Court File and Parties

Ontario Court of Justice

Date: 2019-09-16

Court File No.: Toronto 4817 998 18-75002155

Between:

Her Majesty the Queen

— and —

Matthew Richard Goodman

Before: Justice Howard Borenstein

Heard on: August 26, 2019

Reasons for Judgment released on: September 16, 2019

Counsel:

• Mr. Jordan Howard, counsel for the Crown
• Mr. Coulson Mills, counsel for the defendant Matthew Richard Goodman

BORENSTEIN, J.:

Facts

[1] Matthew Goodman is charged with assault causing bodily harm against David Kelly in May 2018. It is alleged that, following an argument, Mr. Goodman pushed Mr. Kelly twice; the second time he pushed him so hard that Kelly went flying into a chair, breaking two of his ribs and deflating one of his lungs.

[2] Both men lived in separate bedrooms in the same home together with four other men. The home is operated by Ecuhome, which provides housing for people struggling with addictions or who would otherwise be homeless. The other roommates included Mr. McMullin, Mr. Cairns and a man referred to as Bobby.

[3] Mr. Kelly believed Goodman removed the bathroom windows. Kelly confronted Goodman about this in the kitchen. He alleges that Goodman pushed him to the ground. Kelly got back up and the argument continued. Kelly began to leave the kitchen, but the yelling continued. When Kelly turned around, Goodman pushed him very hard, causing him to fly back somewhere between five and nine feet, landing on the wooden arm of a chair. This impact broke two of Kelly's ribs and collapsed one lung.

[4] Goodman admits pushing Kelly twice but testified that he was acting in self-defence and used reasonable force.

[5] I heard from Kelly, Goodman and McMullin. Medical records were filed on consent.

Evidence

David Kelly

[6] David Kelly is 60 years old. His room is on the second floor. Goodman moved into a room on the third floor around June 2017. Kelly is considerably smaller than Goodman.

[7] On the relevant date, Kelly was watching television in his room with Mr. Cairns.

[8] He went to the washroom. The windows were removed, and it was cold. He believed Goodman removed the windows because he has had problems with Goodman in the past.

[9] Kelly walked into the kitchen. Goodman was preparing food. Kelly went right up to him and asked him where the windows were. He was a couple of feet from Goodman. When asked if he touched Goodman, he replied no, saying he was half Goodman's age and size.

[10] Kelly testified that Goodman leaned over him to intimidate him, telling Kelly to take a punch at him. Goodman then pushed Kelly with both hands in the chest, knocking him to the ground. McMullin and Cairns entered and told Kelly to walk away. Kelly began to walk away. Goodman followed him and continued to threaten him. They were both swearing. Kelly turned around. Goodman then pushed him very hard, causing him to "fly" from the living room to a hallway a few feet away. He landed on the wooden arm of a chair, which broke two of his ribs and caused one lung to collapse. The police were called, and Kelly spent two nights in the hospital.

[11] In cross-examination, Kelly agreed he was angry when he confronted Goodman in the kitchen. He also agreed that he presumed Goodman was preparing dinner, but he did not see precisely what Goodman was doing. He was asked and denied ever laying a finger on Goodman.

[12] When asked if he had been drinking, he testified that he did not remember drinking but, if he had been, it would have only been one beer. His days of drinking more than a few beers were beyond him.

Michael McMullin

[13] Michael McMullin testified. He has lived in that home for five years. He is not particularly close to either Goodman or Kelly. That day, he was on the front porch with Bobby when he heard loud screaming from inside the house. He entered the kitchen and saw Goodman and Kelly face to face screaming obscenities. He told them to break it up, saying they did not need this. He believed Goodman pushed Kelly causing Kelly to land on his back. Kelly got right back up and was back in Goodman's face arguing. McMullin told Kelly to give it up, that he had had enough. Kelly and Goodman then spat in each others' faces. He did not recall who spat first. Goodman then gave Kelly a "good hard shove" and Kelly went flying some eight or nine feet. Kelly could hardly breathe. He testified that Kelly never touched Goodman.

[14] In cross-examination, McMullin testified that he did not see any injuries to Goodman's hands. He did not recall if Kelly was drinking that day but had seen Kelly drunk a few times, maybe every three or four or six months. He has never known Kelly to have just one beer and added that Kelly probably was out for a beer right at that moment. He testified that Kelly is like a "belligerent yappy dog" and acts like he is "six feet tall" and very brave. He testified that nothing that occurred that day surprised him about Kelly. He added that Kelly has tried previously to strike both he and Cairns, but he got to Kelly first and Cairns just pushed him away.

Matthew Goodman

[15] Matthew Goodman testified. He is 5 foot 11 and presently weighs 364 pounds. At the time of the incident, he weighed 230 pounds. Goodman lived on the 3rd floor of that house. On the relevant date, he testified that he removed the bathroom windows because there was a foul smell coming from downstairs, which he tried to deal with by opening the window, but someone had then closed them.

[16] He then went to the kitchen to cook. While chopping onions, Kelly pushed him from behind causing his knife to cut his hand. Kelly was yelling at him about the window. Goodman was face to face with Kelly, telling him not to touch him again. Kelly remained too close for Goodman's comfort, so Goodman pushed him away. McMullin and Cairns then yelled at Kelly to leave Goodman alone and go upstairs but Kelly got back up and spat in Goodman's face. Goodman spat back and then pushed Kelly hard. He said he leaned in to that push, saying you do not spit on him. Kelly fell onto the chair, hit the ground, got back up and went upstairs. The police attended, and Goodman gave a statement. Two or three days later, Goodman was charged. Goodman testified that one does not turn his back on Kelly.

[17] That was the evidence called.

The Law

[18] An assault is the intentional application of force. Where the force causes bodily harm which was objectively foreseeable, an accused will be found guilty of assault causing bodily harm (R. v. Nurse, 1993, 61 OAC 128, para 24; R. v. Palombi, 2007 ONCA 486 at para 39; R. v. Louangrath, 2016 ONCA 560 at para 105).

[19] The accused admits using force but submits he acted in self-defence. Where there is an air of reality to that defence, the Crown must disprove self-defence beyond a reasonable doubt.

[20] Section 34(1) of the Criminal Code 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.

[21] Section 34(2) provides a non-exhaustive list of factors to be considered in determining whether the force used is reasonable and provides that:

(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.

Crown's Submission

[22] The Crown submits that, regardless of what happened before the first push, the second push amounted to an assault and caused bodily harm that was objectively foreseeable.

Defence Submission

[23] The defence submits that pushing Kelly was a justifiable, reasonable act of self-defence. He does not allege consent. He submits that, after he was initially assaulted by Kelly, he pushed Kelly. Kelly got back up and spat in his face and did not desist. He submits he was entitled to push Kelly again, which he did and that ended the matter. He had no other realistic way to avoid the situation. He further argues the bodily harm that ensued was not objectively foreseeable.

Credibility of Witnesses

[24] In assessing the credibility of the witnesses, I am troubled that almost none of the scenario adduced by the defence, whether through cross-examination of McMullin or as testified to by Goodman, and upon which the defence now relies, was ever put to Kelly. Mr. Kelly was not cross-examined on spitting on Goodman, about being belligerent and assaultive toward other residents in the home or pushing Goodman at the outset of this encounter. At most, he was asked if he ever touched Goodman, which he denied. This was unfair to Mr. Kelly. Kelly testified in what seemed like a natural, forthright manner and was not undermined in cross-examination though he was at times combative. He would correct counsel when counsel misstated his evidence. But after his evidence, I heard evidence of his alleged spitting, prior assaultive and belligerent behaviour and his alleged push and spitting at Goodman.

[25] I raised the issue of a violation of Browne and Dunn. Crown and defence submit that, by asking Kelly if he ever touched Goodman, he effectively put to Kelly that he assaulted Goodman thus resulting in Goodman acting in self-defence. I disagree. While not every detail need be put to the witnesses where a party will call evidence to contradict that witness, the important aspects of the matter must be put to the witness and that one question did not nearly identify what the defence would later raise and allege. Both Crown and defence do agree that the defence failure to ask Kelly if he spat on Goodman or if assaulted other residents was a violation of Browne and Dunn. The Crown did not think it warranted recalling Kelly. The defence however argues it is important evidence demonstrating Kelly's propensity. These failures by the defence would allow me to give less weight to that defence evidence. I will return to this point shortly.

[26] I found McMullin a largely credible witness. He is not close to either Kelly or Goodman. However, I was somewhat suspicious by his gratuitous comment that Kelly probably left court to go drink. On his own evidence, he had seen Kelly drunk only a few times in years and did not recall if Kelly had anything to drink that day. With that caveat, I found him largely credible and reliable.

[27] Goodman testified in what appeared to be a largely natural way. He was consistent, but he was not challenged on his evidence.

[28] Bearing these considerations in mind, I turn now to my findings in this case. Has the Crown proved its case beyond a reasonable doubt? Given that there is no issue Goodman pushed Kelly twice and the second push resulted in bodily harm, has the Crown disproved self-defence beyond a reasonable doubt?

[29] While I can give less weight to that part of the important defence evidence that was not put to Kelly, I still will give that evidence some weight for two reasons: First, because I found McMullin largely credible and, second, because Goodman was not challenged on much of his evidence. So, while I prefer Kelly's evidence over Goodman and think it is more likely that Goodman assaulted Kelly as Kelly described, Goodman gets the benefit of the doubt in relation to that first push.

[30] However, I find Goodman's second push to have been an act done in anger and not an act of self-defence. Further, even if it was self-defence, it was excessive and unreasonable.

[31] Following that first push which knocked Kelly down and he got back up, the argument continued. Even accepting that Kelly spat first, and again, I do not have Kelly's evidence on this point, Goodman spat back. He then leaned in and pushed Kelly so hard that he went flying across the room. As Goodman himself said, you do not spit on him. This was not self-defence. It was an act done in anger. There was no act or threat of act by Kelly. Even if I had a doubt about that, which I do not, the force used was excessive given the vast difference in their sizes and strength and age. Kelly had not pushed Goodman at that juncture even if he had pushed him in the kitchen earlier.

Objective Foreseeability of Bodily Harm

[32] Turning to the issue of bodily harm; there is no doubt that the push caused bodily harm. The issue is whether bodily harm was objectively foreseeable. Is it objectively foreseeable that a man much larger than Kelly, who leans in and pushes Kelly so hard as to cause Kelly to be moved somewhere between five and nine feet by the push – is it objectively foreseeable that that kind of action will cause bodily harm? This was not a hard push done in an open field. It was in a home – a kitchen or area between a kitchen or dining room. It is objectively foreseeable that such a push in such an environment would cause bodily harm whether by knocking the victim hard onto the floor, or wall or into furniture. This was reckless, assaultive conduct. One need only look around any room that contains furniture to see what could happen with such a push. Bodily harm was objectively foreseeable even if not this particular bodily harm. Matthew Goodman will be found guilty of assault causing bodily harm.

Released: September 16, 2019

Signed: "Justice Borenstein"