happened.

[12]

When Christopher was given an opportunity to cross-examine Earle, he began to explain his version of events. I explained to him that he would be given an opportunity to do that later in the proceedings, but that it was open to him to put his version of events to Earle. Christopher agreed that he wished to proceed in this fashion. He provided his version of events and Earle was asked whether he agreed. Earle agreed with some portions and disagreed with others. For many portions, he simply had no memory.

[13]

While Earle initially testified that he had only had a "couple" of beers prior to the assault, he later allowed that it could have been as many as four.

[14]

Earle agreed that earlier that day, Christopher had run some errands and had then picked Earle up from a bar and driven him home. He could not recall whether he had told Christopher to prepare dinner and could not recall if he had gone into the kitchen. He agreed that he had made comments about Christopher getting a job and doing something with his life.

(ii) Curtis Lavigne

[15]

Curtis Lavigne lived in the same complex as the Eggletons. He testified that on the day in question, he received a telephone call from Christopher's brother, Ryan, who told him that a fight was going on at the Eggletons' home and asked him to go there to help. Mr. Lavigne went there immediately and entered the house. As he entered, he saw Christopher, who appeared to be agitated and aggressive. His arms were "flailing". Christopher said "Buddy started it", presumably referring to Earle. Mr. Lavigne got the impression that Christopher did not want him to be there.

[16]

Mr. Lavigne saw Earle get up from the floor and walk upstairs. He was covering his head as he did so. According to Mr. Lavigne, Earle and Christopher were yelling at each other. Earle said that he wanted Christopher to leave, so Mr. Lavigne told him to do so. Christopher agreed, but first went to retrieve his backpack from the van. He then returned the van keys to the house and left.

[17]

After Christopher left, Mr. Lavigne went upstairs. By this point, Ms. Caldwell and her boyfriend had arrived. Mr. Lavigne testified that he observed Earle's cheek to be very swollen. There was blood in his mouth, a cut above his eye and a large gash above his ear.

[18]

Mr. Lavigne testified that he saw a "billy bat" on the living room floor which he knew was ordinarily kept in the house "for protection". He described it as being a miniature wooden baseball bat which was usually kept in the side of the couch. Mr. Lavigne claimed that the "strike mark" on Earle's face "actually matched the bat".

(iii) Sabrina Caldwell

[19]

Sabrina Caldwell, Christopher's step-sister, testified that she had telephoned Earle that evening but there was no answer. She called again, and this time Christopher answered. She heard him yell something like "Put your hands behind your back". Suspecting that something was amiss, she immediately rushed to the house, which was about five minutes away, together with her boyfriend.

[20]

When Ms. Caldwell arrived, she saw Mr. Lavigne and Christopher. She described both of them as being calm. Earle was standing at the top of the stairs and appeared shaken and confused. He had a cut at the back of his ear and several bumps on his head. She believed that he had lost a tooth and that a tooth had gone through his cheek. There was a substantial amount of blood on him.

[21]

Ms. Caldwell asked Christopher what had happened. He did not really answer, but said that he had called the police and that his father was "going to jail".

B. The Defence Case

[22]

Christopher elected to testify. He told the court that on the day in question, he dropped his father off at a bar at some time between 11:00 a.m. and 12:30 p.m. and then went grocery shopping. He picked his father up at about 4:00 p.m. and they both returned home, where Christopher began to prepare a roast for dinner.

[23]

After the roast was in the oven, Earle began "going off about getting a job and like all this other stuff". An argument ensued. In cross-examination, Earle agreed that they had argued about Christopher getting a job.

[24]

According to Christopher, at one point he went into the kitchen to check on the roast. Earle followed him into the kitchen, where he pulled the roast out of the oven with his bare hands and threw it. The lid to the roasting pan came off, the roast ended up in the sink and some of the liquid ended up on Christopher's arm. Earle left the kitchen. Christopher followed him and asked him why he had destroyed the roast, which had cost $16.00. Earle stood there with a beer in his hand and continued to shout about Christopher getting a job. In cross-examination, Earle initially denied throwing the roast, but later testified that he could not remember if this had happened.

[25]

Christopher testified that after they left the kitchen, Earle threw one and possibly two beer bottles at him. This had happened in the past, and the bottle had broken. After that, each man stepped towards the other. Christopher testified that Earle "came at me", after which Christopher put Earle onto the ground. Christopher then put him onto his stomach, pinned him down and told him not to move. While his testimony was not always clear, Christopher testified that he believed that he was acting in self-defence, which I take to mean that he felt that he had to do what he did to prevent continuing assaultive conduct by Earle.

[26]

According to Christopher, Mr. Lavigne entered the house at some point. Mr. Lavigne told him that he should leave and he did so.

[27]

While Christopher provided his account of what transpired during his testimony, he also spent a considerable amount of time rambling about unrelated matters. On several occasions, I had to remind him to focus on the issues before the Court. He also made statements which led me to believe that he suffered from delusional thinking. In particular, he said that he suspected that the person he had been living with at the time of the incident was not his father and was possibly an undercover police officer made to look like his father. He seemed to suspect this for several reasons, including that there were, in his view, subtle changes in his father's appearance. At one point, he said that he and his father did not usually have physical altercations and suggested that it was out of character for his father to throw a beer bottle at him.

II. ANALYSIS

A. Overview – The Elements of Self Defence

[28]

There is no issue that Christopher assaulted Earle. The real issue, based on how the evidence unfolded, is whether he did so in self-defence.

[29]

The defence of self-defence is governed by s. 34 of the Criminal Code. In the context of this case, it has three requirements: (1) the accused must believe on reasonable grounds that force or the threat of force is being made against him; (2) the act that constitutes the offence was committed for the purpose of the accused defending or protecting himself from the force or threat of force and (3) the act was reasonable in the circumstances. Provided that the defence of self-defence has an air of reality, the burden is on the Crown to prove beyond a reasonable doubt that the defence does not apply: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3 at para. 86.

[30]

On Christopher's evidence, the bottle throwing had been preceded by Earle throwing the roast. After the bottle was thrown, Earle "came at him" and Christopher took him to the ground at that point. Earle, however, testified that he had not risen from his chair when Christopher attacked him. Because there are contradictory versions of events, I must assess the credibility and reliability of each witness.

B. Assessment of the Evidence

(i) Christopher Eggleton's Evidence

[31]

Aside from asking Christopher a few questions about his suspicion that his father was not really his father, Crown counsel did not challenge his account of the altercation. It is well established that when a party seeks to ask the trier of fact to disbelieve a witness, the witness should be given an opportunity to respond. This is often referred to as the "rule in Browne v. Dunn" after the decision of that name reported at (1893), 6 R. 67 (H.L.): R. v. Quansah, (2015), 2015 ONCA 237, 125 O.R. (3d) 81 (C.A.) at paras. 75-86. While the rule is most often applied in circumstances where a party seeks to call evidence contradicting the witness's testimony, it also applies where the party seeks to ask the trier of fact to disbelieve the witness: R. v. McCarroll, (2008), 2008 ONCA 715, 238 C.C.C. (3d) 404 (Ont. C.A.) at paras. 107-108.

[32]

The rule is based on considerations of fairness to the witness, the party whose witness is impeached and the trier of fact: R. v. Quansah, supra at para. 77. With respect to fairness to Christopher, he was fully aware that the Crown was relying on the evidence of his father, which contradicted his. As a result, for the most part the failure to challenge him did not occasion any unfairness to him. That said, one of the reasons Crown counsel asked me to reject Christopher's testimony was that his suggestion that Earle grabbed the roast with his bare hands was implausible as the roast would have been hot. In my view, Christopher should have been given an opportunity to explain this. He was not, and I have considered this in my assessment of his evidence.

[33]

While not giving rise to unfairness, the absence of a challenge to the evidence in cross-examination means that reasons for doubting the veracity of the account that might have been demonstrated are never established. As well, I have not had the benefit of being able to assess Christopher's reaction to being challenged: R. v. Dexter, 2013 ONCA 744, [2013] O.J. No. 5686 (C.A.) at para. 19.

[34]

What the cross-examination did focus on was Christopher's delusions. I recognize that the presence of delusional thinking can affect the assessment of a witness's reliability. On the other hand, courts must also be cautious not to engage in stereotyping. The fact that an individual suffers from delusions does not mean that everything he says is unreliable or the product of delusional thinking.

[35]

In this case, Christopher's delusions seem to be very specific and focussed on his suspicions respecting his father's identity. While he does not seem to have firmly concluded that his father is somebody else, he appears to harbour grave suspicions that this may be the case. Although his evidence was not altogether clear, he at one point testified that he "didn't really care" if the person he was living with was really his father. Despite these delusions, Christopher was consistent throughout his testimony that the altercation occurred because Earle had thrown a beer bottle at him and then came at him. Nothing in the evidence supports the suggestion that Christopher's beliefs in this regard were based on delusions. The fact that a bottle was thrown is not in dispute.

(ii) Earle Eggleton's Evidence

[36]

Crown counsel has also invited me to reject Christopher's evidence because it was contradicted by Earle, whose evidence she submits should be accepted. However, I have significant concerns about Earle's testimony for several reasons, some of which are as follows. First, during his examination-in-chief he testified that the argument between him and Christopher that culminated in the altercation was about Christopher's wish to borrow the van. In cross-examination, however, he agreed that the argument was about Christopher getting a job, something he made absolutely no mention of during his examination-in-chief.

[37]

Second, I do not accept Earle's evidence about his alcohol consumption. He initially said that he had had only a "couple" of beers, but then acknowledged that he may have had four. He admitted that he had been to a bar earlier that day, something he made no mention of during his examination-in-chief. On Christopher's evidence, which is unchallenged on this point, Earle was at the bar from sometime between 11:00 and 12:30 p.m. until about 4:00 p.m., a period of three and a half to five hours. If, as he admits, Earle was drinking at the bar and then continued drinking at home, it is most unlikely that he would have consumed only four beers. In my view, there is a substantial possibility that Earle was intoxicated at the time of the altercation.

[38]

Third, Earle's account of his injuries was likely somewhat exaggerated. He described his cheek as being hugely swollen, and recalled his injuries being more pronounced than is shown in the photograph that was tendered as an exhibit. There is no issue, however, that the photograph was taken the following day.

[39]

Finally, Earle's memory of the events is somewhat unreliable. Most notably, he could not recall whether he and Christopher had argued about Earle throwing the roast, as is evident from the following exchange during his cross-examination:

THE COURT: Okay. So, the suggestion to you, Mr. Eggleton Sr., is that while you were in the living room in the positions that you just agreed to, there was an argument about you throwing a roast.

A. Again, I don't remember.

THE COURT: Okay, it didn't happen, or you don't remember if it happened?

A. I don't remember if it happened.

THE COURT: Okay, thank you.

A. I was – probably mum. . . .

C. EGGLETON: As the . . . .

THE COURT: Sorry. Sorry, you've got to let the witness – I'm not sure he was finished.

A. I was probably upset because he would never take and try to find a job or help himself to get better, and it was probably playing on my mind.

Of course, there would not have been an argument about Earle throwing the roast unless he had in fact done so. Although he initially denied doing so, he later seemed to admit that he may have done so because he was upset about Christopher not finding a job. The fact that he does not remember such a significant event makes his testimony unreliable.

C. Application of the Law to the Facts

[40]

Based on the foregoing, I accept Christopher's evidence that Earle threw the roast, threw a beer bottle at him and then came at him and I accept Christopher's evidence that he put his father on the ground to prevent any further aggression on his part. The remaining issue is whether Christopher's response was reasonable in the circumstances, as required by s. 34(1)(c) of the Code.

[41]

While Mr. Lavigne testified to seeing a small bat and claimed that the bat "matched" Earle's injuries, Crown counsel made no mention of this evidence in her submissions and I place no weight on it. Mr. Lavigne was not qualified to make the comparison between the bat and the injuries. He did not witness the altercation and there was no suggestion by Earle that a weapon was used.

[42]

The Crown submits that the nature of Earle's injuries demonstrate that the assault committed by Christopher was excessive, beyond what was necessary in the circumstances, and therefore unreasonable. The difficulty with this submission is that the evidence respecting the extent of Earle's injuries is unclear. He certainly suffered multiple injuries to his head, one of which became infected, and likely lost a tooth. However, I have heard no medical evidence respecting his injuries or any evidence as to the amount of force that would have been necessary to cause them. It is well established that an accused acting in self-defence "cannot be expected to weigh to a nicety, the exact measure of necessary defensive action": R. v. Baxter (1975), 27 C.C.C. (2d) 26 (Ont. C.A.) at p. 111; R. v. Mohamed (2014), 2014 ONCA 442, 310 C.C.C. (3d) 123 (Ont. C.A.) at para. 29.

[43]

Section 34(2) sets out a list of non-exhaustive factors which the court must consider in determining whether the act committed in self-defence was reasonable. I have considered each of these, including the fact that Christopher was much younger than Earle and the nature of the injuries. Having carefully considered these factors and the evidence, I am not satisfied beyond a reasonable doubt that the act committed by Christopher was not reasonable in the circumstances. I accept that all he did was to force Earle to the ground, turn him over and hold him down. While he may have caused injuries to Earle in doing so, that does not in my view render his actions unreasonable.

[44]

For the foregoing reasons, I am not satisfied beyond a reasonable doubt that when Christopher assaulted Earle, he did not do so in self-defence.

[45]

Before concluding, I wish to make the following observation. During her examination-in-chief of Ms. Caldwell, Crown counsel asked her whether she had concerns about what had taken place based on events that had occurred in the past. When I inquired as to the relevance of this evidence, Crown counsel advised me that she wished to establish that this was "not an isolated incident". I pointed out to Crown counsel that evidence of prior misconduct is generally inadmissible unless relevant to some issue beyond mere propensity to commit the offence and only if its probative value outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. Crown counsel conceded that she could not establish this, but advised me that Christopher's family was concerned that "something could happen again in the future".

[46]

As I did not ultimately hear the evidence, I cannot comment on the family's concerns. While such concerns may be relevant to issues that must be determined following a finding of guilt, they are of no relevance whatsoever to the issue of whether the Crown has proven its case beyond a reasonable doubt. Absent a finding of guilt following a fair trial, concerns about what may happen in the future must be addressed through the Mental Health Act, R.S.O. 1990, c. M.7, not the criminal process: R. v. P.A., [2011] O.J. No. 4779 (C.A.) at para. 15.

III. DISPOSITION

[47]

For the foregoing reasons, the charge is dismissed.

Justice P.A. Schreck

Released: June 7, 2016