Court Information

Ontario Court of Justice

Date: September 6, 2019

Court File No.: Ottawa 18-A12410

Parties

Between:

Her Majesty the Queen

— And —

Carly J. Anderson

Judicial Officer and Counsel

Before: Justice P.K. Doody

Heard on: July 22-23, 2019

Reasons for Judgment released on: September 6, 2019

Counsel:

• Stephen Donoghue, for the Crown
• Michael Spratt, for the defendant

Judgment

DOODY J.:

Introduction

[1] This is an unfortunate case of "road rage". The defendant, Carly Anderson, was driving on Ogilvie Road in Ottawa on August 7, 2018. She cut off the car driven by the complainant Linda Pelletier and stopped in front of her abruptly, causing Ms. Pelletier to apply her brakes and stop her car quickly. Ms. Anderson got out of her car and began to move toward Ms. Pelletier's car. Ms. Pelletier got out of her own car and walked towards Ms. Anderson. In the ensuing altercation, Ms. Anderson applied force to Ms. Pelletier and caused her to fall to the road, fracturing her pelvis and breaking her pubic bone. She spent just over a week in hospital and three weeks at a convalescent home. She is left with permanent pain and discomfort.

[2] Ms. Anderson has been charged with aggravated assault. She admits that the injuries were sufficient to constitute a wound and thereby satisfy that requirement of the offence. She submits, however, that the charges should be dismissed because:

(a) The Crown has not proven that her action was a voluntary act and not a reflex action; and

(b) in the alternative, the Crown has not proven beyond a reasonable doubt that she did not act in self-defence.

[3] Ms. Anderson submits, in the further alternative, that if neither of those submissions is accepted, she should only be convicted of simple assault because the Crown has not proven beyond a reasonable doubt that the circumstances of the physical act she committed gave rise to an objective foresight of bodily harm.

Context and Uncontroversial Facts

[4] I find the following facts to have been established by the evidence of the witnesses. While not admitted, there is no real dispute between the parties about them.

[5] Many of the facts in this section were established by a video recording of the incident from a camera mounted on traffic lights. The video was not high quality. The camera was high and at least 8 or 10 car lengths away from the incident, looking east towards the front of the defendant's and complainant's cars. The individuals were only a very small portion of the screen and their images were not clear. It did not record continuous motion. There were not many frames per second, and consequently some activity was not recorded.

[6] At the time of the events, the defendant was 24 years old. The complainant was 66 years old.

[7] Shortly before the altercation which gave rise to this charge, the defendant was driving her car and stopped on City Park Drive, heading north, just before the intersection with Ogilvie Road. The complainant was stopped in her car behind her. A man was crossing the road in front of the defendant.

[8] The complainant believed that the defendant did not move her car forward quickly enough after the man had crossed in front of her. The complainant honked her horn in an attempt to speed her up.

[9] This upset the defendant. She engaged in an argument with the complainant. The defendant then turned left onto Ogilvie Road, followed by the complainant. They both proceeded west on Ogilvie. The defendant was in the lane to the left of the complainant as they approached the intersection with the Aviation Parkway.

[10] The defendant cut sharply in front of the complainant and applied her brakes, cutting the complainant off. The defendant stopped her car about 3 car lengths before the traffic lights, which were red, at the Aviation Parkway intersection. There were no cars between the defendant and the intersection. The complainant stopped her car behind the defendant's car.

[11] The defendant got out of her car and started to walk towards the complainant's car. The complainant then opened her door. The open doors extended into the lane to the left of their cars, in which cars were travelling west (the same direction the defendant and complainant had been driving). One car had to move into the turning lane, two lanes to the left of the lane the complainant was in, to avoid hitting her door when it opened.

[12] The defendant stopped by her open door as the complainant walked towards her. The complainant walked with a cane. The video (which shows only the rear of the defendant) shows that when the complainant got very close to the defendant, the defendant moved her body towards the complainant. She did not appear to walk toward the complainant. The complainant fell to the road.

[13] The defendant bent down toward the complainant. The complainant's passenger Lisa Lopez opened the passenger door of the complainant's car, got out of the car, and walked in front of the complainant's car to where the complainant had fallen. She bent down over the complainant. The defendant then got in her car and drove away, turning right onto the Aviation Parkway.

[14] The entire incident took 46 seconds from the time the defendant first opened her door until she drove away. The complainant and the defendant were in very close proximity for less than 12 seconds before the complainant fell to the roadway. About 13 seconds after that, the defendant got in her car and drove away.

Analysis

(a) The Defendant's Act Was Voluntary

[15] The defendant relies on the decision of the Ontario Court of Appeal in R. v. Wolfe, 20 C.C.C. (2d) 382 in submitting that the defendant's application of force to the complainant was a reflex action and not the result of a voluntary decision. In Wolfe, the defendant was a hotel owner who had barred the complainant from the premises. The complainant refused to leave. The defendant telephoned the police and, as he was doing so, the complainant punched him. The defendant turned quickly and hit the appellant on the head with the telephone receiver. The trial judge held that he had hit the complainant in a "reflex action". The Court of Appeal set aside the conviction for assault causing bodily harm on the basis that the trial judge had found that the defendant's action was reflex, and not a voluntary action.

[16] I have no hesitation in concluding that the Crown has established beyond a reasonable doubt that the defendant's action was voluntary. As I will expand upon when dealing with the self-defence issue, she admitted in her statement to the police that she pushed the complainant after she warned her that if she came up to her she would defend herself. She also admitted that the complainant did come up to her, following which the defendant pushed her. Two independent witnesses said they saw the defendant push the complainant after she had been aggressively arguing with her. The complainant testified that the defendant grabbed her by the arm and threw her to the ground. The complainant's partner, Ms. Lopez, testified that the defendant shoved the complainant to the ground.

[17] While there is a discrepancy about the particulars of how the physical force was applied, as I will discuss later, all this evidence was in agreement that the defendant applied force to the complainant after the two of them were aggressively arguing and the complainant had come very close to, and perhaps touched, the defendant. I have no doubt that the defendant acted intentionally, and not reflexively, in applying force to the complainant.

(b) Self-Defence

(i) The Law and Issues

[18] Section 34 of the Criminal Code provides:

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.

[19] These provisions do not have to be considered by a judge or a jury unless there is an air of reality to a claim of self-defence. There is an air of reality where there is evidence which, if believed, would allow a reasonable jury properly charged to acquit. (R. v. Osolin, [1993] 4 S.C.R. 595 at 682)

[20] Crown counsel conceded that there was an air of reality to the defence of self-defence.

[21] Consequently, as Forestell J. of the Superior Court held in R. v. Avril, [2015] O.J. No. 1675, 2015 ONSC 2158, the issue is whether the Crown has proven beyond a reasonable doubt any of the following three things:

(a) that the defendant did not believe on reasonable grounds that the complainant was using force against her or threatening to do so;

(b) that the defendant did not assault the complainant for the purpose of defending or protecting herself from the complainant; or

(c) that the act of assaulting the complainant was not reasonable in the circumstances.

[22] The defendant submits that the evidence does not allow for any of these conclusions beyond a reasonable doubt. She submits that the evidence establishes that, or at least raises a reasonable doubt whether:

(a) the complainant came into contact with the defendant and was using force against her;

(b) the defendant assaulted the complainant for the purpose of defending or protecting herself from the complainant; and

(c) the defendant's assault of the complainant was reasonable in the circumstances.

[23] There are certain factual issues which are key to my determination of these issues.

(ii) Key Issues of Fact

The following three factual issues are critical:

1. Whether the complainant came into contact with the defendant before the defendant applied force
2. Whether the complainant had turned and started to walk away before the defendant applied force
3. Whether the defendant grabbed the complainant's arm

[24] The first issue is important because if the complainant came into physical contact with the defendant before the defendant used force against her, it would be more difficult for the Crown to prove that the defendant did not believe on reasonable grounds that the complainant was using force against her or threatening to do so.

[25] The second issue is important because, as defence counsel conceded, if the complainant had turned away from the defendant and was walking away before the defendant caused her to fall to the ground, self defence would not apply.

[26] The third issue is important because if the defendant had grabbed the complainant by the arm, it would make it more likely that her assault was not reasonable.

(iii) These Three Issues Must Be Determined by the W.(D.) Analysis

[27] The evidence conflicts on all three issues. The defendant gave a police statement in which she said that the complainant did come in contact with her, had not turned away, and that she had pushed her, not grabbed her by the arm. The complainant testified that she did not come into contact with the defendant, and that she had turned and started to walk away before the defendant grabbed her by the arm and shoved her to the ground. Other witnesses gave somewhat different accounts.

[28] The analysis set out in R. v. W.(D.), [1999] 1 S.C.R. 742, applies to any evidence (whether arising from the testimony of the defendant, defence witnesses, or from the Crown case) which, if true, is

(a) capable of preventing the Crown from proving beyond a reasonable doubt an element of the offence, or

(b) capable of preventing the Crown from disproving beyond a reasonable doubt an element of a defence that is in play (other than mental disorder, automatism or extreme intoxification); and

(c) that evidence must be evaluated for its credibility and/or reliability before it can be acted upon. (Paciocco, D., "Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment", (2017) 22 Cdn. Criminal L.R. 31)

[29] The W.(D.) analysis is designed to ensure that triers of fact make their factual findings in a way which ensures adherence to the bedrock principles that the Crown must prove every element of the offence and that the defendant is presumed innocent until proven guilty beyond a reasonable doubt. It does not, however, as Paciocco J. notes in his article, apply to facts other than those described in the preceding paragraph.

[30] In R. v. D.(B.), 2011 ONCA 51, Blair J.A. wrote at paragraph 114 that the W.(D.) analysis must be performed when "on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case." In that case, the defendant was charged with incest. The Crown alleged that the defendant's co-accused was her eldest child, and that the two accused were the parents of the defendant's three youngest children. The Crown proved by DNA evidence that the two accused were the parents. A witness had testified that the defendant's eldest child was dead, and that her co-accused was a completely different person. Blair J.A. held that the trial judge erred when he failed to tell the jury that they must find beyond a reasonable doubt, following the W.(D.) analysis, that the defendant's co-accused was her eldest child, because that was a vital issue in the Crown's case. That fact was vital to the Crown's case because if the co-accused was not her child, there would be no evidence of incest.

[31] In my view, all three of the issues I have described are vital issues in the sense described by Blair J.A. in D.(B.).

[32] In determining these issues, I must follow the W.(D.) analysis. I must determine whether, on all of the evidence, I believe the defendant on the first issue and the complainant on the second and third issues. If so, I must accept these facts. If not, I must determine whether, on all of the evidence, I am left with a reasonable doubt on each issue.

[33] Even if I am not left with a reasonable doubt, my conclusion as to whether the Crown has disproven self-defence can only be based on the complainant not having come into contact with the defendant, the complainant having turned and started to walk away before the defendant applied force to her, or the defendant having grabbed the complainant by the arm, if I conclude that each of those facts has been established beyond a reasonable doubt by the balance of the evidence which I do accept.

(iv) The Crown Has Not Proven Beyond a Reasonable Doubt That the Complainant Had Not Come Into Physical Contact With the Defendant Before the Defendant Applied Force to Her

[34] The defendant did not testify. She did submit to an interview which was audio and video recorded and transcribed. It was admitted to be voluntary and was adduced in evidence by Crown counsel. In the statement, the defendant said:

like our faces were touching and her body was pushing me back so I was like, like you know like one of those like, like trying to separate our faces just like you're, like we were almost kissing her face was literally touching mine …

[35] I have concluded that I do not believe the defendant on this point. I reach that conclusion for the following reasons.

[36] The complainant testified in examination in chief that she walked right up to the defendant until they were face to face, but she did not remember touching her. In cross-examination, she was more certain. She testified three times that she did not touch the defendant.

[37] The complainant's evidence on a number of points was contradicted by the evidence of others and a statement she gave to the police.

[38] The complainant said in her written statement to police that she had "walked into" the defendant. This is contradictory to her testimony that she did not come in contact with the defendant.

[39] She admitted being in close proximity to the defendant. She testified in cross-examination that she walked up to the defendant "face to face" and was "very close to her".

[40] She admitted that she did not have a good memory of what happened when she was in the hospital in the days after the accident. She did not recall giving the police a statement at that time. She admitted that the drugs and treatment she received might have had an impact on what she could remember of the incident.

[41] She has commenced a civil action against the defendant. It was submitted that this gave her a motive to lie. While by no means determinative, this is a factor to consider.

[42] Ms. Lopez testified in examination in chief that the complainant got "almost nose to nose" with the defendant, but that there was no physical contact between them. In cross-examination, however, she testified that the complainant walked up to the defendant to the point where their two bodies were touching.

[43] She testified that the defendant got out of her car when they were first stopped on City Park Drive waiting to turn onto Ogilvie Road. She did not say this in her statement to the police. Ms. Lopez testified that the complainant had just stuck her head out of the car, and had not gotten out of the car.

[44] Toon Dreessen was stopped a couple of car lengths in front of the defendant's car, in the lane to the left of the lane in which the defendant's and complainant's cars were stopped. He did not see the complainant come in contact with the defendant. He was looking in either his left side mirror or his rear view mirror, and his vision of the complainant was obscured by the defendant's body.

[45] Erin Mosley was driving behind the complainant and defendant, with one car separating her car and the complainant's car. She stopped behind them. She testified that she saw the two women outside their cars arguing and she pulled out to go around them. She testified that the older lady in the rear car – the complainant – got out of her car and walked toward the defendant's car. The younger woman – the defendant – then got out of her car. She said that the complainant was pretty close to the defendant – "pretty invasive" but she did not remember the complainant coming in contact with the defendant. In cross-examination, she said that it was possible that there was some kind of contact between the two women.

[46] All of these things taken together give me grounds to consider whether the defendant's evidence is reliable where it differs from the evidence of others or is not otherwise confirmed – that is, whether she is accurately recalling the events she has testified to.

[47] I cannot conclude that I believe the defendant's evidence that her body and the complainant's body were touching. The evidence is too uncertain for that. Given the weaknesses in the complainant's evidence and the lack of certainty in the evidence of the other witnesses, however, I cannot conclude that the complainant did not come into contact with the defendant. The evidence of the defendant and Ms. Lopez' cross-examination evidence leave me with a reasonable doubt. I must decide the self-defence issue on the basis that the Crown has not proven beyond a reasonable doubt that the complainant did not come in contact with the defendant.

[48] I conclude that the Crown has not proven beyond a reasonable doubt that the defendant did not believe on reasonable grounds that the complainant was using force against her or threatening to do so.

[49] It is clear that the two were very close to each other – that the complainant had at least come into the defendant's "personal space".

(v) The Crown Has Not Proven Beyond a Reasonable Doubt That the Complainant Had Turned and Started to Walk Away Before the Defendant Applied Force

[50] The defendant told the police officer who interviewed her:

We were standing like face-to-face and she was like pushing me back so I guess I went like (gestures pushing out) eh, she was facing me and I was facing her and then she like went backwards.

[51] The complainant testified that after the she stopped her car behind the defendant's car and got out of her car she (the complainant) got out of her car, walked up to the defendant and asked her what her problem was. The defendant replied by yelling "you are my problem bitch". The complainant said she responded "I can't be bothered" and turned and walked away. She testified that she took a few steps and then the defendant grabbed her by her arm and pushed her to the ground.

[52] Ms. Lopez testified in examination in chief that the complainant got "almost nose-to-nose" with the defendant, but then turned and had started walking back towards her car, following which the defendant pushed the complainant to the ground. In cross-examination she testified that the complainant had turned "almost fully" but was "kinda sideways" when the defendant pushed her to the ground.

[53] Mr. Dreessen testified that he did not see the complainant turn and walk away, or the defendant push her from behind. In cross-examination, he agreed with the proposition that the defendant pushed the complainant in a "get away from me type of push". He testified that the push was to the front of the complainant, in the collar bone or upper chest area.

[54] Ms. Mosley testified that the defendant pushed the complainant in the upper body, while they were standing face to face.

[55] I cannot be certain about the position of the complainant when the defendant applied force to her. I cannot say I believe the defendant, because of the contradictions between her evidence and that of the complainant and Ms. Lopez. I cannot be certain that I believe the complainant, because of the difficulties with her evidence previously described and the contradiction from the evidence of the defendant, Mr. Dreessen, and Ms. Mosley (even though Mr. Dreessen was not in a position to see things clearly). Ms. Lopez' evidence does support a finding that the complainant had turned, but not that she had started to walk away. I am, however, left with a reasonable doubt by the defendant's evidence and that of Ms. Mosley.

[56] I must decide the self-defence issue on the basis that the Crown has not proven beyond a reasonable doubt that the complainant had turned away before the defendant applied force to her. I will decide this issue on the basis that the two were facing each other.

(vi) The Crown Has Not Proven Beyond a Reasonable Doubt That the Defendant Grabbed the Complainant's Arm and Pushed Her to the Ground But Has Proven Beyond a Reasonable Doubt That the Defendant Pushed or Shoved the Complainant, Causing Her to Fall to the Roadway

[57] The defendant gave the following answers to the police officer:

Officer: All right and then so she gets in your face and you push her. What (inaudible) how much force did you use like

Defendant: I didn't, I just went like, like I don't, I did not even it was like abso-, I, I know I'm stronger than what I, like I was not trying to hurt her I was (inaudible) honestly just trying to separate our faces so that I could turn and walk in my car like I wasn't about to stand there and fight her. Never was that my intention. She's an old lady with a cane like I was literally looking at her like she was crazy, like I was like, is this really happening? Like I was even looking at my, like my sister was like, my sister was in the car the whole time and she heard me tell her, do not come up to me like don't, like I'm gonna take that as a threat like stay in your, we could have talked from our cars and then I could have went on with my day.

Officer: Eh were she facing you when you push her?

Defendant: We were standing like face-to-face and she was like pushing me back so I guess I went like (gestures pushing out) eh, she was facing me and I was facing her and then she like went backwards. It was so weird, she just like straight (inaudible) backwards and I was looking at her like I did not, I did not hit you that, like I did not push you that hard like why would you do that, why would you throw yourself onto the floor

Officer: alright eh when, you say you, you pushed her back that differs (inaudible) so some people say, right? So eh, you know one version is that she turned away from you and was walking backward and you pushed her from behind.

Defendant: No I would never do that.

Officer: At any point did you put 2 hands on her?

Defendant: No, I went (gestures) like I went like this. I, I don't like, I swear, I never pushed her like this. I don't recall like trying to shove her out of like the complete way like I remember just trying to separate our faces to like lady, like get your face out of mine like why are our faces touching right now?

[58] The complainant testified that after she turned away, she took a few steps and then the defendant grabbed her by her left arm between the elbow and the shoulder and pushed her to the ground. She said that she thought that "maybe" it was with both hands because "she was pretty strong I went down pretty fast".

[59] Ms. Lopez described the push as a "hard shove" with both hands.

[60] Mr. Dreessen testified that he saw the defendant shove or knock the complainant to the ground. He could not tell whether she used one or two hands, but said that it looked like two hands in a "get away from me" kind of motion. In cross-examination, he said that the defendant definitely moved both her hands, but he did not know if both hands made contact. He said that the defendant pushed the complainant on the collar bone or upper chest area – not on her arm as the complainant had testified.

[61] Ms. Mosley testified that she saw the defendant push out in a forward motion. She did not recall if she used both hands. She said that the defendant pushed the complainant in the upper body, while they were standing face to face.

[62] I find that it has been established beyond a reasonable doubt that the defendant pushed or shoved the complainant with at least one hand. I make this finding because the defendant's evidence that she pushed her (or, as Ms. Lopez and Mr. Dreessen said, shoved her) was confirmed by the evidence of Ms. Lopez, Ms. Mosley, and Mr. Dreessen. I accept all of this evidence. I do not believe the complainant's evidence that the defendant grabbed her arm because of the difficulties with the reliability of her evidence previously described and the evidence of the other four, 2 of whom are independent, which I do accept.

[63] I find that the push or shove was done with enough force to cause the complainant to fall to the roadway. I recognize that this may not have required as much force as would be required to cause a non-disabled person to fall to the ground, but Ms. Pelletier walked with a cane.

(vii) The Crown Has Not Disproven Section 34(1)(a)

[64] As I have already said, the Crown has not disproven s. 34(1)(a) – that the defendant believed on reasonable grounds that force or a threat of force was being made against her.

(viii) The Crown Has Not Disproven Section 34(1)(b)

[65] The evidence is not all one way on this issue. There is significant evidence that the defendant was extremely angry and was simply making good on a threat she had made to the complainant that if she kept coming towards her, she would react with force.

[66] The defendant told the police officer that the trouble had started when she was stopped at a cross street with Ogilvie to let a disabled man walk across the street in front of her. The complainant was behind her. She said that the complainant started slamming on the horn, "making him feel like he needs to run so I'm looking at her like and I look back so I go a bit slower to like show her like calm down." She then said (with interjections of "ok" and similar words by the officer removed, and deletions indicated by ellipses):

so it continues up the street. She's like trying to get in front of me, slam on the brakes and like it's getting to the point where I'm feeling like I'm gonna crash like, I'm like this is like intense road-rage and I'm, I'm getting pissed off at this point because I'm like you can really hurt someone and the fact you did that to a handicap person is just gross. Like I don't like stuff like that so we get to the Aviation and I step out of my car, this is when we're both stopped now. So

so we're both stopped and I step out of the car and I look at her and I'm like are you done? Like are you done? You're gonna hurt someone. And so she grabs her cane and gets out of her car and starts walking towards me and she's aggressive so I'm telling her like lady if you come towards me and touch me like I will defend myself. Like you're not gonna come up to me and hit me right now and she keeps walking up to me so I'm like lady, if you come up to me I will defend myself. Like I want to make this clear, do not come up to me. So she keeps coming and she, I was like at this point, I was like pissed off because I'm like she's really like coming in my face like this is really happening. So I'm like, lady like if you hit me right now or touch me like and I said I will fuck you uDA. Like I was so mad, I was like, I will defend myself, like I will not let you hit me right now regardless to your age or your cane or anything so she comes and physically puts her face on mine and is pushing me back towards my car. So I'm, so I look at her and I'm like stop like get off me. So then I'm like get off me and I went like this (motions putting her hand in front of her face and makes a push gesture) and I push like this and she, like threw herself back on to the ground

[67] The defendant also told the police officer that she pushed the complainant because she felt threatened. She said:

like our faces were touching and her body was pushing me back so I was like, like you know like one of those like, like trying to separate our faces just like you're, like we were almost kissing her face was literally touching mine like whoa like and I told her 3 times don't come in my space like I, I get weird about that. Like I don't like, like I feel threatened like if you're running, if you're walking up to me, I'm taking that as a threat and I told her that multiple times like don't, like just, please we don't need to take it there.

[68] It is clear from all the evidence that the complainant was not making a significant application or threat of application of force. I cannot find that she did not come into contact with the defendant, but I do find on the evidence that the force used, if any, was minimal. The bodies of the complainant and defendant may have touched, but the significant thing which the defendant said she was trying to dispel was the complainant's intrusion into the defendant's personal space. This would support an inference that the purpose of the push or shove was not to defend or protect herself from the use or threat of force, but to put some space between them so the defendant felt more comfortable. Nevertheless, the defendant's statement to the police raises a reasonable doubt about the purpose of the push or shove.

[69] I conclude that the Crown has not proven beyond a reasonable doubt that the defendant did not push or shove the complainant to protect herself from the use of force.

(ix) The Crown Has Proven Beyond a Reasonable Doubt That the Defendant's Use of Force Was Not Reasonable in the Circumstances

[70] Subsection 34(2) of the Criminal Code sets out factors which I must consider in determining this issue.

(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.

[71] I will deal with each of the relevant circumstances of those in s. 34(2).

A. The Nature of the Force or Threat

[72] As I have already said, the force used or threatened by the complainant was quite insignificant. I am making this decision on the basis that the bodies of the two women touched after the complainant "walked into" the defendant. The complainant did not threaten to do anything other than walk into the defendant. The defendant told the police officer that they were "almost kissing her face was literally touching mine". While this was undoubtedly unpleasant to the defendant, it was not a threat of violence.

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

[73] The force was imminent in that the bodies of the two women had touched. But there were other means to respond. The defendant could have simply turned and walked away. The complainant was a 66 year old woman who walked with a cane. She could not have caught up to the defendant, a young and apparently healthy 24 year old woman. Or the defendant could have backed up. Or, as she did within seconds of having pushed her, gotten back into her car and driven away.

[74] The defendant admitted this to the police officer who interviewed her. She said "I should have just got in the car. I could do it all over again, I would. I wouldn't even have entertained it. I would have just went home." I recognize that this statement was made the day after the incident, when the defendant was very remorseful about what had happened. It is a judgment made in hindsight, and hindsight would show that many decisions thought to be reasonable at the time were, in the light of calm cool reflection, not so. That is not the standard I am to apply. But it is a recognition that, on this portion of the analysis that I am required to undertake, there were other means available.

C. The Defendant's Role in the Incident

[75] There is no doubt that the altercation arose in part as a result of the actions of the defendant. She cut off the complainant. She got out of her car to confront her. She was yelling obscenities at her.

[76] The defendant told the police officer:

So I'm like, lady like if you hit me right now or touch me like and I said I will fuck you uDA. Like I was so mad, I was like, I will defend myself, like I will not let you hit me right now regardless to your age or your cane or anything so she comes and physically puts her face on mine and is pushing me back towards my car.

[77] The complainant testified that the defendant jumped out of her car and started screaming at her, calling her a "bitch" and saying she wanted her to get out of the car because she wanted to "fuck her up". She said the defendant's tone of voice was "very loud and angry".

[78] Ms. Lopez testified that when the defendant got out of her car, she was making irate motions at the complainant, using profanities and threatening her.

[79] Mr. Dreessen testified that the defendant's tone of voice was "very angry, aggressive, accusatory".

[80] Ms. Mosley described the interplay between the two women as a "confrontation". She testified that both were speaking at the same time and were aggressively arguing with each other, being loud and calling each other names.

[81] I accept all of this evidence.

D. Whether Any Party to the Incident Used or Threatened to Use a Weapon

[82] The defendant did not use a weapon. While the complainant had a cane which she leaned on while walking to the defendant, there is no evidence that she used it or threatened to use it as a weapon.

E. Any History of Interaction or Communication Between the Parties to the Incident

[83] The altercation had its origins in the interaction between the two women when the defendant stopped to let a man walk across the road in front of her, and the complainant, who thought that the defendant should have started to move sooner, honked her horn. There was some differences between their evidence about this incident, but it is clear that the complainant was upset at the defendant and let her know by honking her horn. The defendant was upset at that, and had at least a verbal exchange with the complainant before turning left onto Ogilvie Road.

[84] Both women accuse the other of making annoying and perhaps dangerous traffic maneuvers while driving on Ogilvie Road, with the defendant telling the officer that the complainant was trying to get in front of her and slam on the brakes and she was "getting pissed off" at that point. It is clear from the video that, as the complainant testified, the defendant cut off the complainant's car and stopped quickly, causing the complainant to apply her brakes suddenly. I accept both women's evidence as I have set it out here.

F. The Nature and Proportionality of the Person's Response to the Use or Threat of Force

[85] This issue is the crux of the defendant's submissions on the self-defence issues. Her counsel submits that Ms. Anderson made a small push, intended to get the complainant out of her face.

[86] He submits that it would be an error for me to consider the consequences that did flow from the push when considering this issue. He also submits that it would be an error for me to judge too finely the response of Ms. Anderson to the threat posed by Ms. Pelletier.

[87] Counsel is correct on those two points. This analysis is not to be made on fine distinctions about the appropriate force which should or could have been used. A person is not expected to weigh to a nicety the exact measure of a defensive action or the consequences of such action. The objective measure of proportionate force in self-defence cases requires a tolerant approach. (R. v. Kong, [2005] A.J. No. 981, 2005 ABCA 255 at paras. 208-209 of the dissent as adopted by the Supreme Court of Canada in R. v. Kong, 2006 SCC 40, [2006] 2 S.C.R. 347).

[88] But I am required to consider, as the Criminal Code states, all the circumstances. Those circumstances include the fact that the defendant and the complainant were standing on Ogilvie Road, a busy thoroughfare, while traffic flowed by them. They were standing at least partially in the lane beside their cars, in a situation of obvious danger to both of them. That danger would be exacerbated if one of them were to fall. And Ms. Pelletier was an elderly woman who walked with a cane. It is reasonable that a push could cause her to fall when it would not cause others to fall.

[89] And the proportionality must be measured with a view to the extent of force being used against her. That force was much less than a push – it was little more than an invasion of personal space.

[90] In my view, the force used by Ms. Anderson was not proportional.

[91] I conclude, on the basis of all the circumstances, including those which I am specifically required to consider and have discussed, that the Crown has proven beyond a reasonable doubt that the force used by Ms. Anderson was not reasonable in the circumstances. The defence of self-defence does not apply.

(c) Simple Assault

[92] The mens rea required for the offence of aggravated assault is objective foresight of bodily harm. It is not necessary that there be an intent to wound, maim or disfigure. The assault must be such that a reasonable person would inevitably realize that it would subject another person to the risk of bodily harm. (R. v. Godin, [1994] 2 S.C.R. 484; R. v. DeSousa, [1992] 2 S.C.R. 944)

[93] I have no difficulty in concluding that a reasonable person would realize that when Ms. Anderson pushed Ms. Pelletier, she was subjecting her to the risk of bodily harm. Ms. Pelletier was clearly elderly. She walked with a cane. She was therefore less stable on her feet than someone who did not walk with a cane. A push put her at risk of falling to the surface of the roadway. Elderly persons are at risk of breaking bones more easily when they fall than are younger persons. Furthermore, if she fell to the ground she would be exposed to the risk of being struck by a car. The video shows that cars continued to drive around the women, and around Ms. Pelletier after she fell.

[94] The mens rea of aggravated assault has been proven beyond a reasonable doubt.

Conclusion

[95] I find the defendant guilty of aggravated assault.

Released: September 6, 2019

Signed: Justice P. K. Doody