ONTARIO COURT OF JUSTICE

DATE: April 14, 2021

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

GEORGE GIAOURIS

Before Justice B. Knazan

Reasons for Judgment released on April 14, 2021

Counsel: Ms. S. Malik ................................................................... counsel for the Crown Mr. T. Hicks...................................... counsel for the accused, George Giaouris

KNAZAN J.:

[1] Mr. Giaouris is charged with assaulting Ms. Cordero and causing her bodily harm on July 31, 2018. He is also charged with threatening her with death.

[2] Mr. Giaouris’s admissions in his evidence permit me to narrow the issue on the assault charge. It is proven beyond a reasonable doubt that Mr. Giaouris caused bodily harm by hitting and pushing Ms. Cordero without her consent; the only issue is whether or not he was defending himself within the meaning of s.34 of the Criminal Code.

[3] Determining whether he was defending himself or not depends on the circumstances in which he struck and pushed Ms. Cordero. If, as Ms. Cordero describes, Mr. Giaouris attacked her in anger as she sat on the couch, self-defence does not arise.

[4] But if, as Mr. Giaouris testified, Ms. Cordero repeatedly attacked him, first when he was still sleeping by hitting him with a wooden box, and again as he sat on the couch checking his belongings and putting on his sandals in preparation for leaving, then I must determine whether he was indeed defending himself when he injured her. If I conclude that he was, I must then decide whether he used reasonable force or excessive force. I need not believe Mr. Giaouris, but if his evidence raises a reasonable doubt that Ms. Cordero and not he initiated the violence, I must proceed to the next step. That is, to determine if the prosecution has proven beyond a reasonable doubt that he was not defending himself, or, that if he was, the force that he used was not reasonable.

Overview of Couple

[5] There are general deficiencies in the evidence of both witnesses. These deficiencies do not lead me to reject their evidence outright but they do provide the backdrop to my evaluation of their testimony.

[6] Ms. Cordero demonstrated a bias against Mr. Giaouris, her former partner of about six years. Put simply, at the time of the trial she hated him, and she showed, though without using the word “hate”, that this was the case at the time of the assault. He disgusted her. She could hardly get past her animosity in order to relate what happened. She called him a liar and would not use his name but rather only referred to him as the monster until I asked her not to do so. While testifying she would describe his excessive drinking, his addiction to alcohol, his unpleasant odour, and an occasion when he hit her previously but she did not report it, sometimes when the fact was not even remotely related to the question. During the trial there were two incidents when she showed anger towards him, once as she was leaving the courtroom and once outside the courthouse.

[7] Her preoccupation with slandering Mr. Giaouris and her digressions made it difficult for both Crown and defence counsel to adduce the evidence. Crown counsel recognized that she was a difficult witness and in submissions reminded me that I was assessing the evidence in order to determine what happened during a brief period, and not during the whole relationship. This is correct, but Ms. Cordero’s animosity toward Mr. Giaouris is relevant to my assessment of her evidence.

[8] Mr. Giaouris was an even witness whose testimony was more concise and had more focus. But, for his part, he demonstrated a total lack of memory about what should have been easy facts to register and remember, while at the same time recalling details about what occurred. Mr. Giaouris had been sleeping for some period exceeding 18 hours prior to the moments in which Ms. Cordero was injured. He had passed out and slept so long from drinking. He had consumed enough to pass out, which he said was about one half of a 26 ounce bottle of vodka, before going to sleep on July 30, 2018. He is an alcoholic and drinking to the point of falling asleep and staying asleep was a common occurrence. He agreed that he was a little drunk before he went to sleep and not sober after he woke up from his long sleep. Either his state of awareness at the time or his memory was so affected by something, that he did not know at what time of day the fight occurred. By this I mean not the approximate hour, but during what part of the day, morning, afternoon or night.

[9] Although Mr. Giaouris agreed that he was an alcoholic and had sought treatment, he denied that the periods when he was struggling with alcohol were the source of friction and argument in their relationship. He would not admit that it contributed to the friction and arguments but maintained that it was her drug abuse that was the source of the problem.

Ms. Cordero’s Description of the Fight

[10] There was a fight. For economy of words I am using fight to mean the events that resulted in the proven injuries to Ms. Cordero.

[11] Ms. Cordero and Mr. Giaouris had been together with interruptions for over six years. On July 31, 2018 he had been back with her about two months after a previous two week separation. She testified that he had begged her to let him return and she allowed him to return. His drinking was a constant problem between them.

[12] On July 30, she attended a party at her daughter’s. He was angry because he was not allowed in her daughter’s house, according to her. When she returned he was awake but drunk. She testified that he was on the couch watching TV and, as she added gratuitously, “or dirty movies.” This as an example of what I referred to in my general comments about her bias; she missed few opportunities to discredit Mr. Giaouris, even when not being asked to.

[13] During the night he kicked her in the bed, but if this happened, I cannot find that it was purposeful and it does not form part of the charge.

[14] She woke up at about 10:30 or 11:00 in the morning on July 31 and she said that Mr. Giaouris was already awake. She went downstairs in the apartment building to see a neighbour, and before she went she grabbed Mr. Giaouris’s keys because her key was not in the place, described no more specifically than “a little thing there that we have the keys.” She just grabbed his keys because she could not find her own.

[15] It was difficult to follow Ms. Cordero’s evidence. Her English was more than adequate, and although Spanish is her first language, after an inquiry I concluded, with the agreement of both counsel, that she did not require an interpreter.

[16] But while testifying about taking the keys, she veered off. Crown counsel attempted to adduce a coherent sequence of events of what occurred but without much success. She took the responsibility for being confusing, but it was the witness who was confusing.

[17] At some point she returned and he awoke and asked her where his keys were and she answered that she had them. She then, in a digression, testified that she saw right away that her ill granddaughter and her daughter and her husband were more important in her mind because of their terror at the news about the granddaughter’s illness and that she saw Mr. Giaouris putting the cigarettes that he had bought illegally into his bags. It is difficult to discern or describe the chain of events based on her evidence.

[18] Eventually Crown counsel established that Ms. Cordero was sitting on the couch in the living room when the conversation about the keys occurred, and that Mr. Giaouris was in the bathroom, and that after she said that she had his key, he grabbed his bag and started putting the illegal cigarettes and bottles of vodka and beer in the bag.

[19] She testified that she could not understand what was happening but was expecting a hug of support or an apology, I infer, for kicking her or for his drinking.

[20] Instead, he came over to the couch and grabbed her around her shoulder and neck, looping his arm around to her underarm. Then he pinned her, she described it as crossing his legs on her legs as she sat.

[21] At that point Mr. Giaouris started punching her in the head and her ears. He pinched the skin on her cheek and her eyelid.

[22] She tried to cover her face and he tried to pull down her pants. She could not talk; her heart was beating fast. He was pulling her and she hurt her toe, she said that it was broken.

[23] He scratched her. He tore her top. She said that he broke it but she clearly meant that he tore it.

[24] Then he stopped and went into the bathroom to wash up. She crawled to the door, using the counter to pull herself along. She made it to the door of the apartment, stood up and supporting herself against the doorframe, she opened it. At the same moment, her neighbour, Ms. Pacheco who lives across the hall opened her door. She said “please call” “911” and Ms. Pacheco called 911.

[25] That is how Ms. Cordero described how she came to suffer the injuries that are visible in the police photographs.

Mr. Giaouris’s Description of the Fight

[26] Mr. Giaouris does not know when in the day the events occurred, not when he woke up, or when he left the apartment or when he was arrested by the police. He did recall that he had drunk a lot of vodka, at least half of a 26 ounce bottle on July 30 and slept right through until he was woken up by Ms. Cordero hitting him on the head. She was using a wooden box that he had bought for her. He does not know how many times she hit him before he woke up.

[27] He defended himself by telling her to stop and pushing her with one hand. She remained standing. When she attacked him again, he was standing up and he pushed her a second time, this time hard enough for her to fall backwards on her backside. He was just pushing her body, he was not sure where he pushed her but thought the arms and shoulders; he made contact with her upper chest. She fell and hit her back on the door. He left the bedroom.

[28] He wanted to leave the apartment as quickly as possible. He took a bag that he uses and his sandals and went and sat down on the sofa in the living room to put his sandals on and check the contents of the bag. Ms. Cordero kept coming at him, screaming at him about not being intimate with her and not going to bed at the same time as her. She was scratching him and punching him in the head. He pushed her again, a third time and she fell and hit the wall on the baseboard. He could not recall where on her body he made contact when he pushed her this third time.

[29] Ms. Cordero was screaming and he told her that if she came near him again, if she hit him again, he would kill her. His exact words were: “If you touch me again, I will kill you.” At one point he grabbed her arms and held her, and in that manner, he restrained her.

[30] Mr. Giaouris finished putting his shoes on and checked to see what was in his bag. She kept scratching him and hitting him in the face. He may have hit her in the upper chest and neck. Once his shoes were on he proceeded to walk out. He only took his wallet, water and his cigarettes. He did not take any clothes.

[31] All of the injuries that she suffered, she suffered by her attacking him and by his protecting himself from her by hitting her and trying to push her away. He attributed an injury to her thigh and to her toe, to previous falls that she had suffered. He testified that she did not crawl towards the door. He suffered a bloody left eye and eyebrow and a scratched lip and scratches on the left side of his head.

The Independent Evidence – The Photographs and What the Neighbour Ms. Pacheco Saw and Heard

[32] There are two areas of evidence that are independent of the testimony of these two witnesses that assist in assessing the evidence of the couple and the issues that I must resolve. The first is the testimony of Isabel Pacheco and the second is the photographs of the injuries to both parties.

[33] Ms. Pacheco lived across the hall from Ms. Cordero. Around dinner time she heard noise coming from Ms. Cordero’s apartment. She heard stomping and banging. It was loud and she heard Ms. Cordero’s voice crying for help. She opened her door and stood for a bit listening. Another neighbour opened their door but closed it. Ms. Pacheco listened for a bit after she opened her door. Although she had heard them use loud voices with each other in the past there was never anything like that. She saw that Ms. Cordero’s door was open and saw Mr. Giaouris leave the apartment. He closed the door. He left at a fast pace but walking not running. He turned to the right toward the stairway so that she could see the left side of his face. It was red. There was no blood. She heard him say something like “she’s crazy” and he walked quickly away.

[34] She then crossed the hall, a distance of about ten feet. Ms. Cordero was still yelling for help. Ms. Pacheco started knocking on the door. She, Ms. Cordero, opened the door inwards and fainted. She had a little bit of blood; it was on her face but she could not remember clearly where. She had a scratch on her chest and bruises on her body and her left toe was purple. Her shirt was ripped. Ms. Pacheco helped her to the couch and called an ambulance.

[35] Ms. Pacheco saw a lot of alcohol bottles in the kitchen, overflowing from the garbage can. She maintained under cross-examination that between 3 and 5 minutes passed between the time that she first heard noises and the time that Mr. Giaouris opened the door and left the apartment. She testified that she did not hear George but only Ritha and that she did not mean that she heard both of them when she said that she heard yelling.

The Photographic Evidence

[36] There are police photographs taken on the evening of July 31, some time shortly after Mr. Giaouris was arrested after 7:00 p.m.

[37] Mr. Giaouris has red marks on the left side of his face. There is a bad bruise around his left eye. There are clear scratches under his left eye extending to his moustache and they appear to extend above the eyebrow also. There appears to be a redness on the left side of his head, under his hair where he testified that Ms. Cordero hit him on the head. There is a small mark on his right forehead.

[38] The photographs of Ms. Cordero show a bruised and injured woman. A large area of her face from between her eyebrows, widening to the area above them, is a light purple in the centre and red to the sides, with small red marks in the large red areas. There are noticeable bruises on her face and her body. There is a photograph of a torn top. The bridge of her nose has a deep purple mark. Under both eyes there are full deep red and purple marks, extending right up onto the nose. There is a dark coloured bruise on the right cheekbone and only slightly less dark marks below. There appears to be a scratch shaped bruise going vertically from the right eyelash to the hairline. There is a faint red line on her right shoulder. There is a very small cut like mark on her left shoulder. There is a fresh looking sore on the soft part of her left ear lobe. There is redness on the top of her head, where her hair is parted, in more than one spot along the part, one of the red marks is very faint. Her left side is badly bruised. There is a large purple bruise on the front of the right shoulder; it circles around to become red and purple on the side of her left arm. The side of her face appears purple though that is not as certain as the other bruises that I am describing. There is a bruise on her left arm below the elbow, hardly discernible but discernible nonetheless.

[39] There is a band-like cut or scratch on the right shoulder.

[40] Also on her right side there are two horizontal red stripes at the level of her breasts, evenly spaced as if left by tight clothing. The breasts themselves, that the police photographed with discreet covering show similar horizontal red marks with very red blotching below those on the right breast. The photographs of the breasts make it appear that the red marks are more scratches than the impressions of tight clothing. These marks go right into the underside of the breasts. Also, on the left side there is deep red blotching.

[41] There is a deep red scratch - like wound a quarter inch across and twice as high in the exact middle of her stomach between her breasts and her navel.

[42] There are fainter red marks about an inch high on the back of her left arm. There is a huge purple bruise on the right side of the upper leg.

[43] There is a tiny red mark on her right leg, less than a quarter of an inch in diameter. Both knees have large purple bruises.

[44] The left elbow is bruised.

[45] The left side of the face is bruised, purple and the inner part of the ear is particularly badly bruised.

Assault Causing Bodily Harm

[46] As I stated at the outset, following from Mr. Giaouris’s position, this case is about self-defence under s. 34 of the Criminal Code as an answer to the charge. Apart from s.34 of the Code, Mr. Giaouris is guilty. He caused bodily harm to Ms. Cordero by applying force to her without her consent.

[47] However, if the three requirements in subsection 34(1) are met, Mr. Giaouris, by the opening words of the section, is not guilty. The section reads:

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.

(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.

Subsection 3 has no application.

[48] The burden on the Crown to prove guilt beyond a reasonable doubt, applies to a s.34 analysis. If the defendant establishes that there is an air of reality to the defence of self-defence, the Crown must prove beyond a reasonable doubt that the three requirements of subsection (1) are not met. But they need only prove that one is not met in order for the defendant to be found guilty.

[49] In this case, the section applies if I find that Ms. Cordero used force against Mr. Giaouris, or he reasonably believed that she was using or threatening force. If she did not use the force that he contends she used by hitting him with the box while he slept and then attacking him while he sat on the couch as he says that she did, there is no air of reality to the defence and also, the Crown will have proven that he could not have reasonably believed that force was being used against him. (S.34(1)(a)).

[50] Should I find either that Ms. Cordero attacked Mr. Giaouris as he testified, or that he has raised a reasonable doubt in my mind as to whether she did or not, then I must consider whether the Crown has proven beyond a reasonable doubt either that he did not commit the acts that caused her bodily harm for the purpose of defending or protecting himself (s.34(1)(b)) or that the acts that he committed were not reasonable in the circumstances (s.34(1)(c)).

Did Ms. Cordero Use Force Against Mr. Giaouris?

[51] I do not reject Mr. Giaouris’s evidence that he was woken up that evening by his being hit by a box. He described the box - one that did exist in the house on that evening. There is a slight red mark on the left side of his head in the photograph taken by the police. Though Ms. Cordero strongly denied hitting him in any way, she agreed that the box was in the house that night. She first testified that her children had thrown out the box. It only emerged in cross-examination that her son threw it out between the fight and the arrival of the police the next day.

[52] I have already described the exaggerated and biased way in which Ms. Cordero testified. One discrepancy between her and Ms. Pacheco is that Ms. Cordero said that she opened her apartment door and saw Ms. Pacheco just before she fainted. Ms. Pacheco said that she opened the closed door to the apartment, after seeing Mr. Giaouris leave and saw Ms. Cordero before she fainted. Ms. Cordero said that she crawled toward the door but Ms. Pacheco said that she was standing when she opened the door. This evidence of Ms. Pacheco’s that I accept undermines Ms. Cordero as a reliable reporter of what occurred but also confirms, since I accept Ms. Pacheco’s description of Ms. Cordero fainting, that she was in bad condition.

[53] Mr. Giaouris submits that it is inherently more probable that he went straight to the couch as he testified, than that he went into the bathroom, shaved, and came out and for no reason began to assault Ms. Cordero as she sat on the couch, as she testified that he did.

[54] He also points out that he does not appear to be clean shaven in the police photograph that was taken within twelve hours of when she said that he shaved. In the first place, Ms. Cordero, though she mentioned shaving, said she did not know what he was doing in the washroom. And the argument of inherent probability having been raised, I would reason that it is more probable that someone who had been sleeping through the whole of a day after having consumed at least 13 ounces of alcohol that caused him to sleep for so long, would use the bathroom on waking. But there is no evidence of whether he awoke during the 18 hours, and inherent probability is not a sound basis for reasoning in regard to human behaviour, unless that inherent probability arises from the evidence.

[55] One part of Ms. Cordero’s evidence was credible. That was that she took the key and did not put it back and that that angered Mr. Giaouris. It was his key and he would not have been able to leave or return without it. Ms. Cordero may be unreliable because of her bias but I do not conclude that she fabricated specific points in order to construct a story to falsely accuse Mr. Giaouris, as much as she did hate him at the time that she testified.

[56] Mr. Giaouris did agree that he pushed Ms. Cordero twice in the bedroom and once hard the last time in the living room. He also testified that he hit her. He denied pinching her cheek and attributed her broken or purple toe to a previous fall she had. He said that if he did kick her in the leg during the night that it was an accident.

[57] As both parties agree, there is no way of reconciling the evidence of Ms. Cordero and Mr. Giaouris about how the fight began or occurred. Either she hit him in the bed, and then attacked him again as he sat on the couch and arranged his bag and put on his shoes to leave, as he testified or, he awoke, went to the bathroom and then came over to the couch where she was sitting angry about not being able to find his key, beat her and tore her blouse as she testified. Or, neither of them testified entirely accurately.

[58] Mr. Giaouris benefits from his bad behaviour leading up to the incident. He agrees with Ms. Cordero that he would drink himself into drunkenness and sleep through the days and that is what happened this time. Such behaviour would be infuriating to Ms. Cordero and she might just have erupted and woken him in the evening by striking him with a box. This inherent probability is based on the evidence.

[59] On the basis of all of the evidence I am unable to reject Mr. Giaouris’s description of what occurred. I am not sure whether to believe him or not. For that reason, there is both an air of reality to his defence of self-defence, and a reasonable doubt as to whether he was defending himself or not, both in the bedroom, and in the subsequent events in the living room.

Not Guilty by Reason of S.34

[60] The burden is on the prosecution to prove beyond a reasonable doubt that Mr. Giaouris was not acting in self-defence. The Crown need only prove beyond a reasonable doubt that one of the requirements for establishing self-defence does not apply. This is because s.34(1) that lists the requirements that must obtain uses semi-colons, making the requirements conjunctive.

[61] Given my finding of a reasonable doubt as to whether Ms. Cordero attacked Mr. Giaouris with a box to initiate the incident and whether it was she who attacked him again while he sat on the couch, the Crown has failed to prove that he did not believe on reasonable grounds that force was being used against him. So Mr. Giaouris has satisfied the first prerequisite to being not guilty.

[62] The second and third requirements are less straightforward. This is because the evidence leaves such doubt as to what occurred. Since Mr. Giaouris has raised a reasonable doubt concerning both his evidence that he awoke to being hit with a box and being attacked while he sat on the couch, I proceed on the basis that both occurred.

[63] One complication that arises is that the same uncertainty as to what actually occurred persists in the determination of the acts that constitute the offence. Regarding the force used in the bedroom, the evidence does permit me to find that Mr. Giaouris pushed Ms. Cordero twice, once causing her to fall. I conclude that Mr. Giaouris has raised a doubt as to whether the force used was both necessary and reasonable as he rose from bed and left the bedroom. This force could explain the bruise on her right arm and parts of her chest because he testified that he used one hand on one occasion on her right arm and two hands on another occasion in her upper breast area. It is difficult to understand how this could have caused the bruising to the inner portions of her cleavage, unless he put his hand right between her breasts and low down, almost under them, in order to push.

[64] The continuing attack by Ms. Cordero in the living room, proceeding on the basis that it occurred as he described, with her coming at him more than once as he sat down and checked his bag and put on his shoes, has both the elements of a continuing attack and a separate incident.

[65] This is because on the one hand, it was close in time to being woken by being hit on the head with the box. But it was also a discrete part of the events. He was now upright, safely out of the bedroom and on his own evidence had repelled the attack with the box with reasonable force, pushing her twice, once causing her to fall backward on her backside. His only goal was to get out of the apartment immediately.

[66] Given the continuity from the bedroom to the living room, Mr. Giaouris was entitled to respond with being hit by the box still in his mind. So he would not have been required to sit and be attacked again even without the box. Again, not finding that Ms. Cordero attacked him on the couch but proceeding on the premise of a reasonable doubt as to whether she did or not, it would be necessary for him to use force to push her away once more. He testified that she was punching and scratching at him as he checked his bag and as he tried to put on his shoes.

[67] Even if all of the injuries that he caused were caused by an act that he committed for the purpose of defending himself, he is still guilty if the force he used was not reasonable. He is not unlimited in his right to use force. This case narrows to subsection (c).

[68] Subsection 34(2) directs me to consider the relevant circumstances of Mr. Giaouris, Ms. Cordero, and the injuries he caused and provides a non-exhaustive list of factors that I must consider in relation to the relevant circumstances.

[69] The principal circumstance in this case is the extent of the injuries that Ms. Cordero received. If my verbal description of the photographs has not succeeded, an examination of the photographs serves to prove how badly injured she was. Were it not that they would violate Ms. Cordero’s privacy and dignity, I would attach the exhibits to my judgment.

[70] With respect to all of the bruises and injuries, Mr. Giaouris testified that each of them was caused by her attacking him.

[71] I am excluding the bruise on the thigh. This is from an alleged kick during the night that the Crown is not now alleging was an assault. He testified that he did not step on her toe as she alleged, that that occurred beforehand. Although the bruising to the arms and upper chest seem severe from a push - that is possible; I have no medical evidence.

[72] Mr. Giaouris’s evidence includes the gaps in his evidence. His counsel asked him for a little more detail on how he came to cause the injuries to her. He described how she kept coming at him, at least twice and scratched his left eye, his eyebrow, his lip and his face and then explained the thigh and toe and arms and front as I have described. He did say in cross-examination that he was hitting her back as she hit him. He admitted to landing blows on her body, her shoulders and her face. He demonstrated that he hit her in the face with the back of his hand. But his evidence is general, and his state was such that he did not even know if it was day or night.

[73] He also told Crown counsel, regarding the bedroom, “Because at the state I was in, I had been drinking before that and with her hitting me I could have it wrong.” He could also have it wrong in the living room, where he was even less specific about what he did to her. His recounting of the fight does not explain how the injuries could be so many and leave such marks by his pushing her, or by hitting her in order to repel the attack that he describes.

[74] This is relevant to the nature and proportionality of Mr. Giaouris’s response to Ms. Cordero’s use of force. Mr. Giaouris submitted that I should reject Ms. Cordero’s evidence entirely, but I don’t. My finding is that his evidence raises a reasonable doubt as to how the fight began and whether she attacked him to justify defending himself. As I indicated, I do find credible her evidence that he was angry that she had taken his key.

[75] So the evidence is that he indeed hit her hard to her face in order to leave the bruising that I can observe. There is also evidence from Ms. Pacheco that it was Ms. Cordero who was yelling and that she did not hear Mr. Giaouris.

[76] I have considered all of the factors that I am directed to consider in subsection (2) in addition to the proportionality of his response that is covered by subsection (g). Some of them are neutral with regard to the reasonableness of the force that the evidence demonstrates that Mr. Giaouris used, some support a finding of unreasonableness and some support reasonableness. I will follow them in the order they appear in subsections (a) to (h) of s.34(2).

[77] Regarding the nature of the force or threat, this refers to the force used by Ms. Cordero in this case. There was a hitting on the head with an object close in time to the attack on the couch and the attack on the couch, resulted in Mr. Giaouris receiving visible scratches to his face and a bruised eye. He was entitled to respond.

[78] The force was imminent once Mr. Giaouris was seated on the couch. The couch was in the apartment that he until that moment shared with her. He testified that he wanted to make sure that he had his wallet in his bag and put on his shoes. Ms. Cordero said that he was collecting his alcohol and cigarettes when he attacked her. There is no evidence of what was in his bag when arrested by the police. Mr. Giaouris could have availed himself of another means to respond to the potential use of force by leaving as soon as he left the bedroom, or by standing up and leaving with his bag and his shoes as soon as Ms. Cordero came at him as he described it. There was a reasonable alternate response.

[79] On his evidence he played no role in the incident. But in a broad sense he did, by his alcohol consumption and drunkenness the previous night, that led to his not being sober when he woke up. There is no limit in the section to the reach of the words “role in the incident”. Mr. Giaouris was hard to live with, and especially so on the day and night before the fight.

[80] There was a weapon in the initial part of the incident, the box, although it was gone by the time Mr. Giaouris used the force that I am now considering.

[81] Mr. Giaouris is about 5 feet 10 inches. He would not agree with the police estimate of his weight but said that he is usually between 175 and 182 pounds. Ms. Cordero was 5 feet 2 or 5 feet 3 and said she was 100 or 105 pounds on the day of the incident and would not agree that she was closer to 135 at the time. Even if she minimized her weight, she was still smaller. This is relevant to the reasonableness of his response. My assessment of this factor is that he had a responsibility to measure the force that he used to some degree.

[82] The couple had a six-year relationship with at least one interruption. Both accuse the other of prior physical abuse. Ms. Cordero’s allegations were inadmissible. Mr. Giaouris testified that she always beat him including in the days just prior to July 31 and was dumbfounded that this time he defended himself. Her mistreatment of him was put to her and she strongly denied it, saying that she never touched him with a feather nor with a bird. In any event, he did not say that he was more afraid because of previous abuse but only that she seemed surprised that he defended himself this time. I do not find prior use of force by Ms. Cordero that would justify any fear greater than that created by her behaviour that day nor prior abuse by Mr. Giaouris that is relevant to the reasonableness of the force he used on July 31, when considering subsections (f) and (f.1).

[83] I consider the nature and proportionality of Mr. Giaouris’s response to be an important factor.

[84] Mr. Giaouris submits that the principles established prior to the new s.34 still apply, in the sense that Mr. Giaouris was not obliged to abandon what until that moment was still his own home in order to avoid Ms. Cordero’s wrath. Nor was he required to measure his response exactly. I agree. But s. 34(2)(b) does codify other means available and s.34(2)(g) codifies proportionality as a factor.

[85] S. 34, which came into force in 2013, is Parliament’s response to what the Supreme Court noted was a law of self-defence that had “often been criticized for its complexity and lack of coherence.” R. v. Petel, [1994] 1 S.C.R. 3 at p. 12. In Petel, the Court urged courts interpreting provisions of the Criminal Code to “confine themselves to general principles and not unnecessarily create complex rules and subtle distinctions”.

[86] Under the previous complex and incoherent law there was a subtle difference between the use of force and the consequences of its use. An accused person, in order to benefit from the defence, could be reckless as to the consequences of the force that he used, so long as he was not reckless to the measure of force necessary. Justice Spies in R. v. Oppenheimer, 2011 ONSC 4901 carefully explained how this was the law as stated by the Supreme Court of Canada and I adopt her explanation.

[87] In R. v. Kong, [2006] 2 S.C.R. 346 the Supreme Court adopted the dissenting reasons of Justice Wittmann in the Alberta Court of Appeal. Justice Wittmann, in his turn had quoted Justice Wood in R. v. Kandola (1993), 27 B.C.A.C. 226, where Justice Wood wrote, in reference to then s. 34(1) of the Criminal Code:

Logically, of course, force which is so recklessly applied in self defence as to be excessive, will be unnecessary force and by that finding the defence will fail. But what deprives the accused of the defence in that circumstance is his recklessness as to the measure of force necessary, not recklessness as to the consequences, or the risk of consequences, flowing from the application of that force. While that may seem somewhat subtle, it is an important distinction which flows from the previously mentioned fact that it is the force itself, and not the consequences of its use, which is justified on a successful defence of self defence.

[88] Now that Parliament has swept away the complexity and lack of coherence that justified the criticism of the previous provisions, courts must interpret on general principles and apply the new section. That section requires that the act be reasonable in the circumstances and that one of the relevant circumstances is the nature and proportionality of the person’s response.

[89] One general principle that the Supreme Court indirectly approved in Kong, in the way that Justice Spies showed in Oppenheimer is Justice Wood’s statement in Kandola that “Logically, of course, force which is so recklessly applied in self defence as to be excessive will be unnecessary force.”

[90] However, Justice Wood’s subtle difference between the measure of force necessary and the consequences does not, in my opinion find any place in the present s.34(2), even if the Supreme Court could be said to have approved of it in Kong. In my respectful opinion, it is an example of the subtle distinctions that Chief Justice Lamer contemplated in Petel.

[91] At some point, and in some circumstances, the consequences can be so excessive as to support the inference that the force was excessive.

[92] Restricting myself to this case, the injuries themselves are so many and so visibly serious that they establish that Mr. Giaouris was reckless as to the consequences of the force that he was using. His evidence that she must have received the injuries when he hit her, along with his inability to explain their extent and their number, supports the conclusion that he was not measuring his response at all. I accept that he was not expected, while under attack, to stop and reflect upon the exact measure of the force warranted by his defensive action. But I find that in these circumstances, as the word is used in s. 34, Mr. Giaouris was required to measure his response in some way so that it would not result in causing her unnecessary harm, and he did not.

[93] He was bigger, he had already repulsed the attack in the bedroom, he was seated, ready and had his shoes. He was able to fend her off once more in the living room by pushing. It was only a short distance from the couch to the door from which he finally left. He did not have to sit there and be scratched, but his responding in a way that led to the injuries that he caused her, shows that he must have been at least reckless as to the amount of force he was using.

[94] Another circumstance that I consider relevant is that Mr. Giaouris, on his own evidence, was not sober when he woke up. It was at least 18 hours since he had passed out from at least 13 ounces of alcohol. He testified that that is the amount that it takes for him to pass out, not that that was all that he drank.

[95] When Crown counsel asked him if he was sober when he left the apartment, he honestly answered “No, I, I had just woken up. I had drank before I went to sleep.” There is no doubt that his “no” was in answer to the question as to whether he was sober, because he then added: “Alcohol stays in your system quite a bit.”

[96] In R. v. Reilly, [1984] 2 S.C.R. 396 Justice Ritchie stated at page 405:

A reasonable man is a man in full possession of his faculties. In contrast a drunken man is one whose ability to reason and to perceive is diminished by the alcohol he has consumed.

[97] Reilly dealt with the former s. 34 with specific references to a reasonable man and reasonable and probable grounds, but the observation in my opinion is sound in any context and is relevant to an assessment of reasonableness when considering “reasonable in the circumstances” in the present s. 34(1)(c) and s.34(2). Mr. Giaouris’s lack of sobriety supports the inference that arises from the photographs; for some reason he injured Ms. Cordero in a manner that was excessive and disproportionate to Ms. Cordero’s use of force.

[98] Ms. Cordero was so badly injured, that the prosecution has proven that in the circumstances Mr. Giaouris exceeded what was necessary to defend himself and in his anger hit her more than was necessary to defend himself. The act committed was not reasonable in the circumstances as contemplated by s.34. Some fighting back and hitting was justified but not what occurred. He is guilty of assault causing bodily harm.

[99] As he did not use force or hurt her at all when he uttered the conditional threat to kill her if she touched him again, that threat was a reasonable act within the meaning of s. 34 and he is not guilty of the threatening charge.

Released: April 14, 2021 Brent Knazan Ontario Court of Justice