Court File and Parties

Ontario Court of Justice

Date: 2018-10-16

Court File No.: Toronto 4817 998 17-75003166

Between:

Her Majesty the Queen

— and —

Nicholas Tinashe Chenje

Before: Justice Howard Borenstein

Heard: October 15, 2018

Reasons for Judgment Released: October 16, 2018

Counsel

Ms. Kaely Herbert — counsel for the Crown

Mr. Paul Tomlinson — Section 486.3 counsel

The accused Nicholas Tinashe Chenje — on his own behalf

BORENSTEIN, J.:

Facts and Background

[1] Mr. Nicholas Chenje is charged with one count of aggravated assault.

[2] The alleged victim was his then domestic partner and mother of their child, M. K.

[3] They have a daughter together who was two years old at the time of this incident.

[4] Mr. Chenje and Ms. K. were the main witnesses.

[5] Let me state at the outset that I found both to be thoughtful, bright, credible and impressive people who had a very bad day that day. A day which resulted in this charge against Mr. Chenje, and could have easily resulted in multiple charges against Ms. K. – though none were ever laid. And a day that ended their relationship.

[6] In any event, they were living in a 7th floor apartment. Ms. K.'s brother was also living there.

[7] It was Canada Day 2017. They had about ten people at their apartment. The accused was cooking. He is a chef.

The Incident

[8] The complainant, Ms. K., suspected he was cheating. During the party, she got his cell phone and looked through it. It confirmed her suspicions. She asked the accused to come into the washroom, where she confronted him. She was pushing him continuously. He kept asking her not to push him. She would not listen. She admits she was very angry, and kept pushing him physically. He tried to leave the washroom but would not let him. She pulled him back in.

[9] Eventually, someone from the party wanted to use the washroom and they exited. They did not let on to their guests what had happened, but they avoided each other for the rest of the night.

[10] Just after midnight, everyone left. Ms K. again confronted the accused; first in the living room and later in the bedroom.

[11] She admits she was very angry. She was pushing him repeatedly, and punching him with all her force. She punched him in the body. She could not recall if she ever punched him in the face.

[12] The accused testified she punched him in the face once. I find that happened. Because I found both quite honest about most of the events leading to the alleged assault by the accused.

[13] In any event, she was yelling at him, and pushing him and punching him. He never responded physically at all. At one point, he held out his arms and held her back by her neck so she could not hit him. She scratched his arm, causing him to let go.

[14] At one point, she told him to leave the bedroom – she wanted to be alone. Her daughter was in her crib in the bedroom. The accused left the bedroom. He then heard the bedroom window open, which never happens. He went and opened the door though did not enter the room. He saw Ms. K. throwing his jewelry, and watch, and wallet out the window. He asked her what she was doing.

[15] I find this is where they stared at each other.

[16] Their daughter was crying. She looked in briefly on their child, and then walked. She then walked toward him with a purpose. As she got to him, he punched her, as she was still walking toward him. The punch hit her in the face breaking her nose and orbital bone, and causing the need for four stitches in her forehead.

[17] She fell to the ground, and he immediately went to get her paper towel. She thought he was remorseful.

[18] Although they disagree, I find he wanted to accompany her to the hospital.

[19] She said no – she gathered her daughter and went downstairs, and called a cab and went to the hospital.

[20] When she returned the next day, she gathered her things and left. That was the end of their relationship.

Text Messages

[21] There are a series of texts between them the next day or so where she told him he broke her nose and the bone under her eye. He replied: "you did that to yourself, nobody started this fight but u. I warned you alreay about trying to test me, I knew this would happen."

[22] He later wrote again, stating: "so are you going to press charges so I can let my parents kno." And, further on: "you wanted to see the angry me, and that's what u got. I hope us got everything u wnted out of me."

[23] They now co-parent, and she said he was a great father.

Analysis of Credibility and Conduct

[24] Her behavior was assaultive all night, and escalating.

[25] They both agreed with much of the evidence leading up to his punching her.

[26] When he stood by the threshold of the door, he did not feel afraid. About 30 seconds after she threw his wallet out, she walked towards him. As she was coming toward him, she had a strange look on her face, and her arms flailing. He was unsure whether she would hit or push him again. In that instant, he decided the best thing to do was to try to protect himself, as he did not know if she would hit him.

[27] He did not think he used lot of force. He said his hands are stronger than most because he was a chef who works with his hands. He swung as she was coming toward him. He did not specifically aim for her face. He was not acting out of anger. He then testified that he acted somewhat out of frustration.

[28] He did send these texts, which spoke of him being angry, but he said those were sent after the fact.

[29] That essentially is the case. The issue is whether his punching her in the face, which resulted in those injuries, constituted self-defence.

Legal Framework: Self-Defence

[30] He need not prove self-defence.

[31] There is an air of reality to the issue as she was assaulting him all night. And she was angry, and it was escalating. So the Crown must disprove the self-defence burden.

[32] And the injuries are but one factor – they cannot be given too much weight in determining whether the force used was excessive.

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.

S. 34(2) provides a non-exhaustive list of factors to be considered in determining whether the force used is reasonable.

Application of Self-Defence Elements

First Element: Belief on Reasonable Grounds

[33] As it relates to this case, I find that the accused believed on reasonable grounds that force was about to be used on him in this case – even though he said he was not certain – he need not be certain. That belief that she would use force on him is inescapable. So, he is entitled to act in self-defence.

[34] Now, the Crown submits that he was not acting in self-defence – but out of anger, or frustration – and not in self-defence. While that is possible – especially given the accused's texts and some of his evidence which was equivocal, I have a doubt about whether he believed he was about to be assaulted.

[35] I think he was about to be assaulted. And I find he believed that too. He need not retreat.

Second Element: Purpose of Defence

[36] It is the next two components that the accused's defence has some difficulties.

[37] Even though he believed he was about to be assaulted, I think it is more likely than not that the act was done out of frustration, or anger than in self-defence. I base that on the fact that this was just after she threw his property off the balcony, the texts he sent and his evidence where he went from self-defence to acting in frustration.

[38] So while likely done in anger or in frustration, it is still possible in this case that it was done in self-defence given her conduct and that she was coming toward him again, and I am prepared to give him the benefit of the doubt on this second one as well, given the context that night, and find that the second precondition of s. 34 self-defence passes muster.

[39] He submitted that he acted out of reflex, which is akin to arguing there was no voluntary act, but I do not accept that at all. I have no doubt about that, especially given his earlier evidence that he decided it was best to protect himself. So I reject reflex.

Third Element: Reasonableness of Force

[40] Having passed the first two preconditions of self-defence, I turn now to the third: Was the force or act done reasonable in the circumstances? I bear in mind the factors mentioned in (2), including the size difference and gender.

[41] The Crown must prove beyond reasonable doubt that the accused's force was not reasonable. Reasonable does not mean it was the only course of action. It simply means that it was a reasonable act of self-defence. He does not have to prove it was reasonable. The Crown must disprove it beyond reasonable doubt.

[42] And, of course, an accused facing an attack, need not bring out an abacus and measure the precise amount of force he can use. He need not weigh with nicety the force used.

[43] That said, in my view, the force he used was not reasonable. It was plainly excessive. This, despite the events throughout the evening, which the accused should not have had to endure, and which amounted to repeated assaults against him and even forcible confinement, when the final act came, his actions of closed fisted punching the complainant in the face with enough force to knock her down, break her nose and orbital bone and cause stitches was unreasonable. Punching a woman, anyone, in the face, with a closed fisted punch is a very forceful act even without causing injuries.

[44] I accept he did not intend to cause those injuries and immediately regretted it. But I do not accept or have a doubt that he did not intend to punch her in the face. He initially testified he decided to strike her to act in self-defence.

[45] I do not accept that he accidentally hit her in the face. She was coming toward him. Yes, she is a few inches shorter. But he punched her with enough force to knock her down, and cause all those injuries. Those injuries do not translate into excessive force. But they do shed light on how much force was used. It was a solid, direct, closed fisted, hard punch right in the face. That was unreasonable. That was not at all necessary. And that is what amounts to the offence. And takes it out of self-defence.

Conclusion

[46] To conclude, as I said at the outset and in submissions, I found both to be thoughtful, credible, caring people when this happened. It was a one off, terrible night where both were assaultive. It is sad. And unfortunate. But that is what they did. And what he did. And he will be found guilty of aggravated assault.

Released: October 16, 2018

Signed: Justice Borenstein