Court File and Parties

Ontario Court of Justice

Date: 2016-06-22

Court File No.: Region of Durham 998 14 14699

Between:

Her Majesty the Queen

— and —

Jacob Halsall

Before: Justice J. De Filippis

Heard: May 2, 2016

Reasons for Judgment released: June 22, 2016

Counsel:

• Mr. B. Guertin, counsel for the Crown
• Mr. R. Gemmill, for the defendant

De Filippis J.:

Introduction

[1] The defendant was tried on an Information alleging that he committed aggravated assault and assault with a weapon on Ethan Hodgkinson on November 15, 2014 at the Township of Brock.

[2] The defendant admits he hit the complainant in the head with a baseball bat causing injuries that amount to aggravated assault. These injuries are a laceration on his forehead and nose, as well as fractures to the skull, orbital bone and nose. The issue is self-defence; that is, has the Crown proven that the defendant's actions were not lawful self-defence.

[3] This incident occurred outside a pub during a confrontation between two groups. One group consisted of the complainant, Mr. Cooke, Mr. Lust and Mr. Stark. The other included the defendant, Mr. Powell, Mr. Croft, and Mr. Thaxter. I will refer to these people as the "complainant's group" and the "defendant's group". Part of the event was recorded by a surveillance camera in the area.

The Evidence

[4] The video record, from the surveillance camera, begins at 2316 hours and shows the following: The complainant's group leaves the bar and is about 100 metres down the road. The complainant turns and begins to walk back toward the bar. He is carrying a weighted sock in one hand and appears unsteady on his feet. Mr. Cooke tries to pull him back but the complainant presses forward. He makes gestures that are consistent with "taunting". At this point the defendant's group comes within the camera range. The two groups are now within a few metres of each other. The defendant, Mr. Powell and Mr. Croft are carrying wooden sticks. The latter two are swinging the sticks. The defendant is carrying his at his side. The complainant appears to remove a folded knife from his pocket and with this additional weapon in hand backs away as the two groups interact. Mr. Powell is the first to strike by hitting a member of the defendant's group with his stick. A member of the complainant's group falls to the ground and is repeatedly hit with a stick by Mr. Croft. He gets up, staggers, falls to the ground, gets up again, and runs away. The complainant and defendant are to the side and behind the action just described. They are part of the fight between the two groups but it is difficult to see what they are doing. The action is over in three minutes.

[5] Mr. Hodgkinson testified that on the evening in question, he went to the Wooden Nickel Pub with his brother and some of his friends. The complainant is a big man at 6'6" and 215 lbs. He is employed as a roofer. He said he had "a couple of drinks" and was "not really intoxicated". That said, this is all that he can remember about the events leading up to his injuries: There was a confrontation in the bar with "yelling back and forth" between his group and another group. This continued after the complainant's group left the premises and the other group was inside the front window. Then, this other group left the bar and some of those people went to a car and retrieved baseball bats. The complainant had a hard object in a sock but cannot say what it was or where it came from. He was hit by a baseball bat and bled from the head and nose. The complainant could not elaborate on his evidence, notwithstanding the video record. The complainant testified that his wounds required 10 stitches and surgery to remove fat from his stomach to be placed on the forehead. He continues to experience headaches and dizziness.

[6] The complainant was unable to say if he had threatened the other group by drawing his finger across his throat or if his brother had exposed his genitalia to them in a mocking fashion. The complainant told the police that he did not recall having anything in his hand. The video record and his trial testimony confirm that he swung a weighted sock but he does not know if it contained a billiard ball. He also could not say if he pulled a folded knife from his pocket. The complainant testified that he did not know if he struck a member of the opposing group with the weighted sock before he was hit [by the defendant]. He also does not know if he was warned to step back before this attack.

[7] Connor Cooke is 21 years old and employed as a framer. He has a prior conviction for failure to comply with a recognizance (by being out past his curfew). He testified that before going to the Wooden Nickel, Matthew Stark and Joshua Lusk visited him and his brother at their residence. They drank beer and smoked a joint. He continued drinking at the bar and became intoxicated. He does not recall anything untoward happening inside the pub but noted that once his group went outside, there was shouting back and forth between them and the defendant's group; the latter were seated inside the front windows. Mr. Cooke testified that during this confrontation "I pulled out my genitals". He added that the defendant's group then came outside, some with baseball bats and "were calling us on" as they banged the bats on the ground. Mr. Cooke said he was hit in the head and "awoke at home" without memory of what else may have occurred.

[8] The video record was also played to this witness. Mr. Cooke said he is the man who was repeatedly hit while on the ground. He confirmed that he tried to pull his brother back as he turned to walk towards the defendant's group. He believes the complainant walked towards the defendant's group after the latter had produced bats from the trunk of a nearby car.

[9] Mr. Cooke denied stabbing Mr. Powell before he was knocked to the ground. He said that when the two groups engaged each other he put a "bic lighter" in each closed fist to add weight to his blows. He agreed that blood tests conducted at the hospital that evening showed he had methamphetamine in his system. He speculated that a joint he had smoked with a stranger at the pub had been "laced with it".

[10] Matthew Stark is 21 years old and works for the Ford Motor Company. He said that he does not often drink and "was wasted this night". He consumed "beer and shots" at the complainant's home before going to the Wooden Nickel. He spilled the first beer he ordered. He said that he left the bar with the complainant, Cooke and Lusk and that as they walked away, "there was a screaming match" with another group that had come out of the pub. Mr. Stark testified that the complainant "was getting loud". He tried to "push him back" but the complainant "walked past" him toward the defendant's group and "it was clear there was going to be a fight". He saw "bats pop out and there was no turning back." People in the defendant's group were "tapping the bats on the ground and circling".

[11] Mr. Stark was scared and added that much of what happened is "a blur to me. However, he recalls that both he and the complainant were hit with a bat or piece of wood. He saw the complainant fall to the ground, his "head split wide open and coughing blood". Mr. Stark called 911.

[12] Michael Powell is 29 years old and employed as a butcher. He drove to the Wooden Nickel and parked his car directly in front of the pub. He was part of the defendant's group and pled guilty to assault with a weapon because of his role in this incident. The facts in support of that guilty plea were put before me and include the following: After the complainant's group left the bar, the complainant made a throat-slitting motion and his brother, Mr. Cooke, exposed his penis. This group then walked away. The defendant's group went outside. From down the street, the complainant called out to the group to fight, calling them "pussies" and began to walk towards the defendant's group. The complainant resisted attempts by his friends to pull him back and continued walking while swinging a weighted sock. At this point, Mr. Powell obtained two bats from the trunk of his car and handed one to the defendant. Mr. Powell led his group towards the complainant. As he did so he banged his bat on a tree and it split in two. Mr. Croft picked up the other half of the bat. The complainant and his group walked backwards. As they did so, the complainant and his brother pulled folding knives from their pockets. Mr. Powell walked up to the complainant and hit him twice with the bat – to the ribs and torso. Mr. Powell was then hit in the side of the head with the weighted sock and stabbed in the buttocks by Mr. Cooke. He fell to the ground. The fight continued between the two groups and, at this point, the defendant hit the complainant in the head with a baseball bat.

[13] Mr. Powell's testimony at this trial is generally consistent with the aforementioned guilty plea facts but his memory is vague on certain details. He said that he was attacked and defended himself. It is not clear what he meant by this; it appears to be inconsistent with his previous admission of guilt and is in conflict with the video record, showing him to be the first to strike. He added that his group followed the complainant's group outside the bar after the threatening gestures "to see what the hell was going on". The other group was about "100-200 feet away up the street" and the complainant was "very aggressive" as he walked back towards them. Mr. Powell said he obtained the two baseball bats "for protection" because he saw that the complainant had a weighted sock and another person had a knife. He was given stitches for the wound to his buttocks, had a swollen lip, and a "severe headache".

[14] Mr. Halsall is 20 years old and is employed in the automotive industry. He is 5' 8" in height and weighs 60 lbs. His statement to the police was put in evidence. It includes the following assertions: He and his friends were in the bar "minding our own business" and the complainant's group went outside and made threatening gestures at them. The defendant's group was perplexed by this and went outside. He described the complainant as "belligerent, not normal" and believed that he and his companions were "on drugs". Mr. Halsall noted that

"then we just heard screaming and yelling from down the road and they started walking towards us and they seemed mad at us for some reason….We didn't really want any altercation. We weren't really looking for a fight…And then I was thrown a baseball bat. He got it from his car. Powell's car. And …a bunch of fighting and one of their guys got hit…. I stopped to see …if he was badly hurt…and then there was the big guy, the one with the pool ball. And he hit Powell in the face and like knocked him out. And then he started going after another one and he hit him in the arm and then I told him to 'Get out of here. Get out of here. And then he was – started to come and me and that's when I swung the bat….from what I've been hearing, I guess it hit his head"

[15] The defendant's testimony at trial was consistent with this statement to the police. He added that the complainant's group was "calling us on from down the street". The complainant is a much bigger man. He testified that he hit the complainant once in the forehead with a baseball bat in self defence. He explained that he first warned the complainant to "leave us alone" but the latter continued to walk towards him with the weighted sock in hand.

[16] The defendant denied his group went outside to confront the other group. He said they did so "to see what was happening, just curious". The two groups were separated by a "couple of hundred feet" and engaged in a shouting match, when the complainant turned and walked towards his group, with the weighted sock in hand, and "calling us on". The defendant conceded it would have been easy for him to retreat to the bar but that he stayed with his friends. He said Mr. Powell went to the trunk, took out two bats and "lobbed" one to the defendant. He accepted the bat and waited as the complainant walked toward them. He testified that Mr. Powell banged his bat on the ground as the defendant's group walked towards the other group.

[17] The defendant denied he walked confidently into this altercation and insisted he was frightened. He said he did not intend to use the bat, "just to intimidate". Mr. Powell "was the first into the fight" and swung his bat at the complainant. The defendant saw the complainant hit Mr. Powell in the face with the weighted sock. He conceded that he could have retreated but chose to stand his ground. He testified that his use of the bat was "not a deliberate shot to head…it was a swing…it was a panic swing" because the complainant was walking to him while "swinging the sock". The defendant was not struck by anybody and not injured.

Analysis

[18] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This means that if the defendant has called evidence, there must be an acquittal: (i) where the testimony is believed, (ii) where the testimony is not believed, but leaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R v W.D., 63 C.C.C. (3d) 397. The application of this principle does not mean the defendant's evidence is to be viewed in isolation, divorced from the context or other evidence in the case: F v R.D., [2004] O.J. 2086 (O.C.A).

[19] In R v Bengy, 2015 ONCA 397, [2015] O.J. No. 2958, the Court of Appeal for Ontario noted as follows, with respect to self-defence:

27 Bill C-26 was drafted to overhaul the self-defence statutory regime by enacting a single unified section. It received Royal Assent on June 28, 2012. On March 11, 2013, the Citizen's Arrest and Self-defence Act came into force, repealing the former ss. 34 to 37 of the Criminal Code and replacing them with a new s. 34 self-defence provision:

• 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.

28 The test for self-defence was, therefore, simplified into three basic requirements, applicable to all cases:

• (i)

Reasonable belief (34(1)(a)): the accused must reasonably believe that force or threat of force is being used against him or someone else;

• (ii)

Defensive purpose (34(1)(b)): the subjective purpose for responding to the threat must be to protect oneself or others; and

• (iii)

Reasonable response (34(c)): the act committed must be objectively reasonable in the circumstances.

29 When the first two prerequisites are met, the success of the defence will hinge on the question of the reasonableness of the responsive act. To inform this inquiry, s. 34(2) provides a non-exhaustive list of relevant considerations. None are requirements. The relevance of any factor, enumerated or not, will be a matter for the trier of fact to determine.

[20] Mr. Guertin, Crown, quite properly, concedes that the defendant meets the criteria in paragraph 34(1)(a). The Crown rests its case on paragraphs (b) and (c) and argues that the defendant's actions were offensive in nature and unreasonable. Counsel questions why the defendant chose to engage the other group rather than return to the bar. In any event, reliance is placed on the fact that the defendant said he possessed the bat "to intimidate" and he swung it at the complainant's head.

[21] Mr. Gemmili points out that, unlike Mr. Powell and Mr. Croft, the defendant did not tap his bat on the ground or swing it as the two groups interacted. Indeed, apart from the single blow to the complainant, the defendant did nothing. Defence counsel suggests I should accept the defendant's testimony that he warned the complainant to back off before using the bat and did not intend to strike the head.

[22] The determination of this case largely depends on the video record and testimony by the defendant. The complainant, Mr. Cooke and Mr. Stark are not reliable witnesses in that they were intoxicated on the night in question. I reject the complainant's evidence that he was not intoxicated. He also could not recall if he had a knife. The video record persuades me that he did. These witnesses do not shed light on the actions of the defendant. Mr. Powell's is supportive of the defendant's version of events but his misconduct on the night in question, and his inability to recall details, makes me wary of trusting him too much.

[23] I accept that the defendant possessed the bat for a defensive purpose. In this regard, I am not troubled that he said it was "for intimidation". A fair inference from his evidence is that he hoped to defend himself by threatening harm without wanting to actually hit anybody. The more difficult issue is whether the defendant's response was objectively reasonable in the circumstances. The Crown is right to ask whether it was necessary to hit the complainant in the head and to suggest he might have accomplished his purpose by striking a less sensitive area of the body.

[24] The failure of the defendant to retreat to the safety of the bar does not preclude a successful plea of self-defence – especially when, as here, events unfolded quickly. The defendant testified that he faced a complainant with a weighted sock. I find that it is a weapon just as dangerous as a bat. He also had a knife in hand. Significantly, I cannot reject the defendant's testimony on three points: That he saw the complainant hit his friend with the weighted sock; that he warned the complainant to stand back as he then approached him with it; and that he swung the bat in panic, without intending to make contact with the complainant's head. Neither the video record nor the other witnesses undermine these assertions.

[25] The defendant's conduct caused serious injury to the complainant. This is most unfortunate. However, the Crown must prove that his actions were not lawful self-defence. I am not convinced of this. That is, I find the defendant fairly believed that force would be used against him and his purpose in responding to this threat was protection. In addition, I have not been persuaded that his response was objectively unreasonable. He is entitled to the benefit of that doubt.

[26] The defendant is found not guilty.

Released: June 22, 2016

Signed: "Justice J. De Filippis"