Court Information

Court: Ontario Court of Justice Date: March 24, 2020 Location: Toronto

Between: Her Majesty the Queen

— And —

Paul Patterson

Before: Justice K. Caldwell

Counsel:

• Ms. Adrienne Samberg, counsel for the Crown
• Mr. Joel Hechter, counsel for the defendant Mr. Paul Patterson

Heard: June 11, July 29-30, October 2, November 29, 2019; January 10, 13-16 and February 24, 2020

Reasons for Judgment Released: March 24, 2020

Table of Contents

• Brief Overview of the Relationship
• Evidence of the Prior Incidents of Violence
• Evidence of the July 8, 2018 Incident of Violence
• Findings of Fact
• Self-Defence – The Law
• Application of the Law to the Facts in this Case
• Conclusion

Judgment

K. Caldwell J.:

Introduction

[1] Mr. Patterson faces one count of assault causing bodily harm. The complainant is his now estranged wife, Dr. Joanne Nash.

[2] This case unfolded over eleven days of court time. The principal witnesses were Mr. Patterson and Dr. Nash. The reasons for the unusually protracted proceedings were two-fold. First, a third-party records application was brought which I largely denied though I ordered some records released. The second and more significant reason was that the nature of the defence involved delving in detail into the couple's marriage, particularly previous acts of violence.

[3] Mr. Patterson admits that he hit his wife three or four times with his fist on July 8, 2018. Those hits caused significant damage as reflected in both photos and medical records. Mr. Patterson argues that his actions were motivated by his need to defend his three-year-old son Thomas whom Dr. Nash was removing from the family home at the time of the incident.

[4] Factually, the couple agree on a great deal of their prior history. Dr. Nash also testified that any violence on her part towards Mr. Patterson was done in self-defence. I reject that claim on her part and find as a fact that she inflicted significant violence on Mr. Patterson on occasions that clearly did not involve self-defence though I accept that she honestly holds the contrary belief.

[5] I will begin with a review of the prior incidents and the parties' perspectives on the degree and cause of that violence.

Brief Overview of the Relationship

[6] Mr. Patterson and Dr. Nash are two professionals who met in 2011 and married in 2015. Mr. Patterson is an ex-lawyer who now works in finance and Dr. Nash is a neurobiology professor. Their one child, Thomas, is now four years of age. They have not lived together since this incident and show no signs of wishing to reconcile. To their credit, I accept that they are both fully supportive of each being involved in the care and raising of Thomas despite the clear animosity they now feel towards each other. Overall, each describes the other as a good parent and essential for Thomas' well-being. As I will describe later in this judgment, that view was severely tested on July 8, 2018.

Evidence of the Prior Incidents of Violence

December 15, 2015 – The Evidence

[7] Mr. Patterson was arrested on December 15, 2015 for hitting his wife. That matter was eventually withdrawn and a peace bond was imposed.

Dr. Nash's Evidence

[8] Dr. Nash testified that Mr. Patterson was snoring in bed so she tapped him firmly. He woke up and punched her which caused a mild bruise. She bit him in retaliation.

[9] When cross-examined, photos were put to her of Mr. Patterson's injuries and she agreed that she caused them. They are of his left arm and show numerous scratches to the inner part of his elbow, significant purple bruising along the length of his inner forearm and a large circular wound with dried blood around the circumference. The injury, from a distance, looked to me initially to be akin to a burn given its severity but upon viewing it in a close-up photo the circumference is made up of numerous punctures to the skin, akin to the size of teeth, with dried blood in each.

Mr. Patterson's Evidence

[10] Mr. Patterson testified that he was in a deep sleep and began dreaming that someone was punching him. He woke up and realized that Dr. Nash was punching him. He flailed around with his arms and he knows that he connected with her once with his fist but he said it was a reflexive action. He grabbed her from behind and she bit and scratched him, causing the injuries described above.

April, 2017 – The Evidence

Dr. Nash's Evidence

[11] In April, 2017, Dr. Nash, Mr. Patterson and Thomas took a trip to England to visit her family in Manchester. They stayed in a hotel. Dr. Nash testified that she could hear Mr. Patterson denigrating her to her brother. She was holding Thomas at the time and coming down in the hotel elevator. She said that she was extremely angry when she got off the elevator. She doesn't remember if she hit and kicked Mr. Patterson when she got off the elevator but given her anger she said that it was possible.

Mr. Patterson's Evidence

[12] Mr. Patterson testified that he was out with Dr. Nash's brother and Dr. Nash called him a few times to pick up milk for Thomas. He was standing outside the elevator with her brother, telling the brother that he didn't know why Dr. Nash had called him so many times. She began kicking and punching him when she got off the elevator because he was talking about her. He defused the situation by going for a walk.

March 15, 2018 – The Evidence

[13] Dr. Nash was arrested on March 15, 2018. Again, the charges were withdrawn and a peace bond imposed though this time the bond was on Dr. Nash. It was in effect on the date of this incident.

Dr. Nash's Evidence

[14] Dr. Nash testified that she arrived home from work around 5 pm with Thomas in one arm and carrying bags in the other. She was tired and frustrated. Mr. Patterson arrived home shortly after that and was angry because he thought she had been drinking. Drinking, particularly hers, was clearly an issue in their marriage and the couple had made a recent commitment to abstain.

[15] Dr. Nash had had a glass of wine at 4 pm but not more than that thus she felt that Mr. Patterson's anger was out of line. He is a foot taller than her and stood over her with his arms outstretched and his teeth bared. She demonstrated this action on a few occasions in court, standing while pulling her bent arms up to shoulder level and bending forward with her teeth bared. She said that she found this action frightening.

[16] Ultimately she said that he called the police and she was arrested though she testified that she had "done nothing". She did admit that she bit him in the upper chest area and pushed him away, stating later in cross-examination that this occurred when he blocked her from leaving the house. Under cross-examination she also admitted that she broke his watch when she pushed his arm and agreed that she may have ripped his shirt when biting him. She said that he left the house, and returned later with the police. Both Dr. Nash and Mr. Patterson testified that the arrest was very traumatic for her.

Mr. Patterson's Evidence

[17] Mr. Patterson said that he leaned in to kiss Dr. Nash when he arrived home but she drew back and told him to "go fuck yourself". He said he smelled alcohol on her and said, "my God, have you been drinking?". She got angry and he turned to the kitchen drawer to get scissors to open a bike lock that he had bought. At that point, Dr. Nash kicked him, and caused his watch to break.

[18] He then headed to the living room. Dr. Nash followed, yelling at him. He decided to go for a walk to de-escalate the situation, heading to his best friend's house which is nearby. He stayed there for a bit and spoke to Dr. Nash who sounded calmer. He headed home and when he got back, Dr. Nash demanded an apology. He refused to give one. At that point, she became angry, punching him in the chest and upper arm area. She also bit him through his clothes, causing his pink shirt to rip. That shirt was entered as an exhibit on this trial. After that, he called the police.

April 22, 2018 – The Evidence

Dr. Nash's Evidence

[19] After the March 15th incident, Dr. Nash's mother flew over from England. The two women then lived together in a short-term rental. In April, her release was varied to allow for contact and Mr. Patterson picked her up on April 22nd to bring her home. They began arguing over the March 15th incident. Dr. Nash agreed that she began pinching him and punching his leg when they were stopped at a red light.

[20] Just beyond the light, Mr. Patterson pulled the car over and tried to get out of the car. Dr. Nash agreed that she may have tried to pull him back and contended that this was justified as he was walking away, as he always did in arguments, rather than working things through. She then followed him, telling him that he wouldn't get away with having her arrested. She said that he threatened to call the police right then and she acknowledged that she may have said she'd kill herself if he ever did that again.

Mr. Patterson's Evidence

[21] Mr. Patterson essentially testified to the same scenario described by Dr. Nash but he added that she bit him on the back of the neck as well.

Other Incidents

[22] Dr. Nash said that Mr. Patterson has hit her twice, in December 2015 and on July 8th. She agreed that she had thrown water on Mr. Patterson once after he made an unkind comment when she suffered a miscarriage. She also agreed that she ripped a shirt off him on one occasion years ago, a pink chambray shirt, and she offered to buy him a new one because she was so upset about what she had done.

[23] Mr. Patterson also testified to these incidents and added that Dr. Nash threw a plate of pasta at him once and also pushed him into a painting. Prior to the March 15th incident, he said they had a heated argument and Dr. Nash began punching him. He grabbed her wrists and she leaned in, biting him hard on his left nipple. It caused some bleeding and an enormous purple bruise. I was left a bit unclear about Dr. Nash's position on this incident though she recalled biting him once in the chest when he was preventing her from leaving the home.

[24] She spoke of his verbal bullying, though I was left unclear regarding details, and she said felt very unsafe around Mr. Patterson. On his part, Mr. Patterson testified that both parties had said horrible things to one another during arguments. He also agreed that he has physically looked down on Dr. Nash and yelled at her.

Evidence of the July 8, 2018 Incident of Violence

Dr. Nash's Evidence

[25] The family had returned from a tense cottage vacation. The marriage had seriously deteriorated, and things had been very stressful since Dr. Nash's March 15th arrest. Dr. Nash was unpacking and Mr. Patterson headed off with Thomas to get groceries. Mr. Patterson has another young son, Elliott, from a previous relationship with Ms. Andrea Richardson. Elliott was being dropped off around 3 pm and they then were going to join Ms. Richardson for dinner around 5 pm at a nearby restaurant.

[26] They were tense with each other at dinner and Dr. Nash finally decided to leave, walking home. Thomas stayed with Mr. Patterson while he paid the bill. Under cross-examination she added that she had taken Thomas to get ice cream as he was fussing at the table. When she returned about 15 minutes later, Mr. Patterson and Ms. Richardson were talking together.

[27] Once outside, she agreed that she shouted to them that they were having an affair. She said Ms. Richardson responded by laughing and saying, "I'm on your side". Later she said that she didn't shout, she just made a statement, and she denied yelling "you are fucking my husband!" outside in front of the children. She said that she prided herself on being calm as a rule but also agreed that people may have stopped to stare given what she was saying and that Thomas was probably scared. She added that Mr. Patterson yelled at her that she was insane. She said that she had been pushed by Mr. Patterson's actions to make the comments that she did.

[28] She had called him demanding that he return home with Thomas and agreed that he said that it would be better if he stayed elsewhere that night. She was on the phone to his mother when he arrived home and she said she may have told his mother that he was no good as a man, parent, or husband. She denied yelling at his mother but said that she may have raised her voice.

[29] She said it took quite some time for Mr. Patterson to get home. Once he arrived he said he was going to spend the night with his parents. She then grabbed a carving fork and cut through a pair of Mr. Patterson's pants. She said that she didn't want Mr. Patterson to leave as she thought they could work through their issues. Cutting up the pants was done to make him sad, to hurt him, and to make him stay. She may have yelled, "you are not leaving!". She testified that she wasn't proud of her behaviour that night but said that it was Mr. Patterson's fault as he had pushed her buttons.

[30] Mr. Patterson responded by saying that he was going to call the police. She testified that she thought he was setting her up, by doing that, and said that people had warned her previously that he would set her up. She also testified that she was terrified of being arrested again, and that she thought Mr. Patterson was once again instigating the arrest when she had done nothing wrong other than defend herself against Mr. Patterson.

[31] She picked up Thomas to go. Mr. Patterson intervened, trying to pull Thomas from her arms, but he was unable to do that. It was then that Mr. Patterson punched her three times in a row in the face. She was virtually certain that the hits occurred in the kitchen. She ran next door to the neighbours, leaving Thomas.

[32] She said that at some point during the incident, before she was hit, Mr. Patterson accused her of suffering from paranoid schizophrenia. She responded by running out of the house yelling "help, help" and yelling that her husband was accusing her of being a paranoid schizophrenic as she wanted the neighbours to know. Dr. Nash's mental state was a significant focus in this trial and the primary focus of the third-party records application. As I denied that application, I am somewhat unclear regarding diagnoses though there does not appear to be any reason to conclude that schizophrenia is one of them. Dr. Nash was forthright regarding her severe anxiety and testified that she also suffers from Complex Post Traumatic Stress Disorder ("CPTSD"). She has struggled to find the right medications to help her.

[33] After Dr. Nash ran from the house following the punches, the neighbours then intervened, calling an ambulance, and she was taken to hospital.

[34] Dr. Nash suffered two cuts that required stitches as a result – she assumes his wedding ring is what caused the cuts. She also had two black eyes and two broken bones in her nose area.

Mr. Patterson's Evidence

[35] Mr. Patterson testified that he'd headed off with Thomas to get groceries that morning. He said that Thomas hadn't had a nap and driving often put Thomas to sleep. As a result, he headed to the airport with Thomas as that was a favourite destination for the two of them – they would sit and watch the planes. Thomas fell asleep and when he woke up they got lunch from McDonald's and watched the planes for a while. After that, they headed for groceries. He began receiving calls and texts from Dr. Nash; she as angry that he wasn't home yet. He arrived home shortly after his son Elliott's arrival at 3 pm.

[36] They headed to dinner to meet Ms. Richardson. From his perspective, dinner was good but Dr. Nash was very agitated, and still angry with him. She left at one point to get ice cream with Thomas and was upset when she returned. They left the restaurant and Dr. Nash yelled at Mr. Patterson. He thought it was because she was tired of Thomas whining. Ms. Richardson told her to go easy in front of the kids, and she exploded, yelling at Ms. Richardson, "you are fucking my husband!". She then headed home, and he followed with Thomas but meandered as he didn't think it was wise to go directly home. Dr. Nash called him on his cell, screaming at him that he was taking too long and that she wanted her son. He said that she was screaming so much that she became non-verbal; he wondered if she was having a psychotic episode as he had never seen her this upset.

[37] He told her that he'd bring Thomas home but he thought he should stay at his aunt's that night. He had learned in the PARS program about removing himself in order to de-escalate the situation. Dr. Nash, however, wanted him to stay and talk things through. When he arrived home, Dr. Nash was yelling at his mother over the phone. She then hung up, and began screaming at him that he was a bad person but she didn't want him to leave. Later, when he said that he was calling the police, she said she did want him to leave.

[38] He repeated that he thought it would be better if he went to his aunt's. He headed upstairs and began packing. He went to the bathroom to get his toilet kit and when he went into the bedroom he saw Dr. Nash with a carving fork and a pair of pants that she had just slashed. At that point, he "kind of freaked" because she had never done anything like this before and he became concerned about his safety. He told her he was going to call the police and began walking downstairs, placing the call.

[39] He didn't finish the call as she then ran down the stairs and out the front door yelling, "my husband is calling the police!". He told her she was acting like someone with schizophrenia and he asked her to come inside. He thought she was having a psychotic breakdown.

[40] Dr. Nash then punched him several times in the chest and stomped on his foot repeatedly. He was concerned as he didn't know where the fork was. She picked up Thomas and headed through the kitchen, telling Thomas they were leaving. He said there were a number of thoughts going through his mind: that Dr. Nash was unfit to look after a child at that moment, that she was of unsound mind, and he was concerned about what she would do as she had previously told him that she would kill herself if he called the police again. He said that his level of arousal was heightened and he needed to stop her.

[41] He pleaded with her to put Thomas down but he also remembered that one of her therapists told him that she would essentially no longer be present and would be oblivious to him when she was in flight or fight mode.

[42] She had exited the house through the back door with Thomas. Mr. Patterson caught up with her and hit her three to four times in the face. The punches were immediate, one after the other, but he remembers being shocked at the blood which he believed was caused by his signet ring. That caused her to put Thomas down at which point Mr. Patterson picked Thomas up and took him inside.

[43] He testified that he didn't think he had any alternatives. Given past experience, he thought that she would bite him if he tried to pry Thomas away. If he blocked an exit, she'd head for another one as there was more than one exit from their backyard to the street area. He acknowledged that Dr. Nash had never been violent towards Thomas in the past. He said that she was verbally abusive to Mr. Patterson in front of Thomas on "dozens and dozens" of occasions and physically abusive in front of Thomas a handful of times.

[44] After Thomas was safely with a neighbour, Mr. Patterson went back upstairs to continue packing as he assumed he was going to be arrested and have to stay in jail. He saw the fork on the bed and brought it downstairs.

[45] Mr. Patterson testified to a gradual decline in Dr. Nash's mental health, particularly after Thomas was born. He found her to be paranoid on their holiday and gave a few examples. He thought her judgment had become compromised. He was very concerned about her use of alcohol, cannabis, and prescription medication.

Dr. Petra Hroch's Evidence

[46] Dr. Petra Hroch is the neighbour next door. She and her husband were at home making dinner that evening. They began to hear lots of yelling, shouting, then banging, thumping and doors slamming next door. The back door opened and slammed closed more than once. At one point she believes she heard Mr. Patterson say, "you are a very sick individual". Both male and female voices could be heard yelling. Eventually Dr. Hroch concluded that she should call the police. They were in the process of placing the call when she heard Dr. Nash yelling, "help me, help me, help me!" from the back deck. She looked out and saw Mr. Patterson next to the back door, Dr. Nash a little further away but still on the porch, and Thomas standing between them, screaming and crying. Dr. Nash's face was covered in blood.

[47] She saw Mr. Patterson rubbing his hands, and heard him saying, "oh, fuck, shit!". She tried to keep them apart by telling Dr. Nash to come around to her house and telling Mr. Patterson to go inside. Neither responded though Mr. Patterson did go inside and Dr. Nash then followed him. She doesn't believe that Mr. Patterson picked up Thomas but she's uncertain. Shortly after that, Dr. Nash arrived at their front door.

Ms. Laura Maines' and Police Witnesses' Evidence

[48] Ms. Maines is the neighbour two doors over. She said that as soon as she saw Mr. Patterson, he said "I hit her, I hit Joanne". He seemed shocked. The police report similar spontaneous comments. One stated that Mr. Patterson said, "I can't believe I hit my wife, I can't believe I did this, I should have walked away". He kept repeating, "my poor boy, my son didn't deserve this, my poor boy".

Ms. Andrea Richardson's Evidence

[49] Ms. Richardson concurred that dinner was tense, the couple appeared to be having issues, and Dr. Nash seemed very agitated.

[50] After they left the restaurant after dinner, she said that Dr. Nash was yelling at Mr. Patterson. Ms. Richardson told her to calm down in front of the kids at which point Dr. Nash screamed at her at the top of her lungs, "I know you are fucking my husband!". Dr. Nash was extremely tense, agitated, explosive and angry. She said Dr. Nash continued to rant, accusing her of being two-faced and talking behind her back. Eventually this behavior stopped and Dr. Nash headed home.

Ms. Emily Trace's Evidence

[51] Ms. Emily Trace was the downstairs tenant of the couple. Her brief evidence was admitted by way of agreed statement of fact. She heard Dr. Nash and Mr. Patterson go out onto the back deck, and then heard Dr. Nash scream "help, help, help!". She looked out her window onto the deck and saw Mr. Patterson pick up Thomas and take him inside.

The 911 Call

In the 911 call, Mr. Patterson sounded very distraught and emotionally agitated. He told the call taker that his wife came at him with a fork, stabbed his clothes, and tried to take his son. He said he punched her four times and that he wanted to stay away from her right now as he was afraid he could hurt her.

Findings of Fact

Prior Incidents – Findings

[52] I agree with Ms. Samberg that I do not need to decide beyond a reasonable doubt what happened on the prior occasions. I find on the balance of probabilities that the following occurred:

December 15, 2015 – Findings

[53] I find that Dr. Nash used some force when Mr. Patterson was snoring. I make this finding based on his own testimony and based on her admission at one point in her evidence that she punched him. I also find that Dr. Nash repeatedly punched Mr. Patterson on the inner arm area and that she was not restrained by him when these punches landed on him as the very act of restraining her would have prevented these injuries. I find that he punched her either reflexively when she woke him up or deliberately at some point in the midst of the blows that she was landing on him. Further I find that she bit him very severely during the course of the incident, either in retaliation for the punch or while he managed to grab one of her arms.

[54] The primary area upon which they differed in their testimony was regarding the degree of violence Dr. Nash used in waking Mr. Patterson. I find that her actions exceeded those of a mere tap and I make that finding based upon his testimony, her admission at one point that she punched him, and given the extent of the bruising on his arm.

April, 2017 – Findings

[55] I find that Dr. Nash kicked and punched Mr. Patterson when she got off the hotel elevator while holding Thomas. I make this finding on the basis of Mr. Patterson's clear evidence, Dr. Nash's admission that this may have occurred, and her own description of the extent of her rage.

March 15, 2018 – Findings

[56] It is not disputed that Dr. Nash bit Mr. Patterson, broke his watch when pushing his arm, and ripped his shirt with her teeth while biting him. Dr. Nash said that Mr. Patterson leaned over her, with his arms up at his side and his teeth bared. I find that during the course of this interchange between them it is likely that actions akin to that described occurred given his anger over her drinking.

[57] I find that it is more likely than not that her actions flowed from her anger at Mr. Patterson's accusations regarding her drinking rather than an anticipation of violence given his physical stance. I make that finding given that the evidence does not reveal any physical violence initiated by Mr. Patterson on any prior occasions.

[58] I reject Dr. Nash's evidence that the bite occurred when he blocked her attempt to leave the home. I reject this evidence given that it was clear from the evidence of both that Mr. Patterson left the home that night. It would make little sense for him to block her exit and then leave himself when that just gave her full opportunity to do what she contends he was trying to prevent her from doing – namely, leave.

[59] I reject Dr. Nash's contention that she "did nothing" on March 15th as she made clear admissions to the contrary.

April 22, 2018 – Findings

[60] As already noted above, there is no dispute about this incident. Dr. Nash admitted that she pinched and kicked him, and then pulled at him when he tried to walk away after stopping the car.

Other Findings

[61] I completely reject Dr. Nash's evidence that her physical violence towards Mr. Patterson was always done in self-defence though I accept that she honestly holds this belief.

[62] Dr. Nash testified that her actions flowed from the emotional abuse she suffered and Mr. Patterson's repeated threatening action of leaning over her, teeth bared, arms extended to his sides. I accept that Mr. Patterson is physically much larger than Dr. Nash. It is clear, however, from her own evidence that her physical assaults towards him flowed either from her own anger at him or her upset when he would attempt to leave her physically. I make this finding based upon the following:

• Her evidence that the December 15, 2015 incident began because she was angry at his snoring;
• Her evidence that the April, 2017 incident flowed from her fury at the comments he made to her brother;
• Her evidence that the April 22, 2018 incident flowed from her anger during their argument over the March 15th incident and her frustration when he began to walk away.

The July 8, 2018 Incident – Findings

[63] There is a great deal of agreement between Mr. Patterson and Dr. Nash regarding what happened that day. The primary areas of disagreement are: (1) whether Mr. Patterson punched Dr. Nash in the kitchen or on the back porch and (2) whether Dr. Nash screamed at Mr. Patterson and Ms. Richardson regarding the alleged affair.

[64] I find as a fact that the punches occurred out on the back porch though I find that little if anything turns on this conclusion. I also find that Dr. Nash's conclusion that it occurred in the kitchen resulted simply from an imperfect memory of that night as opposed to any attempt to mislead the Court.

[65] I reach the conclusion that the punches happened on the back porch because this conclusion fits with the physical blood evidence, and because it also fits with the onlookers' evidence which I accept – Dr. Hroch and Ms. Trace both made observations of both parties on the back porch and those observations appear to have been made right after Dr. Nash was hit.

[66] I also find as a fact that Dr. Nash was screaming very loudly at Mr. Patterson and Ms. Richardson outside the restaurant regarding the alleged affair. I note that all parties including Dr. Nash now acknowledge that there was absolutely no merit whatsoever to Dr. Nash's affair contention. I make this point simply to avoid any confusion regarding the relationships of the various individuals in this case.

[67] I reach this conclusion largely given Ms. Richardson's testimony which I accept in its' totality. Ms. Richardson shares a child with Mr. Patterson and appeared to get along with him well but she was quite dispassionate and objective in her testimony. She appears to have had and continues to have friendly and civil relationships with both Mr. Patterson and Dr. Nash. I also make this finding based upon Dr. Nash's own testimony. She denied yelling but also acknowledged that people on the street may have turned to watch the commotion.

Self-Defence – The Law

[68] Section 34 of the Criminal Code outlines when self-defence is applicable. If Mr. Patterson believed on reasonable grounds that Dr. Nash threatened force against him or Thomas, and if his response (punching Dr. Nash) was done in order to defend or protect himself or Thomas, and if that response was reasonable in the circumstances, then he is not guilty of assaulting Dr. Nash by punching her.

[69] The Crown appropriately concedes that there is an air of reality to the defence. Given that concession, it is up to the Crown to disprove the defence beyond a reasonable doubt.[1]

[70] The Court must determine if the punches were reasonable by looking at the relevant circumstances of both Dr. Nash, Mr. Patterson, and the act itself. Nine factors to consider are listed in section 34(2). The nine factors are not an exclusive list but simply factors to be considered along with other factors the Court deems relevant.

[71] The nine factors are as follows:

(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.

Application of the Law to the Facts in this Case

What was the Threat?

[72] The Crown has conceded that there is an air of reality to the defence. I agree with the Crown but it is worth spending a moment examining the nature of the alleged threat.

[73] First, there was some comment in the trial about Mr. Patterson fearing that his own safety was threatened, particularly given the fork. My understanding, however, is that the defence is not arguing that Mr. Patterson was defending himself but that he was defending Thomas and I am proceeding with the analysis on that basis.

[74] Secondly, one might ask what was the threatened force? Dr. Nash was a mother removing her son from the home. Mr. Patterson is not suggesting that Dr. Nash physically harmed Thomas nor is he suggesting that she verbally threatened to do so. In fact, he maintained throughout his evidence that she is a good mother to Thomas and it is clear that he wants them to fully co-parent Thomas. What, then, was the threatened force?

[75] Mr. Patterson testified that Dr. Nash previously threatened self-harm if he called the police again. He also testified that he was in the process of calling the police shortly before Dr. Nash attempted to leave with Thomas. Further, he testified that her behaviour that night was highly aggressive and that she did not appear to be thinking clearly. I understand the argument to be that the act of removing Thomas from the family home was, in Mr. Patterson's mind, threatening towards Thomas given Mr. Patterson's belief that she could imminently self-harm and given her aggression and lack of mental clarity that evening.

Did Mr. Patterson Believe that Force was Threatened and was that Belief Reasonable?

[76] I move now to an assessment of whether this was Mr. Patterson's belief that night and whether it was reasonable.

[77] I accept Mr. Patterson's testimony that he subjectively believed that Thomas' safety potentially was at risk that night. I reach this conclusion for the following reasons:

• that Dr. Nash had threatened to kill herself if Mr. Patterson called the police again;
• that Dr. Nash's earlier behaviour that evening had been very volatile;
• that Dr. Nash had slashed Mr. Patterson's pants minutes earlier and that she did this act in order to hurt him as he cared about his clothing;
• that Ms. Trace saw Mr. Patterson pick Thomas up and bring him inside. I have already found as a fact that the punches occurred on the back porch. I also find as a fact that Ms. Trace saw Mr. Patterson pick Thomas up immediately after punching Dr. Nash as that timing fits logically with the other evidence put forth in this case.

[78] Dr. Nash's very public allegation that Mr. Patterson and Ms. Richardson were having an affair was very aggressive and illogical in the circumstances. Similarly, exiting the home and yelling loudly that she was being accused of having schizophrenia was similarly confusing and concerning behaviour.

[79] Mr. Patterson testified that Dr. Nash had never done anything akin to deliberately slashing his clothing before. In her own testimony, she agreed that she was trying to hurt him by destroying something he cared about.

[80] I have also found as a fact that she threatened to self-harm if he called the police again.

[81] The combination of the earlier aggression, the threat to destroy something he cared about and the threat to self-harm all lead me to conclude that Mr. Patterson subjectively did fear for Thomas' safety if Dr. Nash left with him that night. Further, the fact that he immediately picked Thomas up and re-entered the family home after punching Dr. Nash further substantiates his contention that he punched her not out of anger but out of a desire to keep Thomas at home.

[82] I have also considered the admissible comments he made to the police via 911 and in the police car after the fact, and the comments he made to neighbours. I am well aware that he did not comment on any fears regarding Thomas. I put limited weight, however, in his statements at that point in time. Both Dr. Nash and Mr. Patterson clearly were in shock right after this event – not much if any weight should be placed upon any omissions in their statements given at that time.

[83] I also find that his belief was reasonable. The reasons I just gave for concluding that he had the subjective belief are the same reasons I have for concluding that the belief was reasonable.

[84] I reiterate again that I am not saying that Dr. Nash would have or will harm her son. I am sure it is not easy for her to hear my conclusions as I fully accept that she loves her son deeply and has no intention of harming him. I am simply concluding that Mr. Patterson's belief that night – and I emphasize "that night" – was objectively reasonable given the specific events of that particular evening, particularly in light of her previous self-harm comment and the cutting of the pants.

Did Mr. Patterson Inflict the Force to Protect Thomas?

[85] For the reasons given above, I also find that the reason Mr. Patterson struck Dr. Nash was for the purpose of protecting Thomas.

Were Mr. Patterson's Actions Reasonable in the Circumstances?

[86] I find that this branch of the legal test for self-defence is the most challenging in this case. It is also the branch that is most informed by the prior history of the parties.

[87] Previously I listed the nine statutory factors to be considered. I will not address each one in a separate heading but intend to make clear my assessment of these factors in my overall analysis.

[88] A cursory examination of this case would lead one to question how Mr. Patterson's actions could ever be reasonable. After all, Mr. Patterson clearly is the larger of the two parties – he is at least a foot taller and, though not broad, he is larger than the diminutive Dr. Nash. Further, the photographic evidence of her injuries was shocking – two very black eyes swollen completely shut, and extensive blood on her face. I confess, at the outset of this case I too wondered whether the Crown would have much of a hurdle to overcome in disproving the defence beyond a reasonable doubt. Fortunately, however, judges don't make their decisions at the outset but only after they have had an opportunity to hear and fully consider all of the evidence.

[89] The relationship between Dr. Nash and Mr. Patterson was relatively lengthy in time and complex. It also was marked by instability and hostility, particularly in the months leading up to July 8th when the marriage appeared to be quickly unravelling.

[90] The previous violence and nature of that violence also were striking. I accept that Dr. Nash genuinely holds the belief that she was the one who was abused throughout the marriage. One of the most troubling features of this case, however, is that a dispassionate assessment of the previous incidents reveals a totally different picture. As I have already outlined above, the incidents of previous violence were initiated by Dr. Nash, not by Mr. Patterson. That finding does not settle the issue, of course, as it doesn't entitle the recipient of past violence to take any steps regardless of proportionality but that fact strongly informs the analysis.

[91] I also find that the nature of the threat was serious given that it involved their child and the threat was imminent as Dr. Nash was about to leave the home with Thomas.

[92] Mr. Patterson had reasonable concerns for Thomas's safety that evening. It is clear that Dr. Nash was determined to leave with Thomas. The blows he struck were done in quick succession and I draw the inference that they stopped once Thomas was released. I draw that inference from both their own testimonies and from the evidence of Ms. Trace.

[93] Mr. Patterson also was acting almost immediately after his clothing had been slashed. That very act, and the reasons given, were extremely disturbing.

[94] Ms. Samberg argued that there were other avenues available to Mr. Patterson. He may have reached the same conclusion if he had had the luxury of time to calmly reflect. Perhaps, for example, he would have run ahead of her and continued to block her path regardless of which route she chose to take. Perhaps the punches would have been of lesser force or open handed. I find that simply grabbing Dr. Nash and attempting to hold her was not a viable option given his previous experiences; I've already commented on the severity of the bite mark he received during the December, 2015 incident.

[95] It is also important to remember that the law doesn't require Mr. Patterson to weigh the degree of force to a nicety. Such a requirement would fly in the face of the nature of most confrontations that involve potential self-defence. As our Court of Appeal noted in R. v. Cunha, "the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection".[2]

[96] The appellate courts often comment on the fact that the person acting in defence of self or another cannot be expected to weigh the degree of force to a nicety.[3]

[97] I find that the Crown has not disproved that the force used was reasonable in the circumstances given the imminence and severity of the threat, the prior history of violence perpetrated upon Mr. Patterson and the logical limitations this history placed on his options, the previous threat of self-harm, and the extremely disturbing act of cutting up his pants and the reasons given for that act.

Conclusion

[98] I find, having considered the entirety of the evidence in this case, that the Crown has not disproved beyond a reasonable doubt that Mr. Patterson acted in defence of Thomas that night.

[99] I therefore find Mr. Patterson not guilty of the charge.

[100] I thank both counsel for the time and attention paid to this case. It was unusually lengthy and required leading a great deal of detailed evidence. It also required nuanced and sensitive questioning of the witnesses. Their efforts were greatly appreciated.

Released: March 24, 2020

Signed: Justice K. Caldwell

Footnotes

[1] R. v. Lieberman, [1970] 3 O.R. 407 at 411-12 (Ont. C.A.)

[2] R. v. Cunha, 2016 ONCA 491 at para. 7

[3] See R. v. Baxter, 27 C.C.C. (2d) 96 at p. 111 (Ont. C.A.)