ONTARIO COURT OF JUSTICE

CITATION: R. v. Harris, 2022 ONCJ 279

DATE: May 18, 2022

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DAVID HARRIS

Before Justice F. Javed

Heard on: April 25, 26, 27, 29, May 3, 5, 2022

Reasons for Judgment released electronically: May 18, 2022

N. Young ............................................................................................ counsel for the Crown

K. Zadorozhyna ................................................................................ counsel for Mr. Harris

F. Javed J.:

A. Introduction

[1] David Harris was tried before me on four separate information’s alleging various criminal charges arising out of incidents in August and September 2021. The allegations on September 14^th form the core criminal allegations where it’s alleged Mr. Harris got into a violent altercation with three parties causing them bodily harm. It’s alleged he struck the complainants with a metal pipe and a rock resulting in injuries. Mr. Harris claims he was the victim of a violent attack by two of the parties and was acting in self-defence.

[2] The remaining allegations involve alleged breaches of court orders, including a probation order and an undertaking. The orders involve one of the complainants, Eric Greogry, who was previously the victim of a robbery involving Mr. Harris. He was placed on a probation order not to have contact with him directly or indirectly and observe a radius to stay away from him. Mr. Harris agreed to try all sets of charges together even though he is entitled to have four separate trials where the Crown would have the legal burden of proving his guilt beyond a reasonable doubt on each set of charges. The decision for a joint trial is understandable as Mr. Harris is in custody and the evidence, at least as it relates to the breach of court orders, overlaps.

[3] The Crown proceeded by indictment on all charges where it had an election on the September 14^th information. Some offences are absolute jurisdiction. On all other charges, the Crown proceeded by summary conviction.

[4] Mr. Harris was arraigned on 23 counts spanning four informations from August 4, 2021, September 2, 2021, September 4, 2021 and September 14, 2021. At the end of the evidence, the Crown invited dismissal on the August 4^th and September 2^nd charges as well as the two counts of Theft Under $5000 on the September 14^th information (counts 7 and 8). The defence admitted Mr. Harris’ guilt on the Mischief Under $5000 offence (count 9) as well as the offences of failing to comply with an undertaking and breach probation as it related to contact with Mr. Gregory and attendance at his residence: (counts 10, 11, 13 and 14). Therefore, the counts that remain to be decided in these reasons are:

September 4, 2021:

1. Fail to Comply with Undertaking, (no contact with Eric Gregory)

2. Fail to Comply with Undertaking (non-attendance at 685 Uxbridge Townline or not to be within 100 metres)

3. Breach Probation (no contact with Eric Gregory)

4. Breach Probation (not be within 100 metres of Eric Gregory)

September 14, 2021:

1. Assault causing bodily harm (Kevin Bell)

2. Assault causing bodily harm (Eric Gregory)

3. Assault causing bodily harm (Nancy Gregory)

4. Possession of a weapon for a purpose dangerous to public peace (metal pipe)

5. Possession of a weapon for a purpose dangerous to public peace (rock)

6. Uttering threats to cause death (Eric Gregory)

7. Breach Probation (failing to keep the peace)

8. Breach Probation Order (possessing a weapon)

9. Breach Probation Order (possessing a weapon)

10. Breach Probation Order (possessing a weapon).[1]

[5] The Crown called the alleged victims of the assaults: Kevin Bell, Eric Gregory and Mr. Gregory’s mother, Nancy (aka Lynn) Gregory. The Crown also called Nicole Lewis, a former intimate partner of Mr. Harris who observed parts of the altercation from inside a residence. The Crown also called PC Milton who was the designated scene of crime officer (SOCO) who took photographs, and Ms. Susan McCabe, Mr. Harris’ supervising Probation Officer. The Crown also tendered several exhibits including:

• Exhibit 1: Certified copy of a Probation Order Dated August 18, 2020, by Justice B.M. Green

• Exhibit 2: Certified copy of an Information sworn September 2, 2020

• Exhibit 3: Certified copy of an Information sworn August 18, 2020

• Exhibit 4: Google Map depicting the residential property at 685 Uxbridge-Pickering Townline, and

• Exhibit 5: a DVD with SOCO photographs of the injuries and the scene

[6] Mr. Harris testified in his defence. He also filed a Medical Assessment Record prepared by the Ontario Provincial Police (OPP), when he was arrested for the offences the following day (September 15^th) which detailed some of his injuries. The court inquired about the route of admissibility of this record and the parties agreed it was admissible as a business record under the Canada Evidence Act. The parties did not make submissions about the use that could be made of the information in the record as it contained utterances made by Mr. Harris explaining his injuries and medical opinions. It was made Exhibit 6.

[7] The trial began with all parties appearing in-person. However, when the matter was scheduled to resume, Mr. Harris got sick and could not be brought to court by the institution. As such, the defence advised Mr. Harris was prepared to waive his right to continue with the trial in-person and opted to appear by video on the Zoom platform. The Crown did not oppose this request and I made the Order after being satisfied it was appropriate in the circumstances. On May 3, 2022, the parties completed the evidence and commenced final submissions. Before the defence completed their right of reply, I intervened and advised that the parties I needed assistance from counsel on the self-defence arguments. The Crown initially took the position there was no air of reality to self-defence but since this was a core defence argument, I offered the defence a brief adjournment to prepare more fulsome submissions or alternatively, written materials relating to this issue. After some discussion, the parties agreed to summarize their overall positions in writing given that submissions proceeded shortly after the cross-examination of Mr. Harris. On May 5, 2022, I heard fulsome submissions and received written materials. As it turned out, the Crown after receiving the defence written materials conceded there was an air of reality to self-defence but argued the evidence disproved it beyond a reasonable doubt. To complete the record, I directed the written materials to be attached to the information. I permitted the Crown to reply to the new submissions raised by the defence. The court would like to thank the parties for their cooperation in ensuring fairness in this proceeding. I will now begin my reasons with a summary of the legal principles that must guide my analysis. I will summarize the conflicting accounts and then turn to my factual findings and analysis.

B. The Law

[8] The Crown has the onus to prove the essential elements of all the offences beyond a reasonable doubt. Mr. Harris is presumed to be innocent and does not have to prove anything. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness' testimony. I have also instructed myself that given his decision to have a trial on multiple set of charges, I am not permitted to consider evidence across counts absent an application by the Crown of which there is none. In other words, I must decide verdicts separately on each charge and not together. As a Judge sitting alone, I can disabuse my mind of any inadmissible evidence.

[9] Proof of a probable guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings. Reasonable doubt is a matter of common sense and human experience and must be grounded in the evidence. As a standard, it does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty that it does to a balance of probabilities. See R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.) and R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.).

[10] Defence counsel submits the Crown’s witnesses were not credible nor were they reliable. There is a distinction between credibility which relates to the honesty of the witness’ testimony while reliability relates to the ability to accurately observe, recall and recount an event: R. v. H.C. 2009 ONCA 56. The law provides that a credible witness may give unreliable evidence.

[11] The defence position in this case is two-fold: the court should accept the account of Mr. Harris that he was involved in a consent fight with Mr. Bell and Mr. Gregory which resulted in him assaulting both men, but he did not intend to cause either bodily harm, thus the Crown has not proven the element of consent as part of the actus reus or mens rea. Alternatively, if the court concludes it was not a consent fight, the defence argues Mr. Harris was acting in lawful self-defence when he struck the two men with a metal pole to stop them from attacking him. Mr. Harris denies striking Mr. Gregory with a rock. As for the assault on Ms. Gregory, the defence argued the court should accept the evidence of Mr. Harris that he did not intend to strike her and it was an accident, therefore he lacked the mens rea of the offence. Mr. Harris did not advance self-defence as it relates to Ms. Gregory.

Self-Defence

[12] Section 34 of the Criminal Code sets out the requirements for self-defence. The defence bears the burden to prove on a balance of probabilities that there is an air of reality to the defence. If the burden is met, the Crown must disprove self-defence beyond a reasonable doubt. The self-defence provisions have a blend of objective and subjective components that were reviewed by the Supreme Court in R. v. Khill, 2021 SCC 37. The defence consists of three components that can be summarized as including a catalyst (or trigger), a motive and a response. The defence requires a court to consider the statutory factors under s.34(2) including the accused’s entire role in the incident from the beginning to the end which assists in informing the reasonableness of the act underlying the charge.

[13] Given the modest air of reality test, Mr. Young conceded a jury could find there’s an air of reality to the defence in this case which therefore means I must ask the following three questions:

i. Did Mr. Harris believe on reasonable grounds that force was being used or threatened against him or another person?

ii. Did Mr. Harris do something for the purpose of defending or protecting himself or another person from that use or threat of force?

iii. Was the conduct of Mr. Harris reasonable in the circumstances?

[14] The parties agree the legal issues in case turn on a credibility and reliability evaluation. This engages the W(D) analysis which has three lines of inquiry:

(i) First, if you believe the evidence of the accused, obviously you must acquit.

(ii) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

(iii) Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[15] In R. v. Theriault, 2020 ONSC 3317, Justice DiLuca helpfully explained the intersection of the W(D) analysis with the self-defence provisions. I adopt his analysis at paras. 25-29:

25 The W. (D.) methodology is an analytical framework that serves to emphasize the burden of proof and the presumption of innocence by ensuring that criminal cases are not reduced to credibility contests; see R. v. J.H.S., 2008 SCC 30 and R. v. C.L.Y., 2008 SCC 2.

26 In applying the W. (D.) methodology, I am mindful of the following additional guidance that has been provided by the caselaw. First, the W. (D.) methodology applies not only to instances where the defence calls exculpatory evidence, but also to exculpatory evidence that is found within the Crown's case, for example, where the Crown tenders a statement by a defendant which is in part or in whole exculpatory; see R. v. B.D., 2011 ONCA 51, at para. 105.

27 Second, in considering the first two steps of the W. (D.) analysis, the evidence of the defendant must be considered in the context of the evidence as a whole, including the complainant's evidence. In other words, the assessment is not simply whether the defendant's evidence standing alone and without context is believed or leaves a reasonable doubt; see R. v. Carriere (2001), 2001 CanLII 8609 (ON CA), 159 C.C.C. (3d) 51 (Ont.C.A.) at para. 51, R. v. Hull, 2006 CanLII 26572 (ONCA), and R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont.C.A.).

28 Third, the second step of the W. (D.) analysis is important. It emphasizes the point that credibility assessments in a criminal case are not dichotomous. In other words, there is a third alternative between complete acceptance and complete rejection of a defendant's evidence; see R. v. Edwards, 2012 ONSC 3373 at para. 20 and R. v. J.M., 2018 ONSC 344 at paras. 9-20.

29 Lastly, where the defence advanced contains an objective component, as is the case with self-defence, the W. (D.) analysis must be modified accordingly. The defendant's evidence will, in such instances, only result in an acquittal where that evidence establishes or leaves the trier of fact with a reasonable doubt about the objective component of the defence; see R. v. Ryon, 2019 ABCA 36 at para. 31 and R. v. Reid, (2003) 2003 CanLII 14779 (ON CA), 65 O.R. (3d) 723 (Ont.C.A.) at para. 72.

Assault Causing Bodily Harm & Consent

[16] Mr. Harris is charged with three counts of assault causing bodily harm. The actus reus of the offence is the intentional application of force on another person without their consent resulting in bodily harm. The mens rea adds the requirement that the risk of bodily harm was either intended or was an objectively foreseeable consequence of the accused's conduct: R. v. Nurse, 1993 CanLII 14691 (ON CA), [1993], O.J. No. 336 (C.A.). Section 2 of the Criminal Code defines bodily harm as "any hurt or injury...that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature". The defence argues the injuries were “non-fleeting” and there are “no medicals” and therefore the Crown has failed to prove bodily harm while the Crown argues there’s ample evidence of this rooted in the oral testimony of all parties supported by the SOCO photos which show extensive injuries. In my view, the Crown’s submission on bodily harm is supported by the evidence and I find the injuries suffered by the three parties was more than just transient or trifling. Indeed, they could have been fatal. In fairness, the evidence proves Mr. Harris also suffered non-fleeting injuries because he fractured a rib.

[17] The law in Ontario allows people to consent to bodily harm in certain circumstances, including physical fights: R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714 and R. v. Paice, 2005 SCC 22, [2005] 1 S.C.R. 339. However, consent to fighting 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: [R. v. Schmidt, [2007] O.J. No. 1434 (S.C.A.C.)]; R. v. MacTavish (1972), 1972 CanLII 1456 (NB CA), 8 C.C.C. (2d) 206.

[18] The core defence submission is that Mr. Harris did not intend to cause bodily harm (even if the evidence proves he did in fact cause bodily harm) by striking Mr. Gregory and Mr. Bell with a metal pipe because it was done to stop a repeated attack by two men who were beating him up. Therefore, Mr. Harris could not be found guilty because he was engaged in a consent fight. Alternatively, the defence argues if the Crown is able to prove their consent was vitiated in some manner (i.e. the nature of the consent fight changed), the actions of Mr. Harris in striking them with a metal pipe should be excused in the eyes of the law because he was acting in self-defence. As for the assault on Ms. Gregory, the defence says this was purely an accident. Mr. Harris did not intend to cause her bodily harm and acted reflexively while in the throes of a violent assault by two men. Therefore, this offence fails on proof of his mens rea. The analysis on the weapons offences turns on the viability of the self-defence arguments. For example, if the evidence proves Mr. Harris was acting in lawful self-defence, this might impact whether he was in possession of the two weapons for a dangerous purpose and whether he was intentionally breaching court orders related to possessing these weapons.

[19] There were two mid-trial rulings that I made which will impact the legal analysis. Both relate to ruling on the admissibility of bad character evidence. First, the Crown objected when the defence attempted to question Mr. Gregory about details underlying his convictions on his criminal record. I ruled this questioning was admissible because an ordinary witness, unlike an accused, can be cross-examined on conduct underlying a charge to challenge credibility: R. v. Pascal, 2020 ONCA 287, [2020] O.J. No. 1998 (C.A.) at para. 109. Mr. Gregory has a conviction for obstruct justice in 2021, but not other crimes of dishonesty thus, is not a true “unsavory witness”. However, given the proximity of the finding of guilt, I permitted the questioning. Second, the Crown attempted to question Mr. Harris about his criminal record and in particular, the nature of a robbery conviction which related to Mr. Gregory as the victim. Section 12(1) of the Canada Evidence Act permits questioning a witness on whether they have been convicted of an offence. In this case, Mr. Harris, in his examination-in-chief, volunteered details about his conviction related to Mr. Gregory which formed the basis of the probation order relating to the no-contact provision and testified that Mr. Gregory was dishonest in court about these allegations. The Crown sought to question him to discredit this assertion by proving he was found guilty of robbing Mr. Gregory and pled guilty to this offence suggesting he admitted the offence. Mr. Harris admitted pleading guilty but denied it involved violence. I permitted this line of questioning to prove the robbery conviction and have instructed myself that while a person’s criminal record is a relevant consideration to credibility, I cannot use it to reason that Mr. Harris is the type of person who would commit these offences. The Crown properly submitted this would be improper and was not the purpose of the questions – a door that Mr. Harris opened on his own. The other area was an attempt by the Crown to ask Mr. Harris about a finding in a previous proceeding that he was dishonest. The defence objected and I ruled this was improper.

C. Summary of the Evidence

[20] I will now summarize the conflicting accounts of the parties before I turn to my factual findings and discussion.

a) Background

[21] The parties in this case are all known to each other. Mr. Harris is 48 years old and has 3 children who are 18, 16 and 15 years old. He is approximately 5’6 in height. He is unable to work due to a spinal cord injury he suffered in 2012 and 2016. The injury impacts his left side after he was involved in two motorcycle accidents. He explained the left side of his body “does its own thing” and cannot be controlled. The issue gets worse when he’s upset. He also can’t raise his left arm above his left pectoral area. The same is not true for his right arm. Mr. Harris explained he has pain in various vertebrae and in his neck which caused nerve damage. He maintained he can’t walk properly. This assertion was disputed by the Crown witnesses who admitted he had an injury but on the date in question, was walking fine. Indeed, one witness said he walked quickly or ran towards Mr. Bell to attack him. The defence argues the nature of this injury would make it implausible that he used the level of force as claimed by the Crown witnesses. I was able to observe Mr. Harris move around the courtroom and will review this submission about immobility below.

[22] Mr. Harris testified he’s known Ms. Lewis since October 10, 2019. The two were in an intimate partner relationship and would see each other every night. At the time of the alleged offence, Ms. Lewis was staying at Mr. Gregory’s residence as the two had previously dated but at the time, were close friends. Mr. Gregory was staying in a garage on the property while Ms. Lewis and another person, Doug Campion stayed in the residence. Mr. Campion did not testify. The Crown argues the former relationship between Ms. Lewis and Mr. Gregory was a sore spot for Mr. Harris who was jealous and controlling – and this contributed to his violent outburst on this date.

[23] Mr. Harris testified the couple moved out of his father’s house and he took up an address close to Mr. Gregory’s residence located at 250 Uxbridge-Townline. It is unclear from the record how close this is to the residence at 685 Uxbridge-Townline given the terms on various court orders about staying 100 metres away. This evidence was not called and remains a gap in the record. Mr. Harris explained there is one road that leads to this residence which would require him to pass Mr. Gregory’s house. On occasion, he would drop Ms. Lewis off at her residence and pick her up but would avoid any contact with Mr. Gregory.

b) September 4, 2021

[24] On August 18, 2020, Mr. Harris was placed on probation by Justice B.M. Green. The Crown filed certified copies of a probation order and an information which proved he was on an undertaking with various terms. The reporting order included a no-contact term directly or indirectly with Mr. Gregory and not to be at 685 Uxbridge-Townline or within 100 metre of the residence.

[25] Mr. Harris said after he was put on probation, he was given the choice of reporting in Pickering, North York and Uxbridge. He chose Uxbridge and made an appointment with his supervising Probation Officer, Ms. McCabe who told him he had to report two times per month but it had to be in Port Perry, not Uxbridge which was closed due to the pandemic. Mr. Harris said at the time he was impecunious and couldn’t afford to travel to Port Perry and said this was very unfair and not what he was told in court. I have some sympathy for this position.

[26] Ms. McCabe who supervised Mr. Harris while on probation, was called by the Crown to testify, but it’s unclear why as the court orders were admitted. It may be that the purpose related to other allegations involving non reporting but after hearing her evidence, the Crown invited dismissal on these counts. This was a fair position to take. I found Ms. McCabe to give credible evidence and would add that her decision to try to advocate for Mr. Harris in trying to report to the Pickering office given his inability to travel far distances is worthy of praise. She asked her Assistant Regional Director and was able to help secure him a taxi service so he could attend for his appointments. Given the circumstances, this is commendable. Apart from this, the other evidence I heard about Mr. Harris’ conduct while on probation is irrelevant and not material to the issues I have to decide which is whether the Crown has proven he didn’t abide by the no-contact or non-attendance terms as they relate to Mr. Gregory. The only other area where her evidence is relevant is that it confirms the account of Mr. Harris that he was dating Ms. Lewis at the time (as she was noted as his girlfriend). Nobody asked her questions about Mr. Harris’ health including his ability to walk and use of his arms.

[27] As for the events on September 4^th Mr. Harris testified he “may have been driving in the area” (of the prohibited address). He said Ms. Lewis sometimes lost track of time and he would get upset and might drive by the house to pick her up. He could have honked his horn to get her attention as it was something he did in the past. However, he would always announce himself to Ms. Lewis and never communicated with Mr. Gregory. To be clear, Mr. Harris had no specific memory about the events on September 4^th. This evidence only came from Mr. Gregory.

[28] Mr. Gregory testified on September 4^th he saw Mr. Harris driving in a silver Ford Explorer as he drove by his house, “screaming and blowing his horn”. He was not able to make out his words. He was situated near his barn and cleaning up some ashes from a fire. While I’m satisfied the Crown has proven the actus reus of the charges on September 4^th, I have a doubt based on the evidence as a whole that Mr. Harris’ intention in attending at Mr. Gregory’s residence - something he could not deny – was to pick up Ms. Lewis, his girlfriend at the time. I accept there was only one road into the area as this was not disputed. There’s no evidence he communicated with Mr. Gregory at the time except for hollering. Therefore, I find there is insufficient evidence of the mens rea of these offences as described in the case of R. v. Zora, 2020 SCC 14, [2020] SCJ No. 14 and the counts on the September 4^th information will be dismissed. Clearing the underbrush, I now turn to the core allegations on September 14, 2021. I will not use the evidence on the September 4^th counts on the September 14^th allegations.

c) September 14, 2021

[29] Mr. Harris testified he met Mr. Bell two weeks before the September 14^th incident. He “pulled him out of a ditch” and told him he wasn’t allowed to give Ms. Lewis a ride in his car. He also told him he wasn’t allowed to be with her. Mr. Bell confirmed he knew Mr. Harris and Ms. Lewis were a couple. He was not friendly with Mr. Harris. In cross-examination he denied that Mr. Harris had previously told him to remain away from Ms. Lewis. Mr. Bell also knew Mr. Gregory and Ms. Lewis but they were not close.

[30] Mr. Harris testified he has known Mr. Gregory for 20 years when he was “a snot nose kid”. It’s clear the two men don’t like each other. Mr. Harris explained he didn’t try to have a relationship with him because he previously dated Ms. Lewis and didn’t feel comfortable getting close to him. Further, he said Mr. Gregory “lied to a Judge” and “put him in jail claiming he held a knife to his throat and threatened to kill him”. He spent 7 months in jail and “the charges were withdrawn” but he was still placed on probation. In cross-examination, he admitted he pled guilty to this offence which was noted on his criminal record but claimed he did not assault him as the robbery involved him stealing his cellphone. Obviously, a robbery includes elements of both violence and theft and Mr. Harris denied the violent component which begs the question why he pled guilty to something he claimed he didn’t do. As I will explain below, this was one example of him downplaying his conduct. He added Mr. Gregory called the police on him several times causing trouble. I find on the whole of the evidence that Mr. Harris was insecure and jealous which caused him to get angry and lash out.

d) Account of Mr. Harris

[32] Mr. Harris testified he dropped off Ms. Lewis at 685 Uxbridge-Pickering Townline as she was going to pick up a backpack. Mr. Gregory was not home. He went into the garage looking for cigarettes and saw Mr. Bell. He could not specifically recall if Mr. Bell was on his phone. He explained he approached him attempting to “fish for information” as Ms. Lewis had come home late the last few nights. He said: “Kevin what did I tell you about taking Nicky (Ms. Lewis) in a truck?” In cross-examination, he admitted he was angry at Mr. Bell because it upset him that he was giving Ms. Lewis a ride. He admitted he didn’t want Mr. Gregory and Mr. Bell to have contact with Ms. Lewis as “they were not on his list” of suitable men she could speak with. At this point, Mr. Harris said Mr. Bell ran at him and began to swing his arms as fast as he could, so he put out his right arm at shoulder level and simply held him to prevent Mr. Bell from striking him. He testified he has no strength in his left arm and cannot raise it. Mr. Harris began to laugh because Mr. Bell is small and couldn’t make contact with him and he was “flailing around”. Mr. Bell did not make contact with him despite vigorous attempts. In cross-examination, he denied walking quickly in his direction and assaulting him, claiming he never hit him at all until Mr. Gregory intervened.

[33] Mr. Harris explained after 3 to 5 seconds of restraining Mr. Bell with one arm, Mr. Gregory intervened and tackled him from behind. Both fell to the ground. He did not see him before this nor did he hear the car pull in as his back was to the driveway. Mr. Harris denied letting go of Mr. Bell and picking up a metal pole (or pipe) after seeing Mr. Gregory because of his contempt towards him. He denied being in a rage. He testified Mr. Gregory and Mr. Bell began to violently assault him while he was on the ground. He was struck with a pole by Mr. Gregory 2-6 times on his “ass” and other parts of his body. The two men hit him “probably 100 times”. He was not able to fight back and simply took the beating which went on for a while. He realized he had to stand up and fend for himself or he would be “broken up”.

[34] Mr. testified he was able to get on his knees and pulled the pole away from Mr. Gregory by tucking it under his right underarm and pulled both men towards him. He was getting struck in the ribs, so he was able to get a hold of the metal pole. He got up and swung once connecting with Mr. Gregory but not seeing where he made contact and Mr. Bell who he hit in the head. In cross-examination, he denied being able to leave after getting the pole from Mr. Gregory as “they were too close to me”. He added, I hit them once to get away and “I was angry and wanted to hurt them and don’t deny that as I took a beating from them”. Further, “I didn’t want the fight to carry on but [it] was in my heart to hit them [as] they hurt me bad. I didn’t deserve it, I didn’t provoke”. At some point, he heard Ms. Gregory talking and yelling but he couldn’t hear what she was saying as it was like “he [had] hit the mute button”. He testified without thinking or looking, he swung the metal pole in her direction and hit her on the head, but it was an accident. He immediately regretted his actions and didn’t intend for her to be hit.

[35] Mr. Harris denied attacking Mr. Gregory with a rock. He testified he dropped the metal pole and picked up a rock after Mr. Gregory got up and went inside. The rock was very heavy. He smashed the glass on the front door with this rock because he was in a rage but otherwise didn’t know why he did it. He denied entering the residence and proceeding upstairs and denied threatening Mr. Gregory while inside. Mr. Harris said he suffered significant injuries from his beating including having his two front teeth knocked out, breaking his tailbone and breaking a rib when he put his arm down and pulled the pole away from Mr. Bell. Exhibit 6 is a medical assessment record from the Ross Memorial hospital dated September 15^th which shows he suffered a right rib fracture and was prescribed hydromorphone for pain. The parties agreed to admit this record which also includes an out of court statement from Mr. Harris explaining the source of the injury as a fight 24 hours ago where he alleged he was hit with a metal bar. This is a prior consistent statement and contains hearsay, but the record was admitted without any qualifications.

[36] Mr. Harris admitted he has a criminal record with the following convictions:

1997 – Care or Control, Public Mischief and Fail to Attend Court

1997 – Assault with a Weapon, Uttering Threats, Assault Causing Bodily Harm

2004 – Fail or Refuse to Provide Sample

2007 – Assault, Uttering Threats

2009 – Theft Under $5000

2009 – Escape Lawful Custody, Theft Under $5000, Fail to Comply with Probation Order

2011 – Assault Causing Bodily Harm, Assault with Intent to Resist Arrest x3, Assault Causing Bodily Harm

2019 – Theft Under $5000

2020 – Robbery, Fail to Comply with Order

2020 – Assault, Mischief Under $5000

2021 – Fail to Comply with Probation Order

e) Account of Mr. Gregory

[37] Mr. Gregory is 41 years old. He has a criminal record which has the following convictions:

2018 – Possession of a Schedule 1 substance (cocaine), Possession for the Purpose of Trafficking (cocaine), Possession of Property

2021 – Flight from Police, Obstruct Justice, Dangerous Driving and Impaired Care or Control

In cross-examination, he admitted pleading guilty to the offence of possessing property but said he did not know the property was stolen because his name was on the lease, and he was not diligent. With respect to his cocaine convictions, he said he dumped a bag of cocaine on the ground.

[38] On September 14^th he was residing at 685 Uxbridge-Pickering Townline and had been living there for approximately 5-6 years. The home is a rural property and depicted in a Google Map filed as Exhibit 4. Mr. Gregory testified at the time, his friend and former intimate, partner Ms. Lewis were staying at the address along with a friend, Doug Campion. He and Ms. Lewis were close friends.

[39] Mr. Gregory said he’s known Mr. Harris for 7 plus years as he lived nearby. Mr. Harris and Ms. Lewis were dating at the time, but he didn’t know how long. He explained things were not very good between them as he was a complainant in a previous matter and Mr. Harris was subject to a court order requiring him not to be within 100 metres of his residence nor to have any contact with him directly or indirectly.

[40] On September 14^th, he had a doctor’s appointment and attended with his mother. At approximately 12:30 pm, they pulled into the driveway, and he heard Ms. Lewis who was in the kitchen, yelling “help”. He exited from the vehicle and noticed Mr. Bell and Mr. Harris who were fighting in front of the barn. He explained they were locked together and rolling on the ground. In cross-examination, he said the men were not on top of each other but instead were leaning over each other and were in a hunched position. This contradicts the assertion of Mr. Harris that he was restraining him with one arm. Mr. Harris was throwing punches while Mr. Bell was trying to restrain the punching. He ran over to break up the fight by tackling him to the ground. In cross-examination, Mr. Gregory admitted telling the police in his initial statement at the hospital that when he approached them, Mr. Harris was hitting Mr. Bell with a rod which is inconsistent with his trial testimony. In re-examination, he explained his initial statement was a brief description and was given after he had been hit in the head with a rock.

[41] Mr. Gregory claimed Mr. Harris instantly picked up a metal pole that was on the ground a couple feet away from a fire barrel and proceeded to attack him. The pole was described as 3 feet long and 1.5 inch in diameter and was steel and would normally be used to poke a fire. It was hollow and quarter inch think. Mr. Bell was still on the ground and trying to get up. He denied attacking Mr. Harris either alone or with Mr. Bell except for tackling him to stop the assault on Mr. Bell.

[42] Mr. Harris aggressively swung the pipe in his direction with Mr. Gregory raising his right hand above his head. He missed and hit Mr. Bell over the head. Mr. Bell appeared dazed and was “definitely hurting”. It appeared he walked away as he was no longer around.

[43] Mr. Harris then turned his attention to Mr. Gregory and tried to swing the pipe at him and took a shot to his ribs. The parties were standing and began to scuffle on the front lawn as he was trying to disarm him. Mr. Gregory said he was able to disarm Mr. Harris however Mr. Harris bent down and grabbed a rock from his garden and struck him in the back of his head. The rock was about 6-8 inches in diameter. Mr. Gregory explained he tried to get away, but Mr. Harris connected to his head. Mr. Gregory testified he fell to the ground after being hit with a rock and lost control of the pipe. Mr. Harris grabbed the pipe.

[44] Mr. Gregory testified his mother Nancy attempted to intervene and began to yell at Mr. Harris to stop and get off the property and leave. Mr. Harris swung the pipe and hit his mother in the head with a full swing. Ms. Gregory fell to the ground. He got up and ran at Mr. Harris and managed to tackle him. He ended up getting on top of Mr. Harris who fell backwards on the ground.

[45] Mr. Gregory claims while on top of him, Mr. Harris smashed him on the side of the head with a rock “5-6” times. Mr. Harris said: “I’m going to fucking kill you”. Mr. Gregory was on his knees and Mr. Harris was on his back. Mr. Gregory testified he was trying to restrain his arms but wasn’t successful as Mr. Harris was using “brutal force”. In cross-examination, Mr. Gregory admitted he gave differing accounts about how many times he was hit. He first said he was hit 5 times with a rock but not a rod (or pipe). Later, he gave a videotaped statement explaining he was hit 2 times in the head and 4 times on the side. He later said he was hit 6-7 times with a pole and 3 times with a rock. When invited by the defence to tell the court what the correct version was, he replied: “I know at least 5-7 times and it was a combination of rocks and rod because he had bruising on his ribs and head”. He professed to a have a very “clear memory” of the events and even took more photos after the police took their photos but didn’t share them with the police. Further, he also admitted that initially he did not tell the police he was hit by Mr. Harris after his mother arrived on scene. He explained he kept it short and was not in a condition to speak as he was injured. When challenged on why he kept out this detail during his second statement which was days later, he said the injuries were still fresh and he was in pain, so he kept the statement brief. As for not sharing the additional photos, he explained the injuries “would speak for themselves” so there was no need to. In re-examination, he explained the police asked him for a brief description of the events and did not elaborate on details which explains some of the omissions.

[46] Mr. Gregory explained he noticed a lot of blood coming from the side of his head and was able to get up as he needed medical attention. He ran inside the house. Mr. Harris followed behind. He was able to close and lock the front door and ran upstairs with the assistance of Ms. Lewis. Mr. Harris managed to break the glass of the main door, but he did not see how this occurred. Mr. Gregory was holding the door at the top of the stairs closed while Mr. Harris was trying to smash through this door by using his body. He was also kicking the door. Mr. Harris was saying “let me the fuck in, you’re getting it”. He was also yelling something about Ms. Lewis. This went on for about 30-40 seconds.

[47] At some point, Mr. Harris left in his silver Ford truck. Mr. Gregory testified during the scuffle on the front lawn, his Samsung cellphone, fell out and he believes Mr. Harris took it. It cost him about $1000. The Crown invited dismissal on this count.

[48] Mr. Gregory testified he suffered injuries and attended at the Markham Stoufville hospital where photographs were taken. Exhibit 5 is a digital copy of the photos taken by the police. The Crown referred to some but not all the photos. The most relevant ones include photos showing a cut on right leg with fresh blood (089), blood on his left leg (092), fresh blood to the side of his left head (0111) and back of his head (0118). Mr. Gregory didn’t know for sure how he got the injuries but was clear they were from the altercation. He didn’t suffer any injuries to hands but had blood on hands which he explained was transferred after he touched his head (0111). The defence argues his bloody hands is proof of him beating up Mr. Harris. He explained he lost sensation in his leg when he was hit on the head. The injuries resulted in 15 staples and stitches and his skull was indented. He testified he continues to experience pain as he constantly has a headache but does not take medication. Exhibit 5 also includes his medical records which the parties admitted on consent. They show Mr. Gregory suffering “multiple” hematomas to his head and neck with blood matted hair. In cross-examination, Mr. Gregory testified he never assaulted Mr. Harris. His role included pushing him to the ground and attempting to disarm him. He also denied that Mr. Bell assaulted Mr. Harris or that he helped him. He admitted Mr. Harris had trouble walking and had spinal issues but was “walking perfectly fine” after he got his “miracle medication”.

f) Account of Mr. Bell

[49] Mr. Bell is 42 years old. He is 5’3 or 5’4. He testified he was invited by Mr. Gregory and Ms. Lewis to stay with them for a while at 685 Pickering-Townline after his truck broke down. He also knows Mr. Harris but not well. He is not close to either Mr. Gregory or Ms. Lewis and knew another person “Doug” lived at the residence.

[50] Mr. Bell suffers from a speech impediment which was obvious during his oral testimony. He explained he was constantly bullied as a child which has been a sore spot for him. He recalled some but not all the details. During the lunch hour he was talking on the phone with his best friend when Ms. Lewis and Mr. Harris arrived and began to argue. Mr. Bell was standing near the front shed and saw them yelling with Ms. Lewis running inside the house. He did not pay much attention because he was concentrating on his phone call with his friend and giving auto advice as the call was breaking up due to poor reception.

[51] Mr. Harris approached him and said he was “going to kick my ass” and out of the blue began to throw punches at him. He “turtled” and began to cover his face. Mr. Harris had a limp but approached him “very quickly” and began to assault him. He said: “get the fuck away from me”. Mr. Bell explained Mr. Harris punched him and made contact with the left side of his face and eyebrow. Mr. Bell began to swing at Mr. Harris to defend himself and connected maybe 5 times but wasn’t sure. Mr. Bell and Mr. Harris both fell to the ground and began to scuffle. He recalled trying to get up slowly to pick up his cellphone at which point he felt warm blood. In cross-examination, he could not recall if Mr. Harris spoke with him about giving Ms. Lewis a ride in his car. He also denied starting the fight as Mr. Harris began to punch him which made him upset so he punched back connecting about 4-5 times. He landed the punches to the top of his chest. The defence took him to his prior statements in an effort to jog his memory on some details. He could not recall what he said but admitted it would have been true. The defence never asked him to adopt his prior statements.

[52] Mr. Bell said after fighting with Mr. Harris for about 1-2 minutes, he got hit with a bar or a stick but didn’t see it. He fell to the ground and broke 3 fingers on his left hand. He felt some warm blood coming down from his head. He realized it was his blood as he got hit with something “really hard” but couldn’t say what. At some point, he heard a car pull into the laneway and realized Mr. Gregory arrived with his mother. He managed to pick up his phone from the ground and called the police. He began to pace back and forth on the front lawn approximately 20-30 feet away. He did not see what if anything occurred between the other parties. He denied attacking Mr. Harris with Mr. Gregory. Later on, he was situated at “the first driveway” which he described on a photograph of the residence when he heard squealing of tires. He did not see Mr. Harris leaving. In cross-examination, he could not recall if he ripped Mr. Harris’ sweater. He explained his fingers were broken on his left hand which is not his dominant hand as he only uses his right hand to punch, therefore he did not use his left hand to punch. The Crown argues this supports the prosecution theory that he was not the aggressor and attacked him for defensive purposes only. He also admitted having a hot temper and had convictions in 2012 and 2010 but didn’t recall the details except that it involved obstructing a peace officer.

[53] Afterwards, he recalled helping Ms. Gregory to look for a hearing aid and her glasses. He also recalled seeing a bloody rock which was near the back of the house near two shrubs. He described the rock as a heavy boulder and similar to a granite and “field rock”. The rock was “very bloody” and the color was greyish and brown.

[54] Mr. Bell testified he was taken by ambulance to the hospital and recalled helping the paramedic wrapping his head. Mr. Bell said he spoke with Mr. Gregory at the hospital and then spoke to him two weeks later. Image 0057 shows a wound to the top of his head with fresh and dry blood. This required 8 staples to close. The pain lasted for a couple months and he continues to suffer headaches. There are no visible photos showing injuries to his hands or knuckles suggestive of fighting withs hands.

g) Account of Nancy (Lynn) Gregory (“Ms. Gregory”)

[55] Ms. Gregory is 61 years old and goes by the name Lynn. She is the mother of Eric Gregory. She testified she drove her son to an appointment. When the parties returned to his property, she saw Mr. Bell on the ground with Mr. Harris on top of him. Mr. Harris was striking him. It was the last time she saw Mr. Harris. Ms. Gregory repeated this observation in cross-examination despite not having a memory of many events after this. She recalled Ms. Lewis was not outside and hollering “help” while they pulled in. Upon arrival, they got out of the car. She recalled telling Mr. Harris after she exited: “just go home you’re not welcome here”. She was about 4-6 feet away at the time. She admitted she was agitated and upset with Mr. Harris.

[56] Ms. Gregory testified she saw Mr. Harris with a rod and saw him hit Mr. Bell with it. She never saw Mr. Harris being hit. Mr. Gregory was trying to get Mr. Harris off Mr. Bell. She saw both Mr. Harris and Mr. Bell stand up and saw her son get hit with a rod on the head by Mr. Harris. She said blood began to “gush out”.

[57] Ms. Gregory later realized she too got hit as “something was wrong”. She began to experience pain and saw blood. She didn’t recall getting struck and thought she wasn’t conscious. She ended up passing out and falling down but was able to get up. Ms. Gregory testified afterwards, she didn’t recall much and thought Mr. Harris walked away. She recalled touching her ear and realizing her hearing aid and eyeglasses were gone. She did not recall how she got injured but felt weak. She suffered a wound behind her ear. When she got up, Ms. Lewis approached her with a towel for her blood.

[58] She went to the hospital and got 7 stitches in her ear and suffered “2 large goose eggs in the back of her head”. The photos depict injuries and show blood on her shirt as well as dry blood on her ear: (000138, 000139 and 000140).

[59] In cross-examination, Ms. Gregory confirmed she didn’t know how she got hurt on her ear but recalled losing her hearing aid. When asked about how Mr. Harris was walking, she said “he looked fine to me”. Overall, she didn’t recall many aspects of the interaction.

h) Account of Ms. Lewis

[60] Ms. Lewis is 38 years old. She testified she and Mr. Harris were dating on the date in question. She was residing at 685 Uxbridge-Townline in Pickering but was usually with Mr. Harris at a different address. Around 12pm, they attended at the 685 Uxbridge-Townline address with Mr. Harris driving. Upon arrival, Mr. Harris went into the garage to get her bag and she went inside the residence but could not recall why but suspected she needed something. She did not say the parties were arguing. When asked if Mr. Harris was a jealous person she said: “I suppose”.

[61] Ms. Lewis testified at some point Mr. Harris left in his car and she did not see him leave. After about 10 minutes, Mr. Harris returned and pulled into the driveway and walked across the lawn towards Mr. Bell who was sitting talking on his cellphone. She knew Mr. Bell as a “bit slow, small and harmless”. At the time, Mr. Bell was residing at the residence. She testified she didn’t see anything but heard yelling and at some point, saw them fighting. She did not see how the fight started. Later in her examination-in-chief, she refreshed her memory and testified she saw Mr. Harris run across the lawn and punch Mr. Bell who was surprised. She was in the kitchen and observed the parties from the window. She was able to “somewhat” see the altercation but did not hear anything. In cross-examination, she said she knew Mr. Harris had trouble walking from spinal issues and had trouble lifting his left arm as it was infected for quite some time after an attack by a police dog. She did not know about any other limitations. She also admitted that even though she told the court she saw him “run across the lawn”, in her initial statement to the police she said he “approached” Mr. Bell who was sitting down. She was not asked to clarify whether he was running at him or approaching him but as I will explain, the clear inference is he went to Mr. Bell’s direction and not the other way around. She was clear that Mr. Bell was holding his phone which in my view is a significant consistency because it would mean he had limited use of one hand.

[62] Ms. Lewis recalled seeing Mr. Gregory pull into the driveway. He was with his mother, Lynn Gregory. She testified she has a great relationship with Ms. Gregory and Mr. Gregory is one of her best friends. She observed Mr. Gregory jumping out of the car and run across the lawn and he tried to stop the fight by getting into the middle of it.

[63] Ms. Lewis stated she wasn’t sure what happened next, but recalled Mr. Gregory and Mr. Harris began to fight. They were throwing punches back and forth. Of course, this conflicts with the account of both as Mr. Gregory denied punching Mr. Harris and Mr. Harris maintains he was being beaten by two men which included Mr. Bell. Ms. Lewis never said Mr. Bell was involved in the fight. She was trying to find a phone and wasn’t paying attention but when she looked out the window, she saw a pole of some sort. She saw Mr. Harris holding a wooden pole and began he swing it “in general”. She described it as a wooden handle from a rake or shovel which was about 5 feet. Mr. Gregory and Mr. Bell were still outside with him. Mr. Bell was still holding his phone and she couldn’t recall anything else. She did not see Mr. Gregory with anything in his hands. She remained in the home and was trying to figure out what to do and find a phone. She didn’t have her cellphone which she thought she left in the car. The Crown invited dismissal of this count involving an alleged theft of her phone by Mr. Harris.

[64] Ms. Lewis recalled hearing Ms. Gregory yelling and screaming something like “stop”. She was standing on her front lawn in front of her pig pen. She saw Ms. Gregory being hit with a pole by Mr. Harris. She didn’t know if Mr. Harris meant to hit her or whether she was simply in the way, but she fell after being struck. Mr. Gregory was close by on his knees while Mr. Bell was about 10-15 feet away and on the phone. Ms. Lewis said she had a good view of the yard from inside the house even though she did not stay at the window as she was moving around looking for a phone.

[65] Ms. Lewis testified she went to the front door as she thought she might have to go outside to help the parties. Upon arrival, she heard Mr. Gregory yelling and screaming. It sounded like he needed help because he was desperate. She opened the door to let him in. She explained the door was not damaged at the time. Mr. Gregory was heavily bleeding. She shut the door and escorted him upstairs. She shut the upstairs door and heard the sound of breaking glass. She didn’t see how the glass shattered and didn’t know if Mr. Harris entered the residence. However, she did say afterwards she saw Mr. Harris walking away from the door towards his car. Her attention was fixed on Mr. Gregory as she was tending to his bleeding.

[66] The Crown tendered a number of photos inside the residence which depict the scene. They include windows in the back of the house and one in the kitchen. This confirms the ability of Ms. Lewis to make observations from inside the residence. Photograph 0052 depicts a room on the upstairs floor. Ms. Lewis explained she was in the room with Mr. Gregory tending to his injuries when she heard breaking glass. She did not hear what Mr. Harris was saying.

[67] Ms. Lewis was clear she did not see how Mr. Gregory got injured but there was “blood everywhere”. When she went outside, she saw a trail of blood on the ground. She did not see a rock.

i) Account of Police Constable Milton

[68] The Crown called PC Milton who is employed a police officer with the DRPS. She’s been a police officer for 23 years and a SOCO officer for about 10 years. She was involved in the investigation by taking photographs. At 1:19 pm, she attended at 685 Townline Rd. in Uxbridge and spoke with DC Brazeau who was speaking with Ms. Lewis. PC Brazeau instructed her to the areas that needed to be photographed. She saw the door was freshly smashed and saw fresh blood droplets.

[69] At 2:10 pm, she attended at the hospital and met with PC Goldenberg and the three parties. She saw Mr. Bell on a hospital bed and observed large trauma on the top of his head which included 8 staples.

[70] PC Milton was introduced to Mr. Gregory who was seated in a wheelchair. He was in a room with his mother. She saw injuries to his legs and hands and photographed the left side of his head which had fresh blood. She recalled the hospital was still running tests as the blood was still fresh.

[71] In cross-examination, PC Milton confirmed she did not take any photos of Mr. Harris as he wasn’t present when she arrived and did not observe or seize a metal pipe and or a bloody rock. She did not look for either.

D. Overview of Positions of the Parties

[72] The Crown’s theory of the case is Mr. Harris violently attacked Mr. Bell in a jealous fit of rage by assaulting him while he was on his cellphone. The parties began to scuffle with Mr. Harris assuming a dominant position as he is taller and stronger. Mr. Gregory arrived home with his mother and attempted to break up the physical fight, but Mr. Harris responded by striking him on the head with a metal pipe. Mr. Harris began to recklessly swing the metal pipe and intentionally struck Mr. Bell and Ms. Gregory on the head causing them serious injuries. Mr. Bell walked away to call the police, but Mr. Harris continued to attack Mr. Gregory and struck him on his side with the metal pipe and on the side of the head with a rock causing serious injuries. Ms. Lewis was able to observe material parts of the violent altercation and came outside to help Mr. Gregory escape inside the residence with Mr. Harris following behind. The Crown says Mr. Harris was able to enter the residence by smashing the glass on the front door with a rock but was prevented by Mr. Gregory and Ms. Lewis to enter upstairs as the two had locked the door. Mr. Harris banged on the door and threatened to kill Mr. Gregory. Ultimately, Mr. Harris left in his car.

[74] The Crown argues Mr. Harris started the physical fight and neither party consented to the fighting even though they were trying to defend themselves against Mr. Harris who chose to arm himself with two weapons: a metal pole (or pipe) and a rock. Mr. Young argues the court should reject the evidence of Mr. Harris that he was acting in self-defence but concedes a jury could find an air of reality to self-defence if they believed Mr. Harris that he was being assaulted by Mr. Gregory and Mr. Bell and his motivation was to leave. However, Mr. Young argues the defence would fail because he did not act with a defensive purpose and used excessive force in striking Mr. Bell with a metal pole in the head and Mr. Gregory with a rock on the side of the head. As for Ms. Gregory, it was objectively foreseeable that he would strike her with the metal pole causing her serious injuries. The Crown says the court should find Mr. Harris guilty of all remaining charges including the allegations of breaching court orders on the September 4^th information where Mr. Harris intentionally attended at Mr. Gregory’s residence and communicated with him, knowing he wasn’t allowed by a court order.

[75] The defence argues Mr. Harris’s account is credible or should leave the court with a reasonable doubt about his guilt. The defence says it’s implausible that Mr. Harris ran at Mr. Bell and attacked him for no reason because of his mobility issues. Instead, Mr. Bell began the violent assault and Mr. Harris was defending himself without weapons until Mr. Gregory intervened and the two began to seriously assault him. This resulted in Mr. Harris defending himself because he was trying to get away. Mr. Harris swung the metal pipe once to fend off his attackers and never meant to strike Ms. Gregory who entered the fray without his knowledge. Therefore, the court should find him not guilty of all the remaining offences.

E. Discussion

(i) Issues

[76] While the findings on both the consent fight argument and self-defence overlap, it is useful to examine both issues separately because if the evidence proves the entire altercation with Mr. Bell and Mr. Gregory was consensual, it would not be necessary to go further and decide the issue of self-defence. Therefore, the issues for the court to decide should proceed as follows:

1. Has the Crown proven beyond a reasonable doubt that Mr. Bell and Mr. Gregory did not consent to being assaulted resulting in bodily harm?

2. If the actus reus is proven, has the Crown proven beyond a reasonable doubt that Mr. Harris intended to cause both Mr. Bell and Mr. Gregory bodily harm?

3. Has the Crown proven beyond a reasonable doubt that Mr. Harris intended to cause Ms. Gregory bodily harm by striking her or was his conduct an accident or reflexive?

4. If the Crown has proven Mr. Harris committed the offence of assault causing bodily harm on Mr. Gregory and Mr. Bell, was he acting in self-defence? In other words, has the Crown disproven self-defence beyond a reasonable doubt? This includes asking the following three questions:

i. Did Mr. Harris believe on reasonable grounds that force was being used or threatened against him or another person?

ii. Did Mr. Harris do something for the purpose of defending or protecting himself or another person from that use or threat of force?

iii. Was the conduct of Mr. Harris reasonable in the circumstances?

5. Has the Crown proven the remaining offences on the September 14^th information?

6. Has the Crown proven the 4 breach of court order offences on September 4^th?

(ii) Summary of Factual Findings and Conclusions

[77] I propose to set out my factual findings upfront which will be helpful context for the discussion. I find the narrative unfolded as follows:

• Mr. Harris approached Mr. Bell who was on his phone and confronted him while in a jealous fit of rage and without provocation, assaulted him

• Mr. Harris and Mr. Bell got into a physical altercation with Mr. Bell fighting back with his hands

• Mr. Gregory intervened and began to scuffle with Mr. Harris

• Mr. Bell did not intervene and did not help Mr. Gregory in assaulting Mr. Harris

• Mr. Harris armed himself with a metal pipe[2] at this point, not earlier

• Mr. Harris intentionally swung the metal pipe and struck Mr. Bell striking him on the head causing a gash requiring 8 staples

• Mr. Harris could have but chose not to retreat from the physical fight after striking Mr. Bell as he was standing

• Mr. Harris recklessly swung the metal pipe and struck Ms. Gregory in the head causing her bodily harm

• Mr. Harris could have but chose not to retreat after striking Ms. Gregory as he was standing

• Mr. Gregory intervened and disarmed Mr. Harris and fought with him which included striking him with the pipe on his side

• Mr. Gregory and Mr. Harris fell to the ground and Mr. Harris was able to disarm Mr. Gregory of the pipe

• Mr. Harris armed himself with a rock

• Mr. Harris struck Mr. Gregory on the side of the head causing bodily harm

• Mr. Harris could have and chose not to retreat after hitting him with a rock as Mr. Gregory gained shelter in the residence

• Mr. Harris followed Mr. Gregory and smashed the front window with a rock

• I have a doubt that Mr. Harris entered the residence

• I have a doubt that Mr. Harris uttered a threat to kill Mr. Gregory inside the residence

• Mr. Harris retreated and left the scene and took the metal pipe with him

• All parties suffered bodily harm under s.2 of the Criminal Code.

[78] In view of my factual findings, I find the evidence proves Mr. Harris assaulted Mr. Bell causing him bodily harm because any consent to fighting was vitiated when he used a metal pipe to strike him on the head when he was not attacking Mr. Harris. Similarly, the evidence proves Mr. Harris assaulted Mr. Gregory causing him bodily harm when he struck him on the head with a rock even if any assaultive conduct prior to this was consensual when the parties were attempting to disarm each other. At the time Mr. Harris struck him with a rock, he was not being violently assaulted by Mr. Gregory. Further, I find self-defence has been disproven because Mr. Harris was enraged and struck for an offensive, not defensive purpose. He also acted unreasonably by using excessive force. Further, I find Mr. Harris recklessly swung the metal pipe and struck Ms. Gregory in circumstances where he knew she was present and therefore his intent can be inferred from his conduct. It was not an accident.

(iii) General Credibility and Reliability Findings

[79] Overall, Mr. Harris did not present as a credible witness. While he testified in a calm manner, he seemed entertained by the violent altercation. I have not rejected his evidence solely because of his demeanor in the courtroom but rather because I found him to be evasive in material areas, he downplayed his role in the incident while exaggerating the role of others and most importantly, his evidence is contradicted in material ways with the evidence of two witnesses whose evidence I accepted: Ms. Lewis and Ms. Gregory. It is also contradicted by other objective evidence such as the photographs and the scene evidence. While I accept that he too suffered injuries, his evidence did not leave me with a reasonable doubt that he was acting in lawful self-defence.

[80] I have similar concerns with the evidence of Mr. Gregory - on some but not all aspects of his evidence. He too was evasive in important areas including details of his criminal record and also downplayed his role in the incident while exaggerating the role of Mr. Harris. He did not present as a balanced witness. That said, I do not agree with the defence argument that his evidence was wholly self-serving and should be rejected outright. In my view, material parts of his evidence were credible because the account was consistent with the evidence of others and was confirmed by other evidence including the photos and scene evidence. It is clear that he has an axe to grind with Mr. Harris and tried to paint him in the worst light. I have looked to supporting evidence and resisted relying on his account alone.

[81] The defence argues Mr. Bell was not a reliable witness because his memory failed in important areas. I disagree. I found Mr. Bell to give clear and consistent evidence. While his memory was weaker in certain areas, his evidence on material points was confirmed by the evidence of others. Unlike Mr. Gregory, he has no animus towards Mr. Harris and testified in a straight-forward manner.

[82] I found Ms. Gregory and Ms. Lewis to be very credible in their evidence. I disagree with the defence submission that Ms. Gregory was an unreliable witness because she could not recall many details. While it is true that she lacked some details, this is because she was hit in the head by Mr. Harris which explains certain gaps. Overall, her evidence is credible because it fits with the sequencing of events and the unfolding of the narrative. She was balanced and credible in important areas.

[83] As for Ms. Lewis, the defence does not complain about her credibility arguing she was forthright, but the Crown says the court should be careful about her allegiance to her former intimate partner in Mr. Harris. Ms. Lewis was initially a reluctant and emotional witness who testified with some trepidation. She did not want to be in the courtroom which is understandable as she was put in the middle between her former partner and close friends - but testified anyways and in my view, was honest. She was coherent and consistent. She was the closest to an independent and impartial witness and told it like it was. Her account contradicted Mr. Harris in significant ways.

[84] I will now discuss the six issues starting with proof of the actus reus.

Issue #1 - Has the Crown proven beyond a reasonable doubt that Mr. Bell and Mr. Gregory did not consent to being assaulted resulting in bodily harm?

The interaction between Mr. Harris and Mr. Bell

[85] The evidence establishes Mr. Harris and Mr. Bell didn’t know each other too well prior to the event in question. Mr. Harris was clear in his evidence that his mindset at the time he dropped off Ms. Lewis at the residence to pick up a backpack was to confront Mr. Bell. I find he was clearly upset at the idea that Mr. Bell was giving a ride to his girlfriend Ms. Lewis. When asked if he was angry, he candidly said “yeah okay”. This is a window into his state of mind which I find was filled with jealousy and anger.

[86] I find Mr. Bell was on his phone when Mr. Harris approached him and never surrendered the phone until he fell to the ground. Mr. Harris did not recall if Mr. Bell was holding his phone and this is an important detail because it renders the account of Mr. Harris more implausible that Mr. Bell was trying to punch him with one free hand while he simply held him back with one arm because he was too short and couldn’t land his punches. While I accept Mr. Bell presented as shorter, there does not appear to be a significant height advantage between the parties. It also does not make sense that Mr. Harris would be able to assume this position with his right arm because of his mobility issues on his left side because restraining somebody from punching takes force which engages ones’ strength especially if one succeeds (as Mr. Harris claimed) in preventing being punched. It makes little sense that Mr. Bell would simply be flailing his arms at this position. I reject his evidence that he simply held him back.

[87] I find Mr. Harris was already angry when he approached Mr. Bell quickly because he was arguing with Ms. Lewis and the source was triggered by seeing Mr. Bell who he believed was giving Ms. Lewis a ride. He was jealous and wanted to confront Mr. Bell. Whether he ran at him or walked quickly is immaterial because I find he approached him to confront him and not the other way around. He picked a fight with Mr. Bell. I accept that while he might have been “fishing for information”, this led to a physical fight which he started likely after Mr. Bell blew him off. I accept the account of Mr. Bell that he heard Mr. Harris and Ms. Lewis arguing when they arrived at the house which explains why Mr. Harris was angry. Ms. Lewis confirmed Mr. Harris was a jealous person.

[88] I do not accept that Mr. Bell began to swing at him out of the blue and for no reason. First, this makes no sense because there’s no evidence that Mr. Bell was upset with Mr. Harris. It was the other way around. Second, it’s implausible because I believe Mr. Bell that his dominant hand is his right hand and any injuries that were observed were to his left hand which arose not from punching Mr. Harris but instead from falling on the ground. The medical note in Exhibit 6 does not contain any records of any facial injuries to Mr. Harris’ face which one might expect if he took a beating from Mr. Bell’s left hand resulting in it being broken. The lack of physical injuries is inconsistent with his account. Third, Mr. Harris’ evidence is firmly rejected by Ms. Lewis who testified she saw Mr. Harris from a window inside the residence run across the lawn and punch Mr. Bell who appeared surprised. She was clear that Mr. Bell was holding a phone which supports his account that he was on the phone with a friend offering auto advice. This evidence was refreshed from her police statement which she adopted. Fourth, I accept Ms. Gregory who said he saw Mr. Harris on top of Mr. Bell and striking him. She was clear she heard Ms. Lewis yell “help” which supports this narrative.

[89] I do not accept the evidence of Mr. Harris that he could not have run across the lawn or approach Mr. Bell quickly because he had a limp due to his spinal cord. While it may be true that he had some limitations with his mobility, this does not mean it was physically impossible to approach Mr. Bell. In any event, this is contradicted by his former intimate partner who knew him well and had a reliable basis to observe and recount his mobility. She accepted that Mr. Harris approached Mr. Bell and not the other way around. All other parties said while they knew Mr. Harris to have some issues, he was walking just fine on the date in question.

[90] I find Mr. Harris assaulted Mr. Bell without provocation because he was upset at him for giving Ms. Lewis a ride. I reject his denials and they do not leave me in doubt. At the same time, I accept his account which is supported by Mr. Bell that he fought back and tried to land punches to the chest area of Mr. Harris. Even though Mr. Harris started the fight, in law, this interaction was likely consensual because nobody suffered bodily harm at this juncture.

The interaction between Mr. Harris and Mr. Gregory involving a metal pipe

[91] I find Mr. Gregory was not present for the initial interaction between Mr. Harris and Mr. Bell. He arrived later with his mother. Mr. Harris claims he did not hear them arrive as his back was turned to the driveway. This makes sense because I have found he was involved in physical altercation with Mr. Bell where his attention was fixed on him. He testified Mr. Gregory tackled him to the ground which also makes sense and explains his injury to his tailbone. Therefore, I find Mr. Gregory applied force to Mr. Harris at this point while acting in defence of Mr. Bell.

[92] The facts diverge as to what happened next. Mr. Harris claims Mr. Gregory picked up a pole and began to strike him 2-6 times and Mr. Bell joined the assault. The two men struck him probably “100 times”. In my view, this was a gross exaggeration. If this was true, Mr. Harris would have suffered far worse injuries than what he did which included a broken front tooth and a right rib fracture – especially because he claims Mr. Gregory repeatedly struck him with a metal pipe. At this level, the assault on him could have been fatal but it was far from it. His own medical records contradict his claim of being struck probably 100 times. His account is internally inconsistent because he managed to gain the strength to pull a metal pole away from Mr. Gregory using brute force while on his knees and then used his strength to swing it and strike three people. If he was struck 100 times, it reasonably follows he would have had no strength to fight back or even drive. On his own account, he would not be able not be able to pick up a heavy rock and smash a window. His testimony that he was brutally attacked is false. I find Mr. Harris was not attacked by both Mr. Bell and Mr. Gregory.

[93] Mr. Gregory testified Mr. Harris had possession of a metal pipe but was unclear about when and how this happened. I agree with the defence that he was inconsistent on this point. He too exaggerated his evidence that when he approached the parties, Mr. Harris was striking Mr. Bell with the metal pipe. Mr. Bell never said this was the case nor did anybody see this until much later when he swung at his head, but I find this was after Mr. Gregory was involved. I find after the parties fell to the ground, it was Mr. Harris who picked up the metal pipe, not Mr. Gregory because he had been attacked.

[94] However, before Mr. Harris picked up the pipe, I accept that the parties were fighting each other without weapons. To this extent, they were engaged in a consensual fight because Mr. Harris had been tackled to the ground by Mr. Gregory. They were applying force to each other. In my view, Ms. Lewis gave the most credible evidence when she said she saw the parties throwing punches back and forth. She did not testify that Mr. Bell was also involved in the punching because he was always holding a phone. More importantly, she also testified that she only saw Mr. Harris holding a metal pipe and did not see Mr. Gregory with a pipe which contradicts his account that he was hit with the pole by both men for a long time. To avoid any confusion, I find the use of the term pole, rod or stick refers to the metal pipe. There was no second or third weapon which means Ms. Lewis said she did not see Mr. Gregory with the metal pipe. On the account of Mr. Harris, if he was hit 100 times, the beating would have gone on for a while which was not the evidence of Ms. Lewis. I cannot rule out the possibility that the parties were fighting over the pipe because it makes sense they would want to disarm each other.

[95] I am satisfied Mr. Harris started to swing the metal pipe before being hit with it and ultimately struck Mr. Bell on his head. This was confirmed by both Mr. Gregory and his mother who saw the strike. This was the impetus for Ms. Gregory to get involved and yell “stop” because the altercation had escalated from a fight with no weapons to weapons where somebody got seriously hurt. It also fits with the narrative because Mr. Bell was getting his bearings when Mr. Gregory intervened. I believe Mr. Bell when he said he did not intervene and did not see much of the fight between Mr. Gregory and Mr. Harris as his attention was on getting his phone. I also believe Mr. Gregory when he said Mr. Bell did not get involved and was dazed when he got hit. The account of Mr. Bell is well supported by the photos and medical records.

[96] The sequence of events also makes sense because after Mr. Bell was hit and Ms. Gregory entered the fray hoping to stop the altercation, she too was hit in the head with the pipe by Mr. Harris. He testified he was hurt and disoriented and didn’t see her. I reject this because it’s inconsistent with his account that he heard her yell and talking which I find was her telling them to stop. I’m satisfied he recklessly swung the metal pipe where it would have been objectively foreseeable that contact with a person would cause bodily arm. I reject the evidence of Mr. Harris that he wasn’t angry because it’s inconsistent with his state of mind when he previously confronted and assaulted Mr. Bell due to jealousy and he had just been attacked by Mr. Gregory. It would be sensible that he was angry, something he did not want to admit.

[97] Mr. Harris has a lengthy criminal record with convictions for crimes of violence. He denied having a violent temper, and in my view, the criminal record discredits him on this point. A court is permitted to use a criminal record in assessing credibility, but it cannot be used for propensity purposes or reason he’s the type of person who would commit these offences. I have avoided this reasoning. The criminal record is relevant because it discredits his testimony that he’s not violent. Mr. Harris has four prior convictions for crimes of violence. He also pled guilty to robbery which involves theft with violence. On August 18, 2020, he pled guilty to robbing Mr. Gregory which means he accepted responsibility for his actions. I do not accept his evidence that “this is a far cry from holding a knife and threatening to kill him”. He tried to downplay his criminal record and downplay his violent temper. On his own accord, he smashed a glass with a rock and couldn’t even explain why. It’s because he was full of rage.

[98] To the extent that the fighting between Mr. Harris and Mr. Bell may have been consensual at the start when they exchanged punches, consent was vitiated when Mr. Harris picked up a metal pipe and swung it at Mr. Bell striking him in the head. Mr. Bell was never armed with a weapon and was not attacking him. The nature of the scuffle changed when Mr. Harris introduced a weapon. It was no longer a consent fight.

[99] As for the interaction with Mr. Gregory, I find he was able to wrestle the metal pipe away from Mr. Harris at some point. However, I do not accept his evidence that he never assaulted him or swung it at Mr. Harris. Mr. Gregory downplayed his role in the incident to suggest it was always defensive. His actions are inconsistent with this because he tried to break up the scuffle with violence. He had animus towards Mr. Harris and certainly after he saw his mother being hit on the head, it is reasonable for him to get upset and want to retaliate. I believe Mr. Harris that he was struck on the side with a metal pipe because the medical record supports the injury of a fractured rib. It is hard to get a fractured rib from being tackled alone. Therefore, unlike the situation with Mr. Bell, I cannot rule out a consensual fight between Mr. Harris and Mr. Gregory at this juncture.

The interaction between Mr. Gregory and Mr. Harris and use of rock

[100] I do not accept the evidence of Mr. Harris that he never picked up a rock to strike Mr. Gregory in the head. Nor does it leave me with reasonable doubt. First, the parties were fighting in the area of the garden where rocks were present suggesting the introduction of a rock was perfectly plausible. Second, Mr. Gregory gave detailed evidence about the rock which he said was 6-8 inches in diameter. Third, the sequence of events makes sense because the rock was picked up by Mr. Harris who had been tackled to the ground by Mr. Gregory after he struck his mother with a metal pipe and was himself assaulted. Mr. Gregory gave clear evidence that he was on his knees while Mr. Harris was on his back when he was struck on the side of the head. Fourth, Mr. Harris admitted he picked up a rock but claims he only used it to break the glass. I find he downplayed his role because he clearly had access to a rock and he clearly used it to attack Mr. Gregory who had assumed a dominant position when tackled.

[101] I have considered the defence argument that Mr. Gregory gave varying accounts of how many times he was hit in the head with the rock after he settled on definitely “5-7” times with a combination of the rock and the pole. I find this to be an exaggeration given his animus towards Mr. Harris but this does not mean it causes me to lose confidence in his account that he was struck on the head with a rock. This evidence is confirmed by (i) his mother who saw him get hit on the head with blood “gushing out”, (ii) Mr. Bell who said he saw a bloody rock while he was helping her look for a hearing aid near the shrubs. It is inconceivable that a random bloody rock would be on the property. It is also confirmed by (iii) the account of Ms. Lewis who said Mr. Gregory was “heavily bleeding” and she helped wrap her jeans around his head to stop the blood and (iv) the photos of his injury which clearly show an injury to the side of his head and the back of his head. The photos show Mr. Gregory’s hair being drenched in blood suggesting the areas were soaked with blood. It makes sense that the blood on his hands was transferred from him feeling his blood on his head. Therefore, I find as a fact Mr. Harris struck Mr. Gregory with a rock to the side of his head causing significant injuries which was well beyond the consensual fighting.

[102] As a result, the evidence proves beyond a reasonable doubt the actus reus of the offence of assault causing bodily harm involving all three parties.

Issue #2 - If the actus reus is proven, has the Crown proven Mr. Harris intended to cause both Mr. Bell and Mr. Gregory bodily harm?

[103] I have found Mr. Harris struck Mr. Bell in the head with a metal pipe and struck Mr. Gregory in the head with a rock. Before I examine proof of his intention, I will pause to note that the injuries suffered by both were clearly more than just transient and trifling. They easily make out the s.2 Criminal Code definition of bodily harm. Both men continue to feel the residual effects of the beating they took at the hands of Mr. Harris. Quite frankly, I am surprised at the defence submission that the injuries were non-fleeting. They were anything but. As for proof of mens rea, Mr. Harris clearly intended the consequences of his actions by swinging the metal pipe and striking Mr. Bell. He did not just wave it around to keep the parties at bay, but instead chose to apply force with it. The same applies for Mr. Gregory. He chose to use the rock to the side of Mr. Gregory’s head where it was objectively foreseeable that bodily harm would follow. The nature of the injuries sustained by Mr. Gregory to his head proves Mr. Harris applied a lot of force to attack him. The mens rea is easily proven beyond a reasonable doubt.

Issue #3 - Has the Crown proven Mr. Harris intended to cause Ms. Gregory bodily harm by striking her or was his conduct an accident or reflexive?

[104] The defence argues the actions of Mr. Harris in swinging the pipe at the head of Ms. Gregory was an accident. The defence says he was in a daze and confused and didn’t know Ms. Gregory was. His actions were akin to a reflexive action.

[105] With respect, I disagree. This argument is premised on the finding that Mr. Harris was being beaten by two men so violently that he reflexively swung not knowing his surroundings. I did not accept this because (i) at the time Mr. Harris swung the pipe in her direction he was not being beaten by two men. Rather, he was fighting with Mr. Gregory only, (ii) Mr. Harris admitted knowing she was around because he heard her yelling and talking but not making out what she was saying. In his words, it was like he hit the mute button. This suggests he knew she was in the vicinity. Not only were his actions reckless but arguably also willfully blind to her presence because he chose to tune her out and (iii) the action was not reflexive because he was not fighting with Ms. Gregory. Mr. Harris was angry and in a fit of rage after fighting with Mr. Gregory who tackled him to the ground causing him injuries. He decided to use the pipe and swing violently and recklessly.

[106] The defence cited the authority of R. v. Wolfe, 1974 CanLII 1643 (ON CA), [1974] OJ No. 868 (Ont. C.A.). In that case the facts established the accused quickly turned around and hit the complainant with a telephone receiver on the head after being punched. It was this finding that grounded a reflexive action. This case is different because the attack on Ms. Gregory was completely unprompted. She did not attack Mr. Harris. His actions were far from reflexive because Mr. Harris was fighting with Mr. Gregory. Therefore, his state of mind was filled with rage which is the antithesis of acting reflexively. His intent can also be inferred circumstantially from other events including striking Mr. Bell with the metal pipe which was not reflexive (nor was it argued by the defence as such) and afterwards where he struck Mr. Gregory with a rock on the side of the head. He readily admitted he wanted to harm Mr. Gregory. He was not acting accidentally at any point.

[107] I’m satisfied Mr. Harris intended to cause Ms. Gregory bodily harm and did so. The mens rea is proven beyond a reasonable doubt. I now turn to the self-defence arguments.

Issue #4 – Was Mr. Harris acting in self-defence? Has the Crown disproven the defence beyond a reasonable doubt?

[108] The self-defence arguments under s.34(1) of the Criminal Code must be interpreted by the Supreme Court’s analysis of the issue in R. v. Khill, supra. In R. v. Brown, 2020 ONCA 462, the Court of Appeal confirmed that the third step of W(D) still applies even if the unaccepted evidence of the accused does not raise a reasonable doubt. In other words, the Crown must prove that Mr. Harris was not acting in lawful self-defence beyond a reasonable doubt based upon the whole of the evidence. The defence claimed self-defence as it related to Mr. Harris’ actions involving Mr. Gregory and Mr. Bell but not Ms. Gregory.

[109] The Crown concedes there is an air of reality to self-defence but argues it fails on all three questions. I agree with the Crown submission, in part, and find the defence fails clearly on the second and third prongs of the Khill test. The defence fails clearly as it relates to Mr. Bell and fails less clearly when it relates to Mr. Gregory because of my findings that some of the conduct with him was consensual while other conduct was not. For example, when the parties hit each other with a metal pipe, they were fighting over its control. The police did not charge Mr. Harris with assault with a weapon and assault causing bodily harm and the information was not particularized as to how the bodily harm was caused. Nor did the defence seek particulars. It is therefore open to the Crown to point to any evidence of bodily harm. It’s clear the main prosecution theory is the bodily harm was caused by Mr. Harris striking Mr. Gregory on the head with a rock when the parties were not armed. As for Mr. Bell, while the initial back and forth was consensual, the bodily harm was caused when Mr. Harris chose to hit him with a metal pipe on his head in circumstances when he wasn’t being beaten by Mr. Harris.

[110] The first question in considering self-defence requires a court to consider Mr. Harris’ state of mind and his perception of events that led him to act by striking Mr. Bell and Mr. Gregory with weapons. In Khill, the Supreme Court reminded that the accuseds’ actual belief must be held on “reasonable grounds” and contains an objective component. The question is what a reasonable person with the relevant characteristics and experiences of Mr. Harris would perceive at the time.

[111] The defence argues Mr. Harris was attacked by the two men for a significant period of time which was a lead-up to his actions and therefore he acted on reasonable grounds. I disagree. First, I did not find Mr. Harris was struck “approximately a hundred times” by both men and instead was only assaulted by Mr. Gregory who tried to stop him from beating up Mr. Bell. I reject Mr. Harris’ evidence that when he gained the metal pipe, the two men were too close to him which avoided him retreating. In addition to my findings above about his role in the incident, his actions towards Mr. Bell who was unarmed and not attacking him, did not translate into reasonable grounds that he had to take defensive measures to strike him a metal pipe on his head.

[112] As for Mr. Gregory, this factor is more nuanced because Mr. Harris was involved in a more intense altercation. I am prepared to accept that Mr. Harris might have had reasonable grounds to believe he had to use defensive force after he was hit on the side of his ribs with a metal pipe by Mr. Gregory and thus striking him on his body for this purpose was required. But, self-defence disappears when the two men were on the ground after he was tackled and Mr. Gregory was not armed with a metal pipe anymore. I rejected Mr. Harris’ evidence that he never used a rock. I find he did. The provenance of the weapon (pipe) had been removed but Mr. Harris chose to arm himself with a new weapon: a rock and use it to attack Mr. Gregory when he himself was not being attacked with a weapon. In my view, this was not a reasonable belief. However, I am prepared to give Mr. Harris the benefit of the doubt on this point given how quickly the events unfolded. The Crown must disprove this element beyond a reasonable doubt and I will assume this onus has not been met. This leads to the other questions.

[113] The second question considers Mr. Harris’ personal purpose in committing the act of striking Mr. Bell and Mr. Gregory with weapons. This is a subjective inquiry “which goes to the root of self-defence”. If there is no defensive or protective purpose, the rationale for the defence disappears. This provision ensures the actions are not undertaken for the purpose of vigilantism, vengeance or some other personal motivation: Khill, supra at para. 59.

[114] The defence argues Mr. Harris wanted to get out of the situation and simply leave which is why he struck both with a metal pipe. Therefore, he acted defensively. I disagree. First, I found Mr. Harris was not attacked by both men at the same time. He attacked Mr. Bell and Mr. Gregory intervened. Mr. Bell was no longer a threat. Once Mr. Harris took possession of the metal pipe, he could have simply left in his car but chose not to. In my view, Mr. Harris became enraged after Mr. Gregory intervened given their history of bad blood. As noted in the case of R. v. Foster, 2019 ONCA 282, acts of aggression are the antithesis of acts taken for a defensive purpose: at para. 17. Swinging a metal pipe recklessly is a pure act of aggression. I do not accept Mr. Harris was motivated to act out of fear or a perceived need to protect oneself. This is a window into his state of mind at the time so when he struck Mr. Bell and Mr. Gregory he was simply enraged and acted on this emotion. Further evidence of this is Mr. Harris smashing the front glass with a rock something he admitted. He did not just leave. He acted with more rage because he was still intent on fighting Mr. Gregory after smashing his head with a rock. Therefore, self-defence fails. However, if I am wrong in my assessment of the second question, I will still go on to consider the final component of the defence.

[115] The last question requires a court to assess the reasonableness of the response by Mr. Harris and consider his role in the incident. In Khill, the Supreme Court said the focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time: at para. 65. This branch is not concerned with a person’s mental state but rather their actions: at para. 66. The Criminal Code sets out relevant factors to consider in s.34(2)(b) and the principles in W(D) also apply.

[116] The defence argues the actions of Mr. Harris in using a metal pipe was reasonable given his mobility issues and limited use of his arm. In other words, because he couldn’t use his fists, he had to use a weapon to compensate. The defence says he took a beating from two men and they were in close proximity to him and he did not think they would stop beating him. It was therefore reasonable for him to use the metal pipe to fend them off because he only struck each once.

[117] I do not accept this submission. First, it is contrary to my findings in this case because I did not accept Mr. Harris was so immobile that he had to arm himself with a metal pipe to compensate for the limited use of his arm. I rejected this evidence because it was contradicted by the account of Ms. Lewis and Ms. Gregory. Second, I found the fight with Mr. Bell was pretty much done when Mr. Gregory intervened so there was no reason to attack Mr. Bell with a pipe. It was purely unnecessary and out of rage. Third, as the Crown correctly notes, there is no evidence about exactly where the parties were standing when he got up and no evidence that he made any efforts to retreat after he struck Mr. Bell. Mr. Harris was not being attacked by Mr. Gregory when he took the swing and could have simply driven away after he inflicted his blow. He chose not and chose to fight some more. I agree the strike to the head was preemptive because he was enraged. Mr. Harris acted unreasonably and used excessive force when he struck both men. Even if I were to have a doubt based on W(D) that using the metal pipe on Mr. Gregory was reasonable because he too was being attacked, the attack with the rock was clearly unreasonable.

[118] Applying the factors in s.34(2) of the Criminal Code, Mr. Harris used a rock to smash the head of Mr. Gregory and did so more than once resulting in significant head injuries. Mr. Gregory was on his knees and the parties were scuffling. Mr. Gregory was not attacking him with a weapon. Importantly, he was previously on his feet and swinging a metal pipe and I accept Mr. Gregory was trying to disarm him to get him to stop. Mr. Harris had just used a metal pipe and struck Ms. Gregory which explained why he was tackled by Mr. Gregory but there is no evidence that Mr. Gregory assumed possession of the pipe and was hitting or was going to hit Mr. Harris with it at that time. The parties disliked each other which fueled the mutual rage. Importantly, while I can’t be confident at the specific number of strikes to his head with the rock, it was more than 1 which is confirmed by the significant injuries to both the back and side of his head. After this was done, Mr. Harris was still enraged and smashed the window. This informs the reasonableness inquiry as well.

[119] Therefore, the response by Mr. Harris in smashing the head of Mr. Gregory with a rock was not reasonable and self-defence clearly fails.

[120] Mr. Harris will be found guilty of three counts of assault causing bodily harm (counts 1, 2 and 3) on the September 14^th information.

Issue #5 - Has the Crown proven the remaining offences on the September 14^th information?

[120] Counts 4 and 5 relate to possessing a weapon for a dangerous purpose. The information charges these offences under s.88(1) and specifically alleges the offence of possessing a weapon for the purpose dangerous to the public peace not for the purpose of committing an offence. The offences particularized a metal pipe and a rock which I found were used by Mr. Harris in committing the assaults on Mr. Bell and Mr. Gregory.

[121] Section 88(1) of the Criminal Code requires proof of possession of the weapon and proof of the purpose of why it was possessed. Generally, one’s purpose will have been formed prior to possession. In R. v. Proverbs (1983), 1983 CanLII 3547 (ON CA), 9 CCC (3d) 249 (Ont. C.A.) the court held:

[4] When the evidence is stripped to its bare essentials, the issue in this case was a very narrow one. That the accused had in his possession a weapon was not in issue. The issue was whether he possessed that weapon for a purpose dangerous to the public peace. That purpose must be determined at an instant of time which preceded the use of the weapon. The use of the weapon in a manner dangerous to the public peace does not constitute the offence although the formation of the unlawful purpose may be inferred from the circumstances in which the weapon was used.

See also: R. v. Cassidy, 1989 CanLII 25 (SCC), [1989] 2 S.C.R. 345, in which the court stated, "Section 85 requires proof of possession and proof that the purpose of that possession was one dangerous to the public peace. There must at some point in time be a meeting of these two elements. Generally, the purpose will have been formed prior to the taking of possession and will continue as possession is taken...". See also: R. v. MacDonald (2002), 2002 CanLII 14251 (ON CA), 170 C.C.C. (3d) 46 (Ont. C.A.)

[122] Further guidance comes from R. v. Kerr [2004] 3 SCR 371 where the Supreme Court explained that a person charged with a s.88(1) offence can escape conviction in acting in self-defence where the attack was completely inescapable. A finding that a person actually used the weapon which constituted self-defence is relevant under s.88 but not sufficient for an acquittal.

[123] In this case, I have found that Mr. Harris was not armed with any weapons until he began to fight with Mr. Gregory. He picked up a metal pipe and struck them and then later picked up a rock to strike Mr. Gregory. Section 2 of the Criminal Code defines a weapon as anything used, designed to be used or intended to be used in (a) causing death or injury to any person or (b) for the purpose of threatening or intimidating any person. It’s clear both the metal pipe and rock were used to cause injury to others therefore both were weapons. I found Mr. Harris did not act in self-defence when he struck Mr. Bell with the pipe and Mr. Gregory with the rock. Mr. Harris’ purpose in arming himself was to use it to harm persons or the very least, he showed a reckless disregard for harm to persons. Mr. Harris was clear in his evidence he wanted to Mr. Gregory and Mr. Bell. Therefore, it’s clear he possessed the two weapons and knew he possessed them at the time he used them. The issue is whether the Crown has also proven the final element of whether he possessed it for purpose dangerous to the public peace as alleged.

[124] The evidence establishes Mr. Harris picked up the metal pipe for the specific purpose of striking Mr. Bell and Mr. Gregory. Even if it could be said his purpose in using it on Mr. Gregory was defensive, it was purely offensive towards Mr. Bell thus it makes out the offence. The purpose was to harm Mr. Bell. The offence did not particularize the purpose in relation to a person, so the offence is made out. As for the rock, it’s clear Mr. Harris’ purpose in possessing the rock was to inflict serious harm to Mr. Gregory. It was not for a defensive purpose. Indeed, Mr. Harris in his own words testified he wanted to hurt them. Therefore, this offence is proven as well. I will invite submissions on whether the Kienapple principle applies to conditionally stay these two counts in view of the assault causing bodily harm convictions.

[125] Count 6 alleges the offence of uttering a death threat to Mr. Gregory. While it’s true Mr. Harris was in a rage when he lashed out against Mr. Gregory, on step 3 of the W(D) analysis, Mr. Gregory’s account is not confirmed in any material ways. Ms. Lewis never heard a death threat nor did anybody else. I can’t be sure he threatened him which means this count will be dismissed.

[126] Counts 15, 16 and 17 relate to breaching a probation order by possessing a weapon. I have already found Mr. Harris intentionally possessed a metal pipe and a rock which he used as weapons and for a purpose dangerous to the public peace. The defence conceded he was on a probation order at the time. Guilt would follow. I will invite submissions about whether this count should be conditionally stayed depending on the Kienapple submissions.

[127] Finally, count 12 relates to an allegation of failing to keep the peace and be of good behavior in violation of the probation order. The parties did not make submissions on this offence but given my findings that Mr. Harris assaulted three parties and on his own admission, broke a glass with a rock for unknown reasons, this would make out this offence.

Issue #6 - Has the Crown proven the offences on the September 4^th information?

[128] I have already explained above why I found the Crown’s evidence did not prove Mr. Harris intentionally breached his undertaking and probation order on September 4^th. I will not repeat my reasons here. All of these counts will be dismissed.

F. Conclusion

[129] In conclusion, on the September 14^th information, a finding of guilt will be registered on counts: 1, 2, 3, 4, 5, 10, 11, 12, 13, 14, 15. Counts 16 and 17 are duplicates of count 15 and will be stayed. The court would like to thank counsel for their written materials which were of great assistance.

Released electronically on May 18, 2022

Signed: Mr. Justice F. Javed

[1] Counts 15, 16 and 17 (items 8, 9 and 10 in paragraph 4) are duplicates of the same offence.

[2] The information particularizes a metal pipe not a pole. I’m satisfied the evidence proves a metal pipe even though the witnesses used the terms pole, pipe, rod and stick. I do not accept that the item was wooden but rather was metal.