Court Information

Ontario Court of Justice

Date: November 22, 2019

Court File No.: Toronto 18-15002016

Parties

Between:

Her Majesty the Queen

— And —

Elizabeth Parr

Before

Justice Patrice F. Band

Counsel

Ms. K. Stewart — counsel for the Crown

Mr. G. Gray — counsel for Ms. Parr

Reasons for Judgment

November 22, 2019

I. Introduction and Issues

Brief Summary of the Facts

[1] Ms. Parr was charged with assault causing bodily harm for her role in a physical altercation with Ms. Tammy Hackner. The two were residing in the same shelter and did not get along. The altercation took place in broad daylight, around 11:00 on a Saturday morning, near the intersection of Dundas Street West and Keel Street in Toronto. It left Ms. Hackner seriously injured with her face covered in blood. Neither woman had a weapon.

[2] That morning, Ms. Parr was crossing the street with an acquaintance of hers from the shelter, Ms. Danielle Gourdet, who was on her way to a doctor's appointment. Because Ms. Gourdet was pregnant, Ms. Parr had taken it upon herself to be her protector. That is why she offered to walk Ms. Gourdet to the bus stop. As they were crossing the street, Ms. Hackner approached them. Without warning or provocation, she punched Ms. Gourdet in the face and immediately went up to Ms. Parr. Ms. Gourdet ran to the safety of a nearby bus shelter. From there, she was able to see what happened between the other two. Ms. Hackner was goading Ms. Parr into fighting with her and began to kick her in the mid-section. Ms. Parr refused, saying she did not want to "go to jail." Ms. Hackner continued to kick her. Ms. Parr caught her foot and flipped her to the ground, where she landed on her back. She then kneeled with her full weight on Ms. Hackner's chest and began to punch her repeatedly about the head. From that point on, Ms. Hackner remained on her back, unable to do more than wave her hands and tell Ms. Parr to get off. As Ms. Gourdet put it, she was "defenseless."

[3] This lasted for approximately 2-3 minutes. During that time, some citizens gathered. They included a jogger followed by Mr. Pelechaty (a local restaurant owner). Seeing that Ms. Hackner was defenseless and covered in blood, they shouted "stop" at Ms. Parr and "get off her… you're hurting her." Ms. Parr continued to punch Ms. Hackner for 45-60 seconds. By this time, two firefighters had arrived. Whether or not they physically separated Ms. Parr from Ms. Hackner is not clear; neither was called to testify and the evidence of other witnesses is inconsistent on this point. Ms. Parr left the scene a short time later, as did Ms. Gourdet. Others took care of Ms. Hackner and contacted police.

[4] Ms. Gourdet's nose did not bleed. Aside from some pain, she was not harmed. She would not have contacted police over it.

[5] Both of Ms. Hackner's wrists were broken and later placed in casts. Beyond that, the extent of her injuries is unclear. She claimed that her nose and tailbone were broken. Officer Hough confirmed that days later, Ms. Hackner had black eyes and bruising to her face as well as bruising on her lower back. No medical records were filed and, as Mr. Gray points out, we have only Ms. Hackner's word for the true nature of her injuries.

The Issues

[6] The central question is whether Ms. Parr was acting in self-defence or in defence of Ms. Gourdet and, if so, whether the Crown has proved beyond a reasonable doubt that her response was unreasonable. The real dispute centres on the 45-60 second period when Ms. Parr continued to beat a bloodied and defenseless Ms. Hackner after the bystanders had intervened. The Crown argues that Ms. Parr's actions during that period were nothing more than a rage-fueled beating. While Mr. Gray acknowledges that Ms. Parr could have stopped sooner, he argues that to find her guilty for her actions during that period would impose an obligation on her to have weighed her response "to a nicety," which is prohibited by the authorities. He points to the circumstances: Ms. Hackner had just punched a pregnant woman in the face for no reason and then began to kick Ms. Parr. Who knows what else such a person might do?

[7] In the alternative, Mr. Gray argues that Ms. Hackner was a consenting participant in the altercation and that the Crown has not proved beyond a reasonable doubt that her consent was vitiated. In particular, the Crown has not proved beyond a reasonable doubt that Ms. Parr intended to cause serious bodily harm and did so. The Crown's response is two-fold. First, the rules of engagement changed once Ms. Hackner was on the ground. Ms. Parr had her full weight on Ms. Hackner and people had to intervene. At the very least, the blood flow constituted a "bright line." Second, the beating caused blood flow and continued thereafter; this obviously constituted bodily harm.

The Main Body of Evidence: Ms. Gourdet's Testimony

[8] While the trial proceeded over a number of separate days to allow the defence to bring a largely successful third-party records application and to accommodate Ms. Gourdet, who gave birth to her second child, the parties were very efficient. That efficiency informed their submissions, where they significantly narrowed not only the issues but also the scope of the pertinent evidence. The parties largely agreed that Ms. Hackner's evidence suffered from significant credibility and reliability problems. The Crown submitted that she was not "hanging her hat on it" – except where it was otherwise corroborated or confirmed.

[9] I agree with counsel's assessment of Ms. Hackner's evidence. She was evasive about her criminal record, which contains a number of entries – some for violence, some for dishonesty, and some recent. She claimed to be forgetful about her criminality. For that, she blamed the altercation with Ms. Parr. Yet, she also claimed to have an excellent memory of that altercation, which took place in the spring of 2018. When pressed, she attempted to minimize some of her criminal offending by painting herself as a victim of circumstance. She also denied some of it altogether by blaming duty counsel for advising her to plead guilty despite her innocence or by explaining that she had decided to plead guilty just to get out of jail. She denied that either approach was dishonest. She also deliberately cast herself in the most positive light and made Ms. Parr out to be a villain. As a person who had returned to religion, Ms. Hackner sat at a table of Christian women during meals at the shelter and was intent on leading Grace. By contrast, Ms. Parr was a bully who sat at the "rowdy table." Both descriptions struck me as caricatures. Most importantly, Ms. Hackner's evidence conflicted with that of Ms. Gourdet, whose evidence both parties urged me to accept as truthful.

[10] The Crown agreed that Ms. Gourdet's evidence was credible and reliable. Ms. Gourdet's was the most complete account of the incident, as she had been able to observe it from start to finish. Also important is that Ms. Gourdet knew Ms. Parr and Ms. Hackner's voices and was therefore better able to explain who said what. This was unlike the testimony of Carolyn and Matthew Pelechaty. Ms. Pelechaty was crossing the street in the same direction as Ms. Parr and saw the beginning of the incident. She then went to get her husband from their nearby restaurant. Mr. Pelechaty came out and saw the last minute or so. Both were strangers to Ms. Parr and Ms. Hackner.

[11] While I agree that Ms. Gourdet appeared to be credible and reliable, I expressed some surprise during submissions that the Crown would invite me to endorse her evidence in its entirety and, more to the point, to the exclusion of Ms. Pelechaty's where they were in conflict. Ms. Pelechaty's version of events clearly portrayed Ms. Parr as the aggressor. According to her, Ms. Hackner was standing on the curb with a cup of coffee in her hand when Ms. Parr ran across the street saying "let's go bitch!" Then, she essentially jumped her. Ms. Pelechaty's evidence was not significantly challenged in cross-examination. Also, unlike Ms. Gourdet, she is truly independent.

[12] While it is technically open to me, over counsel's unified position, to accept Ms. Pelechaty's evidence where it conflicts with Ms. Gourdet's, I choose not to. I believe that the Crown's decision, despite its potential costs, was considered. She chose to argue the case on Ms. Parr's terms. While that approach might be risky, it is undoubtedly fair.

[13] I will discuss additional pieces of evidence in the context of the issues to which they pertain.

II. Self-Defence or Defence of Another

The Law

[14] Even where, as here, the accused did not testify, the Crown bears the burden of proving beyond a reasonable doubt that she did not act in self-defence or in defence of another. In this case, the Crown does not contest that Ms. Parr was justified in defending herself to some extent. She does, however, contest that Ms. Parr was defending Ms. Gourdet at the material time. The Crown also argues that Ms. Parr's response became unreasonable once Ms. Hackner was on the ground and subdued. It is important to note here that the Crown accepts that the Ms. Hackner's fall is the most likely cause of her broken wrists. She does not rely on those injuries to support her argument.

[15] The analysis is governed by s. 34(1) of the Criminal Code, which reads as follows:

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.

[16] As the Court of Appeal for Ontario explained in R. v. Bengy, 2015 ONCA 397 at para. 29:

When the first two prerequisites of s. 34(1) 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.

[17] The Court of Appeal explained that none of the factors listed are requirements. The relevance of any factor, enumerated or not, will be a matter for the trier of fact to determine. I will return to them below.

Analysis

[18] I agree with the Crown that once Ms. Hackner began to assault Ms. Parr, it was not reasonable for her to believe that Ms. Hackner was using force or threatening to use force against Ms. Gourdet. Ms. Gourdet testified that she was safe at the bus shelter and that it was clear that Ms. Parr was Ms. Hackner's target. True, Ms. Hackner's decision to punch a pregnant woman was certainly erratic, but any continued threat that Ms. Parr might have perceived must be reasonable. Of course, no one knows what someone else might be capable of. But that reasoning would justify too much, especially in a case like this one, which took place on a busy street in broad daylight when others intervened, and no one had a weapon or made threats concerning another.

[19] If I am wrong that any belief Ms. Parr held regarding an ongoing threat to Ms. Gourdet was unreasonable, the error does no harm to her defence. Ms. Parr was clearly entitled to defend herself against the force that Ms. Hackner was using against her. Either way, the first two factors are met. The issue is whether Ms. Parr's response was unreasonable.

[20] As I consider the factors set out in s. 34(2), I remind myself that a person defending herself against an attack, reasonably apprehended, "cannot be expected to weigh to a nicety, the exact measure of necessary defensive action" and that she must not be held "to a standard of perfection": see R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.), at p. 111. [emphasis added]

(a) The Nature of the Force or Threat

[21] After punching Ms. Gourdet, Ms. Hackner goaded Ms. Parr and kicked her. Kicks can certainly constitute a significant use of force. That said, there is no evidence about the force of the kicks in this case, or that they hurt or harmed Ms. Parr in any way.

(b) The Extent to Which the Use of Force Was Imminent/Whether There Were Other Means Available to Respond to the Potential Use of Force

[22] Ms. Parr could have retreated when Ms. Hackner was goading her or when she began to kick her, but she was under no obligation to do so. Grabbing someone's foot and putting them to the ground in the heat of the moment is among the natural and understandable responses to being kicked repeatedly. At that point, the two were on the street and no one had yet intervened. However, when Ms. Hackner was defenseless and asking Ms. Parr to get off her, and others were also shouting at Ms. Parr, Ms. Hackner was no longer a potential threat. Ms. Parr could certainly have stopped and retreated safely.

(c) Ms. Parr's Role in the Incident

[23] Ms. Parr played no role in the incident until Ms. Hackner began to kick her. After that, Ms. Parr quickly got the upper hand. I will return to this below.

(d) Whether Any Party Used or Threatened to Use a Weapon

[24] This factor plays no role in this case.

(e) The Size, Age, Gender and Physical Capabilities of the Parties to the Incident

[25] The Crown acknowledges that this factor is largely neutral on the evidence, apart from the fact that Ms. Parr was able to get the upper hand very quickly. In my view, this factor remains neutralized by the fact that Ms. Hackner's wrists were probably broken by her fall.

(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

[26] Ms. Parr and Ms. Hackner had known each other for an unknown but likely brief period of time and did not get along. There is no credible evidence of any prior use or threat of force between the two of them.

(f.1) Any History of Interaction or Communication Between the Parties to the Incident

[27] According to Ms. Gourdet, Ms. Hackner had once tried to engage Ms. Parr in a heated argument. Shelter staff intervened and told her to calm down.

(g) The Nature and Proportionality of Ms. Parr's Response

[28] The nature of Ms. Parr's response – using her fists – is not the issue per se. The issue is whether her response was disproportionate in all the circumstances.

[29] Ms. Hackner was subdued from the time Ms. Parr kneeled on her chest. From that point on, she was unable to defend herself and had given up the fight. Within a minute or so, she was covered in blood and people were yelling at Ms. Parr to stop. Ms. Parr continued to punch Ms. Hackner for another 45 to 60 seconds. Ms. Gourdet said that she did not think Ms. Parr was in her "right state of mind at that time" and that "eventually, she came back to her senses and got up." In my view, the only reasonable inference one can draw regarding Ms. Parr's state of mind during that period is that it was rage.

[30] In some circumstances, 45 to 60 seconds can feel like an instant. In such a case, a person might not be expected to weigh the measure of necessary defensive action. After considerable reflection, I have come to the conclusion that this is not such a case. 45 to 60 seconds is an extraordinarily long time to be punching someone who is lying on their back on the pavement, defenseless and bloodied. For at least that period of time, Ms. Parr had the complete upper hand. Yet, she did not measure her response at all. Surely the law requires someone in that position to do so, even if not to a nicety. Ms. Parr's response was clearly disproportionate.

(h) Whether the Act Committed Was in Response to a Use or Threat of Force That the Person Knew Was Lawful

[31] This factor plays no role in the analysis.

Conclusion Regarding Self-Defence

[32] Careful consideration of the factors set out in s. 34(2) leads me to find beyond a reasonable doubt that Ms. Parr's response was unreasonable.

III. Consent

[33] Our law allows people to consent to bodily harm in certain circumstances, including physical fights: see R. v. Jobidon, [1991] 2 S.C.R. 714 and R. v. Paice, 2005 SCC 22, [2005] 1 S.C.R. 339. In Ontario, consent can be vitiated in three ways:

(1) the consent is withdrawn, explicitly or implicitly;

(2) serious bodily harm is both intended and caused: see R. v. McDonald, 2012 ONCA 379, [2012] O.J. No. 2504 at para. 28 (C.A.); see also Jobidon and Paice, supra; or

(3) the nature of the fight changed from what had been reasonably contemplated in the first instance: see R. v. Schmidt, [2007] O.J. No. 1434 (S.C.A.C.); see also R. v. MacTavish (1972), 8 C.C.C. (2d) 206.

[34] In this case, the Crown relies only on the second and third of these tests.

Consent and Bodily Harm

[35] Bodily harm has been defined as something more than trifling or transient. Those who willingly engage in physical combat certainly accept the risk of some form of bodily harm. It would be surprising if the law did not understand this. That is why something more than bodily harm is required to vitiate consent: serious bodily harm that is both intended and caused. Serious bodily harm has not been clearly defined by the courts. Obviously, it must be something more than mere bodily harm and it must be proved beyond a reasonable doubt. The mens rea will be proven if it is established beyond a reasonable doubt that force was applied intentionally or recklessly and the risk of serious bodily harm was objectively foreseeable.

[36] I would have no trouble concluding that broken wrists, a broken tailbone or a broken nose constitute serious bodily harm. However, in this case, the Crown takes as her starting point the moment after Ms. Hackner was flipped to the ground. The parties agree that Ms. Hackner's wrists were probably broken in that fall. There is no evidence that they were broken later. The same must be true of the alleged broken tailbone. So, given the Crown's theory, those injuries cannot be said to have vitiated Ms. Hackner's consent.

[37] Ms. Hackner is the only source of proof that her nose was broken. Officer Hough's testimony on this point is hearsay. For the reasons I have already explained, I am not prepared to rely on Ms. Hackner's testimony. I am left with a reasonable doubt that her nose was broken.

[38] Finally, while blood flow, black eyes and bruising constitute bodily harm, I have a reasonable doubt that they amount to serious bodily harm.

[39] For these reasons, the Crown has not proved beyond a reasonable doubt that Ms. Hackner's consent was vitiated by the intentional or reckless infliction of serious bodily harm.

"Rules of Engagement"

[40] In MacTavish, supra, two young men agreed to engage in a fist fight. Once the victim was down, the accused kicked him several times in the head. The court found that the accused had understood that the victim had not consented to that kind of force being used. As he put it, he had not agreed to have his "head kicked in." The situation here is analogous. While Ms. Hackner started the fight using kicks, they were delivered to Ms. Parr's mid-section while both women were standing. Someone who agrees to fight and begins with kicks can reasonably be expected to accept as a consequence the risk that she will be taken to the ground. To that extent, I agree with Mr. Gray. It would be artificial to find that the rules changed the moment Ms. Hackner was put to the ground. Street fights are not like boxing matches. However, once Ms. Hackner was down, Ms. Parr placed her entire weight on her chest and punched her repeatedly for two to three minutes. Ms. Hackner was rendered defenseless and asked Ms. Parr to "get off." For the last 45 to 60 seconds, Ms. Hackner was covered in blood. This is a far cry from the fight Ms. Hackner could reasonably be said to have agreed to.

[41] For these reasons, I find that the Crown has proved beyond a reasonable doubt that the change in the nature of the fight that had reasonably been contemplated at the outset was so significant as to vitiate Ms. Hackner's initial consent.

IV. Conclusion

[42] For these reasons, I find that the Crown has proved Ms. Parr's guilt beyond a reasonable doubt.

Released: November 22, 2019

Justice Patrice F. Band